Citation: R v Johnson (No 2) [2017] NSWSC 565
Court: Supreme Court of New South Wales
Date: 9 May 2017
Judge(s): Button J
Background
The accused stood trial in the Supreme Court for the murder of a man who died on 16 May 2015, allegedly following a severe assault the previous evening. The Crown called a witness, a man in custody at the time of the trial, who had known the deceased as a close friend for approximately 20 years.
In examination-in-chief, the witness claimed he had little memory of the events of 15 May 2015 and also disputed the reliability of a detailed two-and-a-half-page statement he had given to police on 3 June 2015, roughly two weeks after those events. That statement, which became voir dire exhibit K, contained material capable of implicating the accused.
The Crown applied for leave to cross-examine its own witness, arguing that he was not making a genuine effort to give evidence about matters he could reasonably be supposed to know, invoking s 38(1)(b) of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the witness was failing to make a genuine effort to give evidence about matters of which he may reasonably be supposed to have knowledge, within the meaning of s 38(1)(b) of the Evidence Act 1995 (NSW)
- Whether leave to cross-examine should be granted, having regard to the discretionary considerations in s 192(2) of the Evidence Act 1995 (NSW)
Decision
Issue 1: Genuine effort to give evidence
Button J was satisfied that the witness was not making a genuine attempt to give evidence about the events of 15 May 2015 (at [3], [10]). The judge identified five factors supporting that conclusion.
First, there was a stark contrast between the firmness and detail of the June 2015 police statement and the witness's near-complete claimed loss of memory at trial, even accounting for drug and alcohol abuse (at [4]). Second, the witness's status as a person in custody created a readily inferable reluctance to give inculpatory evidence against another person who was also in custody (at [5]). Third, the witness had repeatedly given unresponsive answers in examination-in-chief, apparently volunteering explanations for his memory loss before being asked, in a manner consistent with someone anticipating and deflecting damaging questions (at [6]). Fourth, the judge found it very difficult to accept that the witness could have forgotten events occurring just one day before the death of a 20-year friend, particularly given the detail apparent in the statement made only weeks later (at [7]). Fifth, the witness's demeanour during evidence by audio-visual link, including rapid speech and a surly, uncooperative tone, suggested he may have been dissembling, though the judge acknowledged the witness had waited all day before being called (at [8]-[9]).
Issue 2: Whether leave should be granted
Button J granted leave after applying the s 192(2) factors (at [11]). Cross-examination would not unduly lengthen an already extended trial. Granting leave was not unfair to the accused, particularly as the application had been foreshadowed the previous afternoon and defence cross-examination would follow the Crown's. The evidence potentially obtainable through cross-examination was, in the judge's assessment, extremely important, and the gravity of a murder trial weighed in favour of granting leave. No other order could adequately serve the interests of justice (at [11]).
Orders Made
- Leave granted to the Crown to cross-examine the witness about any aspect of the events of Friday 15 May 2015 that appear in voir dire exhibit K and about which the witness had not yet given evidence before the jury.
Key Takeaways
- Under s 38(1)(b) of the Evidence Act 1995 (NSW), a court may grant leave to cross-examine a party's own witness where it appears the witness is not making a genuine effort to give evidence about matters within their likely knowledge; the threshold was met here by reference to the contrast between a detailed contemporaneous statement and a claimed near-total loss of memory at trial (at [4], [10]).
- A witness's status as a person in custody, and the related inference of reluctance to give inculpatory evidence against another person in custody, can constitute a relevant factor in assessing whether a genuine effort to give evidence is being made (at [5]).
- Unresponsive answers volunteered in examination-in-chief, tending to pre-emptively explain away an inability to recall, may support a finding that the witness is not genuinely attempting to give evidence (at [6]).
- Demeanour during evidence given by audio-visual link remains a factor available to the trial judge, even though such observations will not appear in the transcript (at [8]).
- In exercising the s 192(2) discretion to grant leave, the Supreme Court weighed the importance of the potential evidence, the gravity of a murder trial, the absence of undue lengthening of proceedings, and the absence of unfairness to the accused, all of which favoured granting the Crown's application (at [11]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 38(1)(b), 192(2)
Cases
- Not stated