Supreme Court New South Wales Medium Neutral Citation: R v Nancarrow (No 2) [2022] NSWSC 276 Hearing dates: 8 March 2022 Date of orders: 8 March 2022 Decision date: 08 March 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) The diagram marked by the accused is admissible. (2) The Prosecutor may only cross-examine further on the issue to put clearly what he is suggesting to allow the accused to accept or deny the propositions or indicate he cannot remember. (3) Further and extensive cross-examination on the issue is not permitted. Catchwords: EVIDENCE – cross-examination of accused – limits on cross-examination – credibility evidence – whether evidence solely relevant to credibility – whether subject matter was "evidence in relation to which defendant is being prosecuted" – departure from scene of alleged crime – objection taken to diagram marked by accused – where diagram explained evidence given earlier and to which no objection taken Legislation Cited: Evidence Act 1995 (NSW) s 104 Category: Procedural rulings Parties: Regina Shane Nancarrow Representation: Counsel: J Stanhope (Regina) B Neild (Nancarrow) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Nancarrow) File Number(s): 2019/242866 Publication restriction: Nil. Judgment 1. In the course of the cross-examination of the accused, and shortly before the trial was due to be adjourned for lunch on its fifth day, an objection was taken to the tender of a diagram that had been marked by the accused while he was under cross-examination. The jury was sent to lunch and submissions were made in its absence. The submissions traversed more than the tender of the diagram and, in essence or impliedly, sought an advance ruling prohibiting the Prosecutor from asking further questions on the general subject area to which the marked diagram related, which is to say the circumstances in which the accused left the premises very soon after the knife he was holding caused a fatal wound to the deceased Mr Donald. 2. I ruled that the diagram was admissible and indicated I would allow the Prosecutor to "put clearly what he is putting to the [accused] to give him the opportunity to accept or deny or not remember". I also foreshadowed that I would not "allow further and extensive cross-examination on the issue". I provided ex tempore reasons for those rulings and the Court adjourned for lunch. On resuming, with the jury waiting for the evidence to resume, I indicated that I would provide more substantial reasons in due course. These are those reasons which incorporate the relevant parts of the ex tempore reasons which have been revised both in substance and form. 3. The objection made by counsel for the accused was initially couched in the following terms: "[this line of questioning] is straying into cross-examination that's relevant only to the credibility of the accused, in the sense that the issue which seems to be the subject of the line of cross-examination is not a matter that is going to be directly relevant to the jury's assessment of the issues at trial and it is … of some concern to me as to the use that will ultimately be made of it and whether or not section 104 needs to be satisfied, given the nature of the questioning." [1] 1. The essence of the Prosecutor's response was that the evidence went to more than the credibility of the accused as a witness: "CROWN PROSECUTOR: On my analysis your Honour, my submission would be that this is evidence of events, very proximate, really part of the entire transaction of what had taken place. There is inconsistency between some of what is said by some of the other witnesses and the accused. There is, if not an inconsistency, then a tension between other aspects of the evidence between the accused and the witness and it's not evidence that would only be relevant for an assessment of the credibility with the accused." [2] 1. To understand the context in which the rulings were made, it is necessary to consider the issues in the case, the evidence of the accused, and the cross-examination that led up to the attempt to tender the marked diagram. 2. The prosecution case is that the accused stabbed the deceased following an argument about drugs. The deceased wanted the accused to buy methylamphetamine and the accused refused. Both men were residing, along with two others, in the same home at Dondingalong. The accused went to his bedroom upstairs and the deceased went to his caravan outside. A short time later, there was a confrontation which took place on the stairs that led to the accused's bedroom. In the course of that confrontation, a knife being held by the accused caused two stab wounds to the deceased. One of the wounds was fatal. The prosecution case is that this was a deliberate stabbing while the defence case is that the contact was incidental as the deceased charged up the stairs trying to get to the accused. The defence also relies on self defence. 3. Immediately after the stabbing the accused left the premises and drove away. He turned around and returned to the premises and en route crashed his car. 4. The cross-examination leading to the tender of the diagram commenced when the accused was being interrogated about the circumstances in which he left the scene. There is some evidence that Mr McClory, another witness and occupant of the house, said words to the effect "Just go, Shane". That is the accused's account and it receives some support in the evidence of the other occupant, Mr McMillan. Mr McClory gave evidence that he could not remember saying that. 5. The prosecution case, based on the evidence of Mr McClory and Mr McMillan, is that, by the time the accused left the premises, the deceased had collapsed to the ground and one or other of the men was calling an ambulance. Contrary to this evidence, the accused said in his evidence-in-chief that, when he left the house, he was not aware how badly Mr Donald was injured. [3] This was taken up at the commencement of the cross-examination which included the following exchanges: "Q. Mr Nancarrow, I'm just going to take you back to some evidence you were giving within the last half hour and it was evidence to the effect that when you left the house at 309 Pipers Creek Road you weren't aware how badly injured Mr Donald was. Do you recall giving that evidence? A. That's correct." [4] "Q. That's Mr Donald lying on the floor with his legs on the lino and the upper part of his body on the tiled area below the stairs, isn't— A. They weren't in that position when I left the house. They were both standing. Q. They were both standing? A. Absolutely." [5] 1. The Prosecutor continued the cross-examination with questions relating to the details relevant to this conflict in the evidence and culminated in the attempt to tender the diagram to which objection was taken: Q. I'm going to suggest to you, sir, that when you were leaving the house Mr Donald