Citation: R v Dawson [2022] NSWSC 757
Court: Supreme Court of New South Wales
Date: 7 June 2022
Judge: Harrison J
Background
This decision arose during an ongoing murder trial in the New South Wales Supreme Court. The accused stood charged with murder, and the Crown sought a procedural ruling before calling a particular witness.
A Crown witness, referred to in the judgment as JC, had given evidence that the accused had deliberately manipulated school timetabling at Cromer High School to ensure she would be placed in his class. During cross-examination by defence counsel, JC was asked whether the accused had ever told her he had arranged this, and she denied the suggestion put to her by the defence.
The Crown then sought to call a further witness, Ms Melrose, who had made a police statement in 2019 recording that JC had told her the same thing: that the accused had manipulated the school programming so JC would be in his class. The Crown's purpose was to support JC's credibility on this specific point following the defence's challenge in cross-examination.
Legal Issues
- Whether the requirements of s 106 of the Evidence Act 1995 (NSW) had been satisfied so as to displace the credibility rule.
- Whether the court should grant leave to the Crown to adduce Ms Melrose's evidence to restore JC's credibility.
Decision
Section 106 of the Evidence Act 1995 creates an exception to the credibility rule, which ordinarily prevents parties from calling evidence directed solely at bolstering or attacking a witness's credibility. The exception permits such evidence to be adduced from a source other than the witness, provided the substance of that evidence was put to the witness in cross-examination and the witness denied or did not accept it, subject to the court granting leave.
Harrison J found that both threshold conditions under s 106(1) were satisfied. The substance of Ms Melrose's anticipated evidence had been put to JC during cross-examination by defence counsel, and JC had denied the proposition. Those factual preconditions were met.
On the question of leave, Harrison J considered the relationship between JC's challenged evidence and the anticipated evidence from Ms Melrose. His Honour concluded that Ms Melrose's account arguably supported JC's response to the defence challenge, and that it was therefore proper in the circumstances to grant leave.
Orders Made
• Leave granted to the Crown to adduce evidence from Ms Melrose under s 106 of the Evidence Act 1995
Key Takeaways
- Section 106 of the Evidence Act 1995 (NSW) provides a pathway around the credibility rule, allowing a party to call evidence from a third-party witness to rebut a denial made in cross-examination, provided the statutory conditions are met and the court grants leave.
- Both procedural preconditions under s 106(1) must be satisfied before leave becomes available: the substance of the evidence must have been put to the original witness in cross-examination, and that witness must have denied or not admitted it.
- Leave under s 106(1)(b) is not automatic even where the threshold conditions are met. The court retains a discretion and will consider the relationship between the challenged evidence and the proposed rebuttal evidence.
- Harrison J granted leave on the basis that the proposed evidence from Ms Melrose "arguably" supported JC's account, indicating that a relatively low threshold applied at the leave stage in these circumstances.
- The decision is an ex tempore ruling made in the course of trial proceedings, and its scope is confined to the specific evidentiary question of whether leave should be granted on the facts presented.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 106 (Exception: rebutting denials by other evidence)
Cases cited: None cited in the judgment.