R v Garland (No 2)

[2023] NSWSC 1381

Supreme Court

New South Wales

Medium Neutral Citation:	R v Garland (No 2) [2023] NSWSC 1381
Hearing dates:	25 October 2023
Date of orders:	25 October 2023
Decision date:	25 October 2023
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Leave granted under s 38(1) of the Evidence Act 1995 (NSW), subject to caveats at [5].
Catchwords:	CRIMINAL LAW – evidence – leave to cross-examine – DPP conference notes disclosed – cross-examination on conference notes – forensic minefield skilfully negotiated – unfavourable witness – where conference notes suggest witness partisan in favour of the accused – whether leave required – relevant unfairness – order of cross-examination by accused and prosecutor – where previous grants of leave to cross-examine – possible misunderstanding as to the extent of earlier grant of leave to cross-examine – orders and directions capable of alleviating unfairness
Legislation Cited:	Evidence Act1995 (NSW), ss 32, 38(1), 38(1)(a), 38(1)(b), 38(1)(c), 38(3), 101A, 102, 103, 104, 192(2), 192(2)(a), 192(2)(b), 192(2)(c), 192(2)(d)
Cases Cited:	Odisho v The Queen (2018) 271 A Crim R 325; [2018] NSWCCA 19
Category:	Procedural rulings
Parties:	Rex Stephen Garland
Representation:	Counsel: B Hatfield SC and R Meagher (Rex) T Hughes (Garland) Solicitors: Solicitor for Public Prosecutions (NSW) (Rex) SANS Law (Garland)
File Number(s):	2021/00356964
Publication restriction:	The witness’ name has been redacted to comply with non-publication orders made on 10 October 2023.

Judgment

1. On Wednesday 25 October 2023, the 10^th day of Mr Garland’s murder trial, I made a ruling concerning the boundaries of re-examination of a witness, [redacted]. [1] In announcing the decision, I provided an ex-tempore explanation for the ruling, allowed the Prosecutor to cross-examine on the main statement over which objection was taken, and set out the limits on the permission granted to the Prosecutor to re-examine the witness. I indicated that I would provide full reasons later but for transparency I gave an overview of my thought process and the matters I took into account in permitting the Prosecutor to (further) cross-examine the witness about a statement that she made in a conference with the prosecution legal team. That statement was to the effect that she was not prepared to give evidence that might hinder Mr Garland in his defence. These are my fuller reasons for the rulings I made last Wednesday.

   1. A non-publication order has been made in relation to the identity of the witness.

The rulings

2. The Prosecutor raised the issue before he commenced to re-examine the witness. He sought to put to the witness the contents of a conference note dated 28 September 2023 in which she told the prosecution legal team:

“[Steve Garland] is one of my best friends and I won’t be saying anything that will hinder his defence.” [2]

2. The conference notes, dated 28 September 2023 and 23 October 2023, became MFI 31.

3. The Prosecutor sought then to put to the witness that her friendship with the accused explained inconsistencies between her evidence and the statement she provided to police on 20 January 2022 as well as her failure to give evidence that she perceived to be against his interests.

4. Mr Hughes objected to the Prosecutor putting this statement to the witness, and the consequential cross examination, essentially on two bases. First, leave had already been granted to the Prosecutor to cross-examine the witness while she was giving her evidence-in-chief and this matter had not been put to her. Secondly, the proposed cross-examination, in the way it was put in argument and in light of Mr Hughes’ cross-examination, had the capacity to diminish Mr Hughes’ credibility as counsel for Mr Garland in the eyes of the jury. This was because he had cross-examined extensively on the note but had failed to put this part of the note to the witness.

5. I ruled that the Prosecutor would be permitted to put the substance of the note to the witness with the following caveats:

1. The matter must not be put in such a way that the author of the conference note may become a witness in the trial;

2. Mr Hughes would have the right to seek to ask further questions in cross-examination after the re-examination; and

3. The matter was to not be put in such a way that might suggest Mr Hughes had breached any ethical obligations in failing to raise the matter when he cross-examined the witness on the conference note.

Relevant considerations and reasons

The context in which leave was sought

6. The application fell to be considered in the light of rulings that had been made during the witness’s evidence-in-chief. She had made a statement to police on 20 January 2022. [3] During her evidence-in-chief, the witness failed to give evidence in accordance with parts of that statement. This included material within paragraphs [24], [25] and [33].

