Citation: R v Kilincer (No. 9) [2022] NSWSC 1736
Court: Supreme Court of New South Wales
Date: 26 August 2022
Judge(s): Wilson J
Background
The accused stood trial for murder. As part of its obligation to call all material witnesses, the Crown called the accused's wife to give evidence in the Crown case. Her evidence was not voluntary in the usual sense; the Crown called her under its duty rather than because she was a witness supportive of its case.
Near the conclusion of her evidence in chief, the Crown applied to cross-examine her under section 38 of the Evidence Act 1995 (NSW). The Crown identified several discrete areas in which her testimony conflicted with, or was unfavourable to, its case.
The accused did not oppose most of the application but contested one area: evidence concerning the source of funds used to pay overdue rent.
Legal Issues
- Whether the Crown could cross-examine its own witness under section 38 of the Evidence Act 1995 (NSW) on the basis that her evidence was unfavourable to the Crown
- Whether the Crown could cross-examine her about prior inconsistent statements she had made to police in 1995 and 1996
- Whether the specific evidence about the source of rent funds was sufficiently inconsistent or unfavourable to justify cross-examination on that discrete point
Decision
Wilson J granted the Crown's application in full, including the contested area regarding the rent funds. Her Honour found it clear that the witness had given evidence unfavourable to the Crown and had departed from accounts she had provided in earlier statements and recorded interviews.
On the contested rent funds issue, the accused submitted there was no relevant inconsistency and that the evidence was not necessarily unfavourable to the Crown. Wilson J rejected that submission. In her statement, the witness had attributed the rent payment to loan moneys from a named third party. In evidence, she attributed the funds partly to money received from her husband and partly to a bank account whose details she could not recall. Her Honour found this was a clear inconsistency warranting cross-examination.
Wilson J also noted the practical context. Because the Crown was obliged to call this witness, she was effectively functioning as a witness for the accused. The court expressly anticipated that her credibility would be challenged, and permitted the Crown to put aspects of its case to her so she had the opportunity to respond to any suggestion of untruthfulness.
Orders Made
• The Crown is permitted to cross-examine Mrs Kilincer pursuant to section 38 of the Evidence Act with respect to all areas which have been particularised, including areas where evidence is unfavourable to the Crown and areas where evidence is inconsistent with earlier statements and accounts.
Key Takeaways
- Under section 38(1)(a) and (c) of the Evidence Act 1995 (NSW), a court may permit a party to cross-examine its own witness where that witness has given evidence unfavourable to the calling party or has made a prior inconsistent statement.
- Where the Crown calls a witness under its duty to call all material witnesses, the court may recognise that the witness is effectively in the "accused's camp," which supports granting leave to cross-examine.
- Inconsistencies between in-court testimony and earlier police statements or recorded interviews can satisfy the threshold for leave under section 38, even where the inconsistency concerns a single discrete matter such as the source of funds.
- A difference in the attributed source of a payment between a prior statement and oral evidence constitutes a "clear inconsistency" sufficient to ground a section 38 application, even if the accused argues the evidence is not necessarily unfavourable.
- The Crown's obligation to put its case to a witness, particularly one whose credibility may be attacked, forms part of the rationale for permitting cross-examination in these circumstances.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 38 (cross-examination of unfavourable witnesses and witnesses who have made prior inconsistent statements)
Cases
No cases were cited in the judgment.