R v Droudis (No. 3) [2016] NSWSC 1553

Supreme Court New South Wales

Medium Neutral Citation: R v Droudis (No. 3) [2016] NSWSC 1553 Hearing dates: 29 August 2016 Date of orders: 29 August 2016 Decision date: 29 August 2016 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Leave granted to the Crown under s.38 Evidence Act 1995 to cross-examine Mr Quiney. Catchwords: CRIMINAL LAW – murder trial - Crown application to cross-examine Crown witness under s.38 Evidence Act 1995 - evidence unfavourable to Crown - prior inconsistent statements - credibility - leave granted Legislation Cited: Evidence Act 1995 Cases Cited: R (Cth) v Petroulias (No 29) [2007] NSWSC 1005 R v Le [2002] NSWCCA 186; 54 NSWLR 474 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 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 makes application under s.38 Evidence Act 1995 for leave to cross-examine a Crown witness, Nigel William Osborne Quiney. 2. Mr Quiney was called in this Judge-alone trial last Wednesday, 24 August 2016. His evidence-in-chief indicated that he was in the vicinity of the premises at 24-30 Parkes Avenue, Werrington on the afternoon of 21 April 2013, the date of the death of the deceased. 3. He gave evidence of observations of a woman in the street. His cross-examination commenced (T151) with Senior Counsel for the Accused putting to Mr Quiney that the last time he (Mr Quiney) saw the woman was when she was still on the roadway. Mr Quiney said, "Yes, that's correct", and then he said "Sorry, no, that's incorrect" (T151.34). He proceeded to give an account of observing the woman in a vehicle thereafter, and that this vehicle had moved away from the premises at some speed. 4. This unexpected development in the evidence of Mr Quiney led both the Senior Crown Prosecutor and Senior Counsel for the Accused, in due course, to ask that his evidence be deferred. Before that deferral, he was cross-examined and re-examined to an extent. 5. Mr Quiney was asked to return to Court today and he has done so. 6. The Crown indicated at the beginning of proceedings today that it wished to make a s.38 application with respect to Mr Quiney. After some discussion, I determined (in accordance with the defence submission) that the appropriate course was that the cross-examination of Mr Quiney should conclude, with the Crown then to make this application as it has in fact done. 7. The Crown submits that leave should be granted to cross-examine Mr Quiney because evidence given by him is unfavourable to the Crown and that he has made one or more prior inconsistent statements: s.38(1)(a) and (c) Evidence Act 1995. The Crown also applied to ask Mr Quiney questions relevant only to his credibility: s.38(3). 8. The application is opposed by the Accused and I have heard submissions which are contained in the transcript (T215-224). 9. At the outset, it is necessary to bear in mind the principles to be applied on an application such as this. The relevant principles and authorities were summarised in R (Cth) v Petroulias (No 29) [2007] NSWSC 1005 at [9]-[17] and I utilise that summary for present purposes. In that summary, several well-known decisions of the Court of Criminal Appeal were cited, including R v Le [2002] NSWCCA 186; 54 NSWLR 474, and R v Parkes [2003] NSWCCA 12; 147 A Crim R 450. 10. The term "unfavourable" in s.38(1)(a) does not mean "adverse". It means "not favourable to the party making the application". It was said in R (Cth) v Petroulias (No 29) at [14]: "The interests of justice, the public interest and the administration of justice may be served by the testing of the evidence of a witness by way of a s.38 examination: R v Le at 487 [68]; R v Ronen [2004] NSWSC 1298] at [71]. The grant of leave may permit a truer picture of the situation to be presented to the jury[or in this case to the trial Judge in a Judge-alone trial] than would have been the case had the Crown been refused leave to cross-examine. …" 1. As Ipp JA observed in R v Parkes, at 464 [81], [83], this is the very purpose underlying s.38. 2. It is necessary for the Court to bear in mind, as well, the provisions in s.192 Evidence Act 1995 with respect to discretionary considerations which bear upon an application such as this. 3. The Crown relies upon a number of documents which contain accounts said to have been given by Mr Quiney to police at different times - Constable Buttigieg's diary, with a note on 21 April 2013 (MFI11), Detective Senior Constable Hallam's running sheet entry of statements attributable to Mr Quiney on 24 April 2013 (MFI12), Mr Quiney's statement to the police on 26 April 2013 (MFI10) and a statement of Sergeant Marinello dated 26 August 2016 (MFI13). Add to those, the transcript of the evidence given by Mr Quiney on 24 August 2016 and again today. 