New South Wales Supreme Court CITATION : Regina v Suteski [No 3] [2002] NSWSC 226 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70053/01 27/2/02 - 28/2/02 HEARING DATE(S) : 1/3/02 4/3/02 - 7/3/02 JUDGMENT DATE : 7 March 2002 PARTIES : Regina Sneza Suteski JUDGMENT OF : Kirby J COUNSEL : M Tedeschi QC/Ms N Adams (Crown) P Byrne SC/R Nicol (Accused) SOLICITORS : S E O'Conor (Crown) R J Walsh, Murphy & Roskov (Accused) CATCHWORDS : Evidence - Re-examination LEGISLATION CITED : Evidence Act 1995 DECISION : Decision para 10 Extempore - Checked Revised IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J Tuesday 7 March 2002 70053/01 - REGINA v SNEZA SUTESKI JUDGMENT [No 3] - Re re-examination of Kaycee Salem 1 KIRBY J: At the end of the cross-examination of Miss Kaycee Salem, counsel for the accused asked a series of questions relating to a conversation between persons I shall refer to as Witness "B" and Witness "W", they being the persons who had, on the Crown case, been recruited to hurt the deceased. The questions were based upon evidence given by Ms Salem at the committal proceedings. The transcript is in these terms: (T291/2) "Q. This is what you said about that conversation in your answer to question put to you. I am reading from line 51, where you said this: `I heard (Witness W) ask (Witness B), he said, you know, we can hurt this guy for Sneza so, you know, if we hurt him he doesn't have to go to work for a few days and Sneza would pay us.' That is what you said in the committal proceedings about the conversation that you overheard between (Witness W) and (Witness B), that's right, isn't it? A. Yes. Q. Question then put to you: `Q. Was that all that was said or is there more? A. (Witness W) asked (Witness B) if he wanted to do it and (Witness B) said that he didn't have, he didn't want anything to do with it.' Right? A. Yes." 2 Mr Byrne then asked the witness, in respect of these answers, whether she was telling the truth. The cross-examination was in these terms: (T292) "Q. This was your answer - if I can just ask you before reading it out. Obviously at committal proceedings you were telling the truth, weren't you? A. Yes, to the best of my knowledge I was. Q. This was March of 2001? A. Yes. Q. No doubt you were telling the truth, that's right, isn't it? A. Yes, I was trying my best to remember everything. Q. The question was put to you: `Q. What does (Witness W) say to (Witness B) exactly again? A. He asked me if he wanted to hurt somebody, bash somebody so that he could get paid by Sneza if they were to do it, so he didn't have to go to work for a couple of days.' That was the answer that you gave at the committal proceedings, wasn't it? A. Yes." 3 The Crown in these circumstances sought to re-examine the witness on the basis of certain evidence that she had given in the same committal proceedings. Miss Salem gave evidence at the committal on 14 June 2001 where the following questions were put by counsel then appearing for the accused: (p2) "Q. And from your understanding of everything Ms Suteski said she only wanted Mr Peich bashed or hurt so he'd be off work for a couple of weeks, is that so? A. Yes. Q. Did Ms Suteski tell you at any stage why she wanted Mr Peich bashed or hurt so he'd be off work for a couple of weeks? A. Yes." 4 Shortly after, the same counsel returned to the issue: (p2) "GROSS: Q. And did she say that she needed him off work for a couple of weeks so she could do that, is that it? She wanted him off work for a couple of weeks so she could do that? A. Yes, as I can recall, yes. Q. She didn't say that she wanted him in hospital as such, she just wanted him off work for a couple of weeks so she could steal the money. Is that it? A. I don't know whether she said she wanted him in hospital but I can remember she said that she wanted him off work." 5 Later the same day the following further question was also asked: (p 15) "Q. And from all that you heard Sneza say to anyone else, whether it be (Witness B) or (Witness W), all she wanted was for Mr Peich to be hurt so he'd be off work for a couple of weeks, correct? A. Yes." 6 Finally, the Crown seeks to draw the witness' attention to her evidence on 14 June at page 28 which was in these terms: (p 28) "Q. With the consequence, he'd be away from work for a couple of weeks, correct? A. Yeah. Q. Nothing was said before the death of Mr Peich to you or in your presence of anything different being done, that right? A. No, nothing was said to me." 7 Mr Byrne, on behalf of Miss Suteski, objects to the re-examination on the basis that his cross-examination was carefully directed to a conversation between Witness W and Witness B, whereas the passages to which the Crown wishes to take the witness relate to the accused. However, in the evidence which was elicited in cross-examination, and which was given by Miss Salem at the committal proceedings, she refers to the fact that "Snez" would pay for the assault. 8 It seems to me that taking the sequence of questions, and the affirmation that they represent the truth, that the picture is incomplete and misleading. The impression is given that this was all that Ms Salem said at the committal on this issue. For that reason it seems to me appropriate that the Crown should, in re-examination, have the right to take this witness to the passages which have been identified. 9 Unquestionably, the issue is an important one. The time that it was intended Mr Peich should be away from work is no doubt an important index of the seriousness of the assault which was intended. During the debate on whether the Crown should be permitted to re-examine, there was also debate on whether the issue was not one for re-examination, but rather one in which the Crown should seek leave to further examine the witness (and, depending on the answers, even cross examine the witness under s38). I invited Mr Byrne to make submissions as to whether the Crown might be given leave. The issues raised by s.192 were canvassed. The precise question is within a small compass. It is unlikely to materially affect the length of the trial. It is plainly an important issue, in the context of the charge of murder which the accused faces. There would be no particular unfairness in permitting the Crown to ask further questions in chief. The precise evidence, whilst not incorporated in the statement served by the Crown from Miss Salem, was previously given in committal, as set out above. Were it a question of leave under s192 to ask further questions in chief, I believe the Crown would be entitled to that leave. 10 However, because I believe that the impression created by the evidence is potentially misleading, it is appropriate to permit the Crown to re-examine the witness, by drawing her attention to the passages which have been identified. Mr Byrne, on behalf of Ms Suteski, should then have the right to further cross-examine, should it happen that she departs from the version which he elicited in cross-examination. ********** Last Modified: 03/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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