Citation: R v Wrigley (No 4) [2025] NSWSC 445
Court: Supreme Court of New South Wales
Date: 7 May 2025
Judge(s): Ierace J
Background
The accused stands trial on a count of murder, together with three counts relating to the alleged theft and disposal of property. The alleged murder occurred near Nyngan in the early hours of 23 January 2023. The trial involves evidence of events spanning the preceding Saturday through to Monday morning.
The Crown sought to cross-examine a witness, a woman who is the partner of the accused, about two conversations she had with police in February 2023. Detective Sergeant Gardiner and Detective Senior Constable Dimmock spoke with the witness on 21 February 2023 and again on 23 February 2023. The Crown brought its application under s 38 of the Evidence Act 1995 (NSW), which permits a party to seek leave to cross-examine its own witness where that witness gives evidence unfavourable to the party calling them.
The defence opposed the application, submitting that both the statutory threshold under s 103(1) of the Act and the court's discretionary powers to exclude otherwise admissible evidence were engaged. The application was determined on an ex-tempore basis during the trial.
Legal Issues
- Whether leave should be granted under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness on the content of her two conversations with police in February 2023
- Whether the witness's claimed lack of recollection satisfied the basis for the s 38 application
- Whether the police questioning technique, using property names unfamiliar to the witness, rendered that questioning unfair
- Whether the discretionary exclusionary provisions of the Act should be applied to exclude the evidence even if the threshold was met
Decision
Issue 1: Whether the basis for the s 38 application was made out
Ierace J found that the witness's explanation of having no, or virtually no, recollection of the 21 February 2023 conversation was difficult to believe, given the singular nature of the occasion: she had been contacted by police, told the matter was a murder investigation, and questioned about the whereabouts of her partner (at [6]). The court also noted that the witness had separately claimed no recollection of a telephone call with the accused made only four weeks prior to giving evidence, which Ierace J considered most unlikely (at [7]). His Honour concluded that the witness was not doing her best to recall relevant events and that the basis for the s 38 leave application was established (at [7]).
Issue 2: Whether the police questioning was unfair
The defence submitted that police references to properties by the names "Rosehill" and "Neeroc," rather than by descriptions more familiar to the witness, rendered the questioning unfair. Ierace J rejected this submission, finding that the context of those references in the recorded conversations would have made it apparent to the witness which locations Detective Sergeant Gardiner was referring to (at [8]).
Issue 3: Whether discretionary exclusion was warranted
The court acknowledged that relevant factors included the passage of time since both the underlying events (January 2023) and the police conversations (February 2023, now over two years prior), and that these factors mitigated against any presumption that the witness was lying or being uncooperative (at [4]-[5]). However, having regard to all the circumstances, including CCTV and other evidence suggesting the witness had met the accused's employer on 21 January 2023, contrary to what she had told police (at [9]), the court was satisfied it would not be unfair to the accused to grant leave (at [10]). The absence of prior notice for the application was noted but did not alter the outcome, as it was reasonably to be expected that the witness would have some recollection of the two conversations (at [10]).
Orders Made
- Pursuant to s 38(3) of the Evidence Act 1995 (NSW), leave granted to the Crown Prosecutor to cross-examine the witness, Natalie Riley, as to conversations she had with Detective Sergeant Gardiner and Detective Senior Constable Dimmock on 21 February 2023 and 23 February 2023.
Key Takeaways
- Under s 38 of the Evidence Act 1995 (NSW), a court may grant leave to cross-examine a party's own witness where that witness is found not to be doing their best to recall relevant events, even where the witness's stated position is one of non-recollection rather than outright contradiction (at [7]).
- A claimed failure to recall a conversation with police about a murder investigation was found difficult to accept on its face, particularly where the occasion was singular and inherently memorable (at [6]).
- The passage of time since the relevant conversations is a factor that may weigh against inferring that a witness is being deliberately uncooperative, but it does not necessarily preclude a finding that the s 38 threshold is met (at [4]-[5]).
- Where police questioning used property names rather than descriptions more familiar to a witness, the court found no unfairness where the surrounding context made the references sufficiently clear (at [8]).
- The absence of prior notice of a s 38 application is a relevant procedural consideration, but does not automatically defeat the application where the court is satisfied that some recollection of the subject matter could reasonably be expected (at [10]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 102, 103, 103(1)
Cases
- Not stated