was lying on the floor roughly in that area where we can see his body in the earlier photographs. What do you say about that? A. I say that I - my view was blocked by Stewart when I left. All I saw was Stewart. Q. Let's be clear about this. When you were leaving the house did you see Mr Donald still standing up? A. No, I actually think he was either crouching down or down, not standing. Q. So the only person you saw standing at that stage was Mr McMillan. Is that right? A. I thought he was crouching. Q. Crouching? HIS HONOUR Q. Sorry, who was crouching? A. Stewart. CROWN PROSECUTOR Q. Stewart McMillan? A. That's correct. Q. It's not the case that Mr Stewart McMillan - I should take you to the photograph, I'm sorry. If we go back to, I'm sorry if it upsets you, but page 14. Do you see that just to the left-hand side of Mr Donald's waist there is what appears to be a red cloth? A. Okay. Q. Have you seen that? A. No. Q. Can you look at page 13 for me, perhaps? A. Yep. So there's a cloth there. Q. I'm sorry? A. Yep. Q. Can you see the red cloth I'm talking about? A. Yes. Q. It's not the case that when you left the house Mr McMillan was pressing that cloth against Mr Donald's chest? NEILD: I object. The question tends to be confusing being asked in the negative. CROWN PROSECUTOR: All right, I'm happy to rephrase it. Q. When you left the house, was Mr McMillan pressing that cloth against Mr Donald's chest? A. When I left, they weren't in that position. Q. When you say they weren't in "that position"? A. They were over in front of the laundry. Q. If we look at the floor plan - actually what I might do, sir, is give you a pen. In fact just pause for a minute and we'll get you another copy of the floor plan. DOCUMENT SHOWN TO WITNESS Q. If you could look at the document that's coming to you now, sir. Is that another copy of the floor plan that's on page 2 of exhibit A? A. Yes. Q. If there's a pen, perhaps the witness could mark with an X the position where you say Mr Donald and Mr McMillan were when you left the house? A. Yes. Q. Could I have that, please? Am I correct that you've drawn two Xs. One you've put SM and one you've put PD? A. That's correct. Q. And that's obviously Stewart McMillan and Paul Donald? A. Correct. CROWN PROSECUTOR: I'll tender that. NEILD: Your Honour, there's a matter that I need to raise, and I think given the time it might be a convenient time to raise it rather than have the jury come and go. HIS HONOUR: All right, well, we'll take lunch, members of the jury. Q. Mr Nancarrow, thank you for your evidence. I'll get you to step down and we'll resume your evidence at 2 o'clock. A. Thank you." 1. Apart from objections as to form, no objection was taken to this line of cross-examination. In raising objection to the tender of the diagram and the "continuation of the line of questioning", there was no suggestion that the evidence already given should be excluded retrospectively or somehow (as the Americans would say) "stricken" from the record. [6] In noting those matters, I am not being critical of counsel who raised the objection at a point he judged to be appropriate, a matter he explained in the course of submissions. 2. I took the view that the evidence was relevant, at least to the accused's credibility. The Prosecutor did not, as I perceive it, identify any other relevance apart from submitting, essentially, that it is all part of how the events unfolded. 3. The objection was taken under s 104 of the Evidence Act 1995 (NSW). That section disallows cross-examination of a defendant in criminal proceedings in relation to matters relevant to the assessment of the defendant's credibility, absent the grant of leave. Pursuant to sub-s (3), leave is not required to cross-examine about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or (c) has made a prior inconsistent statement. 1. There was no suggestion that these provisions applied although it may be that sub-paragraph (b) could, at a stretch, have some application given the evidence of the other witnesses. Sub-s (4) provides that leave must not be granted under sub-s (2) unless evidence adduced by the defendant has been admitted that – (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness's credibility. 1. Sub-section (5) provides: (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to-- (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. 1. The jury had, at the point in the trial when objection was taken, already heard the substance of the prosecutor's cross-examination and to make sense of that, particularly the last moments of it, they would need to see the diagram. While that may not make the evidence admissible, I was satisfied that the diagram should be admitted into evidence. It arguably related to the events in relation to which the defendant is being prosecuted; it at least related to the moments immediately after those events and, on either case, to events between the time of the stabbing, the time that Mr Donald passed away and the time that the defendant left the home. 2. Because it was not suggested, at the time the objection was taken, that the evidence was relevant to an assertion that the accused was exhibiting a consciousness of guilt (a matter that had been raised more than once during the trial to that point), I struggled to see that it had relevance beyond the issue of Mr Nancarrow's credibility. 3. Accordingly, to pursue the line of cross-examination further, leave would have been required. There was no formal application for leave. 4. For those reasons, I allowed the tender of the document in order that the jury could make sense of the cross-examination that preceded it. I also allowed the Prosecutor to put to Mr Nancarrow what he was suggesting with clarity to allow the accused to respond to that suggestion. Otherwise, I disallowed continued cross-examination on the subject. POST SCRIPT 1. After this ruling was made, the Prosecutor indicated that, if permitted, he proposed to put to the jury that the accused's hasty departure from the scene was relevant to a consciousness of guilt. After some discussion and debate, I determined that the evidence of "flight" (and the disposal of the knife), could be put to the jury as evidence capable of supporting the prosecution case as it might be held that it was evidence that the accused was aware that the wounding was not an accident, but rather the result of his deliberate act of stabbing the deceased. The evidence was not pressed as capable of distinguishing murder from manslaughter and was not admitted to rebut self-defence or to establish specific intention. ********** Endnotes 1. Tcpt, 8 March 2022, p 255.7-13. 2. Tcpt, 8 March 2022, p 256.29-35. 3. Tcpt, 8 March 2022, p 244.10. 4. Tcpt, 8 March 2022, p 248.22-26 5. Tcpt, 8 March 2022, p 249.33-40. 6. Tcpt, 8 March 2022, p 257.10-25. 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