Supreme Court New South Wales Medium Neutral Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1111 Hearing dates: 15 August 2011 Decision date: 05 September 2011 Jurisdiction: Common Law - Criminal Before: Price J Decision: Leave is granted to the Crown under s 38 Evidence Act 1995 to cross-examine Witness E on the ERISP. Catchwords: CRIMINAL LAW - unfavourable witness - application by Crown to cross-examine Crown witness on ERISP - matters considered in granting leave. Legislation Cited: Evidence Act 1995 Cases Cited: Lee v The Queen [1998] HCA 60, (1998) 195 CLR 594 R v GAC (Court of Criminal Appeal, 1 April 1997, unreported) Category: Interlocutory applications Parties: Anthony John Perish Matthew Robert Lawton Andrew Michael Perish Representation: Mr P Leask (Crown) Ms C Davenport SC (Anthony Perish) Mr S Hanley SC (Matthew Lawton) Mr W Terracini SC with J D O'Sullivan (Andrew Perish) Director of Public Prosecutions (Crown) William O'Brien & Ross Hudson Solicitors (Anthony Perish) Matouk Joyner Lawyers (Matthew Lawton) Archbold Legal (Andrew Perish) File Number(s): 2009/145260 2009/148002 2009/150111 Judgment 1HIS HONOUR: On 15 August 2011, I indicated that I would provide further reasons for the matters of evidence arising from the Crown's application under s 38 Evidence Act 1995 to cross-examine Witness E on the ERISP. I will now do so. 2On 12 August 2011, Witness E was called by the Crown as a witness in the trial. During Witness E 's evidence in chief, Mr Crown, in the absence of the jury, made an application under s 38 Evidence Act to cross-examine Witness E . Ms Davenport SC , for Anthony Perish , initially objected to leave being granted, as did Mr Hanley SC for Matthew Lawton. Mr Terracini SC , for Andrew Perish , told me that he had nothing to add. 3Mr Crown indicated that he proposed to cross-examine Witness E on the contents of an ERISP conducted between Witness E and police and upon the evidence given by Witness E during committal proceedings. 4Mr Crown was asked to identify those parts of the ERISP and of the evidence given in the committal proceedings that would be the proposed subject of cross-examination if leave was granted and the application was adjourned to 15 August 2011. On that day, Mr Crown informed the court that he was content to rely on the ERISP to cross-examine Witness E and, following discussions with counsel for the accused, the ERISP had been edited and there was agreement between counsel as to the contents of the ERISP save for a few discrete matters which were then enunciated by Ms Davenport and Mr Hanley. Mr O'Sullivan for Andrew Perish did not raise any matters of objection. 5The discrete matters raised by Ms Davenport were, after argument, excluded from the ERISP with the exception of Witness E 's representations to the police that Anthony Perish had a gun in his hand (ERISP T12 and T13) and that Matthew Lawton put on a gun before he got in the car (ERISP T12). All of the objections raised by Mr Hanley succeeded and were excluded from the ERISP. The ERISP was subsequently edited in accordance with my rulings. 6Although there was broad based agreement between Mr Crown and counsel for the accused that Witness E was to be cross-examined on the edited ERISP, it was necessary for the court to determine for itself that leave should be granted. Relevant considerations impacting upon a grant of leave are to be found in a combination of sections under the Evidence Act , namely s 38 (6), s 59, s 60, s 135, s 136, s 137 and s 192: R v GAC (Court of Criminal Appeal, 1 April 1997, unreported), Lee v The Queen [1998] HCA 60, (1998) 195 CLR 594. 7Section 38 of the Evidence Act is as follows: "38 Unfavourable witnesses (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. 8Mr Crown was informed that I proposed to grant leave to enable Witness E to be cross-examined on the ERISP after he had given evidence in chief of the events that occurred during the journey to Girvan and at Girvan. Before venturing further I should make it plain that I was satisfied that: (i) The evidence given by Witness E was unfavourable to the Crown: s38(1) Evidence Act . (ii) Witness E had made a prior inconsistent statement: s 38(1)(b) Evidence Act . He had made statements inconsistent with his evidence in chief both in the ERISP and during the committal hearing. 9Evidence had been given by Dr Haghighi on a voir dire conducted on 5 July 2001. Witness E had been diagnosed with bowel cancer and had undergone bowel surgery on 21 April 2011. On 1 July 2011 , he had a liver re-section for liver cancer that was secondary to the bowel cancer. Dr Haghighi said the surgery was uncomplicated and his patient was doing well. He expected that his patient would almost be back to normal activities within 3 to 4 weeks. 