Citation: R v Yavuz (No. 2) [2017] NSWSC 1705
Court: Supreme Court of New South Wales
Date: 8 December 2017
Judge: Davies J
Background
The accused stood trial for the murder of a man allegedly killed on 13 November 2015. The Crown case was that the accused had attacked the deceased out of vengeance following an earlier altercation. A key witness, a bystander who observed events from nearby, gave evidence on the second day of trial and was cross-examined before being excused.
That witness had made a triple-zero call on the day of the killing, lasting almost ten minutes. Despite the witness's own statement referencing the call, the recording was not identified and served until after his evidence had concluded, due to what the court described as a lack of diligence in preparing the Crown case for trial.
On the sixth day of trial, at the close of the Crown case, the Crown sought to tender the triple-zero recording and transcript as a prior consistent statement to re-establish the witness's credibility. Defence counsel opposed the tender, and the matter was argued on a voir dire (a preliminary hearing to determine admissibility, conducted in the absence of the jury).
Legal Issues
- Whether cross-examination of the witness amounted to a suggestion that his evidence was fabricated or reconstructed, satisfying the threshold requirement in s 108(3)(b) of the Evidence Act 1995 (NSW)
- Whether the triple-zero recording constituted an admissible prior consistent statement under s 108(3)(b), and whether leave should be granted to adduce it
- Whether admitting the recording would cause unfair prejudice to the accused, particularly given the late disclosure
- Whether, following rejection of the tender, the jury should be discharged to allow the Crown to reopen the prosecution properly
Decision
On the fabrication threshold under s 108(3)(b): Davies J was satisfied that the cross-examination did suggest, at least by implication, that the witness had fabricated or reconstructed his evidence. Defence counsel had directly called the witness a liar, put that his evidence about the accused making death threats was false, and questioned whether the witness had been in a hysterical and exaggerated emotional state when he made the triple-zero call. These questions, taken together, conveyed a suggestion of fabrication sufficient to engage s 108(3)(b).
On the probative value of the recording: The court found the triple-zero call to be highly probative. The recording captured the witness's account contemporaneously with the events he described and was directly relevant to the Crown's case that the accused killed the deceased as an act of vengeance. Listening to the recording was also material to assessing the witness's tone and demeanour at the time, which had been directly challenged in cross-examination.
On unfair prejudice: Despite finding the admission requirements met, Davies J rejected the tender. Because the recording had not been disclosed until after the witness was excused, defence counsel had cross-examined without knowledge of the call's contents. Had the recording been available, the cross-examination would have proceeded differently. Admitting the evidence at that stage would have caused the accused significant forensic disadvantage that could not be remedied. The court rejected the suggestion that the Crown had acted opportunistically, accepting that the late disclosure arose from prosecutorial inadvertence rather than deliberate conduct, but nonetheless found the prejudice to the accused too serious to permit the tender.
On discharging the jury: The court then turned to whether the jury should be discharged. The Crown submitted the recording was so probative that the prosecution could not fairly proceed without it. Davies J accepted this and, balancing the seriousness of the murder charge against the unfairness caused to the accused by the consequent delay, resolved the balance in favour of discharge. The court acknowledged the discharge produced real unfairness to the accused that could not be fully compensated, but held that the gravity of the charge required the Crown to have the opportunity to prosecute the matter properly. Some costs consequences were flagged as a matter for another day.
Orders Made
- The tender of the triple-zero DVD recording and transcript was rejected.
- The jury was discharged.
Key Takeaways
- Under s 108(3)(b) of the Evidence Act 1995 (NSW), the threshold of "fabrication or reconstruction" can be established by implication, and does not require an express accusation: a pattern of questions calling a witness a liar and challenging the truthfulness of specific evidence is sufficient to engage the exception.
- Significant probative value alone does not guarantee admission of a prior consistent statement where late disclosure has deprived the opposing party of a fair opportunity to cross-examine with knowledge of the material.
- The court's rejection of the evidence rested not on Crown misconduct but on the forensic disadvantage already suffered by the accused: admission at that late stage would have been unfairly prejudicial regardless of the Crown's good faith.
- Where evidence inadmissible due to late disclosure is highly probative of a serious charge, a court may discharge the jury rather than allow the trial to proceed in a compromised state, with cost consequences potentially following against the prosecution.
- The discharge decision required a balancing exercise between the unfairness to the accused (delay, costs, and the stress of retrial) and the public interest in having a murder charge prosecuted properly, with the seriousness of the offence tipping the balance toward discharge.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 66A (contemporaneous statements about a person's state of mind)
- Evidence Act 1995 (NSW), s 108(3)(b) (exception to the credibility rule: re-establishing credibility where fabrication is suggested)
Cases: No cases were cited in the judgment.