Citation: R v Green (No 7) [2021] NSWSC 1308
Court: Supreme Court of New South Wales
Date: 14 July 2021
Judge(s): Campbell J
Background
This decision arose during a murder trial in the Supreme Court. The deceased, referred to here as the victim, was the sister of a prosecution witness. The witness's partner had been a person of interest in the police investigation, with material suggesting he may have been having an affair with the victim and that concealing this relationship could provide a motive for the killing.
The prosecution witness had herself suspected her partner of the affair at the time of her sister's death. She expressed that suspicion to police on the night the body was discovered and posted about it on Facebook, though she later deleted the post after accepting her partner's assurances that the relationship had been entirely innocent.
Defence counsel sought to cross-examine the witness on two topics arising from a second police interview with her partner. In that interview, the partner had admitted to a single sexual encounter with the victim, which he characterised as retribution for his belief that the witness had been unfaithful to him. The Crown objected to both proposed lines of questioning.
Legal Issues
- Whether defence counsel could cross-examine the witness about whether she herself had been sexually involved with her partner's friend (the asserted basis for the partner's claimed retributive motive).
- Whether defence counsel could cross-examine the witness about whether her partner had ever stated an intention or interest in "sleeping" with the victim.
- Whether either line of questioning was saved from exclusion under the credibility rule by any applicable exception.
Decision
Campbell J upheld the Crown's objection to both proposed lines of questioning. On the first topic, the court held that questioning the witness about her own alleged sexual conduct with her partner's friend fell foul of s 41(1)(b) of the Evidence Act 1995 (NSW) as offensive and humiliating, and in any event was not relevant to her credibility. Had that conclusion been wrong, s 102 would independently have excluded it.
On the second topic, the court found that asking a witness whether another person had expressed an intention to have sex with the victim went directly to that other person's credibility, not to any independent issue. This brought the questions squarely within the credibility rule in s 102. No exception under s 103 was available, and no relevant exception under s 106 had been identified in argument.
Campbell J acknowledged that an illicit relationship with the victim could, in principle, provide a motive for serious violence against her. However, the court was not satisfied that motive could properly be pursued through cross-examination of this witness on these specific questions. The court observed that the partner's second account to police had an air of implausibility, but expressly declined to make any final finding on that at this stage.
The court did permit limited questioning about the foundation for the witness's own belief, as at the relevant date, that her partner was having an affair with her sister. Defence counsel was allowed to probe whether the witness's suspicion rested on anything beyond what she had personally observed. One further question was permitted: whether her partner had ever told her directly that he had in fact had sex with the victim. The court noted that a confession of that kind would undermine the argument that the partner acted to conceal his infidelity. Counsel was to be bound by whatever answer the witness gave on that point.
Orders Made
• Sophie Luckwell is not to be cross-examined by reference to Mr Carter's second account to the police
• Limited exploration of the grounds for Sophie Luckwell's belief as at 27 March 2018 that her partner was having an affair with her sister is allowed
• Mr Bouveng may ask whether Mr Carter ever said to Sophie Luckwell that he had actually had sex at any time with Teah Luckwell, and counsel would be bound by the answer given
Key Takeaways
- Cross-examining a witness about the stated intentions or credibility of a different witness falls within the credibility rule in s 102 of the Evidence Act 1995 (NSW) and is not automatically saved by the exceptions in ss 103 or 106.
- Under s 41(1)(b) of the Evidence Act, a question that is offensive or humiliating to a witness may be disallowed independently of the credibility rule, even in proceedings of the utmost gravity such as a murder trial.
- The credibility rule does not bar all cross-examination touching on a witness's prior beliefs or suspicions: the court here drew a distinction between questions directed at another person's credibility and questions exploring the factual basis for the witness's own stated belief.
- Where a proposed motive for a crime involves an alleged relationship between the accused and the victim, that motive must be established through admissible means directed at the right witness, rather than through credibility evidence elicited from a third party.
- Campbell J confirmed that counsel who obtains leave to ask a permissible but sensitive question of this kind will be bound by the witness's answer, with no entitlement to contradict it by further cross-examination on the same topic.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 41, 101A, 102, 103, 106
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8
Cases cited: None cited in the judgment.