Supreme Court New South Wales Medium Neutral Citation: R v Patel (No 2) [2018] NSWSC 342 Hearing dates: 22, 26 February 2018 Date of orders: 26 February 2018 Decision date: 06 March 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: I refuse the application of the Defence to exclude part of the evidence of Ms Wilson pursuant to s 137 of the Evidence Act. I grant leave to the Crown pursuant to s 38 of the Evidence Act to cross-examine Ms Wilson. That cross-examination is to be limited to the suggestion that she is mistaken in her identification of the apartment referred to in her statement as being the second unit from the rear of the building, 167 Bestic St, Kyeemagh. Catchwords: EVIDENCE – murder trial – application to cross-examine unfavourable witness – lay witness – confined area of proposed cross-examination – credibility – unfairness to accused – where challenge to credibility of witness may be detrimental to Defence case EVIDENCE – murder trial – application to exclude part only of the evidence of a witness – whether probative value is outweighed by the danger of unfair prejudice to the Defendant Legislation Cited: Evidence Act 1995 (NSW) ss 38, 137, 192, 192A Cases Cited: Browne v Dunn (1893) 6 R 67 Kanaan v Regina [2006] NSWCCA 109 Livermore v R [2006] NSWCCA 334 R v Kennedy [2000] NSWCCA 47 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v Le (2002) 54 NSWLR 474; (2002) 130 A Crim R 44; [2002] NSWCCA 186 R v Le [2001] NSWSC 174 R v Pantoja [1998] NSWSC 565 R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 R v Petroulias (No 29) [2007] NSWSC 1005 R v Souleyman (1996) 40 NSWLR 712 R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91 Category: Procedural and other rulings Parties: Regina Manisha Patel (Accused) Representation: Counsel: H Baker (Crown) J Manuell (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2013/247888 Judgment 1. This is a retrial of the Accused for the murder of Purvi Joshi at 9/167 Bestic St, Kyeemagh on 30 July 2013. On 21 February 2018, day 11 of this retrial, by notice dated 20 February 2018, the Crown advised that it intended to seek leave pursuant to s 38 of the Evidence Act 1995 (NSW) to question witness Ilavene Wilson ("Ms Wilson") as though cross-examining that witness. 2. The application was narrowed by written submissions provided on 22 February for leave to cross-examine regarding one aspect of Ms Wilson's evidence that was unfavourable to the Crown. Leave sought was limited to suggesting to Ms Wilson that her identification of the second unit from the rear of the building as the unit where she saw certain things occurring at approximately 1.15 am, was mistaken. 3. Senior Counsel for the Accused opposed leave and argued that the application should be refused outright. In the alternative, application was made to exclude that part of Ms Wilson's evidence under s 137 of the Evidence Act. The part of her evidence that should be excluded was identified as paragraphs 5-8 of Ms Wilson's statement made on 13 February 2018 (set out in [22] of this judgment). 4. The application by the Crown was made prior to the calling of the evidence of Ms Wilson. I was requested to provide an advance ruling pursuant to s 192A of the Evidence Act. Section 192A provides as follows: 192A Advance rulings and findings Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. 1. Oral argument was heard on 22 February 2018 and I ordered that Ms Wilson's evidence in chief should be taken on the voir dire so that the nature and extent of the evidence she would in fact give was known prior to Ms Wilson giving evidence before the jury. After taking her evidence on 26 February 2018 in the absence of the jury, I concluded that the evidence to be led from her should be her complete evidence and should not exclude the matters set out in paragraphs 5-8 of her statement of 13 February 2018 and that I would not exclude the evidence pursuant to s 137. 2. Having heard the evidence of Ms Wilson, I granted leave to the Crown to cross-examine on the limited basis sought. I undertook to provide written reasons. It is convenient to deal with both applications together in one judgment. Relevant legislation 1. Section 38 of the Evidence Act sets out the basis upon which such leave may be granted: 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. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 1. Leave is governed by s 192 of the Evidence Act: 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. 1. Section 137 of the Evidence Act provides as follows: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. In determining the s 38 application, there is a requirement to give consideration to s 137 of the Evidence Act whether or not parties make submissions with respect to that provision: R v Le (2002) 54 NSWLR 474; (2002) 130 A Crim R 44; [2002] NSWCCA 186 per Heydon JA at [90]. The relevance of Ms Wilson's evidence 1. On 30 July 2013, Ms Wilson lived at 6 The Grand Parade, Brighton-le-Sands, premises at the rear of the block of units at 167 Bestic Street. The Crown case is that Ms Joshi was murdered by the Accused between 3.30 am and 4.10 am. This specific time frame, it is asserted by the Crown, is established by circumstantial evidence already tendered and to be tendered in the Crown case. 2. The defence case as outlined in the opening submissions is that Ms Patel was invited to the premises by the deceased Ms Joshi to "clear up the details of the sexual relationship between Ms Patel and Mr Dave at a time she knew Mr Dave would be at work on night shift. Ms Patel says that she and Ms Joshi argued in the unit and then Ms Joshi came at her with a knife. Ms Patel says she acted in self-defence in killing Ms Joshi." 