R v Carberry (No 2) - [2023] NSWSC 137

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Carberry (No 2) [2023] NSWSC 137
Hearing dates: 23 February 2023
Date of orders: 23 February 2023
Decision date: 23 February 2023
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) Leave granted under s 38(1) of the Evidence Act 1995 (NSW).
(2) Leave refused under s 38(3) of the Evidence Act 1995 (NSW).

Catchwords:
CRIMINAL LAW – evidence – leave to cross-examine – evidence unfavourable to prosecution – evidence inconsistent with previous statements – witness not making genuine attempt to give evidence of things of which she was aware in earlier interviews – leave granted
CRIMINAL LAW – evidence – leave to cross-examine – credibility evidence – where witness speaks to accused as she left court – where solely referrable to her credibility – leave refused

Legislation Cited:
Evidence Act 1999 (NSW), ss 37(1)(c), 38(1)(a), 38(1)(b), 38(1)(c)

Cases Cited:
Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325

Category: Procedural rulings
Parties: Rex (Crown)
Saimone (Simon) Carberry (Defendant)
Representation:
Counsel:
K Ratcliffe (Rex)
T D Anderson SC (Carberry)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Styles Law Solicitors (Carberry)

File Number(s): 2020/335222

EX TEMPORE JUDGMENT (REVISED)

An application is made pursuant to s 38 of the Evidence Act 1999 (NSW) in relation to the current witness, Tearna O’Hanlon. The application is not, insofar as it relates to particular subject areas and the provision in s 38(1), opposed. The concession made by Mr Anderson SC is well founded.
The witness has given evidence unfavourable to the prosecution who calls her: see s 38(1)(a). That includes stepping back from, or away from, things she said in her recorded police interviews and, in particular, whether there was a joint criminal enterprise to rob Mr Mousawi (the deceased) of his car, and whether she involved herself in that enterprise by sending text messages at the behest of the accused, Mr Carberry.
There are also matters which fall under s 38(1)(b), matters of which she might reasonably be supposed to have knowledge and, indeed, did have knowledge according to what she told police, and in relation to which she appears not to be making a genuine attempt to give evidence. My observation is that that is clearly the case in respect of a number of topics and issues; such as whether and when she saw a knife, whether and when she saw the keys of the car that was supposed to be subject to the robbery, and the whole interaction between her and “the two boys”, being Mr Carberry and Mr Honeysett, in terms of the lead up to the alleged robbery.
She also volunteered for the first time today, as I understand it and accepting what the Prosecutor puts to me, that she was drug affected at the time of the interview. Her words were “I was drug intoxicated when my statements were taken.”
There are also a number of subject matters where her evidence today,…

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 R v Carberry (No 2)

Details

AGLC: R v Carberry (No 2) [2023] NSWSC 137
Case: [2023] NSWSC 137
Decision Date: 23 February 2023

CaseChat Overview and Summary

The case of R v Carberry (No 2) involved a defendant charged with various criminal offences. The nature of the dispute centred around the admissibility and credibility of certain evidence provided by a key witness, particularly in relation to the leave to cross-examine. The matter was heard in the Supreme Court of Victoria. The legal issues before the court included whether the defendant should be granted leave to cross-examine a witness regarding evidence that was unfavourable to the prosecution and whether the witness had made a genuine attempt to give evidence of matters of which she was aware in earlier interviews.

The court considered whether the defendant should be allowed to cross-examine the witness on evidence that was both unfavourable to the prosecution and inconsistent with her previous statements. The court found that the witness had not made a genuine attempt to give evidence of things of which she was aware in earlier interviews, leading to the conclusion that leave to cross-examine on this point should be granted. On the other hand, the court declined to grant leave for cross-examination regarding a matter that solely referred to the witness's credibility, specifically an incident where the witness spoke to the accused as she left the courtroom. The court reasoned that such an incident was directly related to the witness's credibility and did not pertain to the substance of her evidence.

The Supreme Court of Victoria granted the defendant leave to cross-examine the witness on the evidence that was inconsistent with her earlier statements, while refusing leave to cross-examine on the incident involving the witness speaking to the accused outside the courtroom. This decision underscores the importance of the relevance and materiality of the proposed cross-examination to the witness's credibility and the substance of their evidence. The final orders of the court were in line with its reasoning, ensuring that the trial proceeded with a balanced consideration of the admissibility and credibility of the evidence presented.

Orders