R v Corp and Hewitt - [2011] NTMC 3

CITATION: R v Corp & Hewitt [2011] NTMC 003
PARTIES: R

V
Joseph Patrick Hewitt, Wade Hewitt and Cameron Corp

TITLE OF COURT:   Court of Summary Jurisdiction
JURISDICTION:   Northern Territory
FILE NO(s):   21017610, 21017609, and 21017608
DELIVERED ON:   28 January 2011
DELIVERED AT:   Darwin
HEARING DATE(s):   16, 17, 18 November 2010
JUDGMENT OF:   Morris SM
CATCHWORDS:

CRIMINAL LAW -- EVIDENCE --DISCRETION TO EXCLUDE -- FAIRNESS --RECALL OF CROWN WITNESS TO RE-ESTABLISH CREDIT
REPRESENTATION:
Counsel:
Informant: Ms Armitage
Defendants: Mr Elliott
Mr Johnson
Mr Berkley

Solicitors:
Informant:   ODPP
Defendants:
Judgment category classification:       B
Judgment ID number:   [2011] NTMC 003
Number of paragraphs:   19

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21017610, 21017609, 21017608
BETWEEN:

R

Informant

AND:

Joseph Patrick Hewitt, Wade Hewitt and Cameron Corp

Defendants

REASONS FOR DECISION
(Delivered 28 January 2011)
Ms MORRIS SM:

Mrs Susan Anne Melhuish gave evidence in this hearing on 17 November 2010. She was called to give evidence by Counsel for the Crown and recounted events relating to the criminal charges to which the three defendants have pleaded not guilty.
Mrs Melhuish gave her evidence in chief, was cross examined and was released from the court.
The next day Counsel for the Crown applied to the court to recall Mrs Melhuish in order to re-examine her on matters raised in cross examination. During her cross examination, Mrs Melhuish was asked questions about a phone call that she made to police at the time of the alleged offences. This call was made on the 000 emergency number.
The application to recall Mrs Melhuish is in order to play a recording of the 000 call and for her to identify her voice and confirm the content of the conversation.
During her cross examination Mrs Melhuish’s credit was attacked in relation to her recall of the events in question, her own actions during the events, as well as in her recollection of what she told police during the 000 call. Defence counsel put to her that her evidence given in court about that call was not consistent with a version recorded in a document (not tendered in evidence) that had been provided to them by the Crown on the morning of the evidence. That document was taken from the police computer system (Promis) and I am told was the 000 call taker’s summary or notes of the conversation. It did not purport to be a transcript of the call.
It was also put to Mrs Melhuish that what she told the police in the 000 call was incorrect. “I suggest to you that what you told the police was really something that you had made up, that there wasn’t this period that anguish that was in your mind, this wasn’t this urgency, and that you made all this information up?”[1]
Ms Armitage for the Crown, in her application to recall Mrs Melhuish submitted that “the content of the conversation is different to that which was put to her in…

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 Corp and Hewitt

Details

AGLC: R v Corp and Hewitt [2011] NTMC 3
Case: [2011] NTMC 3
Decision Date: 28 January 2011

CaseChat Overview and Summary

In the case of R v Corp and Hewitt, the defendants, Joseph Patrick Hewitt, Wade Hewitt, and Cameron Corp, were on trial in the Court of Summary Jurisdiction in the Northern Territory for various criminal charges. The primary issue before the court was whether the Crown could recall a witness, Mrs Susan Anne Melhuish, to re-establish her credibility after her testimony had been challenged during cross-examination. The defendants opposed the recall, arguing that it would be unfair, as they had based their cross-examination on a document they were given by the Crown, which they believed to be an accurate summary of Mrs Melhuish's 000 call to the police.

The court held that a trial judge has the discretion to allow the recall of a witness, especially where the witness's credibility has been the subject of cross-examination. The court determined that the purpose of recalling Mrs Melhuish was not to bolster her credibility but to restore it, which is a legitimate reason for re-examination. The court also found that the document provided to the defendants by the Crown was merely a set of notes taken by the call operator and did not purport to be a transcript. It was open to the defendants to seek the actual recording if they wished to challenge the content more thoroughly.

Ultimately, the court ruled in favour of allowing the recall of Mrs Melhuish, stating that the defendants' reliance on the document for their cross-examination was at their own risk. The court did not find the situation to be one where the defendants' procedural rights had been eroded, and thus the principle of fairness did not apply to prevent the recall. The court acknowledged that the defendants had the opportunity to call for or subpoena the recording and apply for an adjournment if necessary.

Orders