R v Andrew Iskandar & R v Nita Iskandar (No. 2) [2011] NSWSC 1325

Supreme Court New South Wales

Medium Neutral Citation: R v Andrew Iskandar & R v Nita Iskandar (No. 2) [2011] NSWSC 1325 Hearing dates: 3 November 2011 Decision date: 03 November 2011 Jurisdiction: Common Law - Criminal Before: Davies J Decision: Crown's application to cross-examine in relation to paragraphs 7 and 8 of Mr Maiava's Statement granted. Catchwords: CRIMINAL LAW - procedure - crown witness - application to cross-examine by Crown - whether portion of evidence unfavourable or inconsistent with prior statement - cross-examination permitted. Legislation Cited: Evidence Act 1995 Cases Cited: R v Pantoja [1998] NSWSC 565 Category: Procedural and other rulings Parties: The Crown Andrew Iskandar (Accused) Nita Iskandar (Accused) Representation: Ms K Shead (Crown Prosecutor) Mr J O'Sullivan (Andrew Iskandar) Mr D G Price (Nita Iskandar) Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Andrew Iskandar) Archbold Legal (Nita Iskandar) File Number(s): 2010/49007 & 2010/49279 Publication restriction: Publication restricted to the parties

Judgment 1The Crown applies to cross-examine Mr Maiava pursuant to s 38 Evidence Act 1995 on the basis that evidence he gave was unfavourable to the Crown and on the basis of a prior inconsistent statement. The particular evidence concerns whether Mr Maiava sought clarification from Andrew about what Andrew meant when he said he wanted Mr Maiava to find someone to do a job for him in respect of a witness. When the Crown asked Mr Maiava if Mr Maiava sought to clarify what Andrew meant Mr Maiava said that he did not. 2The Crown pointed to what is contained in paragraph 7 of Mr Maiava's Statement of 13 October 2011 where Mr Maiava said that he told the Police: When we were doing these laps, Andrew said to me, "Do you know anyone that will do a job?" I said, "What kind of a job?" He said, "Just a job" I said, "Oh yeah I know what you mean" He said, "I'll pay them 10 grand to make sure a witness doesn't get to court" I understood that to mean, that he wants me to organise to get rid of the witness, as in kill him. I said to him, "So you want me to get rid of him as in kill him?" Andrew laughed in an evil way, which I took as an agreeance with my understanding of his request to kill a witness in his court case. 3Mr Maiava's Statement then went on to say this: 8. Andrew said to me, "The witness I want to get rid of was a mate of mine who I asked to give me an alibi." 4The Crown submitted that Mr Maiava's oral evidence was unfavourable to the Crown because it did not go as far as what the Statement contained and, therefore, left the question of what precisely Andrew meant when he spoke to Mr Maiava about doing a job. 5Mr O'Sullivan submitted that the evidence given by Mr Maiava was not unfavourable to the Crown. He submitted also that it was not inconsistent with what was contained in the Statement. 6At the time the Crown first made the application the relevant question and answer of the witness was this: Q. Did you ever ask him, when you say you understood him to mean knock, did you ever ask him about that, if that's what he meant? A. No, I didn't. 7That evidence was not inconsistent with what appeared in Mr Maiava's Statement because the Statement did not suggest that Mr Maiava had asked Andrew what he meant. Because there was no clear inconsistency that suggested that at that point the evidence was not unfavourable to the Crown. For that reason I said that I would not permit the Crown to cross-examine Mr Maiava, but would permit the Crown to seek to obtain from him in a non-leading fashion the evidence that was contained in paragraph 7 of his Statement. I said that if the Crown was unsuccessful in obtaining that evidence I would reconsider the question of cross-examination. 8In the presence of the jury the following evidence was then given: CROWN PROSECUTOR Q. Mr Maiava, you told us that Andrew Iskandar asked you to "get rid of a witness", I think were your words? A. Yeah. Q. Were they the words that used A. Yes. Q. "Get rid of"? A. Yes. Q. Did you ever tell him what you thought that meant, "get rid of"? A. I just asked him what he said to me, you wanted to do a job, and that's all I asked him. Q. And you've told us what you understand "do a job" means? A. Yes. Q. Did you ever tell Andrew what you believed that meant? A. No. 9At that point the Crown Prosecutor renewed her application to cross-examine Mr Maiava. 10In R v Pantoja [1998] NSWSC 565 James J (with whom Wood CJ at CL agreed) said: Although the heading to s 38 of the Evidence Act is "unfavourable witnesses", the section itself refers to "evidence" given by a witness and in my view leave can be granted to cross-examine a witness on part only of his evidence if it is unfavourable to the party calling him or inconsistent with a prior statement made by the witness, even though the rest or most of the rest of the witness's evidence is favourable to the party calling him. 11Mr O'Sullivan accepted, in the light of the further attempts by the Crown to obtain the evidence in paragraph 7, that there was now a clear inconsistency between his oral evidence and the evidence in the Statement. I consider further, in the light of the relevant offence charged (solicit to murder) that the oral evidence of the witness was unfavourable to the Crown. A proper basis was therefore available under either paragraph (a) or (c) of s 38 to permit the Crown to cross-examine Mr Maiava. 12In giving the leave sought under this section regard is to be had amongst other things to the matters in s 192 Evidence Act . 13In my opinion, the nature of the proceedings (a trial on a charge of soliciting to murder) and the importance of the evidence in relation to that charge make it appropriate to grant the leave sought. I do not consider that it would unfair to the Accused to permit that when the evidence was otherwise contained in the Statement signed by the witness. 14The Crown is permitted to cross-examine in relation to paragraphs 7 and 8 of Mr Maiava's Statement.