R v Justin Robert Eddleston
[2010] ACTSC 23
•12 March 2010
R v JUSTIN ROBERT EDDLESTON [2010] ACTSC 23 (12 March 2010)
EX TEMPORE JUDGMENT
EVIDENCE – application by prosecutor under s 38(1) Evidence Act 1995 (Cth) to cross-examine a prosecution witness – whether evidence given by witness “unfavourable” to the prosecution – whether witness made a prior inconsistent statement – consideration of s 192 criteria – leave to cross-examine the witness would unduly lengthen trial and cause unfairness to the accused – importance of evidence sought to be elicited unclear – limited scope for adjourning jury trial or making another direction in relation to the evidence – application refused.
EVIDENCE – whether witness made a prior inconsistent statement – witness convicted of robbery in related proceedings – witness had agreed to statement of facts in robbery proceedings – statement of facts contained statements about accused’s involvement in robbery – witness gave evidence in accused’s trial inconsistent with statement of facts in robbery proceedings – witness gave evidence that he did not read statement of facts – whether agreeing to statement of facts amounted to a representation about accused’s involvement in the robbery.
Evidence Act 1995 (Cth), ss 38, 192
R v Basha (1989) 39 A Crim R
R v Pantoja [1998] NSWSC 565
R v Kneebone (1999) 47 NSWLR 450
No. SCC 23 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 12 March 2010
IN THE SUPREME COURT OF THE )
) No. SCC 23 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
JUSTIN ROBERT EDDLESTON
ORDER
Judge: Penfold J
Date: 12 March 2010
Place: Canberra
THE COURT ORDERS THAT:
Leave under s 38(1) of the Evidence Act 1995 (Cth) for prosecuting counsel to cross-examine William Lau is refused.
Background
[Justin Eddleston is charged with aiding and abetting a robbery committed by William Lau. His trial began on 9 March 2010. Mr Lau was called by the prosecution to give evidence. Shortly after he began giving evidence, prosecuting counsel sought leave to cross-examine Mr Lau.]
Application for leave to cross-examine under s 38 of Evidence Act
Counsel for the prosecution has applied under s 38 of the Evidence Act1995 (Cth) for leave to cross-examine Mr Lau about two matters, being:
· evidence given by Mr Lau that counsel says is “unfavourable” (s 38(1)(a)); and
· whether Mr Lau has at any time made a prior inconsistent statement (s 38(1)(c)).
I propose to refuse to grant that leave.
Unfavourable evidence
For a start I am not convinced that the evidence that Mr Lau has so far given in front of the jury is in fact unfavourable, although I concede that there are certainly arguments supporting that proposition, the principal one being that his evidence does not confirm certain aspects of the evidence given by other prosecution witnesses.
Whether Mr Lau’s evidence goes beyond being “neutral” to being actually “unhelpful” is a more complex question, especially having regard to the manner in which the evidence has been given and the comparison between that evidence and the evidence given by other prosecution witnesses. I note also the comments in several section 38 cases (for instance R v Pantoja [1998] NSWSC 565, Adams J, and R v Kneebone (1999) 47 NSWLR 450, Greg James J at [54] and [55]) to the effect that “unfavourable” is a problematic concept in relation to the prosecution in a criminal trial.
Prior inconsistent statement
I am even less convinced that the matter identified by counsel for the prosecution as a prior inconsistent statement is properly so characterised.
Mr Lau pleaded guilty to the robbery with which this case is concerned. At his sentencing hearing a statement of facts was tendered and apparently agreed to by Mr Lau’s counsel on his behalf. That statement of facts, as well as setting out Mr Lau’s role in the robbery, contained statements about events leading up to the robbery and other statements about the involvement of the accused in this case and a third person.
Mr Lau gave evidence at the Basha inquiry (R v Basha (1989) 39 A Crim R) that he had not read the statement of facts to which he agreed because “I knew I was telling the truth so there was no point in me reading it, you know?”
