Regina v MTN; Regina v CVH [2002] NSWSC 59

Reported Decision : 127 A Crim R 102

New South Wales Supreme Court

CITATION : Regina v MTN; Regina v CVH [2002] NSWSC 59 revised - 29/10/2009 FILE NUMBER(S) : SC 70034/00; 70012/01 HEARING DATE(S) : 13 February 2002 JUDGMENT DATE : 13 February 2002

Regina PARTIES : MTN CVH JUDGMENT OF : O'Keefe J

Mr G J Tabuteau - Crown COUNSEL : Mr P Bodor QC - Accused MTN Mr F Santisi - Accused CVH DPP (NSW) SOLICITORS : Michael Croke & Co - Accused MTN Nicopoulos & Associates - Accused CVH CATCHWORDS : Evidence - Unfavourable witness - Application to cross examine unfavourable witness - Leave to cross examine unfavourable witness in respect of answers given in cross examination - Ambit of Section 38 of Evidence Act 1995 LEGISLATION CITED : Evidence Act 1995, ss 38, 102, 137, 192 Regina v Kennedy [2000] NSWCCA 487 Adam v R [2000] HCA 57 CASES CITED : Regina v Milat (Supreme Court 23 April 1996, unreported) Regina v Mansour (Supreme Court, 19 November 1996 unreported) Regina v Pantoja (30 October 1996) Regina v ATM [2000] NSW CCA 475 DECISION : Leave to cross examine granted.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION O'Keefe J 13 February 2002 70034/00 Regina v MTN 70012/01 Regina v CVH

