Supreme Court New South Wales Medium Neutral Citation: R v Terkmani [2017] NSWSC 1154 Hearing dates: 8, 10 August 2017 Date of orders: 10 August 2017 Decision date: 30 August 2017 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to the Crown pursuant to s 38 of the Evidence Act to cross-examine Crown witnesses Mahmoud Terkmani, Mohammed Abdul-Rahman and Mohamad Terkmani Catchwords: CRIME – trial for murder and aggravated sexual intercourse without consent – applications by Crown for leave to question Crown witnesses as though cross-examining them – where witnesses gave evidence inconsistent with their statements to police which tended to provide an innocent explanation for aspects of the Crown's forensic evidence against the accused – where accused's father gave evidence of alibi – Crown's obligation to call the alibi witness in the Crown case – greater availability of cross-examination by the Crown in that circumstance – consideration of the need to constrain the manner and extent of cross-examination by the Crown Legislation Cited: Criminal Procedure Act 1986 (NSW), s 150 Evidence Act 1995 (NSW), ss 38, 103, 192 Cases Cited: Browne v Dunn (1983) 6 R 67 Kanaan v R [2006] NSWCCA 109 Category: Procedural and other rulings Parties: Regina Aymen Terkmani (accused) Representation: Counsel: A Robertson (Crown) M Austin (accused) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Avant Legal (accused) File Number(s): 2015/208844 Publication restriction: None Judgment 1. HER HONOUR: Aymen Terkmani stood trial by jury for murder and aggravated sexual intercourse without consent. On 21 August 2017, he was found guilty of both offences. During the course of the trial, I granted leave to the Crown pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine a number of Crown witnesses, on each occasion reserving my reasons so as not to interrupt the flow of the evidence. These are my reasons for granting that leave. 2. Section 38 of the Evidence Act relevantly provides: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. 1. It is necessary also to have regard to the terms of s 192 of the Act, which provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. Evidence of Mahmoud Terkmani 1. The Crown's first application for leave under s 38 to question a witness as though cross-examining him was made in respect of Mahmoud Terkmani. 2. In brief summary, the Crown case was that, on 16 May 2015, the accused sexually assaulted and murdered a sixteen-year old boy, Mahmoud Hrouk, in an abandoned house in Villawood. The house belonged to the Housing Commission and had been leased to an elderly man. He died in October 2014. The Housing Commission granted a short-term lease to another member of the family but no-one had lived at the house since the death of the tenant. 3. The Crown case was entirely circumstantial. One of the circumstances relied upon was the contention that the accused had an association with the abandoned house in that, after it became unoccupied, he began using it as a place to socialise (once with the permission of the lessee but mostly without permission). 4. The evidence of Mahmoud Terkmani addressed that issue. He is a cousin of the accused. He gave evidence that, a couple of months before the body of Mahmoud Hrouk was found in the abandoned house, he (the witness) and three friends had smoked marijuana with the accused at that house. He said he and a friend, Aymen Trad, had collected two female friends from a park and that they saw the accused walking along the street and decided to go to the abandoned house with him. He said they went inside, sat down on the couch and were "chopping weed". The witness said it was the accused who was chopping weed, using scissors. 5. Regarding the scissors, the evidence in chief was as follows (T504.21): Q: And who was chopping weed? A: Aymen. Q: And how was he chopping it? A: He was taking the scissors from the kitchen, one of the cupboards. 1. In cross-examination by Mr Austin on behalf of the accused, he gave the following evidence (T507): Q. And you described Aymen Terkmani going into the kitchen, and was he searching through the cupboards that you saw trying to find a pair of scissors? A. Yes, drawers, that's correct. Q. The drawers? A. Yes. Q. And he found a pair of scissors eventually? A. That's correct, yes. Q. And those scissors were used to chop up the marijuana that was smoked? A. That's correct. 1. Mahmoud Terkmani also gave evidence in cross examination regarding a toaster in the kitchen, in the following exchange (T508): Q. Do you recall using a toaster in the kitchen? A. Yes. Q. And that was to make toasted bread, I take it? A. Yeah. Q. Do you remember Aymen Terkmani using that toaster to make bread? A. He did use it a few times, yes. He used to make food for us a few times. 1. As recorded above, s 38(4) provides that any questioning allowed under s 38 is to take place before the other parties cross-examine the witness, unless the court otherwise directs. The Crown's application for leave under s 38(1) to cross-examine Mahmoud Terkmani was made at the conclusion of the cross- examination by Mr Austin. Accordingly, the application could not be granted without also making a direction under s 38(4) providing for a departure from the usual order of questioning contemplated by the section. 