R v Colless (No 2)
[2016] NSWSC 932
•22 June 2016
Supreme Court
New South Wales
Medium Neutral Citation: R v Colless (No 2) [2016] NSWSC 932 Hearing dates: 22 June 2016 Decision date: 22 June 2016 Jurisdiction: Common Law Before: Button J Decision: I propose to permit the Crown prosecutor to cross-examine the witness about the seeming contradiction between what he said in the witness box a moment ago, and what he said on the voir dire less than an hour ago.
Catchwords: CRIMINAL LAW – EVIDENCE – Crown application to cross-examine witness pursuant to s 38 of the Evidence Act 1995 (NSW) – prior inconsistent statement made in evidence on the voir dire – consideration of factors in s 192 of the Evidence Act 1995 (NSW) – application relevant to leave granted Legislation Cited: Evidence Act 1995 (NSW), ss 38, 137, 192, 192(2)(a), 192(2)(b), 192(2)(c), 192(2)(d), 192(2)(e) Category: Procedural and other rulings Parties: Regina
Jack Vincent CollessRepresentation: Counsel:
Solicitors:
B Campbell (Crown)
B Rigg SC (Accused)
Office of the Director of Public Prosecutions (Crown)
Mandy Hull & Associates (Accused)
File Number(s): 2014/124804
ex tempore Judgment
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To state the problem that has arisen in a nutshell, on the voir dire it is accepted that, when he was cross-examined by defence counsel, the Crown witness Mr Harris said that after the alleged incident at the KFC he heard the accused on the phone, and he heard the accused use the phrase “sort it out”. That evidence was given by Mr Harris on oath less than an hour ago.
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When he was asked about that In front of the jury, his position was that he could not recall any particular words that were said.
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It is accepted by defence counsel that the situation that has arisen falls within at least one of the “legs” of s 38 of the Evidence Act 1995 (NSW). But she has submitted that, if I look to the “leave factors” contained in s 192 of the same Act, I would not grant leave.
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Secondly, in light of the fact that the witness (who, in the past at least, had a reasonably close association with the accused’s family) has referred to his own use of a notorious prohibited drug, any attempt by her to cross-examine the witness about this seeming contradiction could give rise to further potential prejudice to her client.
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I think that, in the main, the “leave factors” in s 192 militate in favour of a grant of leave.
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I say that because, with regard to factor s 192(2)(a), the questions could be asked by the Crown in a matter of seconds.
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Secondly, it has been clear that for quite some time Mr Harris may well say something to this effect, and I do not think that the evidence, especially bearing in mind its exploration on the voir dire, would be unfair to the accused, if it were led in this way: s 192(2)(b).
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Thirdly, I understand this evidence to be important and to be accepted by defence counsel to be important, in that, assisted as I am by the openings which were received yesterday, it seems that this alleged campaign of harassment and the accused’s alleged responses to it before the fatal incident will be important with regard to a number of issues, not least voluntariness, possibly intention for murder, and seemingly self-defence: s 192(2)(c).
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Fourthly, the nature of the proceeding, bearing in mind its gravity, I think argues in favour of a fuller, rather than less full, exploration of evidence: s 192(2)(d).
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Finally, in the circumstances, I do not think that adjourning this hearing or making any other order is a reasonably practical way forward: s 192(2)(e).
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I think there is some force in the proposition that possibly repeated references to prohibited drugs by Mr Harris could occasion prejudice to the accused. But that possibility, to my mind, should not stand in the way of the Crown application being granted: s 137 of the Evidence Act.
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Accordingly, I propose to permit the Crown prosecutor to cross-examine the witness about the seeming contradiction between what he said in the witness box a moment ago, and what he said on the voir dire less than an hour ago.
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Decision last updated: 05 July 2016
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