R v Orcher [2016] NSWSC 627

Supreme Court New South Wales

Medium Neutral Citation: R v Orcher [2016] NSWSC 627 Hearing dates: 28 April 2016 Decision date: 28 April 2016 Jurisdiction: Common Law - Criminal Before: Button J Decision: The objection to the question is upheld. Catchwords: CRIMINAL LAW – procedure – application pursuant to s 108 of the Evidence Act 1995 (NSW) – objection taken by defence counsel – whether the Crown should be permitted to lead prior consistent statement in re-examination – objection upheld Legislation Cited: Evidence Act 1995 (NSW), ss 79, 108, 108(3)(b), 137, 192 Category: Procedural and other rulings Parties: Regina Lyle Neil Orcher Representation: Counsel: L Shaw (Crown) A Webb (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid New South Wales (Accused) File Number(s): 2014/376921

Ex tempore Judgment 1. An application has been made by the Crown to lead in re-examination a portion of paragraph 11 of voir dire Exhibit A. It is said, in a nutshell, that to the extent that defence counsel suggested to the witness that she had recently commenced to use dramatic terms to describe what the witness says the accused did to the deceased, the Crown should be permitted to get into evidence that, as long ago as 5 January 2015, the witness described the assault as "vicious", as shown by the paragraph in question. 2. It is also said, in a nutshell, that the Crown should be entitled to lead that evidence pursuant to s 108 of the Evidence Act 1995 (NSW). In short, in order to get into evidence a prior consistent statement after a suggestion has been made in cross-examination, in effect, of what used to be called recent invention, it is said that, in those circumstances, s 108(3)(b) is in play. The section is as follows: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed) (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. 1. There are two aspects of the application that are problematic. The first is that defence counsel's impugning of the witness was based upon the recent use of a particular word, namely, "slamming". But it can be seen that word does not appear in paragraph 11. 2. Separately from that, I think that there is a real issue of s 137 of the Evidence Act playing a role here. That is because, while I accept that the fact that the witness used a graphic descriptor on 5 January 2015 has some probative value, I think there will be a significant prejudicial effect. I say that because the use of the word "vicious" would not be admitted as a lay opinion or evaluation. It would not be admissible, pursuant to s 79 and the related sections of the Evidence Act. 3. So that, in short, if the re-examination were permitted, I would need to direct the jury that that characterisation was not directly admissible but, rather, only being led for the very limited purpose of the jury determining whether, in truth, the witness commenced to use graphic descriptions of the alleged assault quite recently, or rather quite some months ago. 4. There is force in what the Crown has said about the "leave factors" contained in s 192 of the Act, arguing in favour of a grant of leave. So much may be accepted. 5. But I am concerned, first, about whether, in truth, the prior statement does, indeed, fit within s 108(3)(b) of the Evidence Act. 6. Secondly, if I am wrong in that concern, I consider that the evidence should be excluded, because of the problem I have identified, pursuant to s 137 of the Evidence Act. 7. Accordingly, the objection to the question is upheld.