2. The Crown's application was based on the contents of paras 6, 7 and 9 of Mahmoud Terkmani's statement to police. The whole of the relevant passage is set out below: 6. After about 5 minutes of talking together, Aymen and I decided to smoke a 'joint'. So Aymen and I started walking down Belmore Street. We walked about 50 metres until we got to the house I recognised on the internet. Aymen and I stopped in the front yard of this house and smoked the joint that I had. After we had finished, Aymen was telling me it was an abandoned home and there was a pool table in the back yard that the boys come and kick back there. I was interested in seeing it so we walked around to the back yard through a gate that was open. 7. When I was in the backyard, I saw a pool table that was under the back pergola. I can't remember what it looked like. I don't remember seeing much else around. After looking at the pool table Aymen and I turned around and walked straight back out to the front of the house. I walked back across the road to where the girls were standing. Aymen was with me. I said goodbye and Aymen and I walked off towards his house. While we were walking to his house I messaged Aymen TRAD, my other cousin, to pick me up. Aymen TERKMANI and I waited at a bus stop on Mitchell Street, Fairfield East until Aymen TRAD came and picked me up. Aymen TRAD took me home that night. 8. The next day I remember speaking to [one of the girls] and she told me her and [the other girl] went into the house, but nothing else. 9. This is the first and only time I have been to that house and while I was there I only went into the backyard to see the pool table. I never went inside the house. Since the murder though I have heard a lot of people saying that they had ben to the house to smoke pot and stuff. These people were just mates of mates, I don't know their names. 1. The most significant inconsistency between that statement and the evidence at the trial was that the witness told police he "never went inside the house" whereas, in his evidence in chief, he said he had been inside the house not only on the occasion described in the statement but also on three subsequent occasions. Three other witnesses (Aymen Trad and the two girls) said he was inside the house when they were there; two had given evidence to that effect in the trial by the time Mahmoud Terkmani was called to give evidence. 2. The Crown anticipated the possibility of an application under s 38 and gave notice to that effect on 20 June 2017, as contemplated by s 38(6)(a). However, the notice was confined to the witness's statement to police that he had never been inside the house. The application in the trial focused primarily on the cross-examination about the toaster and the scissors set out above. 3. The accused opposed the application primarily on the basis that it should have been made before counsel for the accused cross-examined the witness. An aspect of that objection was the contention that notice of the application had not been given at the earliest opportunity. It was submitted that notice should have been given before counsel cross-examined. Mr Austin said that he had been put at a forensic disadvantage by the course taken and that, in those circumstances, leave should be refused. 4. As already noted, that submission reflects the usual course of events. The Court should be astute not to depart from the order of questioning contemplated by the section without some reason. The difficulty the Crown faced in the present case was that the critical piece of unfavourable evidence came out only during Mr Austin's cross-examination. 5. As at the conclusion of the evidence in chief, the terms of s 38 were engaged because the evidence was inconsistent with a prior statement, as explained above. At that stage, the position for the Crown was mixed. On the one hand, the witness had said in evidence that the accused had previously been inside the house. That was not unfavourable to the Crown; on the contrary, the proposition that the accused had an association with the abandoned house was an aspect of the Crown's circumstantial case. 6. Conversely, the embellishment that the witness had also been there on other occasions was potentially unfavourable to the Crown. It included the following evidence: "the last time I went there there was random people there so I left because it was just too much people and I didn't know who was who" (T506.18). The suggestion that many other people used the abandoned house was broadly helpful to the accused, whose defence was alibi. However, it may be doubted whether, at that stage, there was a strong basis for granting leave under s 38. The Crown's decision not to make an application at that stage is understandable and, in my assessment, reflected a fair approach. 