4. It is open to the Crown to contend that there are differing statements attributable to Mr Quiney along this chronological pathway with respect to what he saw on 21 April 2013. In addition to the reference by Mr Quiney to the woman whom he said he observed as being in a motor vehicle that hurriedly left the scene, he also indicated for the first time in evidence last Wednesday that the police had shown him certain photographs (T155). 5. I am satisfied that Mr Quiney may be regarded as an unfavourable witness in that he is not favourable to the party making the application, namely, the Crown. 6. In the defence opening last Monday (T41), reference was made to aspects of Mr Quiney's evidence as being a potential foundation for an argument in support of the defence in this trial. What has happened since then is the addition by Mr Quiney, under cross-examination last Wednesday, of an account that the woman in question was actually in a vehicle that was apparently leaving the scene hurriedly. That aspect and other features to which I have referred warrant a finding that he is unfavourable to the Crown for present purposes. 7. I am satisfied, as well, that the comments or statements attributable to Mr Quiney in the various documents to which I have referred (at [13] above) constitute prior inconsistent statements for the purpose of s.38. 8. What, of course, the end result is with respect to these matters will be a topic to be considered in the light of all the evidence. However, I am satisfied that the Crown has satisfied the threshold requirements of s.38(1)(a) and (c). 9. The Crown has indicated, as well, a desire to cross-examine Mr Quiney more generally on credibility issues. In that respect, the Crown says that these matters spring from Mr Quiney's criminal history (MFI15) and some intelligence reports said to relate to activities of Mr Quiney (MFI16). 10. It is necessary for the Court to bear in mind the terms of s.38(3). The Crown may, with the leave of the Court, question the witness about matters relevant only to the witness' credibility. In this respect, the Court should keep in mind as well s.192 of the Act, which requires the Court to consider whether questioning would be likely to add unduly to the hearing, the extent to which it may be unfair to a party or a witness and the importance of the evidence in relation to which the leave is sought. An application under s.38 to cross-examine a witness on issues relating to credibility only calls for particular consideration. 11. The Crown has indicated that it will ultimately seek to submit to the Court at trial, if there is a foundation for it, that there are features of Mr Quiney's past conduct that bear upon his credibility more generally, and his capacity to tell the truth. 12. It has been submitted for the Accused that the Court should take into account Mr Quiney's demeanour in giving evidence up to this point. That is relevant to the exercise of discretion. 13. However, an assessment of the witness' demeanour, and what flows from it, should await a fuller examination by reference to the material as to which he will be cross-examined under s.38. 14. After consideration, I have determined that the Crown ought be permitted to ask Mr Quiney questions on the broader credibility issues relating to MFI15 and MFI16. That said, I will monitor the progress of that phase of the cross-examination to see if there is any aspect of s.192 which is expressly engaged while that questioning occurs. 15. In reaching the conclusions expressed in this judgment, I should indicate that s.38(4) requires questioning under the section to take place before other parties cross-examine the witness, unless the Court otherwise directs. The cross-examination by the Crown will take place effectively after cross-examination on behalf of the Accused. However, the way in which the issue has arisen today (see [6] above) is such that it is appropriate in my view, that the questioning proceed in that order. I will ensure that Mr Ierace SC has an opportunity to further cross-examine Mr Quiney after the Crown has cross-examined under s.38, if he so wishes. 16. Accordingly, I grant leave to the Crown to cross-examine Mr Quiney on the matters arising from MFIs 11, 12 and 13 (being prior accounts given by him) and by reference to his statement (MFI10), and the transcript of evidence which he has so far given. Further, I grant leave to cross-examine on credibility issues by reference to MFI15 and MFI16.