Citation: R v Lupton (No 6) [2022] NSWSC 156
Court: Supreme Court of New South Wales
Date: 2 February 2022
Judge: Hamill J
Background
This decision arose during a criminal trial in the Supreme Court. A prosecution witness was giving evidence via audio-visual link (AVL) when the prosecutor formed the view that aspects of her oral testimony were inconsistent with a signed statement she had provided on 27 February 2020.
The prosecutor applied under s 38 of the Evidence Act 1995 (NSW) for leave to examine the witness as if conducting cross-examination. Counsel for the accused objected to parts of the proposed cross-examination, specifically those relating to paragraphs 9 and 10 of the witness's earlier statement.
The court dealt with the application ex tempore, meaning it ruled immediately from the bench without reserved reasons.
Legal Issues
- Whether the witness's oral evidence was "unfavourable" to the prosecution within the meaning of s 38 of the Evidence Act 1995 (NSW), so as to engage that section
- Whether the oral evidence was inconsistent with the witness's prior written statement
- Whether leave should be granted in respect of all contested paragraphs of the prior statement, including paragraphs 9 and 10, which were the subject of objection by defence counsel
Decision
Hamill J accepted that the witness's oral evidence was, in several respects, inconsistent with her signed statement of 27 February 2020. The judge acknowledged some difficulty in following everything the witness had said via AVL in the absence of a transcript, but accepted the prosecutor's submission that relevant inconsistencies existed.
On the question of whether the evidence was "unfavourable" to the prosecution, Hamill J noted that the word carries a broad interpretation in the case law, including at appellate level. The judge expressed some reservation about whether all of the inconsistencies were particularly unfavourable to the prosecution case, but accepted the point was at least arguable.
Leave was granted without objection in respect of paragraphs 7, 11 (except for one specific phrase) and 13 of the prior statement. In relation to paragraphs 9 and 10, which described the accused searching with a torch or light, the witness's oral evidence suggested she was not in a position to have seen or known of that conduct. Hamill J found this too constituted an inconsistency, and that the evidence in those paragraphs was at least arguably unfavourable to the prosecution having regard to what other witnesses had said.
Leave was granted in respect of all contested paragraphs. The scope of the leave was expressly limited to putting the identified inconsistencies to the witness and receiving her responses.
Orders Made
- Leave granted under s 38 of the Evidence Act 1995 (NSW) for the prosecutor to cross-examine the witness in respect of paragraphs 7, 11 (excluding the words "I thought Jay had bashed Hady") and 13 of the statement dated 27 February 2020
- Leave also granted in respect of paragraphs 9 and 10 of that statement, notwithstanding the defence objection
- The leave was limited to putting the identified inconsistencies to the witness
Key Takeaways
- Under s 38 of the Evidence Act 1995 (NSW), the threshold concept of evidence being "unfavourable" to the party who called the witness is interpreted broadly, including by appellate courts, and an arguable case of unfavourability is sufficient to engage the section.
- A prior inconsistent statement need not be dramatically damaging to the calling party's case to satisfy the unfavourability requirement; the Supreme Court here accepted that arguable unfavourability was enough.
- Where a witness gives oral evidence suggesting she lacked the ability to observe events she had previously described in a signed statement, that divergence is capable of constituting an inconsistency for the purposes of s 38.
- Leave under s 38 does not authorise unrestricted cross-examination; Hamill J limited the leave to the specific inconsistencies identified, confirming that the scope of such leave can be confined to particular subject matter.
- The decision involves no novel question of principle and turns on its own facts, as reflected in the catchwords.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 38
Cases:
No cases were cited in the judgment.