R v Haile

Citation: R v Haile [2023] NSWSC 191
Court: Supreme Court of New South Wales
Date: 8 March 2023
Judge(s): Harrison J

Background

The accused stood trial for murder arising from the shooting death of a man in a carpark at Pendle Hill on 30 October 2013. The accused admitted to being the shooter, with the central contest focused on the circumstances of the shooting. The Crown's principal and only eyewitness had already spent several days in the witness box, including extensive cross-examination by defence counsel.

The eyewitness had previously given evidence at two earlier trials in 2016 and 2017 involving related proceedings, producing transcripts running to more than 700 pages across both occasions. Her evidence at the current trial included what appeared to be internally contradictory accounts of the direction from which shots were fired, giving rise to concerns about her reliability.

The Crown sought to conduct re-examination by taking the witness through selected portions of her 2016 and 2017 trial evidence, arguing those passages were consistent with the version the Crown now pressed. The defence opposed the application.

Legal Issues

• Whether the Crown should be permitted to re-examine its principal witness by reference to her prior evidence from two earlier trials in order to attempt to restore her credit.
• Whether any such re-examination was likely to confuse or mislead the jury within the meaning of section 135 of the Evidence Act 1995 (NSW).
• Whether further examination of the witness would cause an undue waste of time.

Decision

The re-examination application:

Harrison J refused to allow the Crown to re-examine the witness by reference to her 2016 and 2017 trial evidence (at [9]). His Honour found that the witness had already given two broadly consistent versions of the shooting: one in her recorded police interview shortly after the events, and one in her evidence-in-chief at the current trial (at [10]). The apparent inconsistencies and confusion were described as an unremarkable artefact of the trial process, arising nearly ten years after the events in question (at [10]).

The complexity and volume of prior evidence:

His Honour identified a fundamental practical difficulty with the Crown's proposal. The prior evidence from 2016 and 2017 was extraordinarily extensive, covering an estimated 400 pages from the 2016 trial and approximately 300 pages from the 2017 trial (at [13]). That material was of variable consistency with the Crown's current case, and the Crown's proposal to extract only favourable portions did not account for the complex and shifting nature of the evidence overall (at [12]-[13]). Crucially, the 2016 evidence also included the witness's own acknowledgment that her police interview was "disjointed and hard to read," which would inevitably have been drawn into any re-examination (at [12]).

Prejudice, utility, and section 135:

Harrison J held that the probative value of the proposed re-examination was very substantially outweighed by the danger of unfair prejudice to the accused, as it would afford the Crown an unwarranted further opportunity to have the last word on the witness's credit (at [15]). Further examination was also likely to confuse or mislead the jury within the meaning of section 135 of the Evidence Act, and would result in an undue waste of time (at [15]). His Honour also noted that defence counsel had cross-examined the witness in an exceedingly restrained and cautious manner, and should not be deprived of the legitimate forensic benefit of that approach (at [15]).

Orders Made

• The Crown's application to re-examine the witness by reference to her evidence given in the 2016 and 2017 trials was refused.

Key Takeaways

• Harrison J held that the volume and variable consistency of prior trial evidence can itself become a reason to refuse re-examination: where prior transcripts run to hundreds of pages and contain evidence both favourable and unfavourable to the party seeking to rely on them, selective use may be inherently unfair (at [12]-[13]).

• Under section 135 of the Evidence Act 1995 (NSW), a court may refuse to admit or limit evidence where its probative value is substantially outweighed by the danger that it will mislead or confuse the jury. The Supreme Court applied that discretion here to prevent re-examination that was likely to complicate rather than clarify the factual picture (at [15]).

• A witness's apparent inconsistency or confusion after nearly a decade does not automatically entitle the party calling that witness to conduct extensive remedial re-examination. The court found the confusion was an unremarkable feature of long-running proceedings and did not of itself justify further examination (at [10]).

• Where defence counsel has adopted a deliberate and restrained cross-examination strategy, a court may treat that forensic choice as a factor weighing against permitting the opposing party to conduct remedial re-examination under the guise of restoring credit (at [15]).

• The contemporaneity of a witness's statement remains relevant to its reliability. The court accepted that the witness's recollection of events in October 2013 and January 2014 would have been more reliable than her accounts given years later in 2016, 2017, or 2023 (at [15]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) , ss 38, 135

Cases
- Not stated