R v Perish; R v Lawton; R v Perish [2011] NSWSC 1112

Supreme Court New South Wales

Medium Neutral Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1112 Hearing dates: 17 August 2011 Decision date: 18 August 2011 Jurisdiction: Common Law - Criminal Before: Price J Decision: Leave is not granted to the Crown to cross-examine Witness E upon the previous representations made by Witness B. Leave is granted to the Crown to cross-examine Witness E upon the identified prior inconsistent statement made during the committal proceedings. Catchwords: CRIMINAL LAW - unfavourable witness - whether leave granted to Crown to cross-examine should be extended - considerations of fairness. Legislation Cited: Evidence Act 1995 Cases Cited: R v Teasdale [2004] NSWCCA 91; (2004) 145 A Crim R 345 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): 2009/00148002 2009/00145260 2009/00150111

Judgment 1HIS HONOUR: Mr Crown asks that the grant of leave pursuant to s 38 (1) Evidence Act 1995 be extended to permit him to cross-examine Witness E upon his recollection of meetings with Witness B at a cafe at McMahon's Point and at the St George Rowing Club. The effect of Witness E 's evidence-in-chief was that he had no recollection of the meeting at the ca fe and despite the photographs (e xhibit H) and the tape (e xhibit J) being played to him, he had little recollection of a meeting with Witness B at the St George Rowing Club. 2During yesterday's argument on the voir dire, I found that the triggering events in s 38 (1) (a) and (b) Evidence Act applied. I was satisfied that Witness E 's evidence was unfavourable to the Crown: s 38 (1) (a), and it appeared to the court that Witness E was not, in his evidence-in-chief, making a genuine attempt to give evidence of matters of which he may reasonably be su pposed to have knowledge: s 38 (1) (b) . 3I am further satisfied, so far as a meeting at McMahon's Point is concerned, that Witness E 's testimony was inconsistent with evidence given by him during the committal hearing when he said during cross-examinatio n by Ms Davenport (T447.15-18): "I recall that Anthony was having a conversation with [Witness B] and did make reference to the Falconer abduction. I don't remember the exact content of what was said. I really didn't want to get i nvolved in the conversation." 4Ms Davenport argued that leave should not be granted. She submitted that the Crown is, in essence, choosing to accept the version of one Crown witness over another and that during cross-examination at the committal proceedings Witness E denied that he forced Witness B to admit that he murdered Terry Falconer during the conversation at the cafe and the issue was, in reality, the credit of two witnesses. Ms Davenport pointed out that Witness E had made many statements to police during which the police had not obtained a statement from him about his recollection of the two meetings deposed to by Witness B . 5It is convenient to mention here that Mr Crown conceded that Witness E had not made a statement to the police about the events the subject of the present controversy. Accordingly, any finding of a prior inconsistent statement must be confined to the passage in Witness E 's testimony during the committal proceedings that I have quoted. 6Ms Davenport put to me that as Witness E had either no memory or purported to have no memory of almost everything, the Crown was in a better position than it was during the committal proceedings. Ms Davenport pointed out that she now had the task in cross-examination of obtaining from the witness what he had said in evidence in the proceedings before the magistrate, which had been rendered more difficult by his apparent lack of memory. She submitted that to permit the Crown to cross-examine Witness E upon Witness B 's evidence would create unfairness to Anthony Perish and should not be allowed. 7Mr Crown told me that he intended taking Witness E directly to Witness B 's evidence of these meetings and that Witness E 's evidence of the possession of a hand held recorder and such a recorder being located at Girvan provided a factual foundation for the Crown to put its case in the way sought. Furthermore, Mr Crown cited R v Teasdale [2004] NSWCCA 91 ; (2004) 145 A Crim R 345 and submitted that he was endeavouring to lay the ground work to enable criticism to be made by the Crown of Witness E 's evidence in the Crown's closing address. 8During further argument, Ms Davenport told me that she did not object to leave being granted to enable the Crown to cross-examine the witness upon the identified prior inconsistent statement during the committal proceedings. Ms Davenport maintained the opposition to Witness E being cross-examined upon Witness B 's evidence. She submitted that the probative value of the evidence would be outweighed by the danger of unfair prejudice to Anthony Perish and the application must be rejected: s 137 Evidence Act . 9Witness B 's testimony given in this trial on 11 August 2011 of meetings at McMahon's Point and the St George Rowing Club with Anthony Perish and Witness E are previous representations made by a person other than the witness. The barrier imposed by s 44 Evidence Act to cross-examination upon previous representations of other persons does not apply as the evidence of the representati ons has been admitted: s 44 (2) (a) Evidence Act. 10In my view, however, the present controversy may be readily resolved by a close consideration of s 137 Evidence Act which is as follows: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 11The term "probative value" is defined in the Dictionary to the Evidence Act to mean: " ... the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 12The facts in issue are an admission said by Witness B to have been made by Anthony Perish in the presence of Witness E at the McMahon's Point cafe that they killed Mr Falconer and the intimidating conduct by Anthony Perish and Witness E at McMahon's Point and at the St George Rowing Club. 13The previous representations made by Witness B undoubtedly have significant probative value, but that is not the evidence which is to be assessed. The evidence will be Witness E 's answers when Witness B 's testimony is put to him in cross-examination by the Crown. He says he has no recollection of the content of those meetings and, save for the inconsistency in the identified passage of evidence in the committal proceedings, that is not elsewhere stated otherwise. 14The extent to which his answers could rationally affect the assessment of the probability of the existence of the facts in issue appears to be, at best, modest. 15On the other hand, the Crown's use of Witness B 's evidence in cross-examination of Witness E brings with it the very real risk that Witness B 's evidence will be elevated in the minds of the jurors and the jury will misuse the Crown's cross-examination to infer that Witness B 's evidence is to be accepted as reliable. I do not think that this risk will be eliminated by a direction to the jury. 16Carrying out the weighing exercise required, I conclude that the probative value of the proposed evidence is outweighed by the danger of unfair prejudice to Anthony Perish: s 137 Evidence Act. 17For these reasons , I do not grant leave to the Crown to cross-examine Witness E upon the previous representations made by Witness B . 18I do, however, grant leave to the Crown to cross-examine the witness upon the identified prior inconsistent statement made during the committal proceedings. 19In granting leave, I have taken into account Ms Davenport's lack of objection to leave being granted and that: i.t he grant of leave will not be likely to add unduly to t he length of the hearing: s 192 (2) (a) Evidence Act , and; ii.there is no unfairness either to Anthony Peri sh or the witness: s 192 (2) (b) Evidence Act , and; iii.Witness E 's prior testimony that the Falconer abduction was referred to in a conversation with Witness B at McMahon's Point has some importance in the proceedings and the Crown should be permitted to explore that top ic in cross-examination: s 192 (2) (c) Evidence Act , and; iv.the proceedings concern charges of murder a nd conspiracy to murder: s 192(2) (d) Evidence Act , and; v.the court intends to direct the jury about the grant of leave under s 38 Evidence Act .