3. In oral argument on 22 February 2018, Senior Counsel for the defence added that crucial to the self-defence case was Ms Wilson's evidence of seeing a bright overhead light on in the apartment at 1.15 am. Additionally, the moaning and groaning heard by Ms Wilson at about 2.45-3.15 am was to be submitted to the jury to be evidence of the deceased exhibiting her distress about Mr Dave's betrayal of her. Ms Wilson's statements and evidence 1. On 30 July 2013, Ms Wilson provided a three-page statement to the police. The salient parts of that statement are as follows: 3. I live at number 6 The Grande [sic] Parade at Brighton Le Sands with my defacto Albert Hooper. Our two storey house faces the water and back onto two storey units that are attached to Bestic Street, Kyeemagh. When I stand on my back balcony on the second floor I can see the units. Our backyard has a small pool we built and also a granny flat that a woman named Yvette lived in. (She moved out on the 30th of July 2013) 4. During the night of Monday 29th of July 2013 I was up doing the ironing. After midnight when it became Tuesday the 30th of July 2013 I continued ironing and stopped at 1:15am. 5. I went out onto my back balcony and had a cigarette. I noted there was a light on in the second floor of the unit second from the rear. From where I was standing it looks as though the area where the light was on is the lounge area with the bedroom to the left of that. There were curtains drawn to this room which is unusual as they are normally open. I didn't think much of it at the time. It is quite common for a light to be on in that room at that time of night but it is normally not a bright over head light. I think normally it is a lamp however this time it was the main light that gave out more light than it normally does. From my balcony this particular unit is about 35 metres. There were no other lights on in any of the units. 6. I went back into my bedroom, closed the door and put on a DVD called 'The Sun' hoping I would fall asleep. About 45 minutes into my movie I heard very loud and disturbing sounds. It would have been about 2:15 or 2:30am. I got up and turned the volume of the movie down to try and identify what I was hearing. I could hear a person moaning and groaning as if they were straining and in pain. I could also hear a sound as if something was rubbing against a colour bond fence. I got up because it sounded like they were coming from downstairs. As I opened my bedroom door I heard the sounds even louder as if it was right underneath me. They were very loud and clear. 7. I began to turn lights on as I made my way down stairs to the ground level. As I got to the bottom of the stairs I saw that our back door was unlocked but still closed. I normally lock this door but I must have forgotten. The sounds had stopped at this stage so I turned on the outside light and walked out the backyard into our little pool area to see if I could see anything. This pool area is surrounded by a colour bond fence that you can't see through. The fence perimeter is 4 metres by 6 metres. As I stood out there I couldn't hear the groaning anymore but could hear loud heavy breathing as if someone was running or had just finished running. I was quite scared at this time so I didn't open the pool gate. 8. I went back inside and locked the back door, turned off the lights and walked back up stairs. I walked back out onto my balcony again to see if I could see anything even by leaning over the railing. I couldn't see anything because it was quite dark and I couldn't hear any more sounds. The light across the unit I mentioned earlier was still on and the curtains were still pulled across. 9. I went back inside and went back to bed. I left the bathroom light on because I was still quite shaken by the sounds I had heard. I rewound my movie to the point I was at when I was interrupted. Before I pressed play again I pressed my phone to see what time it was and saw that it was 3:15am. I almost called my mum who lives back in New Zealand because the time there would have been 5:15am but because it was still a little early I decided not to. I then continued watching my movie until end. 10. Afterwards I put a cd on and began to listen to music and forced myself to sleep. I didn't hear any more sounds during the night. After 8:30am in the morning Al Hooper came into my room and told me that Police had marked off the unit around in Bestic Street. It then occurred to me that the sounds I heard may have been related to what had happened so I spoke to Police about it. 1. On 6 August 2013, according to an investigator's note entered into the e@gle.i system of the New South Wales Police, Ms Wilson was contacted by Constable Raby as a follow up to her statement. During that conversation, Ms Wilson