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Supreme Court 6 March 2018

R v Patel (No 2)

[2018] NSWSC 342

Homicide
EVIDENCE MURDER TRIAL APPLICATION TO CROSS EXAMINE UNFAVOURABLE WITNESS LAY WITNESS CONFINED AREA OF PROPOSED CROSS

Citation: R v Patel (No 2) [2018] NSWSC 342
Court: Supreme Court of New South Wales
Date: 6 March 2018
Judge(s): Lonergan J

Background

This judgment arises from a retrial of an accused charged with murder following the death of a woman at a unit in Kyeemagh on 30 July 2013. The Crown alleged the killing occurred between approximately 3:30 am and 4:10 am, establishing that time frame through circumstantial evidence. The defence case was one of self-defence, with the accused saying the deceased had come at her with a knife during a late-night confrontation.

A key witness was a neighbour who lived at the rear of the unit block. She gave evidence that she was awake in the early hours of the morning and observed a bright overhead light on in what she identified as the second unit from the rear of the building, and later heard moaning and groaning. Both observations were significant to both parties, albeit for different reasons.

The Crown sought advance leave under s 192A of the Evidence Act to cross-examine the neighbour, its own witness, under s 38, on the basis that her identification of the specific unit was unfavourable to the Crown case. The defence opposed the application and, in the alternative, applied to exclude parts of the neighbour's evidence under s 137 on the ground that the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused.

  • Whether the Crown should be granted leave under s 38 of the Evidence Act to cross-examine its own witness about one unfavourable aspect of her evidence, namely her identification of which unit she had observed.
  • Whether part of the witness's evidence (paragraphs 5 to 8 of her statement of 13 February 2018) should be excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused.
  • Whether the court should give an advance ruling under s 192A, and whether the witness's evidence should first be taken on the voir dire to assist in resolving those questions.

Decision

Lonergan J directed that the witness's evidence in chief be taken on the voir dire, in the jury's absence, before ruling on either application. This approach allowed the court to assess the actual nature and scope of what the witness would say before determining whether any part of it should be excluded or how any cross-examination leave should be framed.

On the s 137 application, her Honour declined to exclude paragraphs 5 to 8 of the witness's statement. The witness was the only known person who was awake in close proximity to the scene at the relevant time, and the evidence she had to give was considered important in that context. The court concluded that the probative value of that evidence was not outweighed by the danger of unfair prejudice to the accused.

On the s 38 application, leave was granted, but confined narrowly. The Crown was permitted to suggest to the witness only that she was mistaken in identifying the apartment she observed as the second unit from the rear of the building. The court was satisfied that this limited cross-examination would add little time to the proceedings and would not be unfair to the accused.

Her Honour also observed that both the notice and timing requirements under s 38(6) and s 192(2) had been considered. The defence had received the relevant statement on 13 February 2018, several days before the application was made, and any potential complexity arising from it could have been raised with the court earlier. The court was satisfied the Crown had acted promptly once the additional material came to light during the retrial.

Orders Made

  • The application by the defence to exclude part of Ms Wilson's evidence under s 137 of the Evidence Act was refused.
  • Leave was granted to the Crown under s 38 of the Evidence Act to cross-examine Ms Wilson, limited to suggesting she was mistaken in her identification of the apartment as the second unit from the rear of the building at 167 Bestic Street, Kyeemagh.

Key Takeaways

  • Under s 38 of the Evidence Act, leave to cross-examine one's own witness can be granted on a confined and specific basis, and need not extend to all unfavourable aspects of that witness's evidence.
  • When determining a s 38 application, courts are required to consider s 137 whether or not the parties raise it, as confirmed by the Court of Criminal Appeal in R v Le (2002) 54 NSWLR 474.
  • Section 192A enables a court to give an advance ruling on evidentiary questions before evidence is adduced, and a court may direct that evidence be taken on the voir dire to inform that ruling.
  • The factors in s 192(2) of the Evidence Act, including the length of hearing, fairness to parties, and the importance of the evidence, are all relevant to the exercise of leave and must be weighed in context.
  • A witness's unique position as the only person known to have been awake and nearby at the time of an alleged offence can bear significantly on whether evidence from that witness reaches the threshold of importance sufficient to justify admission and testing.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 137, 192, 192A

Cases
- Browne v Dunn (1893) 6 R 67
- Kanaan v Regina [2006] NSWCCA 109
- Livermore v R [2006] NSWCCA 334
- R v Kennedy [2000] NSWCCA 47
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186
- R v Le [2001] NSWSC 174
- R v Pantoja [1998] NSWSC 565
- R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12
- R v Petroulias (No 29) [2007] NSWSC 1005
- R v Souleyman (1996) 40 NSWLR 712
- R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91