R v Songcuan (No 2) [2022] NSWSC 1797

Supreme Court New South Wales

Medium Neutral Citation: R v Songcuan (No 2) [2022] NSWSC 1797 Hearing dates: 7 and 8 November 2022 Date of orders: 8 November 2022 Decision date: 08 November 2022 Jurisdiction: Common Law Before: Campbell J Decision: Judgment at [3]; [6] and [8]. Catchwords: EVIDENCE — witness evidence — unfavourable witnesses — prior inconsistent statement Legislation Cited: Evidence Act 1995 (NSW), s 38 Cases Cited: R v Milat, unreported, Supreme Court of New South Wales, 23 April 1996 Category: Procedural rulings Parties: Rex (Crown) Engracio Songcuan (Accused) Representation: Counsel: A Robertson (Crown) B Royce (Counsel for the accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Chidiac Lawyers (Accused) File Number(s): 2020/131543 Publication restriction: Not to be published until the completion of the Trial

extempore Judgment (revised) 1. Father Ranillo Creta is giving evidence before me in the prosecution case. Father Creta is a Catholic priest with a special ministry to the Philippine community in Northwestern Sydney. He performed a pastoral role to the accused, Mr Engracio Songcuan, and his wife, the deceased, Mrs Erlinda Songcuan. During cross-examination two matters fell from him which are the subject of an application under s 38 of the Evidence Act 1995 (NSW). 2. The first matter is that, in cross-examination, Father Creta said that having spoken to Mrs Songcuan on 30 April 2020 about her conviction that her husband was having an affair with another woman, he then spoke to Mr Songcuan. In the cross-examination he said that he spoke to Mr Songcuan about a birthday card that had been shown to him by Mrs Songcuan, after he came downstairs at the family home, having spoken with Mrs Songcuan. He said he did not discuss with him Mrs Songcuan's allegation that she had found ladies underwear in circumstances which suggested that that underwear was, if I can put it this way, at that time, under the control of her husband. 3. In his statement to the police on 21 May 2020, Father Creta said this(at paragraph 14) of his conversation with Mrs Songcuan: "I did not ask him about the card and the underwear as it escaped my mind." It seems quite clear that the police statement of that date, which has been admitted as exhibit VD-1, is a prior inconsistent statement for the purpose of s 38(1)(c), as Mr Royce of counsel for the accused accepts, and I think it appropriate I grant leave that the witness be cross-examined about that matter on that basis. 4. There is a second matter, which is perhaps of more direct concern to the Crown than the one I have mentioned, which is that during cross-examination, and I must say Mr Royce treaded very gingerly when eliciting this evidence, as though he were examining the witness in-chief rather than in cross-examination, it emerged that, when Father Creta was in Mrs Songcuan's bedroom talking to her about her belief in relation to the conduct of her husband, he saw in an open drawer a large knife of a type that the priest associated with a butcher's chopping implement. He said that he discreetly removed that knife from the bedroom and gave it to Mr Songcuan when he was talking to him. 5. That matter is perhaps a significant matter in relation to the Crown's case that Mr Songcuan is guilty of murder and he is not entitled to have his legal responsibility for that crime reduced from murder to manslaughter on the basis of excessive self-defence. To that extent, it is argued that the evidence is unfavourable, as that expression is used, as is well understood, in s 38(1)(a) of the Act. Again, Mr Royce does not dispute that the evidence is unfavourable. 6. The learned Crown Prosecutor also made an application for leave to cross-examine Father Creta as to credit about the knife and, indeed, expressed the desire to put to him that his evidence about that was untrue. I am not at this stage prepared to grant that leave under s 38(4), but the Crown may reserve his position in that regard. It seems to me, without detailing the various factors that may be involved, that there are many reasons why even important evidence not picked up by police investigators may come out at a trial. After all, that is the purpose of cross-examination of witnesses: to elicit favourable evidence from the witness that has either been overlooked by the police or was not elicited by them in the course of their interrogation of a witness. So I am not satisfied there is a basis for attacking Father Creta's credit at this stage, and at this stage I decline that application. 7. The section really proceeds on the basis that an application on behalf of the prosecution will be made either before the witness gives evidence or during the witness's evidence-in-chief. That expectation I think arises out of subss (4) and (5) of s 38. 8. I should point out that, although counsel did not draw it to my attention, I do recall the judgment of Hunt CJ at CL in R v Milat (unreported, Supreme Court of New South Wales, 23 April 1996) where his Honour indicated that the intention of the provision is that any cross-examination by the Crown should be subject to further examination on behalf of the accused. His Honour said this at page 7 of his judgment: "In its final report, the Commission said this should not be an inflexible requirement, and that provision should be made to enable the other party or parties to question the witness further after cross-examination by the party who called the witness. Although perhaps not readily apparent from their terms, this appears to have been the intention behind subss (4) and (5) of s 38." His Honour then went on to make a direction allowing the Crown to cross-examine but subject to the right of counsel for the accused to further cross-examination after the s 38 cross-examination had taken place. I propose to allow that same opportunity to Mr Royce.