R v Hamdan (No 2)
[2022] ACTSC 243
•8 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hamdan (No 2) |
Citation: | [2022] ACTSC 243 |
Hearing Date: | 8 September 2022 |
DecisionDate: | 8 September 2022 |
Before: | Elkaim J |
Decision: | Application refused |
Catchwords: | CRIMINAL LAW – EVIDENCE – Application for leave to recall witness – splitting of Crown case |
Legislation Cited: | Evidence Act 2011 (ACT) s 46 |
Parties: | The Queen (Crown) Ameen Hamdan (Accused) |
Representation: | Counsel S Saikal-Skea (Crown) J Purnell SC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) JDR Law (Accused) | |
File Numbers: | SCC 5 of 2022 SCC 6 of 2022 |
Elkaim J:
As I have said before, the speed at which the accused’s vehicle was travelling is a critical issue in this case. Each side has relied upon the evidence of an expert. The experts have based their opinions on various factors including photographs and the use of technical equipment to effectively map the path said to have been taken by the vehicle before it collided with a tree.
During the evidence of the defence expert, Mr McDonald, he was provided with a photograph upon which he had inserted an effective straight line to indicate the path of the rear passenger tyre of the vehicle. The photograph became Exhibit 12.
Although the insertion of the line is ‘new’, it is no more than an expression of a line which can be viewed on the original photograph. I did not regard the use of the photograph as introducing any new element to the case which could not be met in cross examination of Mr McDonald.
One of the important parts of Mr McDonald’s analysis is that between Markers 5 and 6 in the photograph there are no tyre marks. This fact is part of the background to his opinion that a critical yaw analysis is not appropriate over that stretch of roadway.
The officer in charge of the investigation, Senior Constable Stevenson, gave evidence that he inspected the scene and confirmed, under cross-examination, that there were no tyre markings between the above two markers.
Earlier today the Crown provided the accused with some diagrams (Exhibit 14), ultimately tendered by the accused, which suggest the presence of markers having been later placed between Markers 5 and 6. These markers are actually already in evidence as part of Exhibit G at photographs 82 and 84.
At no point during the examination in chief of any prosecution witness was the witness taken to these photographs to suggest they had been placed on tyre marks between Markers 5 and 6.
In the course of his cross-examination Officer Stevenson agreed that there were no tyre marks between the above two markers. He was not re-examined, for example by pointing out photographs 81 and 82, to suggest that he may have been mistaken or to explain the additional markers.
When Mr McDonald was shown Exhibit 14 he said he was able to deal with the exhibit. He essentially pointed out that the straight-line that he had inserted in Exhibit 12 was also evident in this exhibit. He said that he assumed that the cross markings on the exhibit represented markers.
The Crown has now made an application to recall Officer Stevenson. The Crown has told me that the cross markings do not represent markers and that is one of the reasons that it wishes to recall Officer Stevenson.
It is anticipated that officer Stevenson will say that the cross markings represent tyre marks that were observed on the road surface. These include tyre marks between Markers 5 and 6 which the officer had specifically said, under cross-examination, did not exist.
Leave to recall a witness may be given under s 46 of the Evidence Act 2011 (ACT). In order for this section to apply however the matter about which the witness is to be recalled must have been a matter about which that witness was not cross-examined. That is not the case here. Leave under s 46 does not cater for the present circumstance and cannot be the basis for recalling Officer Stevenson.
There is another reason for me to refuse the application. There would effectively be a splitting of the prosecution case between a case advanced initially of there being no tyre marks between Markers 5 and 6 and then, after the defence case, a diametrically opposite case being advanced. Had this occurred as a result of new information, the position might have been different.
However the representations in Exhibit 14 have always been available to the Crown and, more importantly, the Crown could have corrected any error relating to the identification of tyre marks in its case.
I make the following order:
(i)The application to recall Officer Stevenson is refused.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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