10During cross-examination on a voir dire conducted on 11 August 2011, Witness E testified that he had been serving his sentence in isolation for about a year. He did think that his memory had suffered somewhat since recent events but he could not isolate that to the surgery he had had. His isolation had affected his psychological well-being and memory. Witness E recounted that without talking to anybody there was a lack of stimulus. He said he had started a course but Corrective Services had made it difficult for him to have computer access. He did have library access. He said that until he got to the MSU he did not have any educational support. 11Dr Etties gave evidence that Witness E is not currently under any medication and is not taking painkillers. Witness E 's medical records were tendered on the voir dire. 12Notwithstanding Witness E 's evidence that recent events and isolated custody had adversely impacted upon his memory, his refusal to see Mr Crown, his evident antagonism towards the Crown in court and contrived responses led me to conclude that he was not making a genuine attempt to give evidence about the events leading to the abduction of Terrence Falconer, the abduction itself and what occurred when Mr Falconer was taken to Turramurra. All of these are matters of which he may reasonably have been supposed to have knowledge. All three of the triggers under s 38(1) Evidence Act have been satisfied. 13In granting leave I took into account, amongst other considerations, the following matters under s 192 Evidence Act : (i)the grant of leave was not likely to add unduly to the length of the hearing: s 192(2)(a) Evidence Act , and; (ii)there is some unfairness to Anthony Perish and Matthew Lawton arising from the grant of leave. Witness E 's answers in the ERISP are not given under oath and are hearsay. Further difficulties may arise from Witness E 's asserted lack of recollection. Any unfairness to the accused may, however, be overcome by strict directions to the jury as to Witness E 's answers in the ERISP and his oral testimony in the trial: s 192(2)(b) Evidence Act , and; (iii)Witness E 's account in the ERISP of his dealings prior to the kidnapping with Anthony Perish and Matthew Lawton, the kidnapping of Mr Falconer, Mr Falconer's arrival at North Turramurra, the events at North Turramurra, the journey to Girvan and the events at Girvan are of fundamental importance to the Crown case in respect of the charge of murder and the charge of conspiracy to murder: s 192(2)(c) Evidence A ct , and; (iv)the proceedings concern charges of murder and conspiracy to murder: s 192 (2)(d) Evidence Act , and; (v)the court intended to direct the jury about the grant of leave under s 38 Evidence Act and to provide further directions concerning Witness E 's answers in the ERISP and his oral testimony in the trial: s 192(2)(e) Evidence Act . The court has subsequently done so. 14Specific consideration to those provisions of the Evidence Act , referred to in paragraph [6] above , was given when ruling upon the discrete matters raised by Ms Davenport and Mr Hanley. As I have said, the objections were successful with the exception of that part of the ERISP referred to in paragraph [5] above. I did not uphold Ms Davenport's objection to that part of the ERISP. Although there are representations made by Anthony Perish and Matthew Lawton in this material , the probative value of the evidence is not outweighed by the danger of unfair prejudice to either Anthony Perish or Matthew Lawton: s 137 Evidence Act . 15Witness E 's accounts in the ERISP of what occurred at North Turramurra, on the journey to Girvan and at Girvan have substantial probative value. The possession of firearms by the accused and the representations made to Witness E have substantial probative value as the evidence could rationally explain why Witness E participated in the journey to Girvan and the dismemberment of the deceased's body. Any prejudice to the accused in my view could be eliminated by a direction under s 136 Evidence Act limiting the use that could be made of the representations made by the accused and further directions as to Witness E 's answers in the ERISP and his oral testimony in the trial. Those directions have subsequently been given. ********** 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. Decision last updated: 16 September 2011