Citation: R v Garland [2023] NSWSC 1380
Court: Supreme Court of New South Wales
Date: 24 October 2023
Judge(s): Hamill J
Background
This decision arises from a criminal trial in the Supreme Court. During the prosecution case, a witness was called to give oral evidence. She had previously provided a statement to police on 20 January 2022, and the prosecution sought to draw out evidence consistent with that statement through non-leading questions.
After approximately half an hour of questioning, the prosecution had been unable to elicit the relevant evidence from the witness. The statement was placed in her hands under s 32 of the Evidence Act 1995 (NSW), which allows a witness to use a document to refresh memory, in relation to three specific paragraphs of her police statement.
Despite having the statement in hand, the witness either declined to give the evidence contained in it, said the relevant things were not said, or gave evidence described by the court as confusing. The prosecution then applied for leave to cross-examine her as an unfavourable witness under s 38 of the Act.
Legal Issues
- Whether the witness had made a genuine attempt to give evidence about matters within her knowledge, within the meaning of s 38(1)(b) of the Evidence Act 1995 (NSW)
- Whether her evidence was "unfavourable" so as to justify granting the prosecution leave to cross-examine her
- Whether leave should be granted under s 38 to cross-examine her on the subject matter of the three identified paragraphs in her police statement
Decision
Hamill J observed that the witness's conduct fell into several categories. In some instances, she acknowledged the statement refreshed her memory but then failed to give the evidence it contained. In one instance, she flatly denied the relevant statement had been made. In another, her evidence was described as confusing.
The court formed the view that, at least in parts of her evidence, the witness was deliberately obfuscating and was not making a genuine attempt to give evidence about matters she could reasonably be supposed to know. This brought her squarely within s 38(1)(b) of the Act, which permits leave to cross-examine where it appears to the court that the witness is not making such a genuine attempt.
Hamill J was also satisfied that the evidence was "unfavourable" within the meaning of s 38, at least in the sense that it was inconsistent with other evidence before the court or with inferences available from that evidence. In one specific instance, the witness had effectively acknowledged making a prior inconsistent statement when taken to the relevant paragraph.
Accordingly, the court granted the prosecution leave under s 38 to cross-examine the witness on the subject matter arising from all three relevant paragraphs of her police statement.
Orders Made
• Leave granted to the Prosecutor under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness on matters derived from paragraphs [24], [25] and [33] of her statement dated 20 January 2022.
Key Takeaways
- Under s 38(1)(b) of the Evidence Act 1995 (NSW), leave to cross-examine a witness may be granted where it appears to the court that the witness is not making a genuine attempt to give evidence about matters they can reasonably be supposed to know.
- A witness who acknowledges a document refreshes their memory but then declines to give the evidence it contains may be found to be deliberately obfuscating, satisfying the s 38(1)(b) threshold.
- Evidence may qualify as "unfavourable" for the purposes of s 38 where it is inconsistent with other evidence before the court or with available inferences from that evidence, even if it does not affirmatively assist the opposing party.
- The prior inconsistent statement procedure under s 32 (use of a document to refresh memory) and the leave to cross-examine procedure under s 38 are distinct steps, and exhaustion of the former does not preclude an application for the latter.
- This was an ex-tempore ruling on a procedural question during trial; the judgment raises no novel question of principle and is confined to its particular facts.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 32, 38, 38(1)(b)
Cases cited: None cited in the judgment.