Citation: R v HG; R v WE (No 4) [2018] NSWSC 1211
Court: Supreme Court of New South Wales
Date: 3 August 2018
Judge(s): Bellew J
Background
Two accused, identified as HG and WE, were on trial in the Supreme Court. A Crown witness was called to give evidence about an interview conducted with the accused WE in April 2016, during which WE described a trip he had taken to the Northern Sinai region.
Bellew J had previously ruled on the admissibility of specific parts of that same interview in R v HG; R v WE (No 2) [2018] NSWSC 1178. During examination-in-chief of the Crown witness, the Crown posed a question that counsel for WE objected to, arguing it was an attempt to circumvent that earlier ruling.
The Crown contended the question was permissible because it was relevant both to proof of an element of the offence, particularly intention, and to the accused's credit as a witness.
Legal Issues
- Whether the question put by the Crown to the witness was admissible as relevant to an element of the offence, specifically the accused WE's intention
- Whether the question was alternatively admissible on the basis of relevance to the accused's credit
- Whether the question circumvented the court's earlier ruling on admissibility
Decision
Admissibility under the Evidence Act 1995 (NSW):
Bellew J acknowledged that debate arose around sections 108A and 108B of the Evidence Act 1995 (NSW), which concern cross-examination as to credibility. However, his Honour regarded the real issue as more fundamental than those provisions (at [4]).
Relevance under section 55:
Even applying the broad relevance test in section 55 of the Act, Bellew J found the question could not rationally affect the jury's assessment of any fact in issue in the proceedings, whether intention or any other matter (at [4]). Pressing the question on that basis would require a circuitous process of reasoning and an unwarranted degree of speculation (at [4]).
Orders Made
- The question was disallowed.
Key Takeaways
- A question in examination-in-chief may be disallowed where, even applying the broad relevance threshold in section 55 of the Evidence Act 1995 (NSW), it could not rationally affect the jury's assessment of any fact in issue (at [4]).
- The Supreme Court treated the fundamental question of rational relevance as logically prior to, and distinct from, the more specific provisions of sections 108A and 108B of the Act (at [4]).
- Where admitting a question would require the jury to engage in a circuitous process of reasoning involving unwarranted speculation, relevance under section 55 is not established (at [4]).
- Framing a question as going to intention or credit does not, of itself, bring it within the scope of admissible evidence if the underlying reasoning process is circular (at [3]-[4]).
- No point of principle was identified; the decision turned on the application of established evidentiary requirements to the specific question posed.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v HG; R v WE (No 2) [2018] NSWSC 1178