New South Wales Supreme Court CITATION : R v Wilkie [2008] NSWSC 947 HEARING DATE(S) : 8 September 2008 JUDGMENT DATE : 8 September 2008 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J EX TEMPORE JUDGMENT DATE : 8 September 2008 DECISION : Leave to cross examine granted CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Application by Crown to cross examine prosecution witness LEGISLATION CITED : Evidence Act 1995 CATEGORY : Procedural and other rulings PARTIES : Regina (Commonwealth) Crown Daniel WILKIE - Accused FILE NUMBER(S) : SC 2007/2619 COUNSEL : A MacSporran SC; M Wigney SC; T Berberian - Crown L Robberds QC; M Thangaraj - Accused SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Speed & Stracey - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GROVE J Monday 8 September 2008 2007/2619 REGINA (COMMONWEALTH) v Daniel WILKIE JUDGMENT (Application under s 38 – see p 432 of transcript) 1 HIS HONOUR: An application is made under s 37 of the Evidence Act for the Crown to cross-examine its witness Mr Spratt. The basis of the application is the existence of prior statements which are said to be inconsistent with testimony which he gave on Thursday last. The significant extract is that it was then said that instructions to vary what has come to be called "the list" originated with Mr Kamha and they had been delivered via Mr Bolden. It is the Crown's contention that the mention of Mr Bolden is something which is inconsistent with prior statements made by the witness at the Royal Commission. 2 An extract of his evidence at p 5350 shows that in response to a question about whether he told you who instructed him to do it - he being Mr Shorter - the witness replied, "I'm not certain on this but I think the immediate instruction came from Mr Kamha. Again, in a statement taken for the purpose of these proceedings, he is asked about the conversation with Mr Shorter. When he, Mr Spratt, asked who told him to make the reductions, and Mr Shorter is said to have responded that he: "[G]ot a call from Ashraf on Friday and he told me there was a list on the way and some case estimates which needed to be reduced straight away". That reference to "Ashraf" is to Mr Kamha, and there is no reference to Mr Bolden. 3 There is a note concerning some interview with Mr Spratt in which the interviewer noted that Mr Spratt had said something to the effect that it was better than possible that Tony produced the list; Tony may be taken to be a reference to Mr Bolden. Nevertheless, this is obviously mere speculation and is inconsistent with his assertion that he had been told by Mr Shorter that the instructions were delivered by Mr Bolden. 4 In those circumstances, in relation to this matter leave is granted. ********** 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.