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

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

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.

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…

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 Garland (No 2)

Details

AGLC: R v Garland (No 2) [2023] NSWSC 1381
Case: [2023] NSWSC 1381
Decision Date: 25 October 2023

CaseChat Overview and Summary

The case of R v Garland (No 2) involved a dispute regarding the disclosure of the Director of Public Prosecutions' conference notes and the leave required for cross-examining a witness based on those notes. The case was heard in the Supreme Court of Queensland. The accused, Garland, was facing criminal charges and sought to cross-examine a witness using the DPP's conference notes, which he believed indicated the witness's partiality towards him. The prosecution opposed this move, arguing that special leave was required. The central legal issue was whether the accused needed leave to cross-examine the witness using the conference notes and, if so, what form the leave should take.

The court carefully navigated the complex terrain of evidence law, considering the potential unfairness of cross-examining the witness based on the conference notes without prior leave. It examined the precedents and the procedural history of the case, including previous grants of leave to cross-examine. The court concluded that while the accused had some grounds for cross-examining the witness based on the notes, the nature of the evidence and the potential unfairness necessitated special leave. The court then issued orders to manage the cross-examination process to mitigate any unfairness, ensuring that both parties could address the witness's potential bias effectively.

In its ruling, the Supreme Court granted the accused leave to cross-examine the witness using the conference notes, subject to specific directions. These directions were designed to ensure that the cross-examination was conducted in a manner that would not unfairly prejudice the witness or the trial. The court also clarified the scope of previous leave to cross-examine, addressing any misunderstandings that may have arisen. This nuanced approach balanced the rights of both the accused and the witness while maintaining the integrity of the trial process.

The final orders of the court included specific directions for the cross-examination, ensuring that the process would be conducted in a fair and balanced manner. The court's decision highlighted the importance of carefully considering the procedural fairness in criminal trials and the need for clear orders to manage complex evidence issues.

Orders