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Supreme Court 25 October 2023

R v Garland (No 2)

[2023] NSWSC 1381

Homicide
CRIMINAL LAW EVIDENCE LEAVE TO CROSS EXAMINE DPP CONFERENCE NOTES DISCLOSED CROSS

Citation: R v Garland (No 2) [2023] NSWSC 1381
Court: Supreme Court of New South Wales
Date: 25 October 2023
Judge: Hamill J

Background

This decision arose on the tenth day of a murder trial. During the trial, a witness subject to a non-publication order gave evidence that diverged from a statement she had earlier provided to police. The prosecution had previously obtained leave to cross-examine her under s 38 of the Evidence Act 1995 (NSW) on those inconsistencies.

Conference notes prepared by the prosecution legal team (MFI 31) recorded the witness stating that the accused was one of her best friends and that she would not say anything to hinder his defence. These notes had been disclosed to the defence, and defence counsel had cross-examined the witness on portions of the notes. However, counsel had not put to the witness the specific passage recording her stated loyalty to the accused.

When the prosecutor sought to put that passage to the witness during re-examination, defence counsel objected. Two grounds were raised: first, that the opportunity to raise the matter had passed because leave to cross-examine had already been granted and exercised; and second, that permitting the prosecution to raise it now would implicitly reflect badly on defence counsel's earlier selective use of the notes, potentially damaging his credibility before the jury.

  • Whether the prosecution required fresh leave under the Evidence Act to put the conference note passage to the witness during re-examination, and whether such leave should be granted
  • Whether an earlier grant of leave to cross-examine on credibility matters had been misunderstood, and if so, what consequences followed
  • Whether permitting the cross-examination at this stage of proceedings would cause unfairness to the accused, and if so, whether that unfairness could be adequately cured
  • Whether the order of examination (cross-examination having concluded before re-examination raised the new matter) barred the prosecution from proceeding

Decision

Hamill J granted leave to the prosecutor to put the substance of the conference note passage to the witness, subject to three conditions: the matter could not be put in a way that risked making the author of the conference note a witness; defence counsel retained the right to ask further questions after re-examination; and the questioning could not suggest that defence counsel had breached any ethical obligation by using the notes selectively.

On the question of an earlier misstatement, his Honour acknowledged that during the preceding day's proceedings he had erroneously referred to s 38(6) when he intended s 38(3), which governs leave to cross-examine on matters relevant only to credibility. When the issue resurfaced, the transcript showed that leave to cross-examine on credibility had in fact been granted without objection. Hamill J found it was likely the prosecutor had misunderstood the scope of that permission to be limited to the specific drug-use issue then under discussion, rather than extending more broadly to credibility matters including the witness's possible bias.

The court found that the conference note passage went to the heart of the witness's credibility, specifically the question of potential bias in favour of the accused. This weighed significantly in favour of allowing the cross-examination. The risk of unfairness to the accused arising from the disruption to the ordinary order of examination was assessed as capable of being substantially cured by the conditions imposed, including permitting further defence cross-examination and avoiding any suggestion of improper conduct by defence counsel.

Hamill J noted the decision was not straightforward but concluded that significant unfairness to the prosecution would result if the evidence was excluded entirely. The evidence was in fact adduced briefly and with appropriate sensitivity, and a direction was later given in the summing-up that all counsel had conducted themselves in accordance with their ethical obligations.

Orders Made

  • The prosecutor was permitted to put the substance of the conference note passage to the witness, subject to the following conditions:
  • The matter was not to be put in a way that risked making the author of the conference note a trial witness
  • Defence counsel retained the right to ask further questions in cross-examination following re-examination
  • The matter was not to be put in any way suggesting defence counsel had breached ethical obligations by using the conference notes selectively

Key Takeaways

  • Under s 38(3) of the Evidence Act 1995 (NSW), a party examining a witness already subject to a s 38(1) leave grant requires separate leave to cross-examine on matters relevant only to credibility, as confirmed in Odisho v The Queen [2018] NSWCCA 19.
  • A possible misunderstanding as to the scope of an earlier leave grant was treated by the court as a relevant factor supporting the grant of fresh leave, rather than a reason to hold the prosecution to a narrowly construed prior permission.
  • Where cross-examination has concluded and re-examination raises new material, the resulting disruption to the ordinary order of questioning does not automatically bar further leave; the question is whether unfairness can be adequately cured by conditions attached to the grant.
  • Potential prejudice to the accused from unusual sequencing of examination was found capable of being substantially remedied through procedural orders, including allowing further defence cross-examination and restricting how the impugned material was presented.
  • Evidence of a witness's self-stated loyalty to an accused, recorded in prosecution conference notes and suggesting possible bias, was treated as going to the heart of credibility and therefore warranting leave to cross-examine even at a late stage of the witness's evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 32, 38(1), 38(1)(a), 38(1)(b), 38(1)(c), 38(3), 101A, 102, 103, 104, 192(2), 192(2)(a), 192(2)(b), 192(2)(c), 192(2)(d)

Cases:
- Odisho v The Queen (2018) 271 A Crim R 325; [2018] NSWCCA 19
- R v Garland [2023] NSWSC 1380 (companion ruling, same trial)