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Supreme Court 24 February 2020

R v WE (No.12)

[2020] NSWSC 146

Other
CRIMINAL LAW EVIDENCE EXAMINATION WHETHER PROPOSED RE EXAMINATION AROSE OUT OF CROSS EXAMINATION

Citation: R v WE (No.12) [2020] NSWSC 146
Court: Supreme Court of New South Wales
Date: 24 February 2020
Judge(s): Bellew J

Background

The accused stood trial in the Supreme Court on a serious criminal charge. The Crown called the former principal of East Hills Boys High School as a witness to give evidence of conduct by the accused at school, including his refusal to stand for the national anthem and a stated reason grounded in religious belief. This evidence was tendered by the Crown to support an inference that the accused held an extremist ideology at the time of the alleged offence.

In cross-examination, defence counsel questioned the principal about the accused's general behaviour at East Hills Boys High School. The principal accepted that the accused was not troublesome, did not cause fights, was not brought to attention for anger or disobedience, and did not challenge authority on any regular basis, aside from the national anthem incidents.

Following that cross-examination, the Crown sought to re-examine the principal. Part of that re-examination was uncontested: two specific incidents at East Hills Boys High School in July and August 2014 involving defiant behaviour. The Crown also sought to go further and elicit evidence of disciplinary incidents involving the accused at schools he had attended before East Hills Boys High School. Defence counsel objected to that additional line of re-examination.

  • Whether the proposed re-examination about incidents at prior schools arose out of the cross-examination of the witness, as required by s 39 of the Evidence Act 1995 (NSW).
  • Whether, if that proposed re-examination did not satisfy s 39, the underlying evidence might nonetheless be admissible through other means.

Decision

Bellew J limited the Crown's re-examination, refusing to permit questioning about incidents at schools the accused attended before East Hills Boys High School. The core reason was that the cross-examination had been directed specifically at the principal's knowledge of the accused's behaviour during his time at East Hills Boys High School, when the principal was in charge. The cross-examination did not extend to any knowledge the principal might have had of behaviour at other schools, and so the proposed re-examination on that topic did not arise out of the cross-examination as required by s 39.

The judgment applied the principle, drawn from Rodriguez & Sons and Hadid, that re-examination is permitted where an answer in cross-examination would otherwise leave the court with an unfavourable and distorted or incomplete impression of the facts. However, Bellew J was not satisfied that threshold was met in respect of the prior-schools evidence, given the narrow focus of the cross-examination on the accused's conduct at one particular school.

Bellew J noted, without resolving, two further questions that might arise later in the trial. First, whether the cross-examination of the principal had raised the accused's character, potentially engaging s 110(2) and s 110(3) of the Evidence Act as exceptions to the credibility rule in s 102. Second, whether s 137, which requires exclusion of prosecution evidence whose prejudicial effect outweighs its probative value, might apply if the Crown sought to lead the prior-schools evidence through a different witness. Both questions were left for determination if and when they arose.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 39 of the Evidence Act 1995 (NSW) confines re-examination to matters that genuinely arise out of the cross-examination: re-examination is not a general opportunity to adduce new evidence the calling party wishes it had led in chief.
  • The permissible scope of re-examination is defined by the scope of the cross-examination itself. Where cross-examination was limited to a witness's knowledge of conduct at a specific school, re-examination could not extend to conduct at other schools not touched on in cross-examination.
  • Re-examination is appropriate where an answer given in cross-examination would, without supplementation or explanation, leave the court with an impression that is unfavourable to the calling party and represents a distorted or incomplete account of the truth (citing Rodriguez & Sons and Hadid).
  • Bellew J left open whether the cross-examination had raised the accused's character within the meaning of s 110 of the Evidence Act, which could permit the Crown to rebut that character evidence by other means.
  • Where documents relevant to proposed re-examination have been produced on subpoena and are available to all parties, that availability does not of itself expand what cross-examination has placed in issue for the purposes of s 39.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 39, 102, 110(2), 110(3), 137

Cases
- Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority trading as Seqwater (No. 21) [2019] NSWSC 294
- R v Rogerson; R v McNamara (No. 49) [2016] NSWSC 577
- Hadid v Australis Media Limited (No. 14) (5 November 1996, NSWSC, Sperling J, unreported)