Citation: R v Gatt (No 3) [2018] NSWSC 427
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge: Schmidt J
Background
This decision arose during a murder trial in the Supreme Court of New South Wales. The accused faced charges relating to the 2013 murder of Bassil Hijazi. The Crown called Mr John Terepo as one of its witnesses.
During his evidence at trial, Mr Terepo repeatedly claimed his memory of the night of the murder was poor, attributing this to his drug abuse. This stood in contrast to two prior occasions on which he had demonstrated a clear recollection: an ERISP (Electronically Recorded Interview of a Suspected Person) conducted on the night of the murder in 2013, and testimony he gave at the committal hearing in 2015.
The Crown applied for leave to cross-examine its own witness on the basis that his evidence was unfavourable to the Crown case and inconsistent with his prior statements. The accused did not oppose the application.
Legal Issues
- Whether the Crown should be granted leave under section 38 of the Evidence Act 1995 (NSW) to cross-examine its own witness, Mr Terepo
- Whether Mr Terepo's evidence was "unfavourable" to the Crown case and/or inconsistent with prior statements, satisfying the statutory requirements for leave
Decision
Schmidt J granted the Crown leave to cross-examine Mr Terepo under section 38 of the Evidence Act 1995 (NSW). The absence of any objection from the accused was noted, though the grant of leave rested on the substantive statutory requirements being met, not merely on the absence of opposition.
The court was satisfied that the section 38 requirements were established. Mr Terepo's trial evidence was unfavourable to the Crown in various material respects, and was inconsistent with both his ERISP statement from 2013 and his committal evidence from 2015. The committal transcript was particularly telling: it showed he had a clear memory of relevant events in 2015, including when pressed in cross-examination, making his claimed inability to recall those same events at trial difficult to reconcile.
The court found that the combined effect of the prior ERISP record and committal transcript demonstrated that Mr Terepo's apparent memory loss at trial was inconsistent with his earlier, detailed accounts. Those inconsistencies, taken together, clearly made his evidence unfavourable to the Crown and brought the situation squarely within the section 38 framework.
Orders Made
• Leave granted to the Crown to cross-examine Mr John Terepo under s 38 of the Evidence Act 1995 (NSW) regarding unfavourable evidence and inconsistent prior statements.
Key Takeaways
- Under section 38 of the Evidence Act 1995 (NSW), the Crown may seek leave to cross-examine its own witness where that witness gives evidence unfavourable to the Crown case or inconsistent with prior statements.
- The Supreme Court granted leave here on the strength of two prior records: a police ERISP conducted on the night of the murder, and transcript evidence from the 2015 committal hearing, both of which contradicted the witness's claimed memory loss at trial.
- A witness's prior committal evidence can constitute a "prior statement" capable of grounding an inconsistency application under section 38, including where that earlier evidence was given under cross-examination.
- The absence of opposition from the accused did not determine the outcome; the court assessed whether the statutory threshold was independently satisfied on the evidence.
- Claimed memory loss attributable to drug abuse does not, by itself, foreclose a section 38 application where prior records establish the witness previously had a clear and detailed recollection of the relevant events.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 38
Cases cited: None cited in the judgment.