Director of Public Prosecutions v Edwin Nair
[2009] ACTCA 17
•13 NOVEMBER 2009
DIRECTOR OF PUBLIC PROSECUTIONS v EDWIN NAIR
[2009] ACTCA 17 (13 NOVEMBER 2009)
EVIDENCE – witness called by party – application by party for leave to cross-examine witness under s 38 of the Evidence Act 1995 (Cth) – whether party must show a motive or reason for witness to give untruthful evidence – discretionary considerations relevant to grant of leave.
Held: no requirement for grant of leave that applicant show a motive or reason for witness to give untruthful evidence – discretionary considerations relevant to grant of leave include matters in s 38(6) and s 192
Supreme Court Act 1933 (ACT), s 37S
Evidence Act 1995 (Cth), s 32, s 38, s 192
Evidence Act 1958 (Vic), s 34
Evidence Act 1929 (SA), s 27
Evidence Act 1995 (NSW), s 38
R v Cooper (2007) 214 FLR 92
R v Hayden and Slattery [1959] VR 102
McLellan v Bowyer (1961) 106 CLR 95
R v Le (2002) 54 NSWLR 474
R v Souleyman (1996) 40 NSWLR 712
R v Pantoja [1998] NSWSC 565
Klewer v Walton [2003] NSWCA 308
Adam v The Queen (2001) 207 CLR 96
R v Le [2001] NSWSC 174
Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1 Australian Law Reform Commission, Evidence, Report No 38, (1987)
REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No ACTCA 19-2008
No SCC 126 of 2007
Judges: Gray P, Penfold and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date: 13 November 2009
IN THE SUPREME COURT OF THE ) No ACTCA 19-2008
) No SCC 126 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND: EDWIN NAIR
Interested Party
ORDER
Judges: Gray P, Penfold and Besanko JJ
Date: 13 November 2009
Place: Canberra
THE COURT ORDERS THAT:
The following questions of law be answered in the manner indicated below:
1. In making an application under subsection 38(1) of the Evidence Act 1995 (Cth), is the Crown required to show more than the existence of one or other of the factors set out in paragraphs 38(1)(a), (b) and (c) of this said Act before the Court can consider exercising its discretion whether to grant leave?
Answer: No
2. In determining whether to grant leave under subsection 38(1), should the Court have regard to the matters set out in subsection 38(6), and s 192 of the said Act, amongst other matters?
Answer: Yes
IN THE SUPREME COURT OF THE ) No ACTCA 19-2008
) No SCC 126 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
AND:EDWIN NAIR
Interested Party
Judges: Gray P, Penfold and Besanko JJ
Date: 13 November 2009
Place: Canberra
REASONS FOR JUDGMENT
GRAY P:
I have had the opportunity of reading, in draft, the reasons of Besanko J to the questions that the Director of Public Prosecutions reformulated for the purposes of this reference appeal. I agree with the answers that he proposes to those questions. In my view, those answers are self-evident from the terms of s 38 of the Evidence Act 1995 (Cth) and the intended operation of s 192 of that Act.
I would add that what could have rightly concerned the trial judge was the possibility of the cross-examination being directed as to whether the witness had been suborned. That prospect had been indicated earlier by the prosecutor when she had asserted that the witness was “very fearful of the accused”. In my view, that would be a material matter in considering the matters to which s 192 of the Evidence Act refers. Although the prosecutor disclaimed any intent to do so, the prospect of that taking place seems to have diverted the approach that the trial judge should have taken to the prosecutor’s application.
The questions should be answered as proposed by Besanko J.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour President Gray.
Associate:
Date: 13 November 2009
IN THE SUPREME COURT OF THE ) No ACTCA 19-2008
) No SCC 126 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
AND:EDWIN NAIR
Interested Party
Judges: Gray P, Penfold and Besanko JJ
Date: 13 November 2009
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
I agree with the answers proposed by Besanko J to the questions posed in this reference appeal, and with his reasons for so answering those questions.
