New South Wales Supreme Court CITATION : R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 226 HEARING DATE(S) : 06/03/2003 JUDGMENT DATE : 28 March 2003 JURISDICTION: Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Leave granted CATCHWORDS : CRIMINAL LAW - Evidence - application by Crown to cross-examine witness - evidence "unfavourable" - Evidence Act s38(1)(a) - witness having no recollection at trial - evidence led from statements to police - material in one statement supporting accused's case qualified in later statement LEGISLATION CITED : Evidence Act 1995 R v Souleyman (1996) 40 NSWLR 712 R v Kneebone (1999) 47 NSWLR 450 CASES CITED : R v Le [2002] NSWCCA 186 R v Fowler [2000] NSWCCA 142 Adam v The Queen (2001) 75 ALJR 1537 PARTIES : R v Simon Christopher Crowther-Wilkinson R v James Cowie FILE NUMBER(S) : SC 70096/01; 70033/02 P Byrne SC (Crowther-Wilkinson) COUNSEL : B Rigg (Cowie) M Hobart (Regina) Giddy & Crittenden (Crowther-Wilkinson) SOLICITORS : Watsons (Cowie) S E O'Connor (Regina) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Friday, 28 March, 2003 70096/01 – REGINA v Simon CROWTHER-WILKINSON 70033/02 – REGINA v James COWIE JUDGMENT – Re: Crown Prosecutor's application to cross-examine Matthew David Weincke (Tx. 905) 1 HIS HONOUR: On 7 March 2003 I gave the Crown prosecutor leave, pursuant to s38 of the Evidence Act, to cross-examine the witness, Matthew David Weincke to a limited extent. These are my reasons for that decision. 2 The accused are jointly charged with the murder of Graeme Adams on or about 6 June 2000. It is the Crown case that Mr Adams was shot in the evening of 6 June and that his body, wrapped in plastic and weighed down with lengths of chain, was deposited into the Hawkesbury River either that evening or in the small hours of the following morning. When the body was recovered on 12 July 2000, there were found to be two lengths of chain wrapped around it, secured by D-shackles. One length was about 11.9m and the other about 5.7m. 3 It is the Crown case that the chain and D-shackles were bought by the accused Wilkinson on 30 May 2000 at a hardware store at Brookvale. Mr Weincke was a salesman at that store. There is documentary evidence clearly establishing that he sold Mr Wilkinson about fifteen metres of chain and five D-shackles on that day. Indeed, that is not in dispute. The issue is whether it was that chain and those D-shackles which were found around the body of the deceased. 4 Mr Weincke first made a statement to police on 24 July 2000, roughly two months after the sale. Although he did not know Mr Wilkinson, it appears that he then had some memory of the transaction. He said that the customer approached him, holding some D-shackles selected from a display in the store, and asked for fifteen metres of chain. Significantly, he also said that the customer asked that the chain be cut into three 5m lengths, and he did so. If that be so, it could not be the chain with which we are concerned. There is nothing to suggest that the 11.9m length of chain around the body was the result of two shorter pieces of chain being welded together. 5 In the statement of July 2000 Mr Weincke also said that he could only recall two occasions on which he had sold chain of that length. The other occasion was a sale to the manager of a McDonald's restaurant at Brookvale, who was known to him. 6 Mr Weincke made a further statement to police on 22 December 2000. In reference to the sale said to have been made to Mr Wilkinson, he then said that he could not remember whether he had cut the chain into two or three lengths, although he remembered cutting the chain at least once. He went on to say that it was the manager of the McDonald's restaurant who had asked for the chain to be cut into three lengths, and he had confused the conversations he had had with the customers on those two occasions. 7 As it happens, the manager of the McDonald's restaurant has given evidence to the effect that on 31 March 2000 he bought one length of chain of about fifteen metres. He did not want it cut at all, as he needed it to secure the entrance to the restaurant's car park after hours. He did not buy any D-shackles. 8 When he came to give evidence in this trial, Mr Weincke had no recollection of the transaction with Mr Wilkinson. Moreover, his memory was not revived by reading his statements to the police before he entered the witness box. Without objection, the Crown prosecutor took him through that part of his first statement which dealt with the sale of the chain and D-shackles to Mr Wilkinson. He agreed that that is what he had told the police, although he continued to say that he had no present recollection of the matter. What was led included, of course, Mr Weincke's assertion that that customer had asked for the chain to be cut into three lengths. 