   3. MFI 28.

7. The Prosecutor made an application under s 38(1) of the Evidence Act1995 (NSW) to cross-examine the witness on those parts of her statement. [4] I was not satisfied, at that stage, that any of the criterion in subparagraphs (a), (b) or (c) of s 38(1) was satisfied and concluded that the first step should be to grant leave under s 32 to allow the witness to attempt to revive her memory by reference to the police statement.

   4. Tcpt, 24 October 2023, pp 695-697.

8. Once she was shown her statement, the witness gave diverse evidence concerning the different paragraphs of her statement:

• As to paragraph [24], concerning whether the accused had asked her whether she had heard news of the Stockton murder, the witness seemed to accept that this had been said but the evidence did not emerge in a coherent way.

• As to paragraph [25], relating to whether the accused said he saw a gun when [Mr Hawkins] returned to the car, the witness said seeing the statement assisted her memory but went on to deny the contents of the paragraph.

• As to paragraph [33], relating to a conversation about Mr Garland’s concern that there was gun residue in his car, the witness (in my assessment) obfuscated in responding to the questioning.

9. At that stage, the Prosecutor renewed his application under s 38. Mr Hughes opposed the application in certain respects. I concluded that the witness was not making a genuine attempt to give evidence in relation to certain parts of the evidence, had made a prior inconsistent statement in relation to another part of her evidence, and was “unfavourable” in the sense that her evidence was inconsistent with other evidence in the case and the inferences the Prosecutor sought to draw from that other evidence.

10. I granted leave to cross-examine under s 38(1) [5] but indicated “I’m not granting leave at this stage to cross-examine on her credibility under subs 6”. [6] The reference, on my part, to s 38(6) was a mistake. I meant to say, and should have said, that I was not granting leave under s 38(3) which provides:

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

5. See R v Garland [2023] NSWSC 1380.

6. Tcpt, 24 October 2023, pp 704-705.

11. The separate considerations arising in relation to grants of leave under ss 38(1) and 38(3) were considered in Odisho v The Queen (2018) 271 A Crim R 325; [2018] NSWCCA 19.

12. Following some further cross-examination pursuant to the grant of leave pursuant to s 38(1), the Prosecutor (in the absence of the jury) sought further leave to cross-examine on matters which went only to the witness’s credibility. It is relevant to set out that portion of the transcript:

“IN THE ABSENCE OF THE JURY

CROWN PROSECUTOR HATFIELD: Your Honour, sorry, I should note, witness saying she was on drugs and not in a state to make the statement et cetera, your Honour indicated I didn't have leave to go beyond the credit, but perhaps I should challenge that. There is a statement from the police officer dealing with that issue. I would call it from him, so I propose to, perhaps I would ask, seek leave to just put a further cross examination, just to put to the witness that she wasn't so affected at the time, and that's a false explanation. There's a statement from the officer, it's Murphy who took it. It was his view at the time that she wasn't under the influence of any such thing.

HUGHES: Can I have a copy of that if you've got a spare one?

CROWN PROSECUTOR HATFIELD: I'll show my learned friend.

HIS HONOUR: Sorry, so can I just confirm what exactly you're asking for? This is a subs (3) application, is it?

CROWN PROSECUTOR HATFIELD: I think it's 38. It's part of the s 38 challenge.

HIS HONOUR: Sorry, I misunderstood, and I think I misstated what I was not allowing earlier. What I was not allowing – I think I said, ‘Subs (6)’, and I meant subs (3) – matters relevant only to the witness' credibility. That seems to be what that is. When you say you wanted to challenge that, I take that to mean my ruling. I didn't understand that to be an application. I simply made it clear that's what I understood. Is there any objection to the prosecutor, given that she has really volunteered on multiple occasions that she was on drugs, that the police things, et cetera. Do you have a problem with cross examining on credibility issues?

HUGHES: No, not at all, your Honour. In view of the cross-examination I propose to embark upon, so no, I don't.

HIS HONOUR: You have leave to cross examine on matters going to credibility, including the way the statement came into existence and the things she volunteered in the witness box.

CROWN PROSECUTOR HATFIELD: I think I might have misunderstood the reference, the limitation earlier.

HIS HONOUR: No, it wasn't clear.”