I certify that the preceding paragraph numbered four (4) is a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 13 November 2009
IN THE SUPREME COURT OF THE ) No ACTCA 19-2008
) No SCC 126 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
AND:EDWIN NAIR
Interested Party
Judges: Gray P, Penfold and Besanko JJ
Date: 13 November 2009
Place: Canberra
REASONS FOR JUDGMENT
BESANKO J:
This proceeding is what is called a reference appeal under s 37S of the Supreme Court Act 1933 (ACT) (“Supreme Court Act”). The Director of Public Prosecutions (“the Director”) is the applicant and he has made an application for this Court to hear and decide the following questions of law:
1.In making an application under subsection 38(1) of the Evidence Act 1995 (Cth), is the Crown required to show more than the existence of one or other of the factors set out in paragraphs 38(1)(a), (b) and (c) of this said Act before the Court can consider exercising its discretion whether to grant leave?
2.In determining whether to grant leave under subsection 38(1), should the Court have regard to the matters set out in subsection 38(6), and s 192 of the said Act, amongst other matters?
Mr Edwin Nair was tried on an indictment containing eight counts before the Chief Justice and a jury, and he was acquitted of all counts in the indictment. The Director contends that the questions of law set out above arose at, or in relation to, the trial of Mr Nair within the terms of s 37S(2) of the Supreme Court Act. Mr Nair has appeared by counsel on the reference appeal and he has made submissions as to how the questions of law should be answered. He is an interested party within s 37S(4). Section 37S(6) provides that this Court’s decision on the reference appeal does not invalidate or affect any verdict or decision given at the trial.
The eight charges against Mr Nair arose out of events which occurred in the early hours of Sunday, 8 October 2006. Five charges were each to the effect that Mr Nair assaulted one Janelle Smith. One charge was to the effect that Mr Nair assaulted Janelle Smith and occasioned to her actual bodily harm. One charge was to the effect that Mr Nair unlawfully confined Janelle Smith. One charge was to the effect that Mr Nair assaulted one Shannon Cooke.
The prosecution case
The prosecution case at the trial was that, on the evening of Saturday, 7 October 2006, Ms Smith was out socialising with her friend Ms Cooke in Civic (City Centre, Canberra). At about 1.00 am on the morning of Sunday, 8 October 2006, Ms Smith and Ms Cooke were at Mooseheads Nightclub in Civic, where they met up with Ms Smith’s then boyfriend, Mr Nair. Ms Smith and Mr Nair had made a prior arrangement to meet. At that time, Ms Smith and Mr Nair had been in a relationship for about 12 months, and, for about six weeks prior to 8 October 2006, they had been residing together at the premises of Mr Nair’s mother at an address in Gordon in the Australian Capital Territory. Ms Smith and Mr Nair shared a room together at those premises.
While at Mooseheads, Ms Smith and Ms Cooke met up with a friend, Natalie Murphy. At about 2.00 am, Ms Smith, Mr Nair, Ms Cooke and three of Mr Nair’s cousins left Mooseheads and walked to the Academy Nightclub in Bunda Street, Civic. At about 2.30 am, the group left that nightclub and walked back to Mr Nair’s car. Mr Nair drove the motor vehicle and Ms Smith was sitting in the middle of the back seat, and Ms Cooke was sitting in the back seat on the passenger’s side. There was an argument between Ms Smith and Mr Nair, and Mr Nair pulled off the main road and into a side street. He pulled over to the side of the road. The prosecution case was that he then alighted from the car and walked around to the back passenger side door. He told Ms Smith to get out of the car, but she refused to do so. He reached through the back passenger door, across Ms Cooke, and pulled Ms Smith by her singlet top, causing both straps to break. He grabbed Ms Smith by her left arm and her top and pulled her across Ms Cooke out of the vehicle and onto the footpath beside the road. Ms Smith was lying on her left side on the footpath next to the road. Mr Nair kicked her two or three times in her tailbone and two to three times in the right side of the back in her ribs, causing her immediate pain. This conduct by Mr Nair constituted the first charge of assault.
Ms Cooke alighted from the vehicle and tried to assist Ms Smith. Mr Nair tried to kick Ms Smith but kicked Ms Cooke instead. This conduct by Mr Nair constituted the second charge of assaulting Ms Cooke.
Ms Smith and Ms Cooke ran away a short distance, but Mr Nair caught up with Ms Smith and grabbed her by her arms and dragged her along the gravel for about a metre and dragged her into the vehicle. This conduct by Mr Nair constituted the third charge of assaulting Ms Smith.
The group returned to the vehicle and Mr Nair drove to a house where his three cousins alighted from the vehicle. Ms Smith moved from the back seat in the car to the front passenger’s seat. Ms Cooke remained in the back seat. As Mr Nair was driving, he reached over and hit the right side of Ms Smith’s face with his hand. As a result, Ms Smith suffered a cut to her right cheek and bruising and swelling to her right eye area. This conduct by Mr Nair constituted the fourth charge of assaulting Ms Smith and occasioning her actual bodily harm.