stated that she had omitted the following details from her original statement: • About 1:15am on the 30th of July, 2013 WILSON saw a female step into the opening of the curtains and saw a male advance on her. • WILSON was not able to describe this male and female. • WILSON also stated that the female appeared to have her arms lifted in an attempt to defend herself but did not see any acts of violence. • When asked why WILSON failed to mention this in her statement, she stated that she has not been able to sleep and then realised that this was the reason why. 1. The e@gle.i note includes the following unattributed comment after the above: Police were unable to determine the validity of WILSON's omission as it does not seem believable that WILSON would fail to tell police something of this nature. 1. According to the statement by Plain Clothes Senior Constable Shannon Raby dated 20 February 2018 tendered on the voir dire, the information was entered into the e@gle.i system by Senior Constable Diakos and it remained there until there was contact made by the officer in charge of the investigation, Detective Senior Constable Bongiorno on 16 February 2018 when the record was accessed and provided to DSC Bongiorno. 2. Ms Wilson gave evidence at the first trial on 11 June 2015. She gave evidence broadly consistent with her statement of 30 July 2013 but did not volunteer any of the information that she had told the police on 6 August 2013. 3. In closing submissions at the first trial, the Crown Prosecutor invited the jury to consider that the evidence provided by Ms Wilson was a "red herring": "…The sixth point, the lights were off. The lights were off in the lounge room, the lights were off in the bedroom because Purvi Joshi was in bed asleep. Now there has been evidence called from a Ms Ilavene Wilson. It's a matter for you as to what you make of that evidence. She saw a light on at the rear of the block at 1.15am, she heard noises when she was watching a movie, I think she was doing some ironing at 2.15 to 2.30 and watching the movie again and she went back to watch the movie at 3.15 after hearing the noises outside. At 3.15 we know the accused hadn't arrived at that point, she didn't get there till 3.30 so the noises you might think are completely a red herring, nothing to do with this case the noises and the sounds that she heard. The light she said was in the back of the unit, the curtains are drawn at that earlier time. It's a matter for you what you make of that, members of the jury, but the lights were off when Senior Constable Hunt examined the unit." 1. Defence Counsel made the following submissions in relation to the evidence of Ms Wilson: The lighting is a bit of a problem for the prosecution, I'd suggest. Mrs Wilson is a bit of a problem for the prosecution. We know from Senior Constable Leanne Hunt, the crime scene analyst - and I'm not for a second criticising her - we know firstly she couldn't find the passport, but that's not a criticism, but we know that she didn't - couldn't is not the right word, I withdraw that. She didn't look for it. Didn't find the passport. And we know from her evidence that she said that if she had found it she would have photographed it. And we know from her evidence that when she was there that the lights were not on in the daytime, so at some stage later in the morning the lights were not in the daytime. Compare that with Mrs Wilson's evidence. She said she was up ironing. She said that she noticed something about - well she was asked about whether she noticed anything about the unit block behind her, and this is the block in question where the flat is. She said there was a light on in one of the units, she said it was a bright light and that was not normal - this is at 161 if your Honour pleases. She was asked, "A bright light that was unusual?" Answer, "To me, yes." "It was an upstairs light?" "Correct." She says at 135, "Indoor light, not outdoor light?" And she confirmed indoor light.. She was asked if she could see anyone moving about in the flat and she said no. There's a light on I'd suggest to you in the flat, in the unit where Purvi and Niraj were living, and that means - it's a matter for you, this is a submission to you, it's not evidence, this bit, this part. This part is my submission to you, that means Purvi was awake, or someone was awake. It was not usual that a light would be on and you might think it's not usual for someone like Manisha to pop in to discuss something important with Purvi on her way to work. Mrs Wilson's evidence is a problem for the prosecution. Why? Because it doesn't fit in with this elaborate plan that Manisha's hatched at some stage beforehand to go there and sneak into the unit with this key that's been found somewhere or kept and attack her in bed. … My next point is about what was heard by Ms Gillick. Her evidence is important. We know Ms Wilson said she heard moaning and groaning and it sounded like strange and actually didn't sound nice. She said she heard the sound of straining, someone in pain. She was asked - this is at 176, if your Honour pleases - about her use of the phrase, "Someone rubbing against a Colourbond fence" and she said there was a noise that I think was created that happened, sounded like it came off the Colourbond fence. She said it was coming from the rear. It's difficult to know what she was actually talking about there, whether she was - Ms Wilson was hearing something from inside the flat or perhaps Manisha Patel coming down from the flat and pausing afterwards. 