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Supreme Court 27 October 2023

R v Garland (No 3)

[2023] NSWSC 1382

Homicide
CRIMINAL LAW EVIDENCE LEAVE TO CROSS EXAMINE THE PROSECUTOR ’ S OWN WITNESS WITNESS WHO CANNOT REMEMBER PRIOR INCONSISTENT STATEMENT

Citation: R v Garland (No 3) [2023] NSWSC 1382
Court: Supreme Court of New South Wales
Date: 27 October 2023
Judge(s): Hamill J

Background

This decision arose during a criminal trial in which the accused, Mr Garland, faced charges connected to an alleged murder. The prosecution's case involved multiple parties, including an alleged shooter, Mr Hawkins, who had not yet stood trial at the time of this hearing.

The prosecution called a witness, Ms Allner, who gave evidence that proved problematic. She claimed difficulty remembering events and gave evidence inconsistent with what she had apparently told police prior to trial. Complicating matters, no formal police statement had been taken from her due to a technical failure in the recording system. Instead, two police officers had recorded what she said to them in their own statements.

The prosecutor applied under s 38 of the Evidence Act 1995 (NSW) for leave to cross-examine Ms Allner as if she were a hostile witness, across four nominated topics.

  • Whether the prosecutor should be granted leave under s 38 of the Evidence Act to cross-examine its own witness
  • Whether words attributed to the witness in police officers' statements (rather than in a statement made by the witness herself) could constitute a "prior inconsistent statement" for the purposes of s 38(1)(c)
  • How the discretionary factors under s 192 of the Evidence Act should be applied, including considerations of court time
  • Whether the prosecutor could put the statement documents directly to the witness, or was limited by s 44

Decision

Hamill J granted leave under s 38 on three of the four proposed areas of cross-examination. On the second and third topics (the witness's presence during complaints about relationship difficulties, and a conversation about inviting another person to participate in the murder), defence counsel raised no objection. The Court accepted those concessions and granted leave accordingly.

The most contested issue concerned the first topic: whether Ms Allner had previously told police something inconsistent with her trial evidence about a person referred to by the name "Jase" or "Jayce." A text message she sent to another person used that name, and the prosecution's case was that it referred to the alleged shooter, Jason. In evidence, Ms Allner claimed she meant a different person. The police officers' statements attributed to her a description of that other "Jase" (including that he came from Canberra, came with a partner, and drove a blue car) that appeared to match the alleged shooter.

Hamill J rejected the defence submission that the content of the officers' statements could not constitute a prior inconsistent statement under s 38(1)(c). His Honour was satisfied that the attributed words were sufficiently inconsistent with Ms Allner's trial evidence to warrant leave. The prosecutor was permitted to put that account to the witness as if in cross-examination. However, the documents themselves could not be placed in the witness's hands, and the prosecutor was confined to what s 44 of the Evidence Act permitted.

On the fourth topic (the identity of a person visible on CCTV footage), Hamill J declined to grant leave. His Honour considered the s 192 factors, particularly the waste of court time involved in repeatedly removing the jury, and concluded the witness's evidence on that issue had little rational capacity to affect the relevant fact in issue. The prosecutor was free to submit to the jury, based on other circumstantial evidence, that the person in the footage was Mr Hawkins, without putting that proposition directly to Ms Allner.

Orders Made

  • Leave granted under s 38 of the Evidence Act 1995 (NSW) for the prosecutor to cross-examine Ms Allner on topics one, two, and three
  • Cross-examination on topic four (CCTV footage identity) not permitted
  • The prosecutor confined to the limits imposed by s 44 when dealing with the officers' statements; the documents not to be placed in the witness's hands

Key Takeaways

  • Under s 38(1)(c) of the Evidence Act 1995 (NSW), a prior inconsistent statement need not be a formal document made by the witness; words attributed to a witness in a police officer's own statement can satisfy the threshold, at least where the technical failure to record a formal statement was not the witness's fault.
  • Where no official witness statement exists due to a technical breakdown, the content of police officers' contemporaneous records of what the witness said may still ground an application for leave to cross-examine under s 38.
  • Section 192 of the Evidence Act requires the court to weigh discretionary factors when deciding whether to grant leave; Hamill J treated excessive consumption of court time, and the cumulative effect of repeated jury absences, as a material consideration weighing against leave on one topic.
  • Section 44 continues to constrain how a prosecutor may use prior inconsistent material once leave is granted: the prosecutor may put the substance of the attributed words, but is not entitled to place the statement documents in the witness's hands beyond what s 44 permits.
  • A prosecutor is not precluded from inviting the jury to draw inferences from circumstantial evidence about a fact (such as the identity of a person on CCTV), even where the court declines to allow that issue to be put directly to a particular witness.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38, 38(1)(c), 44, 192

Cases cited: No cases were cited in the judgment.