Mr Nair, Ms Smith and Ms Cooke arrived at Mr Nair’s mother’s house. Ms Smith was screaming, and Mr Nair grabbed her and covered her mouth and nose with his hand. Mr Nair took Ms Smith inside. This conduct by Mr Nair constituted the fifth charge of assaulting Ms Smith. Ms Smith tried to escape from Mr Nair but he grabbed her around the waist after she had left the house and covered her mouth and took her back inside. This conduct by Mr Nair constituted the sixth charge of assaulting Ms Smith. Ms Smith again tried to leave the premises and she ran out of the premises through the back door. Mr Nair saw her and he grabbed her. He forced her to the ground and her head hit the concrete. This conduct by Mr Nair constituted the seventh charge of assaulting Ms Smith. Mr Nair picked Ms Smith up and took her back inside and put her on the bed in the bedroom. The conduct of Mr Nair from when he dragged Ms Smith out of the car outside his premises until he dragged her back to the bedroom for the third time constituted the eighth charge of unlawfully confining Ms Smith.
Police officers attended the premises shortly after 5.00 am and made observations of Ms Smith’s physical condition. They took photographs of her injuries. Ms Smith and Ms Cooke accompanied the police to the Tuggeranong Police Station. Ms Cooke gave a four page statement to the police and she signed that statement at about 7.00 am on Sunday, 8 October 2006.
The trial
The prosecution called Ms Smith at the trial. She gave evidence and was cross-examined by counsel for Mr Nair. Dr Wayne Wardman gave evidence for the prosecution. He is a medical practitioner and he examined Ms Smith on 8 October 2006.
The prosecution called Ms Cooke at the trial and it is in relation to her evidence that the questions of law are said to arise. The prosecution called Ms Natalie Murphy and she gave evidence of a telephone conversation with Mr Nair the following day. Other witnesses for the prosecution at the trial were two police officers who had been involved in the investigation. Mr Nair gave evidence in his defence.
For reasons which will become clear, the charge involving the alleged assault of Ms Cooke was not left to the jury. As I have said, the jury found the defendant not guilty of the other seven charges.
Before examining the evidence given by Ms Cooke at the trial, it is convenient to summarise the statement that she gave to the police on 8 October 2006. In her statement, Ms Cooke refers to the argument between Ms Smith and Mr Nair in the car. She refers to Mr Nair stopping at the side of the road. She refers to the fact that he got out of the driver’s seat, came round to the back passenger door and opened it and then dragged Janelle out “onto grass on the kerb”. She refers to Mr Nair kicking Ms Smith in the back as she lay on the ground, not protecting herself. She states that Mr Nair kicked Ms Smith numerous times to her back. She states that she got out of the vehicle and jumped on Ms Smith to protect her from the kicks. She states that Mr Nair tried to kick Ms Smith again but kicked her instead and after this kick he stopped. She states that she and Ms Smith then decided to head towards the city. However, Mr Nair caught up with them and dragged Ms Smith back into the car. She refers to the argument continuing in the car. She refers to the events at the premises of Mr Nair’s mother. She states that Ms Smith tried to get away from Mr Nair, but Mr Nair held Ms Smith’s wrists to stop her from leaving. She states that, at one point, Mr Nair picked Ms Smith up and used his hand to cover her mouth and nose so that she could not breathe or scream. She states that Mr Nair had taken Ms Smith inside and locked the door leaving her outside. She states that she stayed at the front door where she could hear Ms Smith screaming. She states that Ms Smith escaped from the premises and she joined Ms Smith running down the street.
Ms Cooke’s evidence at the trial was quite different from the information she provided in her statement. She referred to the argument in the car and to Mr Nair pulling over to the side of the road. She referred to Mr Nair getting out of the car and coming around to her side of the car and she said that he “told Janelle to hop out of the car so she climbed over the top of me and then I think he, he might have pushed her or something like ... yes”. She referred to Ms Smith climbing over the top of her. She said that Mr Nair might have pushed Ms Smith and then “I think he might have kicked her”. She said that Ms Smith might have fallen over and then Mr Nair kicked her. She could not remember where he kicked her. She said that Mr Nair only kicked Ms Smith once. In answer to a question as to whether she saw Mr Nair kick Ms Smith, she said “I kind of saw something out of the corner of my eye”. She said that she picked Ms Smith up and they started running back towards the city, but Mr Nair told them to come back to the car and Ms Smith and Ms Cooke did so. She said that she thought Mr Nair had picked Ms Smith up but she could not remember. She said that after Mr Nair’s cousins had been dropped off, Ms Smith got in the front passenger’s seat. She said that she thinks Ms Smith was crying but she was not exactly sure whether Mr Nair was saying anything to her.