1. I have included this detail from the closing submissions at the first trial because it was submitted by Senior Counsel for the Defence to be relevant to my determination – particularly regarding s 38(6) and s 192 factors. The Crown however submitted it had no relevance to my consideration; and that the Crown was not bound by any of the approaches taken at the first trial. 2. On 13 February 2018, as part of conferring and preparation to give evidence, Ms Wilson informed counsel that she had further material she wished to include in her evidence that was not in her 30 July 2013 statement. A further statement was taken on 13 February 2018, the relevant parts of which are as follows: 3. On 30 July 2013, I gave police a three-page statement about what I saw and heard on the evening of 29 July 2013 from about 1:15am to 3:15am, whilst I was living at 6 The Grand Parade Brighton. 4. On 13 February 2018, I re-read my three-page statement that I made on 30 July 2013. I want to add to my statement the following. In paragraph 5 I mentioned that I was standing on my balcony having a cigarette. It was about 1:15am on 29 July 2013. I remember that I looked at my mobile phone time after finishing my ironing. I looked out towards the block of units that backed onto our rear yard. I saw that the unit on the second floor. The second unit from the rear of the building had its curtains drawn leaning a gap of about thirty centimetres. I've never seen the curtains drawn this close before. I could see that the ceiling light in this room was on. I can see the whole top level of that entire block of units of this complex. 5. I saw two figures standing about a metre from each other in this room. The figure on the left appeared to be a female. I've only ever seen females in this unit. I've seen two girls in this unit on three previous occasions over a twelve-month period. I assumed that they were in a same sex relationship. I got a shock when I saw a male in the unit. This was the first time I've seen a male there. 6. I couldn't tell if the female I saw was the same female I'd seen previously. I saw that the female was shorter than the male. The top of her head came up to his chin. I can't remember the length of her hair. I didn't get to see her face. 7. I saw the male standing to the right of the female. He was taller than her and had a solid build. I can't remember anything about his appearance. Both the male and female appeared clothed. 8. The female's hands were flicking upwards, like she was talking and expressing herself with her hands. Suddenly, the female pushed the male with both palms of her hands causing the male to step backwards. I saw the male grab the female's wrists. They then moved and I couldn't see them anymore. I thought they were having an argument, however, I didn't hear any yelling or screaming coming from that unit. I didn't think that it appeared violent enough to call the police. It was even possible that they were playing or mucking around with each other. 9. I remember going back inside my unit. My previous statement dated 30 July 2013, is correct from paragraph 6 to paragraph 10. I have re-read these paragraphs and they are accurate. I remember clearly looking at my phone at 3:15am on 30 July 2013, as I was going to call my mother in New Zealand to find out how my Grandfather was, as he was not well. I didn't hear or see anything after this time. My mobile phone is always accurate in providing the Australian Eastern Standard Time. Submissions made on behalf of the Crown 1. In its written submissions, the Crown identified the "unfavourable" aspects of the statement of Ms Wilson of 13 February 2018, paragraphs 4-8 as follows: 1. At about 1.15 am on 30 July 2013, Ms Wilson looked out towards a block of units that backed onto the rear yard. 2. Ms Wilson saw that the second unit from the rear of the building had its curtains drawn, leaving a gap of about 30 cm. 3. Ms Wilson could see that the ceiling light was on. 4. Ms Wilson could see two figures standing about one metre apart from each other in the room. The figure on the left appeared to be female, the figure on the right appeared to be male. 5. The witness had only ever seen females in that unit, having seen two girls in the unit on three previous occasions over 12 months. 6. The female was shorter than the male. The top of her head came up to his chin. The witness could not remember the length of her hair and could not see her face. 7. The male was of a solid build. 8. The female's hands were flicking upwards like she was talking and expressing herself with her hands. 9. The female pushed the male with both palms of her hands, causing the male to step backwards. The male grabbed the female's wrists. They then moved and she could not see them anymore. 