R (Cth) v Mohr (No 2) [2020] NSWSC 231

Supreme Court New South Wales

Medium Neutral Citation: R (Cth) v Mohr (No 2) [2020] NSWSC 231 Hearing dates: 20 February 2020 Date of orders: 20 February 2020 Decision date: 20 February 2020 Jurisdiction: Common Law Before: Wilson J Decision: Section 38 application granted to the Crown to cross-examine unfavourable witness Catchwords: CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – s 38 Evidence Act – leave to cross-examine the witness about specific paragraphs of statement to police and transcript of listening device recording – unfavourable witness – whether the witness has appeared to make a genuine attempt to give evidence – whether the witness has knowledge of matters – prior inconsistent statement of witness Legislation Cited: Evidence Act 1995 (NSW) Category: Principal judgment Parties: Regina (Crown) Darren Mohr (Accused) Representation: Counsel: Ms M England/Mr C McGorey (Crown) Mr G Brady SC (Accused)

Solicitors: Solicitor for the Director of Public Prosecutions (Cth) (Crown) McGirr Lawyers (Accused) File Number(s): 2017/376756 Publication restriction: Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

EX TEMPORE JUDGMENT (REVISED) 1. HER HONOUR: During the course of evidence-in-chief being given by Person Y, a witness called by the Crown, the Crown has made an application pursuant to s 38 of the Evidence Act 1995 (NSW) seeking leave to cross-examine Person Y about some specific aspects of his evidence. The Crown brings the application relying upon ss 1(a), (b) and (c) of s 38. That is, it is contended that Person Y has given evidence which is unfavourable to the Crown; that he has not appeared to make a genuine attempt to give evidence about matters which it can reasonably be supposed that he would have knowledge; and that he has made a prior inconsistent statement. 2. On the voir dire the Court has received exhibit VDG, that being a copy of the statement that Person Y made to police, commencing on 6 November 2017 and concluding on 8 May 2018, a statement of some 323 paragraphs in length. The Crown further relies upon a transcript of a conversation intercepted lawfully by police, which took place between the witness and another Crown witness, Person W, on 17 September 2016, that transcript forming part of exhibit B before the Court in the trial evidence. 3. The Crown seeks leave to adduce evidence of matters which are set out in paragraphs 243 of the statement; in paragraph 244(xiii), (xvii), (xviii) and (xxi); in paragraph 250, paragraph 257 (iv); paragraph 260 (xi); paragraphs 269, 272 and 287; together with some specific evidence which is contained within the transcript to which I have just referred, that being evidence relating to a conversation between Person W and Person Y about BlackBerry devices, including that concerning the "handle" or user name of a person that Person Y knew as Darren or Darrell, a man he had witnessed Person W meeting in a park some months earlier. 4. Mr Brady of Senior Counsel for the accused does not object to much of that material being put, but he does take issue with the last of that list of evidence the Crown seeks to touch upon, that being the evidence which goes to Darren having the user name or BlackBerry handle of "White Stripe". 5. For the Court to grant leave, for the Crown, or indeed, anyone, to cross-examine its own witness, the Court must be satisfied of one or all of those things set out in s 38(1) and having regard to s 192 of the Evidence Act, which provides guidance to the Court as to those matters taken into account in deciding whether to give leave to a party making such an application. 6. Person Y began his evidence this morning at 10am before the jury, and I think as a general observation it is reasonable to remark that he presents as a most reluctant witness. He has frequently responded to questions with "I don't know" or "I don't remember" or, not purporting to give his actual words, but in summary fashion "it wasn't my business so I didn't ask". That is with respect to matters, it seems, from his statement to police, he should have known or ought reasonably to have been able to remember, and concerning matters that most clearly were his business at the time. 7. It is difficult to know whether Person Y has these evident difficulties as a consequence of a true reluctance to testify against other persons, or whether there is some more fundamental issue with him, such as some sort of cognitive decline, but my general impression is that it is the former. That is because his evidence overall is inconsistent as to his recall. As the Crown submitted, there are occasions when he has been able to give evidence with apparently a clear memory. 8. Those matters concerning Person Z are instances of evidence he gives with no hesitation and with apparent firmness; but they also extend to matters connected with his own role, which one might conclude is evidence he gives in an attempt to distance himself from higher criminality than that which might have already been laid at his feet. For example, when he was asked about sending a message to Gutter Ball on behalf of Person W, he answered very firmly and with immediacy "I never ever had Gutter Ball's contact". Similarly, in reference to the person Darren and communication with him by BlackBerry, Person Y very firmly and with immediacy, asserted to the Crown that he never had contact with Darren on the BlackBerry. 9. That contrast in aspects of Person Y's evidence and presentation leads me to conclude that he is not making a genuine attempt to give his evidence, presumably because of that reluctance to which I have referred. That is certainly the case in relation to matters which he may reasonably be supposed to have knowledge about. It is also the case with respect to those particular matters which the Crown has enumerated and about which leave is sought to cross-examine. 10. The listed paragraphs of the statement as they have been particularised also support a conclusion, indeed it seems to me the only reasonable conclusion, that there is a prior inconsistent statement about those matters contained within the particularised paragraphs. 11. It is very clear from Person Y's statement that at the time of making it he had clear and detailed knowledge and a clear and detailed memory of matters about which today he has asserted he either has no knowledge or no memory, or never had knowledge because it was a matter which was not his business. 12. Having regard to both his presentation in the witness box, the contents of his statement to the police, and the contents of his conversation with Person W on 17 September 2016 and, in particular, about those matters connected with the security and use of Person W's BlackBerry device, it is clear to me that Person Y has given evidence which is unfavourable to the Crown; that he has not made a genuine attempt to give evidence on those matters, and that he has made a prior inconsistent statement. 13. Noting those matters in section 192 of the Evidence Act, I have concluded that the Court should grant leave to the Crown to cross-examine Person Y about the matters set out in each of the paragraphs that I have enumerated, together with the evidence which is sought to be tested in cross-examination connected with the inspection of Person W's BlackBerry by Person Y on 17 September 2016. That is, that Person Y met Person W on that date, that there was a discussion of Blackberrys with the overall context of another conspirator's arrest and the potential compromise of the security of the devices; that Person Y made an examination of Mr W's BlackBerry device, as, I must say, it is perfectly clear from the footage of the meeting that he did; that Person Y observed sufficient on the screen of the BlackBerry device to be able to identify the handle "White Stripe" with the server Mobi, White Stripe being the handle associated with Darren. 14. Leave is granted to the Crown to cross-examine Person Y on all of those matters.