R v Garland (No 3)

[2023] NSWSC 1382

Supreme Court

New South Wales

Medium Neutral Citation:	R v Garland (No 3) [2023] NSWSC 1382
Hearing dates:	27 October 2023
Date of orders:	27 October 2023
Decision date:	27 October 2023
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Leave granted under s 38(1) of the Evidence Act 1995 (NSW).
Catchwords:	CRIMINAL LAW – evidence – leave to cross-examine the prosecutor’s own witness – witness who cannot remember – prior inconsistent statement – witness statement recorded in statements of police officers – no official statement of witness due to technical glitches – factors relevant to exercise of discretion and grant of leave
Legislation Cited:	Evidence Act 1995 (NSW), ss 38, 38(1)(c), 44, 192
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.

EX-TEMPORE JUDGMENT (REVISED)

1. This is an application under s 38 of the Evidence Act 1995 (NSW) by the Prosecutor for leave to cross‑examine the present witness Maletina Allner. The witness is, as the transcript will ultimately reflect, a witness who at least has difficulties remembering certain things, and that is giving her the benefit of the doubt that she is making a genuine attempt to remember.

2. There have been four topics nominated.

3. In the course of argument, Mr Hughes accepted that there is no issue in the Prosecutor asking questions as though he was cross-examining the witness in relation to the second and third topics; that is, in the case of the second topic, that she had been present or was present when Mr Campbell complained about the difficulties within his relationship or difficulties with his ex-mother‑in‑law. I accept that concession and will permit cross‑examination in that territory.

4. Similarly, there is no objection to the Prosecutor exploring, as if he were cross‑examining the witness, a conversation in which Ms Allner was allegedly present, which related to an incident involving another witness, [redacted], where there was an invitation for [redacted] to be involved in the murder that ultimately, on the prosecution case, was carried out by Mr Hawkins. I accept the concession made in that regard and will grant leave to permit the Prosecutor to ask questions in the nature of cross‑examination on that issue.

5. The fourth area has really resolved or petered out. Part of the closed-circuit television (“CCTV”) footage depicts this witness disposing of something in a garbage bin. She was asked if she recognised the person she was with. On the prosecution case, the person in question is the alleged shooter, Mr Hawkins, who is yet to stand trial. Ms Allner said that she thought it was her then partner. The Prosecutor will rely on a number of pieces of circumstantial evidence to establish it was Mr Hawkins, and there is no objection to the Prosecutor saying to the jury, without putting it specifically to this witness, that it was Mr Hawkins. Given the nature of her evidence, I can see very little capacity for her evidence to rationally affect the fact in issue of who it was. There will be no criticism either by me as the trial Judge or by Mr Hughes as defence counsel if the Prosecutor puts, from the other circumstances, that the jury would be entitled to find the man she was with to be Mr Hawkins.

6. I do not allow cross-examination on that fourth area, having considered matters in s 192, particularly the amount of court time which will be wasted. These sorts of issues are taking the jury out of the courtroom. I mean no disrespect to, nor criticism of, counsel because they both have to do their jobs, but it is becoming excessive.

7. The more controversial area is the first one. This witness did not make an official police statement but did speak to police before giving evidence. Apparently, there was some technical breakdown in the computer system which meant her statement could not be made. Statements have been produced by the two police officers involved, Mr Aspinall and Mr Petersen, in which they attribute certain words to her.

8. Those words, if accepted, are on my assessment inconsistent with parts of her evidence which falls into category 1, and concerns her knowledge of people called “Jase” or “Jayce”, a name referred to in a text message sent by Ms Allner to Stuart Campbell. The alleged shooter’s name is Jason, and the prosecution case is that the relevant text message relates to him. The witness said in evidence she was referring to another person called “Jase” or “Jason”. There seems to be an inconsistency with what she told police, specifically that there was another “Jase”, he was up from Canberra with his partner, and they drove a blue car. Those descriptions fit the identity of the alleged shooter.

9. Contrary to the submission on behalf of Mr Garland, I am satisfied that the evidence does constitute, for the purpose of s 38(1)(c), evidence about whether the witness “has, at any time, made a prior inconsistent statement”. I propose to allow the Prosecutor to put that there was this other “Jase” there and to put the other information coming from those statements. I propose to allow him to test her as if in cross‑examination on that issue. I do not propose to allow him to put the statements in the hands of the witness, or to do other than what s 44 would allow. Finally, I do propose to allow cross‑examination on whether she has previously told the police something different.

10. Accordingly, leave is granted pursuant to s 38.

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Decision last updated: 19 December 2023