New South Wales Supreme Court CITATION : Regina v Suteski [No 1] [2002] NSWSC 224 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 - 5/3/02 JUDGMENT DATE : 5 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'Connor (Crown) R J Walsh, Murphy & Roskov (Accused) CATCHWORDS : Evidence - Re-examination DECISION : Decision para 13 revised IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J Tuesday 5 March 2002 70053/01 - REGINA v SNEZA SUTESKI JUDGMENT [No 1] - Re-examination of Witness "W" (T.160) 1 KIRBY J: In the course of re-examination of the person I shall refer to as Witness "W" I made a ruling. I undertook to provide reasons for that ruling. I now do so. 2 Ms Sneza Suteski is charged with the murder of Mr Richard Peich. It is the Crown case that she procured another person, Witness W, to seriously assault Mr Peich. Witness W did so on 20 December 1999. In the course of the assault he used a hammer and then a knife. Mr Peich was seriously injured, dying almost at once. 3 Witness W was arrested on 25 January 2000. He was then interviewed by the police on video. He ultimately pleaded guilty and was sentenced. His term of imprisonment reflected an undertaking that he would provide assistance to the prosecution in respect of the present charge against Ms Suteski. 4 Witness W has been called as the first witness for the Crown. In the course of cross examination, he was taken to the following passage (T103-104) from the police interview (p20). "Q161 Did Sneza know what you were going to do? A. No, like what that I was going to murder the guy? Q162 Well, did she know what you were going to do, what you.... A. I didn't didn't know what I was going to do, no. I thought I was just going to be the driver at first. Q163 Did you tell her that you had a knife? A. No. I didn't mention any weapons to her. Q164 Did she give you any weapons to take? A. No. Q165 Did she give you his address? A. Yes. Q166 When did she give you his address? A. She didn't directly give it to me, she gave it to Ben which he told me." 5 Witness W agreed that he had provided these answers to the police, and that he was endeavouring to tell the truth. 6 Counsel for the Crown sought, in re-examination, to take Witness W to certain answers which he had provided the police shortly before Q161. They are, according to the Crown, the context within which Witness W answered questions 161 to 166. The answers must be understood in the light of information he had already provided. 7 The Crown sought, first, to take Witness W to the following question and answer: (p16) "Q123 What did (Witness B) actually say? A. He said he had a friend at this caryard who was writing dud cheques to her account and the only person that was on to her was her boss and he, and she wanted someone to get rid of him for two weeks, three weeks, 'cause she was resigning. And so she could write a big cheque, something like half a million dollars to her account. I don't know if it was her account or some other name account or a business account. So, while she does that, she could get the money out and by the time he goes to work, to work, she'd be out of there." 8 Secondly, the Crown sought to draw Witness W's attention to the following answers he had given the police: (p18-19) "Q148 Can you tell me exactly what she said? A. Well, the way she, way she said it, sounded like she, she didn't really care about it, what she said, 'Stab him, bash him, I don't care, kill him if you want, I don't give a fuck about the guy, just, as long as he doesn't go to work for the next month. Q149 OK, when she said, 'Stab him, bash him, kill him if you want, I don't give a fuck' ... A. Yeah. Q149 .... did she say those words? A. Yes, I remember her specifically." 9 Mr Byrne SC, appearing for Ms Suteski, objected. He also indicated that if the Crown were given the right to re-examine Witness W in the manner suggested, the questions which immediately followed should, as a matter of fairness, be included in that re-examination. Those questions were: (p19) "Q150 OK, and what did you say to that? A. I said, 'I'll do whatever you want.' Q151 OK. A. Which, I didn't exactly mean, like, if she said, 'Kill him', I wouldn't have went and killed him. Her, her point was, like, to bash him, make sure he's bashed and, at the time, (Witness B) wanted to do it then I thought I would've helped him out to do it too, so we were both involved in it." 10 There is, I believe, ambiguity in the answers provided in questions 161-162, these being the questions to which the witness was taken during cross examination. Witness W may have been saying that Ms Suteski did not know because she was not involved, or deeply involved. On the other hand, he may have meant that she did not know the detail of the planned assault, in terms of precisely how it was to be undertaken. Simply to take Witness W to the answers he provided to questions 161-162 is, I believe, potentially misleading. These questions, in context, are not really ambiguous. Shortly before these questions, Witness W had provided the police with an account of the instructions given by Ms Suteski to assault the deceased. 11 Accordingly, the cross examination, I believe, has left an incomplete and potentially misleading picture. Re-examination should be permitted to provide the context within which Witness W gave his answers. 12 Question 123, however, travels well beyond anything necessary to provide that context. The material from question 123 which may be the subject of re-examination should be confined to the following: "... and she wanted someone to get rid of him for two weeks, three weeks, 'cause she was resigning." 13 I am persuaded that the two questions and answers on page 19 which are referred to as question 149, should not form part of the re-examination. The first Q149 is simply a repetition of the previous answer by the police officer. The second is an assertion by Witness W of his own certainty. I do not believe that is necessary to provide a context. The additional re-examination should include questions 150 and 151. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.