13. The Prosecutor then asked a few brief questions in which he put to the witness that, contrary to her repeated assertion, she was not on drugs at the time she made her statement. He did not embark on a lengthy cross-examination on matters going exclusively to the witness’s credibility.

14. Mr Hughes cross-examined the witness at a little (quite appropriate) length. It was a forensic minefield skilfully negotiated. He used the conference notes (MFI 31) to some effect but did not, for obvious tactical reasons, take the witness to the part of the note set out above at [2].

The “order of things” [7]

7. Tcpt, 25 October 2023, p 755.

15. Mr Hughes’ first submission was that it would be unfair to allow the Prosecutor to put the statement to the witness after he had completed his cross-examination. He submitted “they had the opportunity cross-examine her, and it [was] a matter that they did not take up”, even though the note was, clearly enough, “available to the Crown”. [8] This submission receives some support in s 38(4):

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

8. Ibid p 753.

16. As I have said, the Prosecutor did have leave to cross-examine under subs (3), and that cross-examination took place before Mr Hughes cross-examined the witness. However, the particular subject of the witness’s “bias” and the reasons for that possible bias – as expressed in the conference note – was not explored. In the circumstances, there was force in Mr Hughes’ objection. The question became whether I should make a direction permitting this aspect of the proposed additional cross-examination, to occur after Mr Hughes had finished his cross-examination.

A clear exception to the credibility rule.

17. There is no doubt the proposed cross-examination is, subject to s 38, permissible as an exception to the credibility rule in ss 101A and 102 of the Evidence Act. It constitutes evidence adduced in cross-examination that “could substantially affect the assessment of the credibility of the witness”. [9] Even if the witness was a defendant, who receives additional protection under s 104, leave would not be required because it is evidence that shows the witness “is biased or has a motive to be untruthful”. [10]

    9. Evidence Act 1995 (NSW), s 103.

    10. Ibid s 104(3).

18. Again, the real issue is whether permission should be granted to cross-examine on the subject after the accused had concluded his cross-examination.

Cross-examination on the conference note on behalf of Mr Garland

19. As I have said, Mr Hughes cross-examined on the conference notes extensively and to some effect. This included (with my emphasis):

“Q. Was the next contact you had, in relation to giving evidence in Mr Garland's trial on 28 September 2023, when you had a conference by AVL with two members of the DPP, at the bar table here, and also [Ms Herringe]; the three lawyers before you?

A. If you could call it a conference, yes.

Q. Is it the fact that you expressed at that conference that you were not aware what the conference was about?

A. Yes.

Q. You hadn't been served with a subpoena?

A. Yes. That's correct. I hadn't been.

Q. You expressed at that AVL meeting that you didn't have a copy of your statement?

A. Correct.

Q. You told the people there you didn't want to give evidence and then you were told you would be required to; is that right?

A. That – at the end, yes.

Q. You said in that AVL meeting with the representatives of the Crown, or the DPP: ‘I don't remember what I said in the statement’; you told them that, didn't you?

A. Yes.

Q. You were told if you didn't want to speak to the representatives, you didn't have to, in that particular conference --

A. Yes.

Q. -- or that meeting, by AVL? In relation to the subject of you giving evidence, you said, ‘I'll need to get legal advice before that happens. I need to be given dates’; do you recall that?

A. I didn't say anything about dates, I just said I need – I wanted to get legal advice.

Q. I mean by dates, perhaps you were concerned about knowing the date you might be required to give evidence.

A. No, I was -- I didn't know what date I knew of another date, sorry. I was required somewhere else, and I just didn't know if it was going to clash, but I didn't - I don't think I mentioned that to them. I didn't mention that to the DPP. I didn't say anything about dates. I just wanted to get legal advice about giving evidence at all.

Q. What I want to suggest is that it was explained to you by one of the representatives of the DPP that there was going to be a pre-trial argument. The matter was listed for six weeks. Start on 9 October, so about five weeks following that, you will be at some stage in the middle. They were trying to indicate when it would be. Perhaps that you might be required. Do you recall that?

A. Maybe from the second week on, they said. Yeah.

Q. You said to them, ‘I really don't think I can help. I was under the influence of drugs and it was some time ago,’ didn't you?

A. Yes.

Q. You indicated that you didn't have a lawyer?

A. Correct.

Q. Did you tell them that you did not want a copy of your statement?

A. Yes.

Q. Because you don't remember things and you don't want to?

A. And I didn't want to be coerced if I was to give evidence. I didn't want to be coerced by a statement that I didn't think was correct.