JUDGMENT- On application by the Crown for leave to cross-examine Andre Nasr under s 38 - see p 642 of transcript. : 1 Application has been made by the Crown for leave to cross-examine Andre Nasr (the witness) pursuant to s 38 of the Evidence Act 1995. This follows a previous application which had been made by the Crown to cross-examine the witness during the course of his evidence in chief. For reasons given by me on 12 February 2002 I granted that application and the cross-examination of the witness took place in the course of his evidence in chief. 2 In the course of the voir dire hearing for the purposes of determining the earlier application under s 38 of the Evidence Act, the witness, in effect, asserted that certain words included in a statement made by him on 3 October 1999 were not truly his words but were words inserted in the statement by one of the investigating officers, Detective Senior Constable Warrell. In the voir dire hearing DSC Warrell denied such allegations. 3 The suggestion concerning DSC Warrell was not pursued in Nasr's evidence in chief in the trial since there was no evidence in chief from him which disavowed any part of his statement of 3 October 1999, except in relation to the covering or wrapping material in which the knife was said to have been when given by a witness JD to the accused MTN. 4 When the witness was cross-examined by counsel for the accused MTN he was taken through various portions of an earlier statement that he had made, namely a statement of 3 December 1997 as well as the statement of 3 October 1999. Succinctly it was established in that cross-examination that various portions of the statement, including parts involving the defendant CVH, were in his statements and that they were true. 5 Counsel for CVH then cross-examined and the witness, whom I had previously described as truculent and somewhat arrogant, became compliant and almost instantly responsive. A virtual litany of "yeses" flowed in response to questions quite rapidly put by counsel for CVH. The witness assented to a number of questions which suggested that certain matters were not referred to in his statement. When it was pointed out that they were, he assented to the fact that they were. I formed the view that he was very anxious, in fact overanxious, to do anything that he could to ensure that the defendant CVH was not implicated in the events the subject of the murder charge. That ultimately will be a matter for the jury to determine but initially it is a matter for me to determine in view of the application that is presently before the Court. 6 Counsel for both accused resist the grant of leave. Counsel for MTN did so on the basis that to admit such evidence could lead to the jury speculating as to why it was that the witness gave evidence as he did in relation to DSC Warrell and that such speculation may be adverse to his client. No issue was raised by him in relation to the power of the Court to make the relevant order under s 38. 7 It is true that by virtue of s 137 of the Evidence Act the Court is bound to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant and I read this, as I previously did, as relating to either defendant. Similarly s 192 of the Evidence Act requires the Court to give consideration to a number of matters before determining whether or not any leave, permission or direction should be given. 8 In the event that cross-examination were to be permitted, I do not see that any prejudice would flow to MTN from a decision simpliciter to that effect for the following reasons: First, counsel for such accused has the right to object to any particular question and s 137 would then operate as a basis on which the Court should reject the evidence if it infringed the prohibitions in the section. Second, appropriate directions can be given to the jury against speculation or improper use of evidence. Third, it is not yet known as to the precise nature of the questions or of the answers by the witness, so one cannot, at this stage in my view, say that the probative value of the evidence sought to be adduced is outweighed by the danger of unfair prejudice to the accused MTN. 9 The arguments advanced in relation to the accused CVH are different. For him, the argument was that the Court (a) could not and (b) should not grant the leave for a number of reasons. One reason was that leave had already been given to cross-examine the witness and that there could not or should not be any further grants of leave, particularly at the late stage of the evidence at which it was sought. There is no such limitation expressed in s 38 and in my opinion no such limitation should be implied. 10 A second was that the application did not fall within the ambit of the gateways provided in s 38 (1) of the Evidence Act. Although not articulated in the precise form in which I am about to deal with the submission, it was inherent in the submissions that were made on behalf of the accused CVH that it was too late for the section to operate. That carries with it an implied argument that the section refers to evidence in chief rather than to evidence in cross-examination. That submission was sought to be supported by the decision in Regina v Mansour (Supreme Court, 19 November 1996 unreported) in which Levine J refused to grant leave to treat a witness as adverse in the course of re-examination, in respect of material that emerged in the course of the cross-examination of that witness. 11 The third basis of opposition to the grant of leave was that the Crown was, in effect, resorting to a device to use s 38 which was contrary to the intent of that section. 12 S 38 of the Evidence Act provides as follows: 38(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39 ). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 13 It should be noted that in its introductory parts section 38 (1) does not refer to any particular stage in the course of the evidence. This is to be contrasted with s 38 (1) (b) which refers to "examination in chief". The section should be interpreted in a broad manner. It has been so interpreted in a number of decisions both in the Court of Criminal Appeal and the High Court; Regina v Kennedy [2000] NSWCCA 487, Adam v R [2000] HCA 57, are examples. However there is no decision that binds in relation to whether or not the section applies only at the stage of evidence in chief or whether it extends to leave being given in respect of evidence given in cross-examination. 14 In Regina v Milat (Supreme Court 23 April 1996, unreported) Hunt CJ at CL held that the section could be applied where a witness was called by the Crown and effectively gave evidence, other than formal matters, only in cross-examination by counsel for the accused. In that case Hunt CJ at CL applied the section so as to extend to the evidence given in cross-examination. 15 In Regina v Mansour, to which reference has already been made, Levine J said: " ... no one has pronounced upon s 38 to the effect ... that (it) can be availed of in the adversary system as a device to cure damage done in cross-examination, a fortiori when in chief it would be clear to the examiner that there had been a departure by the witness from prior statements disclosing what the witness' testimony fairly could have been anticipated to be." (at 6). 16 I am satisfied that the present case does not involve any attempt by the Crown to use s 38 as a device. What happened in the present case was that in the course of compliant responses to questions in cross-examination on behalf of one of the accused, the witness asserted that his reason for including certain matters in his statement was that words were put into his mouth by an investigating police officer. The thrust of the case being made was clear from one of the questions asked in cross-examination, namely, whether or not Detective Senior Constable Warrell was "forceful" in relation to the insertion of the relevant words. The plain impression sought to be created before the jury was that the witness was put upon by the detective and that as a consequence he told lies in the statement that inculpated the accused CVH. 17 When regard is had to the totality of the decision of Levine J in Regina v Mansour it is clear that his Honour was not endeavouring to, and did not, limit the ambit of s 38 to evidence in chief which fell within one of the categories specified in s 38 (1). Indeed he expressly said: " ... I am not to be taken as saying that s 38 can only operate during evidence in chief. Indeed it can operate to the benefit of the party calling the witness if something arises in cross-examination to which the section would apply but at the time it arises in cross-examination. Justice Barr in Regina v Pantoja (30 October 1996) dealt with a situation akin to that." 18 Thus the basis of the decision on which counsel for the accused CVH relies is inconsistent with the proposition advanced by him in relation to the ambit of s 38. So too is the decision in Regina v Milat to which I have already adverted, a decision which was cited with approval in the Court of Criminal Appeal in Regina v ATM [2000] NSW CCA 475 at paragraph 56. 19 The argument that s 38 may apply only to evidence in chief is not only contrary to the broad interpretation given by the Court to s 38 but leaves essentially unexplained the limitation expressed in s 38 (1) (b) by the words, "in examination in chief". If the section applied only to evidence in chief that met one of the indicia in s 38(1), that limitation would be unnecessary. The restriction in that subsection to "examination in chief" is thus, in my opinion, a powerful indicator of the generality of the residue of the section. 20 In my view s 38 of the Evidence Act can apply, if otherwise appropriate, to evidence given in cross-examination. Whilst it cannot be used as a device in the way to which Levine J referred, it can in many cases be quite properly utilised in respect of evidence given in cross-examination provided that the criteria specified in s 38 (1) (a) or (c) are met. 21 The Crown has an obligation to establish an evidentiary basis for submissions which it puts to the jury. Failure to establish such an evidentiary basis may lead not merely to criticism of the prosecutor but even, as occurred in Regina v Kennedy, to the trial miscarrying. In that case it was pointed out by Studdert J, with whom Hayden JA and Greg James J agreed, that resort to s 38 of the Evidence Act is an appropriate way for the Crown to fulfil the obligation imposed on it. 22 In the present case, in the light of the evidence given by the witness, it seems to me that the Crown ought to be in a position of not, in effect, being seen as possibly inviting the jury to speculate in relation to the various changes of evidence, and more particularly to negate what could be very adverse to the evidence to be given by DSC Warrell, the principal case officer. When that officer is called it may not be competent to the Crown to ask him questions which related merely to his credibility; s 102 of the Evidence Act makes that clear. To ask him whether or not he had, in effect, forced the witness to include matters in his statement could, in my view, be an infringement of that section. 23 In my view the criteria specified in those two subsections, that is s 38(1)(a) and (b), have been met. Furthermore, having regard to the factors adverted to in my earlier decision, I do not think that considerations of prejudice, unfair prejudice or unfairness operate to preclude the granting of the relevant leave and I propose to do so. 24 Leave to cross examine is granted.