7. The evidence adduced in cross-examination concerning the toaster and the scissors was significantly more unfavourable to the Crown. The witness had never previously said the accused had used the toaster in the abandoned house; his position in his statement to police was that he (the witness) had never been inside the house. The toaster was a significant aspect of the Crown's circumstantial case. The DNA evidence and other forensic evidence suggested it was used by the accused as a weapon to assault the deceased. It had the deceased's blood on some surfaces and untested red staining with the appearance of blood on the underneath surface. It had a mixed DNA profile including a profile that matched the accused on the top surface. One of the DNA swabs that matched the accused was taken from the edge of the toast slots. The Crown proposed to invite the jury to infer that the accused held the toaster by the slots and used it to beat the deceased. The witness's evidence (heard for the first time in cross-examination) that the accused used the toaster "a few times" and that he "used to make food for us a few times" was plainly unfavourable to the Crown. 8. As to the scissors, the cross-examiner's questions introduced for the first time a suggestion that the accused was unfamiliar with the kitchen and had to search for the scissors. That was less significant but was unfavourable to the Crown in some measure. 9. I was persuaded that, whereas at the conclusion of the evidence in chief there was but a weak basis for seeking leave under s 38(1), the evidence adduced in cross-examination concerning the toaster and, to a lesser extent, the scissors was unfavourable to the Crown. In the forensic context I have described, the evidence had the ring of invention and it was important that the Crown be allowed to test it. 10. The Crown could not have anticipated that evidence. As it came only in cross-examination, the Crown could not have given notice of the application at any earlier point. 11. In the circumstances, I was not persuaded that the timing of the Crown's application placed the accused at an unfair forensic disadvantage. In my assessment, the Crown was disadvantaged by the unexpected evidence which emerged only in cross-examination and which had a direct bearing on an important aspect of the Crown's circumstantial case. It was, in my view, the very kind of circumstance in which the statute contemplates the Court might see fit to direct a departure from the usual order of questioning. 12. Further, I considered that any unfairness to the accused could be met by allowing Mr Austin a further opportunity to cross-examine the witness following further questioning by the Crown and by ending the evidence there, with no right of re-examination by the Crown. I also imposed a constraint on the manner of the proposed questioning, as recorded at T514.14. Mohammed Abdul-Rahman 1. The Crown's second application for leave under s 38 was made in respect of a friend of the accused, Mohammed Abdul-Rahman (usually referred to as "Moey"). It was common ground at the trial that the accused and the deceased visited the Abdul-Rahmans late in the afternoon on 16 May 2015. The Crown case was that they left from there together and went to the accused's house. 2. There were four aspects to the Crown's application for leave under s 38 to question Moey Abdul-Rahman. First, the witness gave evidence that, when the accused and the deceased left his house, the deceased was on his bike and the accused was walking (T535.40). That was consistent with the content of a statement made to police by the accused. He said he went home via Campbell Street and that he walked and the deceased was on his pushbike. However, CCTV footage obtained from a resident of Campbell Street showed, at about 7.30 pm, two bicycles travelling south on Campbell Street. 3. Further, the witness gave evidence that the accused arrived at his house on foot, whereas in an investigator's note tendered on the voir dire it had been recorded that the witness said the accused arrived on a bicycle. The Crown sought to cross-examine the witness based on the content of that note. 4. On behalf of the accused, Mr Austin noted that the investigator's note was at odds with para 11 of the witness's statement to police which made no mention of the accused arriving on a bicycle. Mr Austin submitted that the witness's evidence in the trial was consistent with the statement served on the accused and noted that no attempt had been made prior to the trial to correct that with a further statement by reference to the investigator's note. Apart from being consistent with the CCTV footage, the proposition that the accused was riding a bike had some importance because, at the trial, there was a suggestion that he could not ride a bike at that time (let alone commit acts of the kind alleged) due to an injury to the elbow for which he had recently undergone surgery. 5. Having regard to the discrepancy between the statement served as part of the police brief and the investigator's note, I did not think it would be fair to allow the Crown to cross-examine the witness on the basis that the statement recorded by the investigator was a prior inconsistent statement. However, I considered it appropriate to grant leave to the Crown to ask the witness a leading question as to whether he saw the accused arrive on a bicycle. 6. The second aspect of the application arose from a statement made, so far as the Crown was aware, for the first time in the witness box. In his statement to police at para 19, the witness said: After Zach left to pray, Aymen and Mahmoud finished eating their McDonalds and they both told me they were going to leave. After telling me this two [sic] left without telling me where they were going. 