R v Fletcher (No 2) [2015] NSWSC 1692

Supreme Court New South Wales

Medium Neutral Citation: R v Fletcher (No 2) [2015] NSWSC 1692 Hearing dates: 9 November 2015 Decision date: 09 November 2015 Before: Button J Decision: I grant leave to the Crown to cross-examine Ms Parker about whether she has at any time made a prior inconsistent statement, namely to Ms Kay Henson as recounted in paragraph 20 of voir dire exhibit E. Catchwords: CRIMINAL LAW – procedure – application to cross-examine a witness pursuant to s 38 of the Evidence Act 1995 (NSW) – prior inconsistent statement allegedly made by the daughter of the accused – whether the cross-examination will add to the length of the trial – whether the cross-examination will occasion any unfairness to the accused Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Evidence Act 1995 (NSW), ss 38, 38(1)(c), 38(6), 38(6)(a), 38(6)(b), 192, 192(2)(a), 192(2)(b), 192(2)(c), 192(2)(d), 192(2)(e) Category: Procedural and other rulings Parties: Regina Adam Troy Fletcher Representation: Counsel: K Ratcliffe (Crown) M Ainsworth (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Bayside Lawyers (Accused) File Number(s): 2014/184429 Publication restriction: The name of the witness is not to be published.

ex tempore Judgment 1. The Crown has sought to cross-examine the witness Andrea Parker (I have used a pseudonym due to her age to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)) about a prior inconsistent statement that she is said to have made to a Kay Lorraine Henson. That prior inconsistent statement is recounted at paragraph 20 of Ms Henson's statement of 3 September 2014, which was tendered some days ago on the voir dire, and became Crown voir dire exhibit E. 2. The application is made pursuant to s 38(1)(c) of Evidence Act 1995 (NSW). Suffice to say, it is proposed to cross-examine Ms Parker about what it is Ms Henson says Ms Parker said to her very shortly after the alleged offence. 3. With the assistance of both counsel, I have looked to the mandatory matters that I must consider in ss 38(6) and 192 of the Evidence Act. The transcript will show my analysis of those. But, to repeat it very briefly, defence counsel has been on notice for some weeks that this application is on foot: s 38(6)(a). Separately, it is clear that defence counsel, who will cross-examine after the Crown concludes her cross-examination pursuant to s 38, will inevitably be asking questions about this very topic: s 38(6)(b). 4. Separately, turning to s 192, I think that there is a potential for this questioning to add to the length of the proceedings, but by no means unduly: s 192(2)(a). 5. To my mind, permitting the Crown to explore with Ms Parker what she is alleged to have said to Ms Henson does not occasion any unfairness to the accused or the witness: s 192(2)(b). 6. I think that the evidence is important, in that it is the Crown case that it was at that very time under discussion– namely, when Ms Parker and her father, the accused, visited the deceased and Mr Cavanough - that the act causing death occurred: s 192(2)(c). 7. The proceedings are a trial for the most serious offence known to law: s 192(2)(d). 8. Finally, there is no alternative way forward (in terms of logistical steps or directions) other than, to my mind, cross-examination: s 192(2)(e). 9. Ultimately, Mr Ainsworth for the accused did not seek to oppose vigorously this particular application, whilst reserving his right with regard to other applications, and also seeking to have, as soon as reasonably practicable, notice of all applications of this nature that the Crown might be making. 10. I think it is appropriate that this limited application pursuant to s 38 be granted now. The Crown has foreshadowed others but, to my mind, the questioning with regard to this topic could possibly inform the determination with regard to other topics. The parties, I understand, are content to adopt my suggested process of conducting the cross-examination pursuant to these applications seriatim. 11. For the time being then, I grant leave to the Crown to cross-examine Ms Parker about whether she has at any time made a prior inconsistent statement, namely to Ms Kay Henson as recounted in paragraph 20 of voir dire exhibit E.