Citation: R v Ronald Edward Medich (No. 33) [2018] NSWSC 268
Court: Supreme Court of New South Wales
Date: 6 March 2018
Judge: Bellew J
Background
This decision arose as a procedural ruling during the murder trial of the accused, who was alleged to have been involved in the killing of a man with whom he had a financial dispute. The ruling concerned a witness named Kim Shipley, a former accountant for companies in which the accused held a financial interest.
In his evidence in chief, Shipley gave evidence that he had heard the accused speak disparagingly about the deceased, including using offensive language. In cross-examination, however, he was confronted with evidence he had given in the accused's previous trial, in which he said he had never heard the accused speak about the deceased at any time. This was plainly inconsistent with his current evidence in chief, and also inconsistent with the contents of a written statement he had made in 2011, which supported his evidence in chief.
During re-examination, the Crown began asking questions plainly aimed at drawing out the contents of that 2011 statement. The question of whether leave was required, and whether it should be granted, then arose for determination.
Legal Issues
- Whether the credibility rule in s 102 of the Evidence Act 1995 (NSW) applied to the Crown's proposed re-examination questions.
- Whether s 108(3)(a) was enlivened because a prior inconsistent statement had been admitted into evidence.
- Whether leave should be granted under s 192 of the Act, having regard to the mandatory considerations set out in that section.
Decision
Bellew J first considered whether s 108(3)(a) of the Evidence Act applied. That provision removes the operation of the credibility rule where evidence of a prior inconsistent statement has already been admitted. The witness's testimony from the previous trial was clearly inconsistent with both his current evidence in chief and the contents of the 2011 statement. His Honour was satisfied that s 108(3)(a) was enlivened, citing the Court of Criminal Appeal's reasoning in Leung v the Queen [2003] NSWCCA 51.
Having established that the gateway in s 108(3)(a) was satisfied, Bellew J turned to the mandatory factors in s 192(2). His Honour noted that these factors are not exhaustive but must be considered in every application for leave.
Working through each factor, Bellew J found the questions were confined in scope and unlikely to add unduly to the trial's length. There was no unfairness to the accused in permitting the questions, particularly as senior counsel for the accused had indicated no objection would be taken if the Crown pursued the evidence through a different mechanism under s 32. The evidence was of considerable importance: a central plank of the Crown's case was that the relationship between the accused and the deceased had deteriorated significantly, providing a motive to kill. The nature of the proceeding, a murder trial involving the most serious offence known to criminal law, also weighed heavily.
Bellew J concluded that the mandatory factors under s 192 overwhelmingly favoured granting leave, and the Crown was permitted to elicit the evidence in question during re-examination.
Orders Made
- Leave granted to the Crown to elicit, in re-examination, the evidence contained in paragraph [48] of the witness's 2011 statement (MFI 68).
Key Takeaways
- Section 108(3)(a) of the Evidence Act 1995 (NSW) is enlivened where a prior inconsistent statement of the witness has been admitted, regardless of whether any suggestion of deliberate fabrication has been made; the accused's submission that there was no "attack" on credit sufficient to engage the provision was rejected.
- A prior statement given by a witness in an earlier proceeding can constitute a "prior inconsistent statement" capable of enlivening s 108(3)(a) where it contradicts the witness's current evidence in chief.
- Under s 192(2), the mandatory considerations bearing on a grant of leave include the likely length implications, fairness to the parties, the importance of the evidence, and the nature of the proceedings; these factors are not exhaustive but must all be addressed.
- The importance of contested motive evidence in a murder trial weighed significantly in favour of granting leave to adduce prior consistent statement evidence during re-examination.
- Where a party indicates they would not object to the same evidence being adduced through an alternative statutory mechanism, this is a relevant consideration in assessing whether refusing leave would cause unfairness.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW): ss 32, 102, 108, 192
Cases
- Leung v the Queen [2003] NSWCCA 51