Supreme Court New South Wales Medium Neutral Citation: R v Lane [2014] NSWSC 1430 Hearing dates: 7 - 10; 13 - 15 October 2014 Decision date: 15 October 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: See [15] Catchwords: CRIMINAL - procedure - evidence - unfavourable witness - where Crown obliged to call son of the accused - whether witness unfavourable - procedure to be adopted in eliciting witness' evidence Legislation Cited: Evidence Act 1995 (NSW), ss 38, 192A Cases Cited: Doyle v R [2014] NSWCCA 4 Kanaan v The Queen [2006] NSWCCA 169 R v Kingswell (Unreported New South Wales Court of Criminal Appeal, 2 September 1998) R v Milat (Unreported, Supreme Court of New South Wale, Hunt CJ at CL, 23 April 1996); Category: Interlocutory applications Parties: The Queen (Crown) Paul Ian Lane (accused) Representation: Counsel: L Carr (Crown) P Young SC (Accused) Solicitors: File Number(s): 12/289582 EX TEMPORE Judgment (REVISED) 1Mr Lane is being tried for the murder of Mr Peter Morris which arises out of events occurring in Casino around midnight on 15th and 16th September 2012. 2The learned Crown Prosecutor has applied for an advanced ruling or direction under the provisions of s 192A Evidence Act 1995 (NSW). The direction or ruling relates to an application under s 38 of the Evidence Act. The relevant witness to whom the ruling relates is Mr Ryan Lane, the son of the accused. Ryan Lane had been with his father at The Commercial Hotel during the night of Saturday 15th September 2012. They met up around closing time and walked west along Barker Street, Casino together coming across Mr Morris and his friend Mr Schwager. Mr Ryan Lane was not involved in the altercation that then ensued amongst Mr Lane Senior, Mr Morris and Mr Schwager. However, I have received as evidence on the voir dire (exhibits VD B and C) two statements made by Ryan Lane to investigating police dated 18th September 2012 and 6th August 2013 respectively. 3The Crown would not have wished to call Mr Lane as a witness, but accept an obligation to call him because his evidence is obviously relevant to the Crown case and the accused has requested that the Crown do so. The application made by the Crown Prosecutor pursuant to s 38 is made consistently, or in conformity, with the approach adopted by Hunt CJ at CL (as he then was) in R v Milat (Unreported, Supreme Court of New South Wale, Hunt CJ at CL, 23 April 1996). This obviously a very early decision in terms of the application of s 38 of the Evidence Act, but the approach has been followed since in R v Kingswell (Unreported New South Wales Court of Criminal Appeal, 2 September 1998), Kanaan v R [2006] NSWCCA 109 and through that latter case in Doyle v R [2014] NSWCCA 4. 4The basis of the Crown's application is that Ryan Lane's evidence is unfavourable to the Crown. I bear in mind that s 38 abrogated the Common Law Rules in relation to hostile witnesses and indeed introduced what at the time were considered to be radically different procedures in the analogist situation. 5Unfavourable in s 38 means no more than not favourable. To lawyers imbued with the common law approach, that was a radical, or, at least surprising result. But it is one which is now very firmly established by a series of decisions not only in State courts, including the Court of Criminal Appeal but also the High Court of Australia. It is obviously an undemanding test. 6Moreover the procedures made available under s 38 can be invoked even where it is expected that the witness will give 'not favourable' evidence in contradistinction to the common law position where an element of surprise in that regard was part and parcel of the application that was made during the course of an hostile witness's evidence. 7There are three respects in which the Crown argues that Mr Ryan Lane's evidence is unfavourable to the Crown. I will summarise them and not go into them in great detail. They are as follows: (1)Mr Ryan Lane's evidence suggests that Mr Morris started the altercation. This arises because in his statement he says he made an offensive comment to his father which Mr Morris mistook as being directed at him and when Mr Morris challenged Mr Ryan Lane about it his father intervened; (2)Mr Ryan Lane says that he walked on when Mr Lane and Mr Morris were remonstrating with each other, but looking back saw them punching and kicking each other; (3)when his father re-joined him, he says at the Caltex Service Station, a proposition, I interpolate, somewhat inconsistent with evidence I have seen from a CCTV camera located at the Commonwealth Bank in Barker Street, his father was bleeding from his eyes, nose and mouth, and in the case of one eye to the extent it was closed. Teeth were broken. 8If accepted, that evidence particularly item three would be inconsistent with the Crown case that Mr Lane Senior did not act in self-defence in, I will use a neutral expression, engaging with Mr Morris and Mr Schwager. 9To determine whether the evidence is unfavourable, even bearing firmly in mind what I have described as the undemanding statutory test, it seems to me appropriate to have regard to the Crown's opening address. At transcript page 11 lines 40 to 50 the learned Crown Prosecutor said this of the evidence he intended to lead, and has led, in exhibit C, a DVD of a recording made on a CCTV camera located further west on Barker Street from where the altercation took place: The accused and his son then came into picture and they walked either side of the deceased person. The accused takes a few steps beyond where the [Mr Morris] is, and then wheels around and then quickly goes back towards the deceased. The accused's son looks back briefly and continues on without stopping. The accused and then the deceased appear to have words, they are close to each other. The accused has his arms out and the Crown would indicate that the accused pushed, or appeared to push the deceased towards the shopfronts, which are near where they are and they appear on the film to be involved in some type of scuffle. 