Q. Just taking up a couple of those points. You were telling them, weren't you, that you were drug affected at the time you gave the statement; that's what you've told them?

A. Yes.

Q. Later that afternoon, same day, Monday 23 October, do you recall seeing [Ms Herringe] and Mr Ben King, a police officer, in cells at the Newcastle Court House?

A. Yes.

Q. Was it confirmed to you that a copy of statements would be brought through by the Corrective Services people to you?

A. Yes.

Q. Did that ever happen?

A. Yes.

Q. I'm now asking you about something that happened on 23 October, was the day before yesterday, which is Monday, okay? And you had a meeting in the cells downstairs with the solicitor for the DPP and Mr King, the officer in charge; is that right?

A. Correct.

Q. You told them that you were taking a lot of drugs at the time police saw you, and you didn't have your glasses, which were only provided this year. That's what you said on Monday to them downstairs, isn't it?

A. Yes, and I did buy some magnifiers months later, which I can verify, but I only got my prescription glasses this year as well, which can also be verified.

Q. What you were saying is that you were taking a lot of drugs at the time of making a statement, and you didn't have your glasses?

A. Yes.

Q. Between what was said in the first meeting by AVL on 28 September 2023 and Monday, two days ago, 23 October 23, did any police officer come to you and say, ‘You've given some information. We'd like you to provide a new sworn statement’?

A. No, I had several people at the gaol try and contact the DPP, and I had another solicitor for another matter try and contact the DPP, and saying there needs to be a discussion around it, but nothing ever happened. I never saw anybody.

Q. There was no attendance upon you between those dates for the purposes of, for example, taking an account of you being, as you would have it, seriously drug affected back in January when you gave your statement; is that fair to say?

A. Yes, that's fair to say.

Q. There was no person coming and saying, ‘Look, can you just make a short statement to the effect that you assert that you didn't have your glasses in January 2023, and therefore you couldn't read your statement’? No one asked you to make a statement along those lines, did they?

A. No, no one did.

Q. So the first opportunity, would you have it, that you were able to tell of having concerns about the circumstances of your statement by reason of you being drug affected and to tell about the fact that you didn't have your glasses with you, was when you got in the witness box; is that right?

A. Correct.

Q. Particularly on Monday afternoon, I want to suggest to you that that was a meeting down in the cells downstairs here, between 1.40pm and 1.44pm. You particularly pointed out, didn't you, in the presence of the officer in charge, Ben King, that this fact that you were taking a lot of drugs at the time the police saw you back in January, and you didn't have your glasses, which were only provided this year? You particularly pointed that out to them, didn't you, downstairs on Monday afternoon?

A. Yes.

Q. He didn't say, ‘Look, I should get a quick statement from you about those matters’, did he?

A. No.

Q. Nor did he suggest that perhaps he should get an officer independent of the investigation to take a statement from you about those matters that you were expressing concerns about, did he?

A. No.

Q. You were asked no further questions in that conference after asserting that you were drug affected in January when you made your statement, about what sort of drugs you say you were on; correct?

A. Correct.

Q. Matters such as you being on the nod; do you agree?

A. I agree.

Q. Feeling that you were being prompted; do you agree?

A. I agree.

Q. Feeling that you were being informed of matters you didn't know about; do you agree?

A. Yes, that's correct.” [11]

11. Tcpt, 25 October 2023, pp 734-738.

20. Two things should be observed about this cross-examination. First, the conference with the witness on 23 October 2023 occurred following Mr Garland’s lawyers conveying a message to the Prosecutors that the witness wished to speak to them. [12] Secondly, while Mr Hughes was aware of the “tenor of the conference” at some earlier time, the conference notes were not served on Mr Garland’s lawyers until the morning of 25 October 2023, that is after the cross-examination commenced (on 24 October 2023) and not long before Mr Hughes continued his cross-examination. [13]

    12. Ibid pp 752; 759-60.

    13. Ibid p 758.

Diminishing the credibility of defence counsel

21. As I have said, Mr Hughes’ second, or “augmented”, argument raised a concern that permitting the examination, after he had used the conferences notes to some effect, had the capacity to diminish his credibility in the eyes of the jury. As it was put colourfully in argument:

“But there is, in terms of fairness to the accused, another consideration to be taken, but if that evidence is permitted to be adduced in re-examination, the jury might take the view that, you know, that sleazebag Hughes didn't, you know - there might be some antipathy because it pointed out, in my submission, when the ship has sailed, that I didn't go to that in cross examination, and the Crown has come in at the end of the day and taken them to it, and that's unfair for the accused, your Honour, for that to happen.” [14]

14. Ibid p 756.

Section 192 considerations

22. Because the ruling involved the granting of leave or permission, the matters in s 192(2) of the Evidence Act had to be taken into account (without limiting the consideration of other relevant considerations).

