Citation: R v Botrus (No 2) [2020] NSWSC 1205
Court: Supreme Court of New South Wales
Date: 4 September 2020
Judge(s): Walton J
Background
The accused stood trial in the Supreme Court charged with the murder of the deceased, allegedly committed on 11 January 2019 in Sydney. The Crown called a witness, Mr Amanoael, who had spoken to a helmeted person at the rear door of a hair salon shortly before the deceased was stabbed inside.
During examination-in-chief, Mr Amanoael gave evidence that he had seen the person's eyes through a raised visor, and that he believed the person he spoke to at the door was the same person who attacked the deceased at the salon chair. However, when asked whether he remembered the colour of the person's eyes, Mr Amanoael answered (through an interpreter) that he had not paid much attention.
That answer prompted the Crown to apply for leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine its own witness on the basis that the answer was inconsistent with a police statement he had made on the day of the stabbing. Counsel for the accused opposed the application.
Legal Issues
- Whether Mr Amanoael's answer in evidence ("I didn't pay much attention") was inconsistent, for the purposes of s 38(1)(c), with the statement he made to police on the day of the stabbing.
- Whether any factors under ss 38(6) or 192 of the Evidence Act warranted refusal of leave.
Decision
Walton J granted leave to the Crown to cross-examine Mr Amanoael. The critical question was whether the witness's answer at trial was inconsistent with paragraph 8 of his police statement, which included the phrase "I think he had black eyes."
The court applied the principle from Cotton v Commissioner for Road Transport and Tramways (1942) that inconsistency under s 38(1)(c) is not determined by splitting hairs over the form of a statement, but by assessing whether the statements are inconsistent as a matter of common sense. Applying that approach, the words "I think" in the police statement were treated as an ordinary expression of belief held with some uncertainty, not a mere opinion devoid of factual content. The witness was therefore understood as asserting, however tentatively, that the person had black eyes.
The trial answer did something different. Rather than expressing uncertainty about the colour of the eyes, the witness denied having paid sufficient attention to observe their colour at all. That denial contradicted the earlier factual assertion in the police statement. Even if the police statement were characterised as one of opinion rather than fact, Walton J held it would still qualify as a prior inconsistent statement because it implied an assertion of fact contrary to the trial evidence.
No factors under ss 38(6) or 192 arose that warranted refusal of leave, and the court was satisfied leave should be granted.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 38(1)(c) of the Evidence Act 1995 (NSW), inconsistency between trial evidence and a prior statement is assessed as a matter of common sense, not by closely analysing the grammatical form of each statement, following Cotton v Commissioner for Road Transport and Tramways (1942).
- A statement framed with qualifying language such as "I think" does not automatically escape classification as a prior inconsistent statement. Where the context suggests the words express an ordinary belief (rather than a formal opinion), the statement can still constitute an assertion of fact for s 38(1)(c) purposes.
- Even where a prior statement is characterised as one of opinion, it may still qualify as a prior inconsistent statement if it implies an underlying assertion of fact contrary to the witness's trial evidence.
- There is a meaningful distinction between a witness expressing uncertainty about what they observed and a witness denying that they observed something at all. The latter can be inconsistent with a prior statement that conveyed even a tentative factual assertion.
- Section 192 requires the court to consider factors such as fairness, importance of the evidence, and the nature of the proceeding when deciding whether to grant leave, but no such factors here weighed against granting the application.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 39, 192
- Crimes Act 1900 (NSW), s 18(1)(a)
Cases
- Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66