R v Flentjar (No1) [2008] NSWSC 647

New South Wales Supreme Court

CITATION : R v Flentjar (No1) [2008] NSWSC 647

JUDGMENT DATE : 19 June 2008

JUDGMENT OF : Buddin J

DECISION : Leave granted.

CATCHWORDS : Leave sought by Crown to cross-examine de facto partner of accused - unfavourable witness

LEGISLATION CITED : Evidence Act

CATEGORY : Procedural and other rulings

PARTIES : Regina Andrew Wayne Flentjar

FILE NUMBER(S) : SC 2007/1225

COUNSEL : P Leask (Crown) J Stratton SC/P Pearsall (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSWACT) Ltd (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

THURSDAY 19 JUNE 2008

2007/1225 – REGINA v ANDREW FLENTJAR

JUDGMENT – (No 1) Application pursuant to s 38 of the Evidence Act to cross-examine Darlene Cowen (T 838, 846-7) 1 HIS HONOUR: The Crown seeks leave pursuant to s 38 of the Evidence Act, to cross-examine Darlene Cowen, the de facto partner of the accused. It is abundantly clear, and indeed it is common ground, that her evidence is "unfavourable" within the meaning of s 38(1)(a) of the Act. In that respect it is to be observed that she has already been sentenced following her pleas of guilty to two offences arising from the episode which gives rise to the charges against the accused. The first offence related to her being an accessory after the fact to the murders of the deceased by Kim Snibson and the second offence related to her failure without reasonable excuse to bring information to the attention of a member of the police force which might be of material assistance in securing the conviction of the accused for the specially aggravated form of the offence of detain for advantage. 2 The facts presented during those sentence proceedings indicate that although the witness was aware (having been informed of the situation by the accused) that he had taken part in the detention of the two persons, she nonetheless did not inform the police of that fact when spoken to by them on two separate occasions. Her failure to pass on that information to the police gave rise to the second offence. 3 The facts giving rise to the other offence arose from her decision not to disclose to the police that Ms Snibson had given her a handbag which the witness realised may have belonged to the deceased, Ms McKay. Ms Snibson gave the handbag to her on the night of the murders. It was in those circumstances that she provided the relevant assistance to Ms Snibson whom she knew was a suspect in the murders of the deceased couple. The accused is on trial for those murders. 4 The witness is also named in an alibi notice which was served on the Crown by the accused's solicitor. She is said to be able to support his alibi that he was not at the premises in which the murders occurred because he was, at the relevant time, at home with her. Listening device material upon which the Crown also seeks to rely includes intercepted conversations between the witness and the accused during which, it can be inferred, she is discussing providing support for that alibi and other matters which clearly place her in the camp of the accused. 5 Furthermore, the Crown now also has available to it material which shows the witness apparently purchasing fuel in cans from the Mobil Service Station at East Nowra, which is directly across the road from her house. Those purchases occurred at approximately 10.40 pm and 11.20 pm on the night of the murders. It can be inferred from other evidence that fuel was used at about that time by Ms Snibson to incinerate the bodies of the deceased. Ms Cowen gave evidence on the voir dire and professed to have no memory of having made those purchases. It may well be, in those circumstances, that s 38(1)(b) of the Act is also enlivened although it is unnecessary, given what I have already said, to finally determine that issue. The Crown also relies upon the fact that the witness has made what appears to be a "prior inconsistent statement" within the meaning of s 38(1)(c) of the Act. 6 As I said at the time of granting leave, I have had regard to the provisions of s 38(6), as well as ss 135, 137 and s 192 of the Act in arriving at the conclusion that leave should be granted to the Crown to cross-examine the witness. Indeed, counsel for the accused did not seek to advance any arguments as to why that course should not be taken. 7 These are my reasons for granting that leave.