I mention that at this point, the jury retired and counsel for the prosecution raised with the trial judge the possibility of the witness refreshing her memory with the leave of the Court pursuant to s 32 of the Evidence Act, or Ms Cooke being cross-examined by counsel for the prosecution with the leave of the Court under s 38 of the Evidence Act. There was debate between counsel for the prosecution and the trial judge. It was decided that counsel for the prosecution would complete her examination of Ms Cooke before any application under the Evidence Act of the type foreshadowed was considered. I will refer to this as the first exchange.
Ms Cooke’s evidence in chief then resumed. She gave evidence as to the events at the premises of Mr Nair’s mother. She said that Mr Nair apologised to Ms Smith. Ms Smith was crying and Mr Nair put his hand over her mouth to stop her from screaming. A woman opened the door and Ms Cooke took Ms Smith inside. At one point, Ms Smith came to the door and Ms Cooke said that she seemed fine but that she said “Let’s go”. They ran and sat in the bushes. Ms Cooke was asked about whether she observed any injuries to Ms Smith’s face. After she had given her answers to the questions about that topic, counsel for the prosecution made an application under s 38 of the Evidence Act for leave to question Ms Cooke as though she was cross-examining Ms Cooke. There then followed a debate between counsel for the prosecution and the trial judge. Counsel for Mr Nair did not participate in the exchange. The debate extends over some pages of the transcript with counsel for the prosecution making submissions and answering questions, and the trial judge asking questions and expressing views about the merits of the application. In the result, the trial judge indicated that he refused the application. He did not deliver reasons as such for his decision and his reasons for refusing the application must be gleaned from the exchange which took place. Of course, I bear in mind that not everything said by the trial judge in the course of submissions necessarily formed part of his reasons. However, I think the trial judge’s reasons for refusing the application under s 38 of the Evidence Act are sufficiently clear. I will refer to the debate or exchange that took place at this stage of the trial as the second exchange.
After the second exchange, Ms Cooke resumed her place in the witness box. She was not asked any further questions by counsel for the prosecution. She was asked a small number of questions by counsel for Mr Nair. She said that she was not one hundred per cent sure that Mr Nair had pushed Ms Smith. She said that it was not one hundred per cent clear that she saw Mr Nair kick Ms Smith.
The trial judge’s reasons for his ruling under s 38 of the Evidence Act
Sections 38 and 192 of the Evidence Act provide as follows:
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.
Note:The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.
(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.
192Leave, 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.
In the course of the first exchange, the trial judge referred to another case in which he had been the trial judge and counsel for the prosecution had appeared, being the matter of R v Cooper (2007) 214 FLR 92. In the course of the first exchange, he said that leave under s 38 had been granted in that case because “it seemed to me that the witness wasn’t making a genuine effort to give truthful evidence”. He also made the observation that there are cases where the prior inconsistent statement of a witness is what has been fabricated, rather than the evidence the witness has given in court.
In the course of the second exchange, a copy of Ms Cooke’s statement dated 8 October 2006 was put before the trial judge. The trial judge accepted that there were clear inconsistencies between the statement and the evidence Ms Cooke had given in the trial. He asked counsel for the prosecution what she suggested was the motive for Ms Cooke to give an untrue statement in court knowing that it was untrue. He asked counsel for the prosecution whether she had any evidence that Ms Cooke had been “suborned, coerced [or] unduly influenced”. The trial judge said that s 38 would only have application if leave were granted and that he was not prepared to grant leave because the prosecution had offered no reason why leave should be granted. He said that if the prosecution had any evidence in support of its application, it should be placed before him. In the course of the second exchange, the following took place:
MS JONES: Your Honour, my understanding of section 38 is that it doesn’t require the prosecution to produce evidence of motive or reasons why a witness would not be telling the truth.
HIS HONOUR: I am sorry, you’re wrong. You are right and wrong in one sense. No, you don’t have an onus to adduce evidence, it may emerge quite clearly from evidence already given, but you do have to point to evidence, whether you adduce it or not, that would justify an application for leave under section 38, you’ve not done so.
The trial judge suggested that the matters in paras (a), (b) and (c) of s 38(1) were only relevant after leave had been granted. The trial judge said that he did not think the factors in s 192 were relevant in the case.
At one point, the following exchange took place:
HIS HONOUR: But what I am trying to suggest to you is this, and it’s – I suppose it’s a fairly self-evident proposition, or ought to be. The mere fact that the witness has made a prior inconsistent statement does not justify the grant of leave …
HIS HONOUR: --- but (a) and (c) are relevant and you need more than just simply the fact that the evidence is unfavourable. You need more than the fact that the witness has given a prior inconsistent statement.
MS JONES: Yes, well I don’t – I don’t have it.
HIS HONOUR: And you don’t have it.
The Director submits that the trial judge erred in law in considering whether to grant leave under s 38(1) of the Evidence Act in that he required the prosecution to show that the witness was unwilling to tell the truth. In other words, he imposed a requirement relevant to the common law principles dealing with hostile witnesses, but not relevant to an application under s 38 of the Evidence Act.
The trial judge was satisfied that Ms Cooke’s evidence fell within the terms of s 38(1)(a). In other words, he was satisfied that Ms Cooke’s evidence was unfavourable to the prosecution. The trial judge was also satisfied that Ms Cooke’s statement made on 8 October 2006 was a prior inconsistent statement within s 38(1)(c). The trial judge did not address the factors in s 38(6). He said, in the course of the second exchange, that the factors in s 192 were not relevant. Precisely what he meant by this is not entirely clear. At all events, he did not address the factors in s 192(2). The trial judge appears to have proceeded on the basis that he was not at the stage of considering the discretionary factors relevant to whether to grant leave because a necessary element to a successful application under s 38 of the Evidence Act was not present. The prosecution submitted that the necessary element imported into the exercise by the trial judge was the common law requirement of an unwillingness to tell the truth or at least the whole truth. That may be so, or it may be that the trial judge had in mind a variation of the common law requirement such as a motive in the witness or a reason for the witness to give untruthful evidence. It does not matter which of these alternatives is correct. Either way, the trial judge has imported into s 38 a requirement (as distinct from a relevant factor in a particular case) that is not justified by the terms of the section.
The questions of law
At common law, a party calling a witness will be permitted to cross-examine that witness only where the court has declared the witness hostile. Uncertainty as to the nature of the permissible cross-examination was settled by statutory intervention (see, for example, Evidence Act 1958 (Vic), s 34; Evidence Act 1929 (SA), s 27). At common law, a witness was hostile where the court determined that he or she was determined not to tell the truth or was desirous of not telling the truth, or at any rate the whole truth: R v Hayden and Slattery [1959] VR 102 (“R v Hayden and Slattery”). It is not necessary for the party seeking a declaration of hostility to show a particular motive in the witness. In R v Hayden and Slattery, Sholl J said (at 102):
But there need not, I think, when one reflects on the matter, be shown to exist a sympathy for the other side, or a desire that the party calling the witness shall fail. The witness may have no precise desire or intention, or at all events the Court may not be prepared to find that he has any precise desire or intention, about the fate of the litigation; yet on the other hand it may appear clearly enough that the witness is determined not to tell the truth, or is desirous of not telling the truth, or at any rate the whole truth.
It may be the court is satisfied, or that the court suspects, that such attitude proceeds from motives which relate to the witness’s own position rather than any desire that the party calling that witness shall fail in the current proceedings.
At common law, the onus was on the party seeking a declaration of hostility to prove that a witness was not desirous of telling the truth or at any rate the whole truth, rather than the court needing to be satisfied that the witness was desirous of telling the truth; McLellan v Bowyer (1961) 106 CLR 95 (“McLellan v Bowyer”) at 104 per Dixon CJ, Kitto and Taylor JJ. A declaration of hostility may be made having regard to the witness’s demeanour or the fact that the witness has made previous inconsistent statements or any other factor: McLellan v Bowyer at 103 per Dixon CJ, Kitto and Taylor JJ.
Section 38 of the Evidence Act was intended to effect a significant change to the common law principles. That appears clearly not only from the terms of the section, but also from the Australian Law Reform Commission reports which preceded its enactment.
The Court was given extracts from the Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 1, and the Australian Law Reform Commission, Evidence, Report No 38, (1987). I have also had the benefit of reading the reasons for judgment of Heydon JA in R v Le (2002) 54 NSWLR 474, where his Honour sets out a number of extracts of the Australian Law Reform Commission reports and traces the history leading up to the enactment of s 38 of the Evidence Act.
In the material to which I have referred, the point is made that the strictness of the common law test means that the Court is sometimes deprived of useful evidence and sometimes evidence which should be tested is not tested. In the reports, there is also a discussion of the difficulties associated with the common law test including the judge having to form a view as to a witness’s credibility before all the evidence is before the Court. It was proposed to abolish the law relating to “hostile” witnesses. A party should be able to cross-examine a witness as to a prior inconsistent statement subject to the leave of the Court. There is discussion about the extent to which cross-examination should be permitted, particularly cross-examination as to credit, and the time or stage at which such cross-examination takes place. A proposed clause 41, which is in quite different terms to s 38, is discussed. The proposed clause 41 is set out in the reasons for judgment of Heydon JA in R v Le (2002) 54 NSWLR 474 (at 485 [64]).
There is no doubt that s 38 was intended to, and does, relax the common law principles as to the circumstances in which a party may cross-examine his or her own witness.
A number of issues concerning the proper construction of s 38 of the Evidence Act and its New South Wales equivalent (Evidence Act 1995 (NSW), s 38) have been discussed in the authorities. Not all of the issues have been the subject of authoritative determination. One of the most difficult issues is the meaning of “unfavourable” in s 38(1)(a). In R v Souleyman (1996) 40 NSWLR 712, Smart J gave the word a broad meaning. His Honour said (at 715):
The word ‘unfavourable’ in s 38(1)(a) does not mean ‘adverse’. It means ‘not favourable’. That construction could have wide ranging ramifications but the Court is given a discretion and would carefully examine the circumstances to see how the discretion should be exercised. A far fetched example would be if a witness said he could not remember something that happened three years ago. The discretion is important and designed to prevent any form of abuse in the administration of the more liberal test of ‘unfavourable’.
The Law Reform Commission noted that the previous rule had excluded a lot of useful testimony. Where, as here, there is a prior statement and the witness in significant respects does not come up to that statement, his evidence is ‘not favourable’ in that respect. The question of discretion then arises.
Adams J was more circumspect in R v Pantoja [1998] NSWSC 565. His Honour said:
It seems to me that some attention will need to be given in due course to the meaning of ‘unfavourable’ so far as the Crown case is concerned. The Crown case is, in essence, the truth, wherever that might lead and even if it leads to a reasonable doubt about guilt. I am far from persuaded that merely because a witness declines to give evidence supporting the theory of the facts for which the prosecution contends or, indeed, gives evidence that contradicts that theory or contention, his or her evidence may thereby be regarded as ‘unfavourable’. How can truthful evidence ever be ‘unfavourable’ from the Crown’s point of view? In the circumstances of this case, however, there were good reasons for concluding that, if not untruthful (and I do not think that this was ever suggested in the sense of being deliberate) the evidence of the witness as adduced by the cross-examination was doubtful, even if (by parity of reasoning) the evidence adduced in chief by the Crown was also doubtful.
The New South Wales Court of Appeal in Klewer v Walton [2003] NSWCA 308 drew a distinction between unfavourable evidence and evidence which is neutral (Hodgson JA at [20] with Meagher JA agreeing at [30]).
The plurality (Gleeson CJ, McHugh, Kirby and Hayne JJ) in Adam v The Queen (2001) 207 CLR 96 (“Adam”), expressed a provisional view as to some circumstances which may fall within the meaning of unfavourable in s 38(1)(a). Their Honours said (at 106 [27]):
Given that the witness had made prior inconsistent statements, there is no doubt, then, that pars (b) and (c) of s 38(1) were satisfied. It is not necessary in those circumstances to consider whether par (a) was also met. There appears much to be said, however, for the view that to give evidence which at best, is unhelpful to the party calling it, and to do so without ‘making a genuine attempt to give evidence’, is to give evidence ‘unfavourable’ to that party.
One can anticipate that similar issues may arise in relation to s 38(1)(c). In other words, different views may be expressed as to the circumstances in which it can be said that a witness has given evidence inconsistent with a prior statement made by him or her. Those issues do not arise here because the trial judge was satisfied that the requirements of each of paras (a) and (c) of s 38(1) were satisfied.
A question arises as to the role played by paras (a), (b) or (c) of s 38(1) in determining whether leave should be granted. The structure of the section is such that paras (a), (b) or (c) are the matters about which the Court may give leave to cross-examine. Nevertheless, the Court must be satisfied that one or more of them is present before the question of leave is considered. In other words, one or more of them is a necessary element of an application for leave under s 38(1). The extent to which they then bear on whether or not leave is granted is, it seems, a matter to be resolved. I note that in Adam, Gaudron J said (at 115 [62]):
Nor in my view, does the fact that the cross-examination will satisfy the requirements of pars (a), (b) or (c) of s 38(1) bear on the grant of leave. As already indicated, those paragraphs specify and, thereby, limit the matters as to which cross-examination may be permitted. They do not specify the matters by reference to which it is to be decided whether or not leave should be granted. To a limited extent – but only to a limited extent – that function is performed by ss 38(6) and 192(2) of the Act.
Again, that issue does not arise here because the trial judge was satisfied that the requirements of paras (a) and (c) of s 38(1) were satisfied and he did not go on to consider the factors relevant to whether or not leave should be granted.
The matters which are relevant to the question whether leave should be granted are identified in the Evidence Act and have been discussed in the authorities. They are the matters identified in s 38(6), s 192(2) and, in an appropriate case, the discretions in s 135 and s 137. This is not an exhaustive list of the relevant matters.
In R v Le [2001] NSWSC 174, McClellan J said (at [21]):
Before granting leave under s 38, the Court is required to have regard to the provisions of s 192 of the Evidence Act. Section 192, without limiting the matters which the court is required to consider, requires the court to take into account, in particular, in deciding whether to give leave, the extent to which to do so would be unfair to a party or to a witness (s 192(2)(b)) and, furthermore, the importance of the evidence in relation to which the leave, permission or direction is sought (s 192(2)(c)).
In Adam, Gaudron J said (at 116 [65]):
To the extent that legislative provisions are silent as to the matters that may or must be taken into account in the exercise of a power of discretion – and to some extent ss 38(6) and 192(2) of the Act are silent in that regard – those matters must be ascertained from the subject matter, scope and purpose of the statute itself. That, however, is not an entirely fruitful exercise in the case of legislation designed to codify the rules of evidence. Rather, it seems to me that the primary consideration in determining whether leave should be granted to a party to cross-examine its own witness should be the legal character of the evidence which it is sought to elicit.
(Citations omitted.)
Other issues have arisen in the authorities. In the circumstances of this case, I need do no more than identify them. An issue has arisen about the scope of the cross-examination for which leave has been given under s 38(1) (see R v Le (2002) 54 NSWLR 474 at 481 [55] et seq per Heydon JA). An issue has arisen as to the circumstances in which the Crown will be granted leave to cross-examine a Crown witness where the unfavourable aspect of the witness’s evidence does not emerge until cross-examination.
In this case, the trial judge was satisfied that the requirements of paras (a) and (c) of s 38(1) were satisfied. In my respectful opinion, the trial judge erred in law in not then proceeding to consider the factors relevant to whether he should grant leave under the section including those set out in s 38(6) and s 192(2) of the Evidence Act. In my respectful opinion, the trial judge erred in law in imposing, as a necessary element of a grant of leave, a requirement that there be evidence of a motive or reason for the witness to give untruthful evidence.
Conclusion
For the reasons I have given, the questions of law should be answered as follows:
1. In making an application under subsection 38(1) of the Evidence Act 1995 (Cth), is the Crown required to show more than the existence of one or other of the factors set out in paragraphs 38(1)(a), (b) and (c) of this said Act before the Court can consider exercising its discretion whether to grant leave?
Answer: No
2. In determining whether to grant leave under subsection 38(1), should the Court have regard to the matters set out in subsection 38(6), and s 192 of the said Act, amongst other matters?
Answer: Yes
I certify that the preceding paragraphs numbered five to forty-four (5-44) are a true copy of the Reasons for Judgment herein of his Honour, Justice Besanko.
Associate:
Date: 13 November 2009
Counsel for the Applicant: Mr J White
Solicitor for the Applicant: Director of Public Prosecutions (ACT)
Counsel for the Interested Party: Mr S Whybrow
Date of hearing: 19 February 2009
Date of judgment: 13 November 2009
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