1. This evidence was identified as unfavourable to the Crown because if accepted, it suggests that there was a domestic dispute in the deceased's apartment shortly before the death of the deceased and this is inconsistent with the Crown case which is that sometime between 3.30 am and 4.15 am that same morning, Ms Patel entered the unit while the deceased was in bed asleep, alone in the dark, and that she killed the deceased by smothering and strangling her. 2. The "unfavourable witness" test in s 38 is much broader than the hostile witness common law test dealt with in R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 at [81]. The term "unfavourable" does not mean "adverse", it simply means "not favourable": R v Souleyman (1996) 40 NSWLR 712 at 715 and includes any evidence that goes against a party's case, including a portion of a witness's otherwise favourable evidence: R v Pantoja [1998] NSWSC 565; R v Le [2001] NSWSC 174. As stated in Le by McClellan J, as his Honour then was: 15 …In my opinion, the word unfavourable should be given a broad meaning thereby ensuring that in the course of any criminal trial, the court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested. Only this approach will allow the jury to have the opportunity of coming to an informed view about whether the evidence called by the Crown should be accepted. 1. There are authorities that support the proposition that it is appropriate to grant leave to the Crown to cross-examine a witness under s 38 to comply with the prosecution's duty of fairness, and in particular to put to a witness that their evidence was not correct, so that appropriate submissions can be put to the jury: R v Kennedy [2000] NSWCCA 47 at [36]-[37]; Livermore v R [2006] NSWCCA 334; R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91 at [23]. 2. Distinction was drawn between the evidence given at the first trial which did not include having seen people in the unit, much less that she had witnessed a domestic dispute in that unit (T161-162, T165, T175) and in those circumstances it was open to the Crown Prosecutor to treat her evidence as a red herring as opposed to needing to make a formal submission that her recollection was mistaken. 3. The difference now is that Ms Wilson gives a detailed recollection and it is necessary for the Crown to formally put to her that she is mistaken. 4. It would be unfair to the Crown and to the witness if leave was not granted, and these are considerations relevant to s 192(2)(b) and (d). R v Petroulias (No 29) [2007] NSWSC 1005 at [16] was cited. There is no unfairness to the Accused from the grant of leave because the Accused did not intend to suggest that there was a domestic dispute in the deceased's apartment on that night, and it would be unfair to the prosecution to leave ambiguity untested or unchallenged. 5. Addressing the requirements of s 38(6), and that I must take into account whether the party gave notice at the earliest opportunity of his or her intention to seek leave, (s 38(6)(a)), it was submitted that the Crown first became aware of Ms Wilson's further observations of the two persons only on 13 February 2018. On that day, a formal statement was taken by the police which was served upon the Accused's solicitor on that same day. Further statements were then obtained from investigating police, that is the statements of Detective Senior Constable Bongiorno and Plain Clothes Senior Constable Raby on 20 February 2018 to provide background. These were served with the notice seeking leave and they were not required for cross-examination. 6. Addressing the requirements of s 38(6)(b), the Crown submitted that the Defence does not appear to suggest that they will cross-examine the witness further if leave is not granted. 7. Addressing s 192 considerations, it was argued that the area of cross-examination was to be narrow in compass and thus would not be likely to add unduly to the length of the hearing. It would be unfair to the Crown and to the witness if leave was not granted. There is no unfairness to the Accused for there to be cross-examination in respect of the part of the witness's evidence limited to the observation of a man and a woman having an apparent domestic dispute in the deceased's apartment on the night of the deceased's death. It was clarified in oral submissions that the Crown would not seek to put to Ms Wilson that from her position in her premises, she would not physically be able to see the unit at 9/167 Bestic St. Nor was she going to be challenged in any way as to what she heard later that morning at around 2.45 to 3.15. 8. In respect of s 192(2)(c), the Crown argued that the evidence, if accepted, is potentially important because evidence of a domestic dispute in the deceased's apartment prior to the death of the deceased has a capacity to undermine the Crown case, as does evidence of the light being on at 1.15 am in Unit 9, given that the Crown case was that the deceased had retired to bed or to the bedroom prior to being killed. Submissions made on behalf of the Defence 1. Defence Counsel argued that the application was raised too late, having not been raised in the previous trial and its timing, being served on the 10th day of this trial, after a critically relevant witness, Mr Dave, had completed his evidence and been excused, was problematic. 