1. In his evidence before the jury, however, he gave the following evidence: Q. And how long were they there for once they returned? A. Ten, 20 minutes. Q. And what happened after that? A. They went to leave. They wanted to go to somewhere. Q. Right. And who said they wanted to go somewhere? A. Like, they went somewhere. Q. Yes, but who was talking about A. I'm not sure. I don't remember. Q. Was it A. I think, I think, I heard, I heard somebody saying something about some servo or something, to get something to drink or-- Q. Who said that? A. I don't remember. I think both. Q. Sorry? A. Both. I don't remember. Q. Right. And what happened after that? A. And after that they went. Q. So who's the "they" that you're talking about? A. Mahmoud and Aymen went. Q. And where did they go? A. I think they went to the servo, I think. Like, I heard them saying something about drinks or servo, and then they went and-- Q. And how did they leave? A. I think Mahmoud was on his bike and Aymen, I think, was walking. 1. As with the evidence of Mahmoud Terkmani, that evidence was potentially significant in the context of the Crown's circumstantial case. The circumstances relied upon by the Crown included evidence that a $5 note found in possession of the accused when a search warrant was executed had a red stain which tested positive for human blood and which also had the DNA profile of the deceased. The two tests were undertaken separately (that is, the swab used to obtain the DNA profile was not also tested as to whether it was human blood) but the Crown case was that the two tests were undertaken on the same area of red staining and that the jury could infer that the $5 note had the deceased's blood on it. 2. A witness who gave evidence before Moey Abdul-Rahman was cross-examined in terms suggesting a possible explanation for that forensic evidence, as follows: Q. I want you to think back to 2015. You say that you worked as a gyprocker? A. Yes. Q. Did you also have a second job working in a BP service station? A. Yes. So whenever I've got no contracts on, I do cleaning. Q. Did you also work sometimes behind the counter, taking money and selling goods? A. No. Never. AUSTIN: Could I just be given a moment to speak to my client? Q. I want you to think back to Saturday, 16 May 2015. In the afternoon into the evening of that day, I suggest to you that you were working at the BP service station? A. No I wasn't. Q. Do you recall having a conversation with Aymen Terkmani where you asked - you were asking him about a young man who was in his company? A. No, I haven't seen him. I haven't seen no one. I haven't spoken to anyone. Q. See, I suggest to you that on the Saturday, 16 May 2015, you had a conversation with Aymen Terkmani and you asked him about a young man he was with and Terkmani said words to the effect of "I'll look out for him"? A. No, I didn't see anyone. Q. I'll just ask you this just in case it refreshes your memory. Do you recall an occasion when a young man came up to Aymen Terkmani at the BP service station and handed him a drink and a small amount of money in change? A. I wasn't - wasn't there. 1. The answers did not assist the accused but the questions appeared to foreshadow a suggestion that the $5 note was handed by the deceased to the accused at a BP station before the deceased was attacked, thus explaining the presence of his DNA on a $5 note later found in the possession of the accused. In the circumstances, Mr Austin did not oppose leave to question the witness as to para 19 of his statement. 2. Thirdly, the Crown sought to question the witness as to para 31 of his statement, where he said: I do not know whether anyone was using the abandoned houses whilst they have been abandoned however I suggested to Mahmoud's father that he should go check them in case Mahmoud used drugs there and felt ashamed to go home and then get into trouble. I have never seen Mahmoud use drugs in the past but I thought it would still be worth checking these houses because he may use drugs without my knowledge. Mahmoud never told me he was using drugs at any time. 1. In his evidence, contrary to the first sentence of that paragraph, the witness said he knew the accused was using the abandoned house. Mr Austin did not oppose leave being granted to question the witness as to that paragraph of his statement. 2. Finally, the Crown sought to cross-examine the witness as to telephone records which indicated that, contrary to his evidence, he had received a telephone call from the accused at 4.41pm on 16 May 2015 (shortly before the accused visited him that day). In his evidence, he did not remember any such call. I did not think a basis was established for allowing cross-examination on that issue beyond granting leave to ask a leading question based on the call record. 