R v Green (No 7)

[2021] NSWSC 1308

Supreme Court

New South Wales

Medium Neutral Citation:

R v Green (No 7) [2021] NSWSC 1308

Hearing dates:

5-9 and 12-14 July 2021

Date of orders:

14 July 2021

Decision date:

14 July 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The objection to the proposed line of questioning is upheld

Catchwords:

CRIMINAL LAW – cross-examination – cross-examination as to credibility – improper questions – credibility rule – objection to proposed line of questioning – where witness asked about another witness’s intent – objection upheld

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8

Evidence Act 1995 (NSW) ss 41, 101A, 102, 103, 106

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Regina (Crown)
Jesse Leigh Green (Accused)

Representation:

Counsel:
B. Costello (Crown)
S. Bouveng (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Rice More & Gibson Solicitors (Accused)

File Number(s):

2018/106348

Publication restriction:

Nil

Judgment

1. I have dealt with an objection to questions proposed to be asked in cross-examination of a witness, Ms Sophie Luckwell, in a closed court. Ms Luckwell is the elder sister of the deceased, Teah Luckwell. I have dealt with the matter in a closed court on the application of the Crown without objection by Mr Bouveng of counsel for the defence. Effectively, I have dealt with the matter in a closed court for the purpose of the suppression or non-publication of the argument on the ground set out in s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010. I have decided that the order for a closed court is necessary in the public interest and that the public interest significantly outweighs the public interest in open justice.

2. The basis on which I came to that conclusion was that the matter in dispute at this point relates to whether Mr Bouveng should be allowed to cross-examine Ms Luckwell about whether her partner, Mr Wade Carter, who figures in different ways in these proceedings, ever told her that he intended to “sleep” with Teah Luckwell. The evidential matrix from which this line emerges is that Mr Carter was a person of interest in the police investigation into the murder of Ms Luckwell. I infer that the source of the police interest in him was the material which suggested he may have been having an affair with Ms Luckwell, and that his desire to suppress that information or hide it from his partner provided a motive which may explain him murdering Ms Luckwell.

3. Ms Sophie Luckwell is giving evidence. She has given evidence about a suspicion she had at the time of her sister’s death, that Mr Carter was having an affair with her. There is other evidence before me attesting to her suspicion in that regard then. First, she expressed that suspicion to a police officer when she first arrived at her sister's home on the night her sister's body was discovered. Secondly, she posted to Facebook a message on her account to the same effect. She has given evidence that the Facebook post has since been deleted because, I infer from what she said, she has accepted her partner's assurances that her suspicion was completely groundless and that his interactions with Ms Luckwell were entirely innocent in all respects.

4. Mr Bouveng wishes to ask some questions of Ms Luckwell based upon the second interview of Mr Carter with investigating police. When he first made a statement to police, he denied any sexual interest in, or relationship with, Ms Luckwell. When subsequently interviewed in an ERISP or the like, he admitted to sex on one occasion, which he said was by way of payback - I am paraphrasing - for his belief that Ms Sophie Luckwell had had sex with one of his mates on an occasion when he was away spotlighting.

5. The Crown objects to any questions being asked of Ms Luckwell about this matter. The basis of the objection is the credibility rule expressed in s 102 Evidence Act1995 (NSW), that credibility evidence about a witness is not admissible. Credibility evidence is defined by s 101A to mean evidence that is relevant only because it affects the credibility of a witness or person, or is relevant because it affects the assessment of the credibility of a witness or person; and for some other purpose for which it is not admissible or cannot be used because of the provisions of Part 3.2 to Part 3.6 of the Act, which are concerned largely with the rules of exclusion, and the exceptions to those rules of otherwise relevant evidence.

6. Mr Bouveng has told me he wishes to ask two questions, or perhaps a series of questions in relation to two topics. The first topic is whether in fact Sophie Luckwell had ever slept with Mr Carter's friend. I have already indicated that I would not allow that question to be asked. In my judgment, notwithstanding the gravity of these proceedings, it runs foul of s 41(1)(b) of the Evidence Act in terms of being a question which, in particular, is offensive or humiliating of the witness. It seems to me that whether she did or did not in no way affects her credibility. But were I wrong about that, in my opinion, it would run directly foul of s 102 itself.

7. The second topic is whether Mr Wade ever told Sophie Luckwell that he intended to “sleep” with Ms Luckwell, or had an interest in “sleeping” with Teah Luckwell, whether by way of retribution for what he regarded as her misconduct or otherwise. To my mind, to ask a witness about the credibility of another witness also runs directly foul of s 102 and is not saved, so far as I can deduce from the argument that has been advanced, by any of the exceptions which could possibly be relevant under s 106 of the Evidence Act. The exceptions under s 103 could not possibly be in play in regard to this topic.

8. I did comment that, on the face of it, there was an air of implausibility about Mr Carter's account; however, I make no judgment about that at this stage for any final purpose. It seems to me that to ask this witness about whether he ever made that threat, ever said or ever otherwise stated an intention or an interest in having sex with Teah Luckwell, is not relevant other than as to his credibility.

9. Having said that, I have got no doubt that an illicit relationship with one's sister-in-law, if I may put it that way, may well be capable of providing a motive for severe personal violence against the sister-in-law for the purpose of covering one's tracks or for some other reason of passion. However, to the extent to which motive may well be a relevant topic for cross-examination of Mr Carter, I am not satisfied that it is properly advanced by cross-examining Sophie Luckwell about this matter. Notwithstanding what I have said about Sophie Luckwell's suspicions, the specific questions, to my mind, based upon that record of interview, cannot be raised.

10. Having said that, Mr Bouveng can, if he wishes, explore to some extent the basis for Sophie Luckwell's suspicion that Mr Carter was having an affair with her sister. He is not bound to accept her explanation that the only basis of it was what she saw of them together at the West Tamworth McDonald's on what was apparently the eve of Ms Luckwell's demise. However, the scope of such questions would be limited, and it would seem to me no more could be asked than whether Mr Carter ever said to her that he had actually had sex at any time with Teah Luckwell. As to all such questions, I think that counsel, so far as this witness is concerned, would be bound by the answer given.

11. It seems to me that a simple question of that type is relevant not just to the credibility of a witness, but relevant to the issue that I have referred to as “motive”. However, of course, if Mr Carter had been prepared to confess to his partner that he had had sex with Ms Luckwell, the argument that he acted to conceal his marital misbehaviour from his wife, perhaps as a matter of probability, would evaporate.

12. To make things clear, I am not prepared to allow Sophie Luckwell to be cross-examined by reference to Mr Carter's second account to the police, but I will allow some limited exploration of the grounds for her belief as at 27 March 2018 that her partner was having an affair with her sister.

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Decision last updated: 14 October 2021