Citation: [2020] NSWSC 1907
Court: Supreme Court of New South Wales
Date: 23 November 2020
Judge: N Adams J
Background
This decision arises from day six of a murder trial in which two accused, a man and a woman, faced charges arising from a fatal assault in Hereford Street. The deceased died from a head wound allegedly caused by a Samurai sword. The case turned in part on issues of joint criminal enterprise, self-defence, and excessive self-defence.
A key prosecution witness, a woman who lived directly opposite the scene, gave evidence that she heard a woman scream "No, don't," followed by a cracking sound and what she believed was the sound of a body falling. She did not see the incident but called triple-0 shortly after. Her evidence about the gender of the voice had been entirely consistent across her police statement, annexed email notes, and her oral evidence at trial.
During re-examination, the Crown sought leave under section 38 of the Evidence Act 1995 (NSW) to put to the witness that she might have heard a man speaking in a high-pitched voice rather than a woman. Both defence teams opposed the application, and the judge discharged the jury to the jury room while the issue was argued.
Legal Issues
- Whether the Crown was entitled to leave under section 38(1) of the Evidence Act 1995 (NSW) to cross-examine its own witness on the basis that her evidence was "unfavourable"
- Whether there was a sufficient factual basis to challenge the witness's identification of the voice as female
- Whether procedural fairness required advance notice to the defence of any proposed change to the Crown case on this point
Decision
Adams J refused the Crown's application. The judge identified three reasons, with the third described as most significant.
First, if the Crown intended to challenge the witness on the gender of the voice, it should have done so before she gave her evidence-in-chief, not after. Second, the proposed challenge represented a significant departure from the Crown Case Statement and all prior representations about the witness's evidence, and the defence had received no notice of it whatsoever.
Third, and most fundamentally, there was no factual basis to suggest the witness was unreliable on the question of gender. Every account she had ever given, from the original police statement through to her trial evidence, identified the voice as female. No other witness or document in the Crown brief suggested a male voice had been heard, or that anyone other than the female co-accused had called out anything near the scene. The mere fact that the witness was inside her house with doors open did not undermine her ability to distinguish male from female voices.
On the legal test under section 38, the judge accepted that "unfavourable" evidence could, in principle, found an application. However, drawing on R v Kennedy, the court held that there must be a factual basis to support a conclusion that the witness is unreliable before the provision can be engaged. The word "unfavourable" cannot be stretched to cover evidence that is simply inconsistent with the Crown's preferred case where no evidentiary support exists for an alternative version.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that a finding of "unfavourable" evidence under section 38(1) of the Evidence Act 1995 (NSW) is a necessary but not sufficient condition for leave: there must also be a proper factual basis to support the reliability challenge the Crown proposes to make.
- Under section 38, a party cannot use the provision to put an entirely new and unsupported version to its own witness simply because the existing evidence assists the opposing party.
- Consistent with R v Kennedy (2000) 118 A Crim R 34, procedural fairness requires that a witness be put on notice when it is proposed to challenge their reliability, but that obligation only arises where a sufficient foundation for unreliability actually exists.
- A witness's capacity to identify a voice as male or female is not automatically rendered unreliable because they were indoors and did not see the speaker. The court treated voice identification of this kind as an ordinary matter of lay observation.
- Where the Crown proposes to depart materially from its own Crown Case Statement during trial, the absence of notice to the defence is itself a significant obstacle to obtaining leave for that departure.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 38(1)
Cases:
- R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487