3. Accepting a submission put by Mr Austin, I constrained the cross-examination so as to preclude the Crown from putting a positive proposition that the witness had colluded with the accused regarding the evidence about going to buy a drink at a BP station. However, I considered it appropriate to allow the Crown to put to the witness that he, being a good friend of the accused, sought to assist the accused by that evidence. Mohamad Terkmani 1. The third application by the Crown for leave under s 38 concerned the evidence of the accused's father, Mohamad Terkmani. To avoid confusion, I will refer to the father as Mr Terkmani and the accused as "the accused". Mr Terkmani made a statement to police on 19 May 2015 in which he stated that he was at home on the evening of 16 May 2015; that he did not go anywhere that night; that he stayed home watching television and that the accused was in his bedroom playing on a computer. Mr Terkmani said he could hear noises such as coughing coming from the accused's bedroom. He said he (the witness) fell asleep on the sofa but did not know what time that was. 2. The accused gave notice of alibi in respect of that evidence, as contemplated by s 150 of the Criminal Procedure Act 1986 (NSW). The Crown accepted that, as Mr Terkmani was a person who could give relevant evidence and whose statement had been served as part of the police brief, the Crown was probably required to call him as a witness in the Crown case, even though notice had been given that he was an alibi witness and it was clear his evidence would probably be unfavourable to the Crown. However, the Crown submitted that, before the Crown was required to make a final decision on that issue (whether he was obliged to call the accused's alibi witness), the Court should first determine the application for leave under s 38. 3. I took the view that it was not possible to determine the application before hearing the witness's evidence. During the course of that debate, however, I noted the interrelationship between the Crown's obligation to call a witness who is expected to give relevant but unfavourable evidence and the greater availability of cross-examination of a Crown witness under s 38 of the Evidence Act. 4. Those issues were considered by the Court of Criminal Appeal, albeit in a different context, in Kanaan v R [2006] NSWCCA 109. The three appellants in that case had been convicted of the murder of a man who was shot dead while sitting in a car. One of the witnesses called in the Crown case was the wife of an associate of the three appellants. She was sitting in a car about a block away from the deceased's car at the time of the shooting and was an eyewitness to the shooting. She gave evidence that she knew two of the appellants and that neither of them was involved in the shooting. No application was made by the Crown to cross-examine her pursuant to s 38 of the Evidence Act. In his closing address, the Crown invited the jury to disbelieve her evidence. One of the grounds of appeal was that, in those circumstances, there had been a breach of the rule in Browne v Dunn (1983) 6 R 67 in that the prosecutor's conduct had denied the witness (and the appellants) the opportunity to explain or qualify the matters raised in the closing address. 5. It was in that context that the Court considered the relationship between the Crown's obligation to call a relevant witness and the greater availability under the Evidence Act of cross-examination of a Crown witness by the prosecutor. The relevant passage is lengthy but warrants consideration in full. The Court said (at [80] to [85], authorities and citations omitted): 80 Before turning to what the Crown prosecutor should have done before attacking the credit of his own witness, it is important to emphasise that the Crown does not warrant the truthfulness of its witnesses, and it is not obliged to embrace and accept whatever the witnesses say. That is because the Crown has the obligation to present its case conformably with the dictates of fairness to the accused. That obligation is imposed on a Crown prosecutor as an incident of his or her position as a "minister of justice". It is the usual practice in criminal trials that, subject [to] what is said in the following paragraph of this judgment, the Crown accepts an obligation to call witnesses whose evidence is relevant to the Crown case when requested by the accused to do so. When doing so, the Crown prosecutor is always entitled to say to the jury that the Crown has not put that particular witness forward as a witness of truth. The Crown's obligation to call such witnesses has been stated more firmly in Regina v Le at [68]… 81 In determining whether such a witness should be called by the Crown, rather than leaving it to the accused to do so, the Crown prosecutor — at least where the evidence of that witness is central to the unfolding of the Crown case — may take into account, inter alia, the credibility and truthfulness of the evidence to be given by that witness and whether in the interests of justice it should be subjected to cross-examination by the Crown. The Crown prosecutor's decision has been described as a lonely but also a heavy one. A refusal to call a particular witness within this category may be justified only by reference to the overriding interests of justice; such occasions are likely to be rare. The unreliability of the evidence will be a sufficient basis for a refusal to call the witness only where there are identifiable circumstances which clearly establish such unreliability; it will not be enough that the prosecutor merely has a suspicion that the evidence to be given by the witness will be unreliable. In order to avoid any suggestion that a tactical advantage is sought by not calling a particular witness, it is advisable for the Crown prosecutor to confer with the witness to form an opinion as to the witness's reliability. 