2. Ms Wilson's evidence at the previous trial was consistent with her statement of 30 July 2013 and she was not challenged by the Crown or the Defence about what she had heard or observed or about the times the things she saw and heard occurred. Given the treatment of her evidence as a "red herring" at the first trial, it was unreasonable now to suggest that Ms Wilson's evidence was unfavourable to the Crown Case to the extent of justifying a s 38 application. 3. Complaint was also made that material available to the police on and from 6 August 2013 was not properly pursued. No statement was served in a timely fashion dealing with the further material. Accordingly, this trial was commenced on an understanding of what Ms Wilson's evidence would be based on the 30 July 2013 statement and her evidence at the last trial. 4. It was submitted that the "fresh evidence" as set out in the 13 February 2018 statement was not in fact fresh at all and confirms paragraphs 6 to 10 of the statement she gave on 30 July 2013. It is only "an expansion" of the information she gave to Constable Raby in August 2013. 5. Because the critical witness Niraj Dave had completed his evidence, there was no opportunity to put to Mr Dave certain propositions such as whether he had had an argument with the Deceased at that address at the time identified by Ms Wilson. If he were to be recalled solely for that purpose, it would highlight that evidence and cause unfair prejudice to the Accused. 6. The criteria set out in s 38(1)(a)-(c) had not been met. Relevant to s 38(1)(a), the evidence cannot be characterised as "unfavourable" or adverse, and had not been previously characterised in that manner at the previous trial. 7. In terms of s 38(1)(b), there was no suggestion that the witness was not making a genuine attempt to give evidence. The prosecution was in possession of the further information provided by Ms Wilson to Constable Raby on 6 August 2013 and it appears made a decision at the last trial not to use it. Such a decision could simply be made again. 8. In respect of s 38(1)(c), there is no inconsistency between what the witness told police on 30 July 2013, 6 August 2013, and 13 February 2018 and so considerations relevant to prior inconsistent statements do not apply. 9. It would be unfair at this stage to permit the prosecution to cross-examine Ms Wilson bearing in mind s 192(b), (c) and (d). The application was made late, the evidence is of no importance to the trial (that is, the additional matters regarding the man and the woman), and was not thought important enough to lead at the first trial. Because the trial is a murder trial, great care must be taken to ensure the Accused receives a fair trial (s 192(2)(d)) and because the trial is currently on foot, adjournment is not available. 10. A separate ground for opposition was made in relation to s 38(6) given that Constable Raby received the information on 6 August 2013, no notice was given before the first trial, no notice was given before this re-trial, and notice only came well after the second trial had commenced. Notice was accordingly not given at the earliest opportunity. It is unfair to now allow cross-examination. 11. The evidence should be circumscribed to the 30 July 2013 statement. This would cause no unfairness to the Accused if evidence was simply adduced consistent with the 30 July 2013 statement and, to the extent consistent with it, what was confirmed with Constable Raby on 6 August 2013. 12. A grant of leave permitting cross-examination at large should not be given. Any leave should not extend to evidence given by the witness consistent with her 30 July 2013 statement, paragraphs 4-10. 13. It was argued that Ms Wilson's evidence was not adverse, had not previously been characterised that way, and that the manner in which the Crown now sought to deal with her evidence offended the statement in R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [54] per Greg James J, Spigelman CJ agreeing: …In the context of a criminal case, care may have to be given to the question of what "unfavourable" to the Crown means. That concept will not necessarily be satisfied simply because the witness' potential testimony does not accord with some prosecutor's view of the appropriate "camp" or some case theory which does not accord with all the otherwise reliable evidence. Section 137 exclusion application and submissions by counsel for the Defence 1. An alternative basis argued was that the contentious evidence should be excluded under s 137 and/or any cross-examination should be circumscribed and not extend to the evidence given by Ms Wilson that is consistent with her statement of 30 July 2013 paragraphs 4-10, her evidence in the first trial and her statement of 13 February 2018 paragraph 9. 2. It was submitted that the Crown sought to capitalise on the circumstances and obtain an unfair forensic advantage over the Accused by seeking to undermine Ms Wilson's testimony generally by cross-examining her on her assertions made in her February 2018 statement as to what she saw at about 1.15 am in the identified apartment. This was unfair given the approach taken by the Crown at the first trial. 