Citation: R v Officer A (No 2) [2023] NSWSC 1285
Court: Supreme Court of New South Wales
Date: 30 October 2023
Judge: N Adams J
Background
A correctional officer, identified throughout proceedings as Officer A, stood charged with the murder of an escaping inmate at Lismore Base Hospital on 15 March 2019. The accused fired three shots at the deceased, who was wearing both hand and leg cuffs, as he fled. The third shot proved fatal. This was a retrial, the first having ended with a hung jury before Beech-Jones CJ at Common Law.
The central factual dispute at trial concerned the accused's proximity to the deceased at the moment of the fatal shot. The Crown argued the accused was close enough to have physically caught the fleeing inmate, making it unnecessary to shoot. The defence contested this, arguing the deceased was further away than the Crown alleged.
A paramedic witness, Peter Haron, was present at the hospital on the night of the shooting. His account of where the accused was standing when he fired the fatal shot was favourable to the defence, but a diagram he had drawn on the night of the shooting appeared to place the accused considerably closer to the deceased, which was more consistent with the Crown's position. The Crown sought leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Haron on that diagram as a prior inconsistent statement.
Legal Issues
- Whether Mr Haron's original hand-drawn diagram, read alongside his first statement, constituted a prior inconsistent statement within the meaning of s 38(1)(c) of the Evidence Act 1995 (NSW).
- Whether leave to cross-examine under s 38 should be granted, having regard to the notice requirements in s 38(6) and the fairness considerations in s 192(2)(b).
- Whether s 142 of the Evidence Act (the balance of probabilities standard for evidentiary rulings) required the court to find, as a threshold matter, that the witness had simply made a mistake in the original diagram and therefore refuse leave.
Decision
Adams J was satisfied that the diagram attached to Mr Haron's first statement on 15 March 2019, read together with the relevant paragraphs of that statement, was inconsistent with his evidence at the retrial and with the positions he marked on a CAD plan in his second and third statements. That satisfaction was sufficient to establish the threshold requirement under s 38(1)(c). The judge noted it was somewhat significant that Mr Haron's first statement did not itself describe the shooter's location in words, but only by reference to the diagram. However, that feature did not displace the inconsistency once the diagram was read as part of the statement.
On the question of whether s 142 required the court to determine, on the balance of probabilities, that Mr Haron was simply mistaken in the original diagram (and therefore decline to grant leave), Adams J rejected this argument. The facts the court needed to find for the purposes of the leave application concerned whether a prior inconsistent statement existed, not the reason it came to differ from later evidence. Whether the first or second version accurately reflected events was a matter for the jury, not a threshold matter for the judge on the application.
Adams J also addressed the fairness concerns raised under s 192(2)(b). The defence had been on notice, through the voir dire, of precisely how Mr Haron would explain the inconsistency before the jury. The defence would therefore be able to challenge and test any answers Mr Haron gave on the topic when examined before the jury. Both mandatory considerations under s 38(6) also favoured granting leave: the Crown had given timely notice of the application, and defence counsel confirmed he would not himself put the original diagram to the witness if leave were refused.
Leave was accordingly granted.
Orders Made
• Leave to cross-examine the witness under s 38 of the Evidence Act is granted
Key Takeaways
- Under s 38(1)(c) of the Evidence Act 1995 (NSW), a diagram attached to a witness statement can constitute a prior inconsistent statement when read in conjunction with the text of that statement, even where the statement itself does not describe the relevant matter in words.
- The balance of probabilities standard in s 142 applies to facts the court must find to decide the leave application itself, not to the underlying factual contest that the prior inconsistent statement goes to. The question of whether a witness made a genuine mistake in an earlier account, rather than a later one, is a matter for the jury.
- Where a witness has explained their prior inconsistent account on voir dire, the defence is considered to have sufficient notice of likely answers before the jury, which is a relevant factor against a finding of unfairness to the accused under s 192(2)(b).
- In considering s 38(6), a court is required to weigh whether notice was given at the earliest opportunity and the extent to which the opposing party intends to question the witness. Where both factors point in the same direction, as they did here, they reinforce the case for granting leave.
- Refusing a s 38 application can itself give rise to unfairness, in this instance to the Crown, where the prior inconsistent statement is relevant to a genuinely contested factual issue at the heart of the trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38(1), 38(6), 142, 192
Cases:
- Commonwealth v Petroulias (No 29) [2007] NSWSC 1005
- R v Officer A [2023] NSWSC 1265
- Adam v The Queen [2001] 207 CLR 96 (cited within Petroulias)