R v HG; R v WE (No 4)

[2018] NSWSC 1211

Supreme Court

New South Wales

Medium Neutral Citation:	R v HG; R v WE (No 4) [2018] NSWSC 1211
Hearing dates:	3 August 2018
Date of orders:	03 August 2018
Decision date:	03 August 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [5]
Catchwords:	EVIDENCE – Cross-examination – Whether particular question permissible on the basis of being relevant to the accused’s intentions or relevant to his credit – Question rejected – No point of principle
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v HG; R v WE (No 2) [2018] NSWSC 1178
Category:	Procedural and other rulings
Parties:	Regina – Crown HG – Accused WE – Accused
Representation:	Counsel: I Bourke SC and R Ranken – Crown B Walmsley QC – Accused HG J Trevallion – Accused WE   Solicitors: Director of Public Prosecutions (Cth) – Crown Birchgrove Legal – Accused HG Alexanders Lawyers – Accused WE
File Number(s):	2016/3051142016/305103
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The Crown has called a witness to give evidence of an interview which was conducted with the accused WE in April 2016, in the course of which the accused gave details of a trip that he had undertaken to the area of Northern Sinai. I have previously ruled in relation to the admissibility of specific parts of that interview: R v HG; R v WE (No 2) [2018] NSWSC 1178.

2. In the course of his evidence-in-chief (at T431.20 and following) the Crown asked the witness the following questions:

“Q. In providing this information about his travel, how did he provide it? Did you need to prompt him or was he providing information in a free-flowing way? Which was it?

A. In this part of the interview, he needed to be prompted for responses and further detail quite a bit.

Q. When you say that he "needed to be prompted quite a bit”--"

3. At that point, counsel for the accused WE objected and submitted, in effect, that the question put by the Crown was an attempt to circumvent the ruling that I had previously made. It was the Crown's submission that the evidence went to proof of an element, or elements, of the offence (particularly that of intention) and also went to the issue of the accused's credit.

4. Although part of the debate in relation to the admissibility of the question centred upon ss 108A and 108B of the Evidence Act 1995 (NSW) (‘the Act’), the issue is in my view a far more fundamental one. Even allowing for the width of s 55 of the Act, the question could not rationally affect the jury's assessment of any fact in issue in the proceedings, be it intention or anything else. To press the question on that basis would involve a circuitous process of reasoning, not to mention a degree of unwarranted speculation.

5. For these reasons the question is disallowed.

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Decision last updated: 08 April 2020