R v Johnson (No 2) [2017] NSWSC 565

Supreme Court New South Wales

Medium Neutral Citation: R v Johnson (No 2) [2017] NSWSC 565 Hearing dates: 8 May 2017 – 9 May 2017 Decision date: 09 May 2017 Jurisdiction: Common Law Before: Button J Decision: I grant leave to the Crown to cross-examine Mr Michael Smith about any aspect of the events of Friday 15 May 2015 that appear in voir dire exhibit K, and about which he has not yet given evidence before the jury. Catchwords: CRIMINAL – application by the Crown to cross-examine witness – whether witness making a genuine effort to give evidence – application granted Legislation Cited: Evidence Act 1995 (NSW), s 38(1)(b), 192(2) Category: Principal judgment Parties: Regina Steven John Johnson Representation: Counsel: L Carr (Crown) C Taylor (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Rice, More & Gibson (Accused) File Number(s): 2015/146675 Publication restriction: Nil

EX TEMPORE Judgment Introduction 1. Application has been made by the Crown for leave to cross-examine the Crown witness, Mr Michael Smith. The application is partly based on the proposition that there is at least one matter of which Mr Smith may reasonably be supposed to have knowledge, and about which it appears to me that he has not, in examination-in-chief, been making a genuine effort to give evidence, pursuant to s 38(1)(b) of Evidence Act 1995 (NSW)(the Act). Background 1. The background is that Mr Smith has been called as a witness in a murder trial in which it is alleged that the accused administered a brutal bashing to the deceased on the evening of Friday 15 May 2015, thereby causing his death. The witness is in custody, and has given evidence, both in examination-in-chief and on the voir dire, that he has little memory of the events of 15 May 2015. He has also given evidence that he has little memory of making a detailed two and a half page statement to police on 3 June 2015 (a little over two weeks after the events in question); he also called into question its accuracy on various bases. That statement became voir dire exhibit K before me. Determination 1. For the following reasons, it certainly appears to me that Mr Smith is not making a genuine attempt to give evidence about aspects of the events of Friday 15 May 2015, of which he may reasonably be supposed to have knowledge. 2. First, there is a very stark contrast between the firmness, the level of detail, and the general absence of prevarication in the statement, and the almost complete lack of memory that Mr Smith professes to have now. Even accepting as I do that he is a person who has abused prohibited drugs and alcohol, the contrast is very marked and, to my mind, suspicious. 3. Secondly, I regard the fact that Mr Smith is now incarcerated as a relevant factor. In other words, I think that one can readily infer that a person in his position may well be reluctant to give evidence for the Crown in a murder trial that is (in accordance with voir dire exhibit K) inculpatory of another person. That motivation may be heightened by the fact that the accused is also in custody. 4. Thirdly, in evidence-in-chief, Mr Smith has been at great pains to emphasise the paucity of his memory, including by way of unresponsive answers. To give but one example, the transcript shows that he gave an unresponsive answer referring to alleged pressure placed upon his then partner, Ms Renae Stacy, somehow to explain the unreliability of his statement of June 2015. He also unresponsively spoke of his level of abuse of alcohol in a way that suggested a person who was trying to "get in first" in order to explain why he could not remember things. 5. Fourthly, both in his statement and on oath, Mr Smith has stated that the deceased had been a close friend of his for 20 years at the time of the death of the latter. The deceased passed away on 16 May 2015. One is well entitled to infer that Mr Smith found out about the death of his friend of two decades very soon after it occurred. He has been asked before me about the events of literally the day before that passing. And voir dire exhibit K shows that Mr Smith, as at early June 2015, was in a position clearly to implicate the accused. In my opinion, in those circumstances, it is very difficult to accept that his memory has faded to such a degree that, two years later, he remembers so little of the events of Friday 15 May 2015 that preceded the death of his friend of longstanding by one day. 6. Fifthly and finally, the whole demeanour of the witness (even despite the fact that he was giving evidence by audio-visual link (AVL)) suggested a person who may well have been dissembling. Matters that will not of course be recorded on the transcript include that he was speaking quite rapidly in a way that may have suggested an eagerness to get across his lack of memory, and, to my mind, in a surly, unco-operative tone. 7. Some of that may be explained by the fact that he had waited all day in the AVL suite to give evidence; nevertheless, his demeanour is a factor that I take into account. 8. In short, I am well satisfied that Mr Smith may reasonably be supposed to have more knowledge about the events of 15 May 2015, than about which he has given evidence. It also appears to me that he is not making a genuine attempt to give evidence about those topics. 9. The separate question is whether I should grant leave. Analysing that question in accordance with s 192(2) of the Act, I think that the answer is soundly in the affirmative. That is because permitting cross-examination will not unduly add to the length of this extended murder trial. I do not believe it would be unfair to the accused to permit cross-examination, especially since this application was foreshadowed yesterday afternoon. Separately, of course the cross-examination by the Crown prosecutor will be concluded before the cross-examination by defence counsel commences. The evidence that Mr Smith could be cross-examined about that appears in voir dire exhibit K, and about which he has not yet given evidence, is, to my mind, extremely important. The gravity of the proceedings speaks for itself. Finally, there is no other order that I could make to serve the interests of justice. Order 1. For the foregoing reasons, I grant leave to the Crown to cross-examine Mr Michael Smith about any aspect of the events of Friday 15 May 2015 that appear in voir dire exhibit K, and about which he has not yet given evidence before the jury.