82 No basis on which the Crown prosecutor could have refused to call Mrs Zahabe has been suggested in this appeal. But the Crown's obligation to call all relevant witnesses even where their evidence does not support the Crown case does not deny the Crown prosecutor the opportunity to discredit the evidence of a Crown witness. 83 Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party — in order, for example, to establish that the witness has made a prior inconsistent statement. The word "unfavourable" means merely "not favourable", and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party; or that the unfavourable evidence was unexpected. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted. However, it may range more widely. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and [sic] also to suggest that bias in favour of the appellants was the reason for the inconsistency. 84 The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of "unfairly prejudicial" in ss 135-136 and of "unfair prejudice" in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case. 85 Where the Crown prosecutor fulfils such an obligation, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions such as provided by s 137 of the Evidence Act. Leave must also be sought to cross-examine the witness about matters "relevant only" to the witness's credibility: s 38(3); and it should be noted that the credibility of a witness includes the witness's ability to observe or remember facts about which the witness has given evidence (that is, the reliability of his evidence): Evidence Act, s 3 Dictionary. In the present case, however, leave would not have been needed pursuant to s 38(3) for that particular purpose, because the prior statement made by Mrs Zahabe said to be inconsistent with her evidence was also relevant to a fact in issue, the identification of the men involved in shooting the deceased. 1. In declining to determine the Crown's application pre-emptively, I indicated that any application made at the conclusion of Mr Terkmani's evidence in chief would be determined by reference to those principles. 2. The Crown called Mr Terkmani in the Crown case. At the conclusion of the evidence in chief, the Crown sought leave to cross-examine as to twelve aspects of his evidence. Each is addressed in detail below. 3. Mr Austin raised one matter (at T712.35) which would be relevant to the exercise of the Court's discretion overall, namely, the difficulty for the witness in being cross-examined on a statement recorded in English, which is not the witness's first language. The statement was not interpreted for the witness into the Arabic language before he signed it. It was read to him in English in the presence of his son (not the accused). In the trial, Mr Terkmani gave almost all of his evidence through an Arabic interpreter, responding only occasionally before the interpretation was given. 4. I did not think that was a basis for refusing to allow any cross-examination at all. However, I accepted that it was a relevant consideration in determining the extent and manner of questioning that should be permitted. I took the view that, in determining an application under s 38 of the kind made in the present case, the Court can, where appropriate, constrain the manner of questioning so as to strike a fair balance between allowing the Crown to test important, unfavourable evidence and protecting the accused's right to a fair trial. 5. Mr Austin otherwise accepted that it would be open to me to allow cross- examination of the witness based on any prior inconsistent statement (including where the statement recorded that the witness did not remember something whereas his position in the trial asserted specific recollection). He opposed any cross-examination in the form of putting to the witness the evidence of another witness. I accepted that questioning in that form should not be allowed. Mr Austin also opposed any cross-examination on any topic not addressed in Mr Terkmnai's statement to police. 6. The specific aspects of Mr Terkmani's evidence as to which the Crown sought leave under s 38 are recorded at pages 708 to 712 of the transcript. 7. The first point raised by the Crown related to events some time before the day of the offences and went primarily to credit. I considered that issue too peripheral and refused leave in respect of that aspect of the application (T720.14 – T720.44). 8. The second aspect of the application was based on the fact that the witness gave a specific time in his statement as to when he woke up on 16 May 2015 whereas in the witness box he said he could not recall what time he woke up. That was an issue which went only to credibility (cf s 38(3)). I accepted that unreliability as to times was an important issue for the Crown, having regard to the nature and importance of the alibi evidence. However, in that instance, I confined the Crown to refreshing the witness's recollection rather than "adversarial cross-examination" (T720.47). 9. The third and fourth points related to clear prior inconsistent statements. In accordance with the position accepted by Mr Austin, cross-examination on those matters was allowed (T721.1). 