9 However, counsel for Mr Wilkinson, Mr Byrne SC, objected to the Crown leading further relevant material from that statement and from the second statement of December 2000. In the first statement Mr Weincke gave a description of the man to whom he had sold the chain and D-shackles which, the Crown contends, is inconsistent with the appearance of Mr Wilkinson. The second statement, as I have said, records Mr Weincke's concession that he may not have cut the chain into three lengths on that occasion and may have confused that transaction with the sale of chain to the manager of the McDonald's restaurant. It was to elicit this material that leave under s38 was granted. 10 It is the Crown case that Mr Weincke sold chain and D-shackles to Mr Wilkinson on 30 May 2000 but that, however the confusion may have arisen, he was mistaken when he told police in his first statement that he had cut that chain into three lengths. If the evidence were left as it stood when Mr Byrne took his objection, the jury would have had no more than Mr Weincke's unequivocal assertion that the chain had been cut in that way. Further evidence from the witness tending to qualify that assertion is of obvious significance in the Crown case. The evidence is important, even though the Crown still faces the obstacle of the testimony of the manager of the McDonald's restaurant. 11 Whatever be the scope of s32 of the Evidence Act, dealing with an attempt by a witness to refresh his or her memory from a document, I did not consider it appropriate to invoke the discretion conferred by that section. That discretion is guided by the considerations set out in subs (2). Mr Weincke's first statement was made about two months after the incident, and the second statement almost seven months later. Moreover, his memory was not revived by reading either of them. Rightly, in my view, the Crown prosecutor saw s38 as his appropriate remedy. 12 I allowed the cross-examination upon the basis that the evidence which Mr Weincke had given was "unfavourable" to the Crown, within the meaning of s38(1)(a). Reference to a number of cases in which that expression was considered is to be found in the judgment of Greg James J in R v Kneebone (1999) 47 NSWLR 450 at 461-2. Since that case there have been a number of important decisions on s38: R v Fowler [2000] NSWCCA 142 at pars 99-133, Adam v The Queen (2001) 75 ALJR 1537, R v Le [2002] NSWCCA 186. None of these decisions, however, deals with the particular problem posed by the present case. 13 Broadly speaking, cases on the section have been concerned with witnesses who did not come up to proof, or departed from their proofs in significant respects, or whose anticipated evidence was known to be inconsistent with statements made at an earlier time. In particular, cases in which subs (1)(a) was seen as a sufficient basis for the grant of leave, without recourse to pars (b) or (c), have involved witnesses who did not come up to proof, in whole or in part: see, for example, R v Souleyman (1996) 40 NSWLR 712. The present is not such a case. The evidence of Mr Weincke unfavourable to the Crown was entirely consistent with his first statement to the police and, indeed, was elicited from him by leading questions based upon that statement. 14 The fact remains that the evidence was embraced by the term "unfavourable" in subs (1)(a). As Smart J said in a frequently cited passage in Souleyman at 715, that word does not mean "adverse": it means "not favourable". His Honour went on to observe that the expression could have "wide ranging ramifications" and emphasised the need for care in the exercise of the discretion conferred by the section. Particularly is this so in relation to the evidence of a prosecution witness in a criminal case: Fowler, per Wood CJ at par 120. 15 It appeared to me that Mr Wilkinson would not be unfairly prejudiced by the material sought to be led in cross-examination and, indeed, that the interests of justice required it. This is an important part of the Crown case, and to have allowed the evidence to stand as it was at the time Mr Byrne took his objection would have been misleading. Of course, it is not to the point that the Crown prosecutor knew in advance that that part of Mr Weincke's evidence was unfavourable to the Crown case: cf Fowler at par 121. It was the duty of the Crown prosecutor to call Mr Weincke and lead his evidence, warts and all. In Le (at par 68) Heydon JA (as he then was) observed: The obligation to call a witness does not create an obligation to embrace and accept whatever that witness says: the very existence of s38 reinforces an obligation to test what is said in the interests of justice. 16 No argument was addressed to the matters in s38(6). Nor could any have been. I had regard to the considerations guiding my discretion in s192(2) of the Act, particularly pars (a) - (c), all of which support the grant of leave. I also had regard to ss135 and 137, but was satisfied that the evidence should be admitted. ********** Last Modified: 04/01/2003 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.