Citation: [2022] NSWSC 695
Court: Supreme Court of NSW
Date: 14 March 2022
Judge(s): R A Hulme J
Background
The accused stood trial for murder arising from an alleged home invasion at a Five Dock apartment in the early hours of 2 April 2019. The prosecution alleged that the accused and another intruder entered the apartment via an unlocked balcony door and, in the course of an attempted robbery, fatally shot one occupant and wounded another.
The surviving occupant, who was present throughout the incident, had previously been charged with drug and firearm offences and was serving a term of imprisonment at the time of the trial. He had cooperated with evidence about his own conduct but repeatedly declined to answer questions about the conduct of the intruders, saying he did not "feel comfortable" doing so, even after being directed by the court to answer.
The Crown sought leave to cross-examine this witness under s 38 of the Evidence Act 1995 (NSW), having foreshadowed that application to the defence before trial. The application was made in the absence of the jury.
Legal Issues
- Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to question the witness as an unfavourable witness
- Whether any of the three grounds in s 38(1) applied: that the evidence was unfavourable to the Crown, that the witness was not making a genuine attempt to give evidence, or that the witness had made a prior inconsistent statement
- Whether any consideration under s 192 of the Evidence Act militated against granting leave
Decision
Issue 1: Whether the s 38 grounds were satisfied
Hulme J accepted that all three bases in s 38(1) were satisfied in the circumstances (at [7]). The witness's consistent refusal to answer questions about the home invasion and about his prior statements to police, maintained even after judicial direction, supported each of the three limbs: the evidence given was unfavourable to the Crown, the witness was not making a genuine attempt to give evidence, and he had made prior inconsistent statements (at [6]-[7]).
Issue 2: Scope of the leave sought
The Crown Prosecutor initially sought leave in relation to particular identified topics, but Hulme J observed that this targeted approach served no practical purpose (at [8]). Because the witness's refusal to cooperate extended to the entirety of the home invasion incident and his subsequent police statements, leave was appropriately granted across those subjects without restriction to specific aspects (at [8], [11]).
Issue 3: Whether s 192 considerations weighed against leave
Hulme J found nothing in s 192 of the Evidence Act that would weigh against granting leave (at [10]). The accused's counsel did not oppose the application (at [9]).
Orders Made
- Leave granted to the Crown pursuant to s 38 of the Evidence Act 1995 (NSW) to question the witness about the alleged home invasion and about the statements he made to police about it.
Key Takeaways
- All three limbs of s 38(1) of the Evidence Act 1995 (NSW) were satisfied where a witness repeatedly refused, even after judicial direction, to answer questions about the conduct of others during the incident in question (at [6]-[7]).
- Where a witness's non-cooperation extends to an entire topic area rather than isolated questions, the Supreme Court held there was no utility in confining a s 38 leave application to specific identified aspects of the evidence (at [8]).
- Under s 192 of the Evidence Act, the court retains a discretion to impose conditions or refuse leave, but no factor in that provision operated against the Crown in these circumstances (at [10]).
- A witness's expressed personal discomfort as the basis for declining to answer, maintained despite court direction, is consistent with a finding that the witness is not making a genuine attempt to give evidence within s 38(1) (at [6]-[7]).
- The absence of any defence opposition to a s 38 application, described here as a "realistic and responsible approach," did not itself determine the outcome; the court assessed the statutory grounds independently (at [9]-[10]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) , ss 38, 192
Cases
- Not stated