10. The fifth and sixth point related to events during the daytime on 16 May 2015. In his statement, the witness said he stayed home all day and that he did not see Aymen leave the house at all, whereas in his evidence he said he left home during the day and that Aymen went to the Abdul-Rahmans' house. I did not permit the Crown to cross-examine as to those prior inconsistent statements. The likely explanation for the inconsistency was that Mr Terkmani lied in his statement to police in order to conceal a possible breach by the accused of the conditions of his bail on drug charges. The trial was deliberately conducted in such a way as to keep the information that the accused was on bail from the jury. Any such lie could have substantially affected the assessment of the witness's credibility and so satisfied the requirements of s 103 of the Evidence Act. However, having regard to the factors listed in s 192 of the Act, I considered that the evidence would have been unfairly prejudicial to the accused. I refused leave on that basis (T725). 11. The seventh point related to a discrepancy between the statement and the evidence as to the time when the witness finished packing his ute on the evening of 16 May 2015. As that was close to the time of the relevant event (the accused and the deceased arriving at the house together), I allowed cross-examination on that issue (T725.22). 12. The eighth aspect of the application was that, in his evidence in the trial, the witness gave considerably more detail as to what occurred during the period of the alleged alibi than he had in paragraphs 16 to 18 of his statement. The ninth point, which was related to the same issue, was that in his statement the witness said he did not know what time he fell asleep that night whereas in his evidence he said he did not fall asleep until late, 12 or 1am. Having regard to the importance of those matters in the assessment of the alibi, I allowed cross-examination on them (T722). 13. The tenth point related to the witness's account of a conversation at about 4am with members of the deceased's family when they were looking for the deceased (paras 20 to 24 of his statement). The Crown sought to address two aspects of that conversation. First, other witnesses had said the accused said he left the deceased at the Abdul-Rahmans' house (which the Crown wished to rely upon as a lie showing a consciousness of guilt). Mr Terkmani made no reference to any such statement; the Crown wished to test that. Having regard to the matters addressed by Mr Austin (as to the language issue and the impermissibility of putting another witness's version as a way of attacking credit), I considered that the Crown should be confined to asking a leading question on that issue rather than mounting an attack as to the witness's honesty (T723). 14. Secondly, in his statement, Mr Terkmani said "the older one" had said "something about knocking earlier but nobody woke up" and something like "perhaps because he (meaning Mr Terkmani) is an old man". However, in his evidence he said the person he was speaking to said he did not knock because he didn't want to bother an elderly man (T700.38). Whether anyone knocked on the door at that time was potentially significant in the jury's assessment of the alibi. The deceased's brother said he had knocked and called out the names of the deceased and the accused earlier in the evening but that there was no response. I considered that the Crown should be able to test that inconsistency by questioning in the nature of cross-examination (T722.45). 15. The eleventh point was related to evidence the witness gave, which was an embellishment on what he had said in his statement, suggesting the accused was unable to use his arm when he helped Mr Terkmani unpack his ute and was only able to carry light objects. The Crown wished to put a submission that the witness was "talking up" the degree of impairment to the accused's arm that night. I considered he should be permitted to put that to the witness to allow him to respond to that suggestion (T724.7). 16. The final point related to the execution of a search warrant at the accused's house two days after the offences were committed. When police attended the premises, Mr Terkmani was on the verandah. He told them the accused was inside the house, but a thorough search revealed that he was not. The Crown accepted that went only to credit but noted that unreliability (as opposed to dishonesty) is an aspect of the assessment of credit. I refused leave in respect of that issue for the same reason as in respect of points 5 and 6, namely, that if the witness was lying, it may again have been for the purpose of concealing a breach of the accused's bail conditions (T725.17). I accept that, if Mr Terkmani simply did not realise that his son had left the house, that was relevant in assessing the reliability of his alibi evidence but I considered it too dangerous to allow cross-examination on that limited basis (in case the witness referred to the bail conditions in explaining his belief that the accused was in the house when police arrived). 17. For those reasons, I granted leave to the Crown under s 38 on the terms indicated in respect of each witness. ********** 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: 05 September 2017