23. I was of the view that the proposed cross-examination would not add unduly to the length of the hearing: s 192(2)(a).

24. As to the issue of fairness raised under s 192(2)(b), I considered the unfairness to the accused in allowing the cross-examination after he had completed his examination of the witness. On the other hand, there would be potential unfairness to the prosecution if the evidence was not placed before the jury. It is significant evidence that might impact on the jury’s assessment of the witness’s credibility, and I accept the Prosecutor may not have appreciated the scope of the ruling allowing him to cross-examine under s 38(3). The way the matter unfolded may have led him to believe that he was limited to cross-examine the witness in relation to whether she was intoxicated at the time her statement was taken.

25. As to the importance of the evidence,[15] I was of the view that the evidence and the issue of the witness’s credibility had, perhaps, in the heat of the battle, taken on a greater significance to the parties than was warranted. It is but one piece of evidence in a case where the prosecution can rely on several other items of evidence – some of which are not in dispute – to establish that Mr Garland’s post-offence conduct betrayed a consciousness of guilt (in relation to his involvement and knowledge). However, the evidence is very important to the assessment of the witness’s credibility. Having said that, the examination-in-chief commenced with the Prosecutor establishing the close friendship between the witness and the accused and her performance in the witness box is likely to have already demonstrated to the jury that the witness is disinclined to assist in the prosecution of Mr Garland.

    15. Evidence Act 1995 (NSW), s 192(2)(c).

26. As to the nature of the proceedings,[16] it is a murder trial, and it is important that the prosecution can properly and fully present its case. Equally, given the potential consequences to Mr Garland, it is important that his trial be fair.

    16. Ibid s 192(2)(d).

27. There is no utility in adjourning the proceedings. However, directions as to the way the evidence is adduced and allowing Mr Hughes the opportunity for further cross-examination after the Prosecutor has again interrogated the witness, has a capacity to reduce any potential unfairness to Mr Garland.

Disposition

28. Balancing those various factors and considerations, I came to the view that the Prosecutor should be permitted to put the matter to the witness provided the caveats referred above at [5] were imposed on the grant of permission and were complied with strictly.

29. It was not a straightforward decision, but the evidence was to be – and was, in fact – brief and there seemed significant unfairness to the Prosecutor in not permitting the cross-examination when:

1. It seemed clear enough the extent of the earlier permission to cross-examine on the witness’s credibility may have been misunderstood to encompass only the limited matters upon which submissions were made;

2. The evidence went to the heart of the credibility of the witness (namely, her possible bias);

3. Any unfairness to the accused by the disruption of the order of the examination could be cured, or reduced substantially, (a) by permitting further cross-examination, (b) preventing the Prosecutor from putting the conference note in the witness’s hand (which he did not seek to do) and (c) ensuring there was no suggestion that Mr Hughes’ selective use of the conference note was other than proper; and

4. I was of the view if the evidence was introduced with sensitivity and without direct reference to the conference note, there was little likelihood that Mr Hughes’ credibility in the eyes of the jury would be diminished, let alone that any member of the jury would feel counsel was a “sleazebag” by using the note selectively. The jury will, in due course, be directed that both counsel are bound by ethical standards and that they have fulfilled all their obligations in that regard. [17]

**********

17. In announcing the decision ex-tempore, I indicated that such a direction could be given after the evidence was elicited. However, in view of the delicacy with which the evidence was adduced (Tcpt, 25 October 2023, p 761) this was unnecessary and may have highlighted an issue which did not, in fact, arise. A direction was given in the summing up that all counsel had conducted themselves in accordance with ethical standards: see Tcpt, 6 November 2023, p 12 (summing-up judgment).

Endnotes

Decision last updated: 19 December 2023