Supreme Court New South Wales Medium Neutral Citation: R v Droudis (No. 4) [2016] NSWSC 1150 Hearing dates: 31 August 2016 Date of orders: 31 August 2016 Decision date: 31 August 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Question allowed. Catchwords: CRIMINAL LAW – murder trial - witness asked for recollection of conversation - witness recalls some of conversation - whether witness may be asked whether what he said in conversation was the truth - objection to question - question allowed Legislation Cited: Evidence Act 1995 Cases Cited: --- Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Amirah Droudis (Accused) Representation: Counsel: Mr M Tedeschi QC; Mr DT Scully (Crown) Mr MJ Ierace SC; Mr RJ Wilson (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2013/345405 Publication restriction: --- JUDGMENT 1. JOHNSON J: The Crown has called as a witness, John Aspros, who is the brother of the Accused. 2. The particular piece of evidence which the Crown is seeking to adduce from Mr Aspros relates to a conversation which he had with police officers who visited his home on 21 April 2013, the day upon which the deceased was killed. 3. There is already evidence in the trial of the visit by police and the conversation with Mr Aspros, through the testimony of Detective Senior Constable Megan Oxley (T169). 4. I apprehend that the Crown is seeking to adduce evidence from Mr Aspros that he had not seen his sister, the Accused, for some days. This evidence, as I understand it, bears upon the issue of alibi. 5. There has already been evidence from Anastasia (Sue) Droudis, a cousin of the Accused, and Mr Aspros. She has stated that Mr Aspros suffers from schizophrenia. She gave some evidence yesterday about Mr Aspros and features of his life, including memory. That evidence was taken initially on the voir dire, but was ultimately admitted without objection. 6. A point has been reached in the evidence of Mr Aspros today where he is being asked about the occasion when police officers came and spoke to him at his house. He has said that he recalls two police officers, one male and one female, attending. He indicated (although he stated that he could not recall all that was said), that there was mention of the name of his sister and where she had been in the last two or three months. 7. The Crown asked Mr Aspros for his best recollection of what was said thereafter in this conversation and he said that he could not recall. The Crown then asked Mr Aspros whether what he said on this occasion was the truth (T343). That question drew an objection. Mr Aspros left the Court and submissions have been made on the objection. 8. Senior counsel for the Accused submits that the question is objectionable - that Mr Aspros cannot answer a question as to whether what he was saying was the truth when he himself cannot recall what it was that was being said. It is submitted that any answer that would be given, in any event, would result in the prejudicial effect of the answer exceeding probative value (ss.135 or 137 Evidence Act 1995). 9. The Crown submits that the position is one where the witness has effectively exhausted any actual memory of what occurred, but is in a position to answer as to whether on the occasion he was or was not telling the truth, and that any answer to that question is admissible and has probative value. 10. It is the case, and it is agreed between the parties, that Mr Aspros was, at that time, and for some time prior to 21 April 2013, suffering from schizophrenia. The evidence yesterday of Anastasia (Sue) Droudis indicated his memory was affected in different ways, to her observation, apparently as a result of that condition. 11. If Mr Aspros was unable to remember the event at all, namely police officers attending and having a discussion with him about his sister, then the present question, it seems to me, would in truth go nowhere. However, Mr Aspros has given some evidence about the attendance of police officers and about some, at least, of the topics discussed. 12. It seems to me that the witness, even if he is not able to give further evidence as a result of lack of recollection concerning the detail of what was said, may be asked permissibly whether, on the occasion which he does recall, he was seeking to tell the truth. 13. In my view, the question is relevant and any answer is relevant to the issues in the proceedings. The ultimate question as to what weight can be given to it will be a matter for assessment in the light of other evidence to be adduced in the trial. 14. The Court is not in a position to conclude that the prejudicial effect of the answer is such as to lead the Court to reject the question itself at the threshold. 15. Accordingly, I allow the question and I will ask Mr Aspros to return to Court to continue his evidence. ********** 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: 07 November 2016