Supreme Court New South Wales Medium Neutral Citation: R v Walker (No 4) [2017] NSWSC 1026 Hearing dates: 3 August 2017 Date of orders: 03 August 2017 Decision date: 04 August 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Crown permitted to lead recording of 000 call in re-examination Catchwords: CRIMINAL LAW – evidence – s 39 of Evidence Act 1995 (NSW) – objection over Crown leading evidence in re-examination – reasons for ruling Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina Jamie Christopher Walker Representation: Counsel: Mr C Maxwell QC with Ms J M Smith (Crown) Ms B J Rigg SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Jamison Lawyers (Accused) File Number(s): 2015/124540 Publication restriction: Nil Judgment 1. Over the objection of the accused, I permitted the Crown to lead in Mr Smith's re-examination, a recording of a phone call which Mr Smith had made to police in June 2014, reporting a disturbance which he had then been involved in, with the accused and Ms Locke. Mr Smith was not then sought to be cross-examined about that recording. 2. There were a number of reasons for this ruling. First, because the answers which Mr Smith gave in cross-examination gave an incomplete account of what he had reported to police, the occasion and details of which he could not remember, it having been put to him that his report had been made after the accused had threatened that he would report Mr Smith to the police: Evidence Act 1995 (NSW), s 39. 3. The 000 call was made at a time when the events in question were fresh in Mr Smith's memory. Without the recording, there would have been an incomplete account of what, in fact, Mr Smith had told police on that occasion. 4. What Mr Smith had actually said in the 000 call thus clearly arose out of the cross-examination. It established what Mr Smith actually said to police on that occasion, including in relation to what he had heard Ms Locke say, to which the Crown contended s 65 of the Evidence Act applied. That was not challenged. 5. The second reason was because Mr Smith's credit had been challenged in cross-examination and the 000 recording provided a contemporaneous and complete account of what he had in fact said to police on the occasion in question. 6. Implicit in the questions Mr Smith was asked in cross-examination, was that what he had said to police in June 2014 was false. Amongst the things put to Mr Smith had been that he had never seen the accused be violent to Ms Locke; that he had only ever observed yelling between them; that various aspects of his evidence were a fabrication; and that in June 2014, when he called police, he had made no reference to ever having witnessed any assault. 7. The recording was thus admissible under s 108(3) of the Evidence Act, the 000 call being a prior consistent statement and it having been suggested to Mr Smith directly, that evidence he had given about his reports to police on that occasion had been deliberately false. ********** Amendments 21 August 2017 - Publication restriction lifted - trial concluded 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: 21 August 2017