Citation: [2021] NSWDC 733
Court: District Court of New South Wales
Date: 19 November 2021
Judge(s): Colefax SC DCJ
Background
The offender, referred to by the pseudonym Ms Ryan, appeared before the District Court for sentencing on two serious offences involving injuries sustained by her child. The sentencing proceedings had an unusually lengthy history: the listing before the court on the day of this decision was the 19th listing before a judge of the Court, excluding bail applications.
At the hearing, senior counsel for the offender tendered four expert reports addressing significant intellectual impairment and cognitive functioning. The Crown did not object to the tender of any report and did not require any of the expert authors to attend for cross-examination. Following the tender, the Crown played an audio recording that formed part of the evidence.
Upon listening to the recording, the court noted that an existing transcript of a portion of the conversation, set out in the exhibits, appeared to be incorrect in relevant respects. The Crown then applied for an adjournment to enable cross-examination of Professor Woods, the author of one of the expert reports. The offender did not oppose that application.
Legal Issues
- Whether the Crown's application to adjourn sentencing proceedings in order to cross-examine an expert witness should be granted, notwithstanding the lengthy procedural history of the matter.
Decision
Issue: Adjournment to enable cross-examination of expert witness
The court granted the adjournment, acknowledging the extensive history of the proceedings but concluding that the interests of fairness required the step to be taken (at [9]-[11]). The basis for the grant was the apparent inconsistency between what the offender said in the recorded conversation, and how she said it, and the conclusions reached by the four experts who had provided reports in support of her subjective case (at [10]).
The court observed that this apparent inconsistency, if left unexplained, might work adversely to the offender's interests, making it a matter of fairness to the offender as much as to the Crown that Professor Woods be given the opportunity to consider the material before the proceedings continued (at [11]). The adjournment was granted on a limited basis, with the court signalling it would not be for long (at [12]).
The court also directed that the Crown prepare a USB recording of the relevant portion of the audio played in court for use as an exhibit at the next listing, and that the parties prepare an agreed corrected version of the disputed transcript for tender (at [6]-[7]).
Orders Made
- Application by the Crown to adjourn proceedings in order to cross-examine expert witness Professor Woods granted.
Key Takeaways
- The District Court granted a Crown adjournment application at sentencing where an audio recording raised an apparent inconsistency with expert opinion evidence that had been tendered without objection, on the basis that the unexplained inconsistency might otherwise operate against the offender's interests (at [10]-[11]).
- Fairness considerations operated in favour of adjournment not only from the Crown's perspective but also from the offender's, where expert conclusions in support of the offender's subjective case appeared, at face value, to be inconsistent with her conduct as captured in the recording (at [11]).
- A lengthy procedural history, here spanning 19 court listings, did not of itself preclude a further adjournment where a genuine evidentiary issue of fairness arose (at [9]).
- Where a transcript of a recorded conversation is found to be inaccurate in relevant respects, the court expected the parties to produce an agreed corrected version as a discrete exhibit at the next listing (at [7]).
- The court indicated the adjournment was granted on a limited basis, reflecting the significance it placed on avoiding further procedural delay in an already protracted sentencing matter (at [12]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated