Criminal law and procedure - Evidence - Complainant cross-examined about an inconsistency between her evidence and a previous statement recorded by examining doctor - Complainant denied previous statement - Doctor had previously given her evidence - Whether doctor should have been allowed to be recalled for further cross-examination or whether defence counsel should have been permitted to call doctor to testify on behalf of the appellant - Whether statement "relative to the subject-matter of the proceeding"

Legislation:

Evidence Act 1906 (WA) s 21

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr M R Gunning
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Gunning
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Attorney General v Hitchcock (1847) 1 Exch 91; 154 ER 38 (Ex)
Bannister v The Queen (1993) 10 WAR 484
Cheney v The Queen (1991) 99 ALR 360
Fernando v The Queen [2000] WASCA 289
Natta v Canham (1991) 104 ALR 143
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533
R v Funderburk [1990] 1 WLR 587
R v Funderburk [1990] 2 All ER 482
R v Hart (1957) Cr App R 47
R v Trotter (1977) Tas SR 133 (N C 7)
R v Viola [1982] 3 All ER 73
Smith v The Queen (1993) 9 WAR 99

Case(s) also cited:

Brown v Petranker (1991) 22 NSWLR 717
R v Miletic [1997] 1 VR 593
Re Ratten [1974] VR 201
Suresh v The Queen (1998) 72 ALJR 769
T v The Queen [2000] WASCA 153

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J, with which I am generally in agreement. I desire only to make some brief observations.
Section 21 of the Evidence Act 1906 relevantly provides:
"Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it."
In this section, the word "relative" means "relevant" - see R v Hart (1957) Cr App R 47, R v Trotter (1977) Tas SR 133 (N C 7) and R v Funderburk [1990] 1 WLR 587.
The complainant's allegations, as Dr J Payne recorded them, were as follows:
"[The complainant] said that about 22 hours earlier she had been physically and sexually assaulted. She stated that she had been pulled from a car, so that her head…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Narkle v The Queen

Details

AGLC: Narkle v The Queen [2001] WASCA 31
Case: [2001] WASCA 31
Decision Date: 16 FEBRUARY 2001

CaseChat Overview and Summary

The case of Narkle v The Queen involved the appellant, Narkle, who was on trial for criminal charges. The central issue in this case was the handling of a potential inconsistency between the complainant's testimony and a prior statement made to an examining doctor. The complainant denied the prior statement during the trial. The examining doctor had already provided evidence during the trial, and the defence sought to either recall the doctor for further cross-examination or call the doctor as a witness on behalf of the appellant. The core legal question was whether the doctor should have been permitted to be recalled for further cross-examination or whether the defence should have been allowed to call the doctor to testify directly.

The court examined the rules governing the recall of witnesses and the admissibility of evidence relative to the subject-matter of the proceeding. It considered whether the doctor's testimony could have been relevant and necessary to clarify the inconsistency between the complainant's current testimony and her previous statement. The court weighed the procedural fairness to the appellant against the potential prejudice to the complainant if the doctor was recalled or called by the defence. It concluded that the doctor's evidence was indeed relevant and critical to addressing the inconsistency in the complainant's testimony, thereby impacting the appellant's defence.

Ultimately, the court found that the trial judge should have either recalled the doctor to clarify the inconsistency or allowed the defence to call the doctor to testify. This decision was based on the importance of the doctor's evidence in relation to the subject-matter of the proceeding. Consequently, the court held that the trial was unfair due to the misapplication of the rules concerning the admissibility and recall of witnesses. This led to the quashing of the appellant's conviction.

Orders