Supreme Court New South Wales Medium Neutral Citation: R v WE (No.12) [2020] NSWSC 146 Hearing dates: 24 February 2020 Date of orders: 24 February 2020 Decision date: 24 February 2020 Jurisdiction: Common Law Before: Bellew J Decision: See [11] Catchwords: CRIMINAL LAW – Evidence – Re-examination – Whether proposed re-examination arose out of cross-examination Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hadid v Australis Media Limited (No. 14) 5 November 1996 NSWSC Sperling J (unreported) R v Rogerson; R v McNamara (No. 49) [2016] NSWSC 577 Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority trading as Seqwater (No. 21) [2019] NSWSC 294 Category: Procedural and other rulings Parties: Regina – Crown WE – Accused Representation: Counsel: P McGuire SC and B Anniwell – Crown M Finnane QC – Accused Solicitors: Director of Public Prosecutions (Cth) – Crown Zali Burrows – Accused File Number(s): 2016/305103 Publication restriction: Nil Judgment – EX TEMPORE (REVISED) INTRODUCTION 1. In the course of the proceedings yesterday the Crown called Kevin Elgood, the former principal of the East Hills Boys High School. At the conclusion of his cross-examination, the Crown indicated that he wished to re-examine Mr Elgood in relation to a number of matters. I subsequently limited that re-examination and indicated that I would give my reasons for doing so at a later time. Those reasons now follow. 2. Mr Elgood gave evidence [1] that on 17 June 2014, he had been informed that the accused and HG were refusing to stand for the national anthem. He was then asked: [2] "Q. Did you then become personally involved in speaking to [WE]? A. I did some time later. Q. Was that some time in September? A. It was, 19 September. Q. Had you noticed anything, or had anything been brought to your attention, about [WE's] attendance at the Tuesday assemblies between July and September 2014? A. Yes, and that was the reason I spoke to him on that day, because he had not stood for the national anthem. He had not attended the assembly since the original time when he didn't stand; he was either late or absent on the day. Q. So he didn't attend or was late between the date you told us in July and when you spoke to him in September; is that correct? A. The date in June and the date in September, yes. Q. Now, we'll come back to particular dates but I want to now ask you about your discussion with We in September. When you had a discussion with him, did you ask him if had he some religious reasons for not standing? A. Yes, I did, or I asked him why he didn't stand and he said it was because his religion instructs him not to stand for anybody but Allah." 1. Various documents were then tendered by the Crown through Mr Elgood, including an absenteeism record pertaining to the accused. [3] The Crown relies on the evidence of Mr Elgood as evidence supporting a conclusion that, at the time of his alleged commission of the offence with which he is presently charged, the accused held what might be described as an "extremist ideology". 2. In cross-examination, [4] Mr Elgood was asked: "Q. But he wasn't a troublesome person in the sense of a discipline problem, except for not turning up? A. Not that I can recall, no. Q. The big problem with him was he didn't come to school? A. Yes, or he didn't apply himself when at school. … Q. But he didn't cause fights or difficulties with teachers or students? A. Not that I recall, no." 1. The cross-examination then continued: [5] "Q. And was [HG] the more forthright of the two? A. [HG] certainly was brought to my attention more often for issues of anger and disobedience. Q. But [WE] wasn't brought to your attention for problems with anger or disobedience? A. Not that I recall." 1. Later, Mr Elgood was asked: [6] "Q. He wasn't someone who challenged authority in the school, except when it came to standing for the national anthem, is that right? A. I believe so. I don't have his - we have a 'welfare record' which records all incidents of misbehaviour or non-compliance and I don't have that with me and I can't recall. Q. To the best that you can recall, he didn't challenge authority on any regular basis? A. No, he did not." 1. In light of that cross-examination, the Crown sought to re-examine Mr Elgood by adducing evidence of other disciplinary breaches in which the accused was involved. In particular, the Crown indicated an intention to re-examine Mr Elgood in respect of two particular incidents involving the accused whilst at the East Hills Boys High School, one on 16 July 2014 and another on 6 August 2014. On each of those occasions the accused engaged in what was described as "refusing to follow teacher's instructions, being defiant and displaying an insolent attitude". Counsel for the accused did not object to that re-examination. 2. However, the Crown wished to extend the re-examination of Mr Elgood by seeking to elicit evidence of earlier incidents involving the accused which had occurred at other schools at which he attended before attending East Hills Boys High School. Mr Finnane, on behalf of the accused, objected to that re-examination on the basis that it did not properly arise out of the Crown's cross-examination of Mr Elgood. It should be noted that the documents containing the material about which the Crown wished to re-examine Mr Elgood had apparently been produced on subpoena some time ago. They had, therefore, been available to all parties, including the accused, for inspection. 3. Section 39 of the Evidence Act 1995 (NSW) (the Act) places limits on re-examination and is in the following terms: 39 Limits on re-examination On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and (b) other questions may not be put to the witness unless the court gives leave. 1. As a general proposition, s 39 reflects the previous position at common law, although there seems to remain an unresolved question of whether the provisions of the section are more liberal than the common law. [7] Recently Beech-Jones J in Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority trading as Seqwater (No. 21) [8] observed that re-examination is to be allowed whenever an answer in cross-examination would, unless supplemented or explained, leave the Court with an impression of the facts where the facts in issue, or facts related to credibility, which is capable of being construed unfavourably to the party calling the witness and which represent a distortion or incomplete account of the truth as the witness is able to present it. In making those observations, his Honour cited the observations of Spelling J in Hadid. 2. Given the questions that were put in cross-examination, I was not satisfied that the additional matters about which the Crown wished to re-examine Mr Elgood arose from such cross-examination as contemplated by s 39. In particular, the questions which were put to Mr Elgood in cross-examination, and which I have set out, were directed principally to Mr Elgood's knowledge of the accused's behaviour at East Hills Boys High School at a time when he was the principal. The questions were not directed to what knowledge, if any, Mr Elgood may have had in relation to the accused's behaviour at other schools. It was primarily for that reason that I was not satisfied that the proposed questioning fell within s 39. 3. Whether the evidence of these other incidents involving the accused is otherwise admissible is, of course, a separate question. It is not one that I have to determine at the present time. However, I should say that it seems to me that there is a real question as to whether, in the course of the cross-examination of Mr Elgood in the terms that I have set out, the accused's character has been raised. If it has been, then that would potentially engage the provisions of s 110(2) and/or s 110(3) of the Act, as exceptions to the credibility rule set out in s 102. Any indication by the Crown that it wishes to lead this evidence through some other witness may also engage the provisions of s 137 of the Act if I came to the conclusion that the evidence was otherwise admissible. However, those are all questions that I am not required to resolve at the present time. ********** Endnotes 1. Commencing at T473.23. 2. Commencing at T473.46. 3. Exh AZ. 4. Commencing at T485.29. 5. Commencing at T486.22. 6. Commencing at T486.49. 7. For example Hadid v Australis Media Limited (No. 14) 5 November 1996 NSWSC Sperling J (unreported) cited in R v Rogerson; R v McNamara (No. 49) [2016] NSWSC 577. 8. [2019] NSWSC 294 at [34] and [35]. Amendments 09 April 2020 - Amendment to quoted text in paragraphs [2] and [5]. 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