3. Not all evidence obtained in the course of an investigation has to be used at the trial. Such evidence has to be considered by the prosecution and a determination made as to the relevance of the material. The trial Judge also needs to turn his or her mind to that issue and ensure that none of the material put before the jury offends the protections provided by the Evidence Act. Crown submissions in reply on s 137 1. The Crown submitted that it was not unfair to lead the evidence as to what Ms Wilson said she saw through the open curtain at about 1.15 am on 30 July 2013. It was not a case of a witness (Ms Wilson) being so unreliable on the face of her evidence or so unreliable generally that the Crown ought to make a decision not to rely on her. In R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 the New South Wales Court of Criminal Appeal was critical of the Crown where a decision was made not to call a particular witness in circumstances where there was no tangible indication of unreliability. 2. Ms Wilson's evidence is potentially relevant, and the proper approach is for the Crown to be able to test it in the aspects that are unfavourable to the Crown Case. Decision regarding s 137 exclusion 1. Ms Wilson lived in a property that backed onto 167 Bestic St, Kyeemagh. She was awake prior to and around the time Ms Joshi's death occurred. Her eyes were drawn to the unit she describes as "second from the rear on the second floor", a description consistent with Unit 9. She noticed the curtains were drawn, apart from an approximately 30 cm gap. This positioning of the curtains was unusual. She also noticed that there was a bright overhead light on in the apartment as opposed to a dimmer lamp light which to her observation was normally used in that part of the unit. 2. On 6 August 2013, Ms Wilson told police in a follow up conversation that she, at 1.15 am whilst looking over, saw a female step into the opening of the curtains and saw a male advance on her. She described the body language of the female. Police made a note on the e@gle.i entry that they questioned the validity of Ms Wilson's omission. 3. When she was interviewed by police only seven days earlier, she did not refer to that part of her recollection regarding what she saw in the gap of the curtains. Nor did she give that evidence at the first trial. When conferenced for the current trial, she provided more detail in her statement of 13 February 2018. 4. The material to which the Accused takes objection is what the witness said she was able to see due to the partly open curtains and bright overhead illumination. It would be artificial and unfair to the witness to excise from her evidence those parts of her account set out in her statement of 13 February 2018 which describe what she says she saw by virtue of the overhead illumination and open curtains. The overhead illumination is a matter which the Accused's case on self-defence wishes to embrace (as evidence of the deceased being awake, waiting for the Accused), but it wishes to excise what Ms Wilson said she saw lit by that light arguing that it would be unfair to the Accused for that evidence to be led. 5. The complication presented to the Accused by Ms Wilson's evidence as to what she saw at 1.15 am is partly that her evidence is inconsistent with the defence case on self-defence, but more significantly that cross-examination in relation to the bright overhead light she saw may cause the jury to question her reliability about other things she saw. This is an important consideration to entertain regarding whether I should grant the s 38 application, but it is not persuasive on s 137 concerns. 6. Whilst it is undoubtedly correct that the Crown is not required to call all evidence obtained as a result of the investigation, it is clear that Ms Wilson's evidence is relevant. She was awake as opposed to being "woken". She was in a physical location that allowed her to see certain things in and around 9/167 Bestic St. She heard certain things later that morning, although that part of her evidence is not to be subjected to any challenge in cross-examination. The fact that part of her evidence as to what she saw is consistent with neither the Crown case nor the Accused's case on self-defence does not mean that its probative value is outweighed by the danger of unfair prejudice to the Accused. 7. There is no evidence that Ms Wilson is so unreliable or that her evidence is so unrealistic on the face of it that she ought not be called. 8. Senior Counsel for the Accused will be able to cross-examine Ms Wilson regarding what she saw and challenge or bolster her recollections, including with the assistance of other evidence already tendered. Senior Counsel for the Accused can also make submissions to the jury regarding Ms Wilson's reliability and what they should make of her evidence. 9. There is no reason why the jury cannot choose to accept part or all or none of Ms Wilson's evidence, regardless of any challenge made in cross-examination. Juries are encouraged to do just that: to make their own assessment of the evidence. The content of Ms Wilson's evidence in respect of her having seen the man and the woman in the gap in the curtains at 1.15 am at the unit she identifies consistently with unit 9 is not of the quality that its probative value is outweighed by the danger of unfair prejudice to the Accused and accordingly I permitted the evidence to be led from Ms Wilson both on the voir dire and before the jury. Determination of s 38 application 1. As determined by the Court in Kanaan v Regina [2006] NSWCCA 109 ('Kanaan'), the rule in Browne v Dunn (1893) 6 R 67 can apply to the Crown's own unfavourable witnesses. 