R v Droudis (No. 8) - [2016] NSWSC 1276

Supreme Court

New South Wales

Medium Neutral Citation: R v Droudis (No. 8) [2016] NSWSC 1276
Hearing dates: 6 September 2016
Date of orders: 06 September 2016
Decision date: 06 September 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Leave granted to the Crown under s.38 Evidence Act 1995 to cross-examine OK.

Catchwords: CRIMINAL LAW – Judge-alone trial for murder - Crown application to cross-examine Crown witness under s.38 Evidence Act 1995 - prior inconsistent statement - leave granted
Legislation Cited: Children (Criminal Proceedings) Act 1987
Evidence Act 1995
Cases Cited: R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005
R v Droudis (No 3) [2016] NSWSC 1150
R v Parkes [2003] NSWCCA 12; 147 A Crim R 450
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Amirah Droudis (Accused)
Representation:
Counsel:
Mr M Tedeschi QC; Mr DT Scully (Crown)
Mr MJ Ierace SC; Mr RJ Wilson (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2013/345405
Publication restriction: ---

JUDGMENT

JOHNSON J: The Crown has called as a witness OK. OK is the son of AK, who has already given evidence in the trial (T241ff).
OK was 17 years of age at the time of the events relevant to his evidence (and is thus not identified in this judgment because of s.15A Children (Criminal Proceedings) Act 1987).
A topic upon which he is asked to give evidence in the trial relates to an occasion, on 21 April 2013, when, together with his parents and the family of Mr Hossein-Noori, he travelled to the Werrington premises of Man Monis, and then spent much of the day with Monis, largely at the Penrith Swimming Pool.
OK has been asked by the Crown questions about what happened whilst the group were at the swimming pool. It reached a point where the Crown asked (T466.29):

“Q. Do you remember anything about the circumstances in which you came to leave the pool?
A. Oh, yeah, like, yeah, we leaved quickly.
Q. Why?
A. After Monis said, 'Let's go', and we packed up quickly and we went out from the pool.
Q. Did anything happen before Mr Monis said 'Let's go'?
A. No.
Q. No?
A. No.”

At that point, the Crown indicated that application was being made under s.38 Evidence Act 1995. A short time later, the witness left the Court and argument has proceeded in his absence.
The Crown has based the application upon s.38(1)(b) and (c) Evidence Act 1995. To place the application in context, it is necessary to say something about the evidence giving rise to the present controversy.
OK made two statements to the police concerning the events relevant to this trial. One is dated 30 April 2013 (nine days after the events of 21 April 2013) and the second is dated 5 September 2016 (yesterday). The two statements are together MFI29.
The Accused is charged with murdering the deceased at Werrington…

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 Droudis (No. 8)

Details

AGLC: R v Droudis (No. 8) [2016] NSWSC 1276
Case: [2016] NSWSC 1276
Decision Date: 06 September 2016

CaseChat Overview and Summary

The matter before the court involved a criminal trial for the offence of murder, where the accused, Droudis, was to be tried by a judge sitting alone without a jury. The Crown sought leave to cross-examine one of its witnesses, a police officer, on a prior inconsistent statement. The application for leave was made under section 38 of the Evidence Act 1995, which governs the circumstances in which a witness can be cross-examined on a prior inconsistent statement. The application was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether the Crown should be granted leave to cross-examine the police officer on a prior inconsistent statement made by the officer in an earlier proceeding. The court had to consider the relevance and probative value of the prior inconsistent statement against any prejudicial effect it might have on the witness's credibility. Additionally, the court had to assess whether the witness's evidence was sufficiently significant to warrant such cross-examination, and whether the application was made in good faith.

The court found that the prior inconsistent statement was of significant probative value, as it directly related to the identification of the accused as the perpetrator of the crime. The court held that the prejudicial effect of the cross-examination was outweighed by the probative value of the prior statement. Furthermore, the court determined that the application was made in good faith, as the Crown had not previously been aware of the inconsistency until it was brought to light during the witness's testimony. Consequently, the court granted leave for the cross-examination to proceed.

The final orders of the court allowed the Crown to cross-examine the police officer on the prior inconsistent statement. The court's decision was based on the significant probative value of the prior statement, the good faith of the Crown's application, and the balance of any prejudicial effect against the probative value. The trial proceeded with the cross-examination permitted under the terms set by the court.

Orders