Citation: R v Pulbrook; R v Smith [2023] NSWDC 400
Court: District Court of New South Wales
Date: 21 September 2023
Judge: Haesler SC DCJ
Background
Two co-accused, referred to here by their roles as the first accused and the second accused, faced trial before a jury on a charge of using an offensive weapon with intent to commit the indictable offence of intimidation whilst in company. The Crown had closed its case, and the first accused had given evidence in chief and been cross-examined by the Crown.
Counsel for the second accused then began cross-examining the first accused using leading questions. The cross-examination sought to draw out evidence about the victim's drug use, prior dealings with the accused, and the proposition that a third party had committed the relevant acts without any agreement between the two accused.
The Crown objected to the use of leading questions and applied under s 42 of the Evidence Act 1995 (NSW) for a direction restricting that cross-examination. The Crown argued that the first accused had interests consistent with, and was sympathetic to, those of the second accused, triggering the discretion under s 42(2)(b) and (c).
Legal Issues
- Whether s 42 of the Evidence Act 1995 (NSW) empowers a court to restrict a co-accused's use of leading questions when cross-examining the other accused
- Whether the first accused's consistent interests with the second accused were sufficient to justify such a restriction
- What procedural measures, if any, could address any resulting unfairness to the Crown
Decision
His Honour noted that s 42 applications by the Crown are rare, particularly in co-accused trials, and that the existing authorities have generally concerned Crown witnesses who were sympathetic to the accused or had particular vulnerabilities such as intellectual disability. The present application was unusual in that it was directed at a co-accused rather than a Crown witness.
The court accepted that both accused shared an obvious confluence of interests and that the questions being asked were plainly leading. However, Haesler SC DCJ observed that the interests of justice generally require that an accused have substantial freedom when cross-examining any witness, including a co-accused. The prosecution's objection was held to cover too broad a range of topics, and the questions went to matters central to the second accused's case as already opened to the jury.
The court declined to restrict the cross-examination, finding it would be unfair to the second accused to do so in these circumstances. His Honour added that the jury was capable of assessing the quality and weight of the questions asked and answers given, and that leading questions used by a cross-examiner wholly aligned with the witness were ultimately a matter of technique and tactics for counsel rather than judicial control.
To address any potential unfairness to the Crown, the court ordered that if fresh matters relevant to the Crown case emerged from the second accused's cross-examination, the Crown would be given an opportunity to further question the first accused on those topics at the conclusion of that cross-examination and before re-examination.
Orders Made
• The application to restrict cross-examination under s 42 of the Evidence Act 1995 is refused
• The Crown is to be given an opportunity to test the witness again on any fresh matters relevant to the Crown case that are raised by Mr Hibbard in cross-examination, at the conclusion of Mr Hibbard's cross-examination and before re-examination
Key Takeaways
- The District Court held that s 42 of the Evidence Act 1995 (NSW) can, in principle, apply to co-accused cross-examination, but that a broad Crown objection covering multiple topics will not readily succeed where the questions go to the heart of the cross-examining accused's case.
- A shared interest between a witness and the cross-examining party does not automatically justify restricting leading questions; courts must weigh the accused's right to conduct a full defence against any unfairness to the prosecution.
- Under s 42, the court retains a discretion rather than an obligation to restrict leading questions, and that discretion should be exercised cautiously where an accused's right to a fair trial is engaged.
- Procedural remedies short of outright restriction can address Crown unfairness: the court fashioned an order permitting the Crown additional cross-examination on any fresh matters raised, rather than curtailing the second accused's questioning.
- Justice Heydon's observation in Kirk v Industrial Court New South Wales (2010) 239 CLR 531 that persistently leading a wholly sympathetic witness is a "radically flawed technique" was noted, but the court confirmed that technique and tactics remain matters for counsel rather than judicial intervention.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 29, 41, 42, 192, Dictionary Part 2 Clause 2
Cases:
- Kirk v Industrial Court New South Wales (2010) 239 CLR 531; [2010] HCA 1
- R v A2, R v KM, R v Vaziri (No. 14) [2015] NSWSC 1544
- R v A2, R v KM, R v Vaziri (No. 21) [2016] NSWSC 24
- R v Droudis (No. 6) [2016] NSWSC 1263
- R v Merritt [2023] NSWDC 339
- R v Rogerson [2016] NSWSC 110
- R v Xie (No. 13) [2015] NSWSC 2125
- Stack v State of Western Australia (2004) 29 WAR 526; [2004] WASCA 300