Citation: R v Carberry (No 2) [2023] NSWSC 137
Court: Supreme Court of New South Wales
Date: 23 February 2023
Judge(s): Hamill J
Background
The accused faced trial in the Supreme Court at Wagga Wagga in connection with the alleged robbery and death of a man referred to as Mr Mousawi. The prosecution called a witness, Ms O'Hanlon, who had previously given recorded police interviews touching on key elements of the alleged offence, including whether a joint criminal enterprise to rob the deceased existed and whether she participated in it by sending text messages at the accused's direction.
During her evidence in chief, Ms O'Hanlon gave evidence that stepped back significantly from her earlier police accounts. She repeatedly claimed she could not remember material details, including whether she saw a knife, whether she saw keys to the vehicle that was allegedly the target of the robbery, and the nature of her interactions with the accused and his co-accused in the lead-up to the alleged offence. She also told the court, for the first time, that she had been drug-intoxicated when her police statements were taken.
A further incident arose when it emerged that, at the conclusion of her evidence the previous day, Ms O'Hanlon had quietly said "I'm sorry" to the accused as she left the witness stand. This prompted the prosecution to seek leave to cross-examine her not only on her inconsistent prior statements but also on her possible motivations for giving evidence favourable to the accused.
Legal Issues
- Whether the prosecution should be granted leave under s 38(1)(a) of the Evidence Act 1995 (NSW) to cross-examine its own witness on evidence she gave that was unfavourable to the prosecution
- Whether leave should be granted under s 38(1)(b) on the basis that the witness appeared not to be making a genuine attempt to give evidence about matters she was reasonably supposed to know
- Whether leave should be granted under s 38(1)(c) on the basis that her evidence was inconsistent with her prior police interviews
- Whether additional leave was required, and should be granted, to cross-examine the witness about the courtroom incident as a matter going to her credibility
Decision
Hamill J granted leave to cross-examine Ms O'Hanlon on the subject matters relating to the substance of her evidence. His Honour found that all three limbs of s 38(1) were engaged. The witness had given evidence unfavourable to the prosecution under s 38(1)(a), was not making a genuine attempt to give evidence on matters she clearly knew about under s 38(1)(b), and had given evidence inconsistent with her prior police interviews under s 38(1)(c). Defence counsel did not oppose the application on these grounds, and his Honour noted the concession was well founded.
His Honour made a number of observations about the witness's conduct during examination in chief. He noted that when directed to look at the interview transcript, she did so; but when given the choice, she never once turned to it. His Honour also observed that, while he had not formed the view that she was deliberately trying to assist the accused, she appeared to be walking a careful line, giving evidence broadly consistent with her police accounts while undermining it through claimed memory lapses.
On the question of the courtroom incident, the prosecution sought further leave to put to the witness that she was either reluctant to be seen as an informant or still romantically attached to the accused. His Honour declined to grant that leave, at least at that stage. He noted that such questioning appeared to go solely to the witness's credibility, which under the authority of Odisho v R raises the question of whether additional leave is required. His Honour also questioned the fairness of putting those particular propositions to the witness, given that her own written explanation of the apology had, in his view, a ring of truth to it. He left open the possibility of reconsidering the point depending on how cross-examination proceeded. In the event, the prosecution subsequently indicated it was no longer pressing that aspect of the application.
Orders Made
• Allow cross-examination on subject matters including confronting the witness with evidence unfavourable and inconsistent with police interviews
• Refuse leave (at that stage) to cross-examine regarding the witness's motivation or romantic feelings toward the accused, pending further submissions
Key Takeaways
-
Leave under s 38(1) of the Evidence Act 1995 (NSW) was granted where a prosecution witness gave evidence unfavourable to the party calling her, failed to make a genuine attempt to give evidence on matters within her knowledge, and gave evidence inconsistent with prior police interviews, engaging all three limbs of the provision.
-
A witness's selective engagement with prior interview transcripts during examination in chief, combined with repeated claims of non-recollection on matters the witness demonstrably knew about, can support a finding that the witness is not making a genuine attempt to give evidence within the meaning of s 38(1)(b).
-
Where proposed cross-examination goes solely to a witness's credibility rather than to the substance of the evidence, additional leave may be required under s 38, consistent with the conflicting views expressed by members of the Court of Criminal Appeal in Odisho v R [2018] NSWCCA 19.
-
Hamill J declined to grant leave to put to the witness that she was motivated by loyalty to the accused or fear of being seen as an informant, finding that her own explanation for the courtroom incident had a ring of truth and that putting those propositions carried fairness concerns.
-
The prosecution ultimately abandoned the credibility limb of the s 38 application after the ex tempore ruling, so the court did not need to reach a final determination on whether such leave would have been appropriate.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 37(1)(c), 38(1)(a), 38(1)(b), 38(1)(c)
Cases
- Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325 (Price J at 328-330; Bellew J at 339-340; Hamill J at 345-347)