R v Carberry (No 2) [2023] NSWSC 137

Supreme Court New South Wales

Medium Neutral Citation: R v Carberry (No 2) [2023] NSWSC 137 Hearing dates: 23 February 2023 Date of orders: 23 February 2023 Decision date: 23 February 2023 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) Leave granted under s 38(1) of the Evidence Act 1995 (NSW). (2) Leave refused under s 38(3) of the Evidence Act 1995 (NSW). Catchwords: CRIMINAL LAW – evidence – leave to cross-examine – evidence unfavourable to prosecution – evidence inconsistent with previous statements – witness not making genuine attempt to give evidence of things of which she was aware in earlier interviews – leave granted CRIMINAL LAW – evidence – leave to cross-examine – credibility evidence – where witness speaks to accused as she left court – where solely referrable to her credibility – leave refused Legislation Cited: Evidence Act 1999 (NSW), ss 37(1)(c), 38(1)(a), 38(1)(b), 38(1)(c) Cases Cited: Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325 Category: Procedural rulings Parties: Rex (Crown) Saimone (Simon) Carberry (Defendant) Representation: Counsel: K Ratcliffe (Rex) T D Anderson SC (Carberry)

Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) Styles Law Solicitors (Carberry) File Number(s): 2020/335222

EX TEMPORE JUDGMENT (REVISED) 1. An application is made pursuant to s 38 of the Evidence Act 1999 (NSW) in relation to the current witness, Tearna O'Hanlon. The application is not, insofar as it relates to particular subject areas and the provision in s 38(1), opposed. The concession made by Mr Anderson SC is well founded. 2. The witness has given evidence unfavourable to the prosecution who calls her: see s 38(1)(a). That includes stepping back from, or away from, things she said in her recorded police interviews and, in particular, whether there was a joint criminal enterprise to rob Mr Mousawi (the deceased) of his car, and whether she involved herself in that enterprise by sending text messages at the behest of the accused, Mr Carberry. 3. There are also matters which fall under s 38(1)(b), matters of which she might reasonably be supposed to have knowledge and, indeed, did have knowledge according to what she told police, and in relation to which she appears not to be making a genuine attempt to give evidence. My observation is that that is clearly the case in respect of a number of topics and issues; such as whether and when she saw a knife, whether and when she saw the keys of the car that was supposed to be subject to the robbery, and the whole interaction between her and "the two boys", being Mr Carberry and Mr Honeysett, in terms of the lead up to the alleged robbery. 4. She also volunteered for the first time today, as I understand it and accepting what the Prosecutor puts to me, that she was drug affected at the time of the interview. Her words were "I was drug intoxicated when my statements were taken." 5. There are also a number of subject matters where her evidence today, usually couched in terms of "I don't remember", is inconsistent with things she said in both of her previous interviews: see s 38(1)(c). Again, that relates to similar matters such as when she saw the knife, if she saw the knife, when she saw the keys, if she saw the keys, and whether there was a plan to rob Mr Mousawi. 6. There are other matters where she is somewhat consistent in her evidence. For example, she talks about Mr Mousawi standing over Mr Carberry when Mr Carberry was seated in the car. But, whilst I have not formed the view that she is deliberately giving evidence designed to help Mr Carberry, she does seem, on my observation, to be trying to negotiate a very fine line whereby she gives evidence generally consistent with what she knows she has said to the police (because she watched it for most of yesterday in Court), but, if you like, tainting that evidence by a purported lack of memory at this time. 7. I have to say, I had assumed in the course of the examination in chief that there was some arrangement allowing leading questions which bordered closely on cross-examination, and which is allowable under s 37(1)(c) in the absence of objection. But, it may be that it was just inevitable that the form of the questions involved showing the witness what she had said before and asking her to adopt them or not. That is not meant as a criticism of the examination or, for that matter, the lack of objection. It was just an impression. 8. One thing I observed, which I think perhaps nobody else did, was that if Ms O'Hanlon was directed by a question to look at the transcript of interview, she did so. If the Prosecutor, in more polite terms, said that she could do that, she simply did not look at the transcript. Not one time did she turn to the interview transcript when she was given the option, and indeed that emerged at one stage when I raised with the Prosecutor that she was not looking at the interview and she quite boldly, and correctly, said "She [the learned Prosecutor] said if I wish." 9. I propose to allow cross-examination on those subject matters, including confronting the witness with evidence that she has given which is unfavourable and inconsistent with what she said in the police interviews. 10. The Prosecutor has also sought to interrogate her in relation to an incident that happened in Court yesterday, of which I was unaware, where she said something in the nature of an apology to Mr Carberry as she left. The Prosecutor suggested she may want to put to the witness that she is motivated to give evidence favourable to him because she does not want to be seen as a dog, which is to say an informant, or that she is enamoured of the accused. 11. Mr Anderson objects to that part of the proposed cross-examination. While I have no fixed view and have not looked at the authorities on the subject, I am inclined to think that that sort of questioning really relates to matters relevant only to the witness's credibility and so additional leave is required. [1] I do not propose to rule finally on that, although my inclination at the moment is the explanation that she gave when she made a statement about the subject matter this morning, and which Mr Anderson read onto the record, has a ring of truth to it. Ms O'Hanlon's statement was marked as Ex VD-5 and was in the following terms: "[3] On Wednesday 22nd February 2023, I was giving evidence as a witness in the matter of Simon Carberry at Wagga Wagga Supreme Court. [4] At the conclusion of giving evidence as I was leaving the witness stand and court I said 'I'm sorry' quietly, very quietly to Simon who was sitting in the dock. [5] When I said I'm sorry I meant I'm sorry that everything ended this way. I'm sorry that he is going to [gaol] for something he didn't mean to happen like that. I'm sorry about the way things ended between us. I'm sorry about it all, but I need to tell the truth for that man (Sayed) and his family. [6] Simon winked at me as I said it and I took that to mean 'it's okay I have to tell the truth'." 1. In any event, that is not my decision to make, for one thing. But, I do question the fairness of putting to her, with the authority of the Prosecutor's office, that she does not want to be "a dog" or that she somehow still has romantic feelings for Mr Carberry. At this stage I will not grant leave, but I am open to hearing further submissions, depending on how the cross-examination proceeds on those topic areas and based on what she has said before. [2]