Citation: R v Lupton (No 5) [2022] NSWSC 38
Court: Supreme Court of New South Wales
Date: 25 January 2022
Judge(s): Hamill J
Background
The accused stood trial for murder. The prosecution's case depended heavily on the eyewitness account of a single witness, Ms O'Neill, who was present at the scene of the alleged stabbing. Ms O'Neill had given a detailed police statement in February 2020 describing the sequence of events, including the accused lunging toward the deceased immediately before the fatal wound was inflicted.
When Ms O'Neill gave her evidence-in-chief at trial, her account differed in several respects from her earlier police statement. The prosecution made an urgent application to cross-examine its own witness, relying on sections 38 and 192 of the Evidence Act 1995 (NSW). The accused opposed parts of that application.
The witness and the accused had a long-term on-again, off-again relationship, and the accused is the father of one of her children. Text messages sent by Ms O'Neill to the accused in the minutes after the stabbing became central to the prosecution's argument that she had a motive to give evidence favourable to him.
Legal Issues
- Whether the prosecution had grounds under s 38(1)(a) of the Evidence Act 1995 (NSW) to cross-examine Ms O'Neill on evidence she gave that was unfavourable to the prosecution
- Whether the prosecution had grounds under s 38(1)(c) to cross-examine her on prior inconsistent statements
- Whether leave should be granted under s 38(3) to question the witness on matters relevant only to her credibility, including text messages suggesting an ongoing relationship with the accused
- What limitations, if any, should be placed on the scope of that cross-examination, particularly regarding text messages that attributed motive or intention to the accused
Decision
Hamill J identified five specific areas where Ms O'Neill's in-court evidence was either inconsistent with her police statement or unfavourable to the prosecution. These included: whether the deceased was sitting or standing when the accused approached him; whether she asked him to "go" or to "piss off"; whether the deceased actually rose to leave; and critically, whether the accused's movement was a lunge toward the deceased or an open-palmed push to the chest. The final discrepancy was the most significant, as it went to the nature of the act the prosecution alleged caused death.
The judge accepted that these discrepancies satisfied the requirements of both s 38(1)(a) and s 38(1)(c). Although the prosecution had possessed the text messages for some time, Hamill J accepted that the in-court inconsistencies came as a genuine surprise and that leave was therefore sought at the earliest reasonable opportunity, as required by s 38(6). Applying the discretionary factors under s 192, the judge found that the cross-examination would not unduly lengthen the trial and that no unfairness to the accused arose from granting it.
Leave was also granted under s 38(3) to cross-examine on matters relevant only to credibility, specifically the post-incident text messages. Messages sent shortly after the stabbing, including one in which Ms O'Neill told the accused "We love you to the ends of the world and back. Please be careful," were directly relevant to whether she had a personal motive to give evidence that helped the accused. However, the judge placed limits on this leave. Three specific items were excluded: a passage in paragraph 12 of her statement where she concluded "I now think he must have stabbed him," and two text messages sent to a third party, Kerran, in which she stated "So Jay decided to stab him" and "Jay, being in a bad mood, took it out on him." Those items attributed intention or motive to the accused, and their probative value was found to be outweighed by the risk of unfair prejudice.
The prosecution conceded it did not intend to rely on the two Kerran text messages, which aligned with the limits the judge imposed. The judge noted the excluded matters remained potentially revisable depending on how the cross-examination developed.
Orders Made
• Grant leave to the Prosecutor to cross-examine on specified subjects
• Grant leave to the Prosecutor to question Ms O'Neill pursuant to s 38(3) in relation to matters relevant only to her credibility, subject to exclusions
• Exclude from cross-examination that part of the statement in paragraph 12 where the witness states "I now think he must have stabbed him"
• Exclude from cross-examination the text message to "Kerran" (item 339) stating "So Jay decided to stab him"
• Exclude from cross-examination the text message to "Kerran" (item 345) asserting "Jay, being in a bad mood, took it out on him"
• Allow cross-examination on the question of motive to provide unfavourable evidence relevant to the credibility of the witness
Key Takeaways
- Under s 38(1)(a) and s 38(1)(c) of the Evidence Act 1995 (NSW), a prosecutor may obtain leave to cross-examine its own witness where that witness gives evidence unfavourable to the prosecution or makes statements inconsistent with a prior account, even where some of the individual discrepancies might appear minor in isolation.
- The requirement under s 38(6) to give notice at the earliest opportunity is assessed by reference to when the need for leave became apparent, not merely when the underlying material first came into the prosecution's possession.
- Leave under s 38(3) to cross-examine on credibility-only matters may be granted where text messages and an ongoing personal relationship between a witness and an accused disclose a plausible motive to favour that accused.
- Even where such leave is granted, the court retains a discretion to exclude specific items where their probative value is outweighed by the risk of unfair prejudice, particularly where the material purports to attribute intention or motive directly to the accused.
- Applying the s 192 discretionary factors, the importance of the witness to the prosecution case and the nature of murder proceedings weighed in favour of permitting cross-examination, provided it did not unduly prolong the trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 192
Cases cited: No cases were cited in the judgment.