2. In Kanaan at [84], there was emphasis on the obligation of the prosecution to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. As further set out in Kanaan at [84]-[85]: "[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: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. 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: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]. [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: Regina v Milat (BC9607720), Hunt CJ at CL, 23 April 1996, at 5-6. (See Evidence Act, s 192(2).) …" 1. It was appropriate that the Crown proceed on the basis of there being a need to call Ms Wilson as a Crown witness and to deal with those aspects of the evidence that qualified as unfavourable by seeking appropriately circumscribed leave to cross-examine. 2. Senior Counsel for the Accused argued that I should refuse leave because the evidence was not treated as "unfavourable" at the first trial. The evidence that Ms Wilson is to give goes further than that expected (and given) at the first trial. In any event, I accept the Crown's submission that it is not bound by any decision made or approach taken by the Crown at the last trial. 3. I accept the submissions of the Crown that I have set out in paragraphs [23] to [26] of this judgment that the test for "unfavourable" evidence set out in s 38(1)(a) has been met. 4. I also accept the Crown's position in respect of the prosecution's duties of fairness and thus the need to call Ms Wilson to give her evidence. 5. I reject the submission that s 38 is being deployed as a tactical or forensic device. I am of the view that it has arisen as a complication in the preparation of the matter for retrial and ought to be dealt with before the jury utilising cross-examination to "get to the truth of the matter". 6. Responsive to s 192 considerations, senior counsel for the Accused submitted that the stage of the trial – in particular, that Mr Dave, the only male who was known to live at the apartment at the time having completed his evidence and left – meant that the Accused had been disadvantaged. She submitted that it was late in the trial, the application was made late, and the evidence of the witness Ms Wilson is of no importance to the trial, particularly given it was not thought to be important enough to lead at the first trial. She also emphasised that because the trial is a murder trial, great care must be taken to ensure that the Accused receives a fair trial (s 192(2)(d)). 7. Whilst these are all valid matters to raise, particularly in light of the requirements of s 192, I take into account the evidence before me that indicates that the discovery by the legal representatives for the Crown of the further material Ms Wilson wished to disclose, occurred at a time when this re-trial was proceeding before the jury. I am satisfied that there were immediate steps taken to formalise the further evidence into a statement and to provide that on the same day to the legal representatives for the Accused. 8. The trial commenced on 7 February, Mr Dave's evidence began on day 7, 15 February 2018 and continued for almost two days (15 and 16 February) followed by cross-examination over three days (16, 19 and 20 February). He completed his evidence at 3.00 pm on 20 February 2018. Whilst I appreciate it is not up to senior counsel for the Accused to second-guess an application that was the Crown's to make, the territory for complexity was manifest by the statement of Ms Wilson provided on 13 February 2018. 9. Senior Counsel for the Accused is a highly experienced criminal counsel. Any potential issue created by the statement of 13 February 2018 could have been raised with me in the absence of the jury any time after 13 February 2018. 10. To grant the leave sought would add little time to the length of the hearing. I consider the evidence of the witness to be important in the context of the trial because, amongst other things, she was the only witness we know of who was awake and available at the time of the incident who saw and heard things. She lived in very close proximity to the place where the death occurred. 11. The jury should, in my view, have the benefit of her evidence and the benefit of her recollection being relevantly tested as to that part of her evidence unfavourable to the Crown case. To do so creates no unfairness to the Accused. Orders 1. The orders I made on 26 February 2018 were as follows: 1. I refuse the application of the Defence to exclude part of the evidence of Ms Wilson pursuant to s 137 of the Evidence Act. 2. I grant leave to the Crown pursuant to s 38 of the Evidence Act to cross-examine Ms Wilson. That cross-examination is to be limited to the suggestion that she is mistaken in her identification of the apartment referred to in her statement as being the second unit from the rear of the building, 167 Bestic St, Kyeemagh. ********** 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: 02 July 2019