New South Wales Supreme Court CITATION : R v Sood (Ruling No 2) [2006] NSWSC 732 HEARING DATE(S) : 12 - 14 July 2006, 17 - 19 July 2006 JUDGMENT DATE : 20 July 2006 JUDGMENT OF : Simpson J DECISION : evidence admitted CATCHWORDS : Ruling on admissibility of evidence - Evidence Act s108 LEGISLATION CITED : Evidence Act 1995 s108, s192(2) CASES CITED : R v Cassar & Ors [1999] NSWSC 352 PARTIES : Crown Suman Sood - Accused FILE NUMBER(S) : SC 2005/2353 COUNSEL : M Tedeschi QC / T Smith - Crown P Boulten SC / M Buscombe - Accused SOLICITORS : S Kavanagh - Crown P Tsaousidis - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J Thursday 20 July 2006 2005/2353 Regina v Suman Sood RULING ON ADMISSIBILITY OF EVIDENCE: EVIDENCE ACT s108: Ruling No 2 1 HER HONOUR: At the conclusion of the cross examination of the Crown's first witness senior counsel appearing for the Crown sought leave, pursuant to s108 of the Evidence Act 1995, to adduce evidence of an affidavit sworn by the witness on 17 July 2002, just two months after the events the subject of the indictment. The affidavit consisted of her account of those events. The content of the affidavit is largely consistent with evidence given in the trial by the witness. 2 S108 permits evidence of a prior consistent statement to be adduced (importantly, by leave of the court) where: (i) evidence of a prior inconsistent statement of a witness has been admitted; or (ii) it has been, or will be, suggested, either expressly or by implication, that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion. Leave may be given after consideration of, at least, the various circumstances itemised in s192(2). 3 The witness was extensively cross examined about much of the detail she gave in her evidence, and, more generally, about her recollection of specific aspects of her evidence. There are two aspects of the cross examination that call for separate consideration. 4 Through cross examination it was established that the witness had, in respect of one matter, made a prior inconsistent statement. In committal proceedings she asserted that a teenage boy had been present at Dr Sood's clinic on one occasion when the witness consulted Dr Sood. In her evidence in the trial the witness denied that this had been the case. There was a clear and stark conflict in the evidence given by the witness on the two occasions in this respect. In the trial she explained her committal evidence by saying that she had, in her mind, confused this occasion with another occasion on which the teenager had been present. In giving her account in the affidavit, she made no mention of the teenager. By clear inference, therefore, the account given in the affidavit tends to support the witness's evidence in the trial. The foundation for the admission of that evidence (subject, as always, to the s192 factors) was thus established. 5 Secondly, on a number of occasions it was suggested to her that her recollection was faulty. This was put not only in respect of specific matters, but also in general terms. On one occasion it was put to her that she had made a conscious decision to try to forget the relevant events (t 330). On another occasion she was expressly asked whether she appreciated the difference between evidence given from recollection, and evidence given as a result of reconstruction. The tenor of the cross examination concerning the witness's recollection was to suggest that, in reality, she had no such recollection, and that the evidence that she gave, which she gave in positive terms, was incorrect. The only sensible inference to draw from this is that the jury would be asked (either expressly or inferentially) to consider that she had, at the least, given her evidence as a result of reconstruction – if not outright fabrication. Senior counsel was unable to identify any other purpose of the cross examination. 6 Indeed, when pressed during the course of argument, he postulated fabrication as the explanation for the witness's challenged evidence. 7 I was therefore satisfied that the alternative foundation for the admission of the evidence provided by s108 was also established. 8 It remains to determine whether, after consideration of the s192 matters (and any other relevant matters), leave ought to be given to the Crown to adduce the evidence. 9 Senior counsel who represents the accused made a comprehensive opening statement to the jury. The consequence of this is that I am in possession of a relatively clear picture of the issues which the jury will be asked to decide. Put briefly, the Crown case is (relevantly for present purposes) that the accused vaginally administered one, and supplied two, tablets to the witness to be taken orally, each for the purpose of preparing her for a surgical termination of pregnancy. The accused denies doing so. An important factual issue will be whether or not the accused did either. 10 The evidence concerning the presence or absence of the teenager has assumed a significance that appears, on its face, to be unwarranted. On a number of occasions I pressed both counsel to identify the relevance of his presence or absence, including explicitly asking whether it would be suggested that, if he had been present, he could potentially have given some relevant evidence directly concerning any of the disputed facts about conversations between the accused and the witness, or the supply or administration of tablets to her. Neither counsel was prepared to embrace that proposition. At all times it was maintained on behalf of the accused that the conflicting evidence given by the witness on this matter directly reflected on her credibility and impacted upon the assessment of the reliability of her evidence in general. No other significance of the issue was suggested. 11 This witness is, in fact, a principal Crown witness as to the fundamental factual matters upon which the Crown case rests, many of which are in dispute. Both her credibility and reliability are therefore matters of significance. The evidence is thus, in my judgment, of sufficient importance (for the purposes of s192(2)(c)) to warrant the grant of leave, unless some other countervailing circumstance suggests or dictates otherwise. I can see no such countervailing circumstance: applying the s192(2) tests yields no contrary indication. The evidence will add little to the likely length of the hearing; I can see no relevant unfairness to the accused; the proceeding is of sufficiently grave a nature to require that all relevant evidence be available; and there is no need to adjourn the hearing or make any other order. If it is necessary I will give an appropriate direction as to the use that may be made of the evidence. 12 In opening the Crown's application, senior counsel for the accused relied upon the decision of Sperling J in R v Cassar & Ors [1999] NSWSC 352, placing particular reliance on paragraphs [16] and [18]. These paragraphs do not appear to me to add any enlightenment to the issue I have to resolve. Sperling J was not dealing with an assertion of inconsistency as, in part, I am. His Honour was relevantly dealing with an assertion that evidence given by a witness had been fabricated. The witness's evidence went to the central allegations in the Crown case. The evidence in question was evidence of a statement made by the witness some months after the events in question consistent with the evidence he gave in the trial. By contrast, I am concerned with a generalised assertion that the witness in question has no proper recollection of the relevant events of which she has, nevertheless, given evidence. The question of her credibility and reliability is, as I have earlier stated, of considerable importance. If a statement previously made by her is capable of throwing light upon the accuracy of the evidence she has given in the trial, then, taking into account the s192(2) considerations, the interests of justice require that that evidence be admitted. 13 I so ruled. These are my reasons for taking that course. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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