10And at transcript p 14, line 35 to 45, the following is said; The Crown says it was a deliberate act of that punch. It was thrown in such a manner in all the circumstances and the state of mind that existed earlier that you would be able to infer from those circumstances, conclude from those circumstances, that his intention was to inflict grievous bodily harm and the Crown would say that after you have watched the film there is not any issue to be determined as to whether the accused was acting in self-defence. 11It seems to me from considering those passages that the Crown case does not in any way depend upon who started the altercation nor does it depend in any way upon the fact that Mr Morris, and for that matter Mr Schwager, might have involved themselves in a scuffle with Mr Lane Senior even to the extent of kicking at each other and perhaps trading punches. The Crown case rather seems to proceed on the basis that whoever started it, whatever the involvement of each in the scuffle was, if I may put it this way, Mr Lane Senior ended it definitively with a deliberate punch, struck with an intention to inflict grievous bodily harm upon Mr Morris. That punch knocked him down causing him to hit his head on the pavement of Barker Street by reason of which he suffered a serious traumatic brain injury from the effects of which he died some days later. 12Viewed through that prism I would not have thought points 1 and 2, that is to say that Mr Morris started the verbal stoush and then engaged with Mr Lane Senior in some physical exchanges, are, even on the undemanding test, "unfavourable" to the Crown position. The Crown position can easily accommodate those facts. In saying this, I have borne in mind what the Chief Justice said in applying Kanaan in Doyle v R at [292] with the agreement of Price J (as he then was) and me: However, it may be accepted that evidence is not unfavourable simply because it does not fit a particular case theory of the prosecution: R v Kneebone [1999] NSWCCA 279 ; (1999) 47 NSWLR 450 at 461-462. 13In my judgment points 1 and 2 fit into that category, that is to say, they may not fit a particular case theory of the prosecution but nor are they inconsistent with it for the reasons I have given. However it does seem to me that point 3 is directly "not favourable" to the Crown case and indeed is entirely inconsistent with the Crown case. During the course of his opening, the Crown prosecutor referred to evidence, particularly that coming from the Commonwealth Bank CCTV footage, which he said would show that the accused was uninjured in the exchange with Mr Morris. Moreover as I have already pointed out, the Crown case, as it must be, is that any deliberate act by way of a punch of the accused was not struck in self-defence. The description by Ryan Lane of injuries on his father, it must be said, of some severity, immediately following the exchange with Mr Morris and Mr Schwager is, I will content myself with applying the statutory test, not favourable to the case that no act of self-defence is responsible for Mr Morris's death. Therefore, to that extent I am satisfied that the evidence likely to be given by Mr Ryan, for the purpose of this advance ruling, is unfavourable to the Crown. 14Given that finding and having regard to the provisions of s 192 of the Act, I am satisfied that the Crown ought to be given leave to question Mr Ryan Lane as though it were cross-examining him about that unfavourable evidence. Whether the cross-examination ought to be allowed to go further than that is a matter which can perhaps be dealt with by application during the course of Mr Lane's evidence. The section seems to contemplate that there might be more than one relevant application made during the course of the evidence. 15The procedure that should be adopted in relation to this matter, given that the Crown is calling Mr Ryan Lane at the request of the accused, is the approach adopted by Hunt CJ at CL in Milat. I will quote from his Honour's judgment at p 7, his Honour said, In its final report(the ALRC) said that (there) should not be an inflexible requirement and that provision should be made to enable the other party of parties to question the witness further after cross-examination by the party who called the witness. Although perhaps not readily apparent from their terms, this appears to have been the intention behind subs (4) and (5) of s 38. In order to reflect the intention (or to comply with the spirit) of the section; therefore, I held that, in the event that these witnesses called at the request of the accused gave the unfavourable evidence as expected, it would be appropriate to grant leave to the Crown pursuant to subs (1) to cross-examine them in relation to that evidence, and to do so after they had been cross-examined by the accused. I also said that the accused would then be permitted to cross-examine the witness further after the Crown had conducted its cross-examination, such cross-examination to be unlimited in nature and not restricted as if it were a re-examination, with the Crown having the right finally to re-examine the witnesses. 16Adapting this approach my ruling envisages the following procedure; (1)The Crown will call Mr Ryan Lane at the appropriate time, identify him and turn him over to Mr Young SC for the purpose of cross-examination; (2)After the completion of that cross-examination, the Crown may examine Mr Ryan Lane including by way of cross-examination as to what he said about his father's injuries in the immediate aftermath of the exchange with Mr Morris. Obviously I reserve liberty to the Crown to make application during the course of the evidence to extend the scope of that cross-examination; (3)The accused will then be permitted to cross-examine the witness further; (4)And the Crown will finally have the right to re-examine the witness. 17When Mr Lane is called I simply propose to tell the jury that for technical legal reasons, the procedure to be adopted in eliciting evidence from Mr Lane will vary from that they have seen with other witnesses but they should think nothing of it. Rather they should treat his evidence the same as all other evidence led in the case that is to say evaluate it, consider it and give it such weight as they think it is due in the course of their deliberations. ********** 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: 05 November 2014