Counsel for the prosecution sought to call evidence from Mr Lau’s counsel to the effect that the statement had been read to Mr Lau before he gave instructions to agree to it at the sentencing hearing. This attempt raised some questions about whether there might be a breach of Mr Lau’s legal professional privilege and how that issue might need to be dealt with.
Next, counsel for the prosecution sought to question Mr Lau about what he remembered being read out in court during the sentencing hearing. I permitted this questioning, even though it involved him leading the witness and even though there was no separate evidence about whether the statement of facts had actually been read out at the sentencing hearing, because it seemed likely to assist me in determining whether Mr Lau could be found to have made a prior inconsistent statement.
Questioned by counsel for the prosecution, Mr Lau said that he remembered some parts of the statement of facts being read out in court but could not remember hearing in court the parts that were of particular interest to the prosecution. Faced with this evidence, counsel for the prosecution maintained his submission that by instructing his counsel to agree to the statement of facts at the sentencing hearing, Mr Lau had expressly or impliedly made a statement about the events leading up to the robbery and about the accused’s involvement in the robbery.
Having regard to:
· Mr Lau’s evidence that he had not read the statement of facts and his reasons for not reading it;
· the fact that none of the material in the statement of facts that was of interest to the prosecution in this case seems likely to have been of any significance in Mr Lau’s sentencing; and
· my own observations of Mr Lau and my assessment of his likely approach to the sentencing proceedings;
I would be wary about treating any of that material as being any kind of representation actually made by Mr Lau or as amounting to a prior inconsistent statement made by Mr Lau.
Exercise of discretion
Even if I was satisfied either that Mr Lau has given unfavourable evidence or that his agreement to the statement of facts amounted to the making of a prior inconsistent statement, I would not exercise my discretion to give leave for cross-examination in this case for several reasons.
First, it is clear that counsel for the prosecution did not, as mentioned in s 38(6)(a) of the Evidence Act, give notice at the earliest opportunity of his intention to seek leave to cross-examine Mr Lau. On Day 1 of this trial, originally set down for three days, prosecuting counsel indicated that he did not intend to call Mr Lau as a witness, even though Mr Lau’s name and the name of his counsel in the sentencing proceeding had been on the witness list given to defence counsel on the last working day before Day 1 of this trial. This was, counsel said, because he had formed the view after Mr Lau was cross-examined at the Basha inquiry several weeks previously that Mr Lau would not be a reliable witness.
At the beginning of Day 2, before any evidence was heard in the trial, counsel amended the indictment and announced that he would be calling Mr Lau after all. After applying for leave to cross-examine Mr Lau, mid-afternoon on Day 3 of the trial, counsel admitted that he had formed the intention to apply for that leave before announcing at the beginning of Day 2 that he would call Mr Lau, but that he had not given any notice of that intention to either counsel for the accused or to the Court.
Next I must consider the matters set out in s 192(2) of the Evidence Act that may be taken into account in deciding whether to give leave under a provision of that Act. Noting s 192(2)(a), it is clear that the process of giving the leave sought by counsel for the prosecution would add unduly to the length of this trial, which has already been inappropriately delayed by a variety of matters, almost all of which have arisen from the way the prosecution has conducted the trial (for instance, the fact that the proofs of evidence of the main prosecution witnesses were provided to counsel for the accused on the morning of Day 1 of the trial, and that the original indictment charged an offence that does not seem to exist under ACT law).
The actual cross-examination of Mr Lau, if permitted, would probably not take more than an hour or so. But the process by which I would have to resolve the uncertainties I have already identified about whether s 38(1)(a) or (c) actually applies in this case could easily add another day to the proceeding.
For the purpose of s 192(2)(b) I consider that permitting counsel for the prosecution, in the middle of examining the last prosecution witness, to open up matters that were not previously seen by the defence as in issue would be unfair to the accused. The unfairness would lie largely in the fact that defence counsel has had to deal with all previous prosecution witnesses on a different basis from that which could emerge from prosecution cross-examination of Mr Lau.
Next, taking account of s 192(2)(c), it is not clear that Mr Lau’s evidence is of high importance in this trial. The prosecution has called four other witnesses whose evidence was more detailed than any evidence Mr Lau has so far given and who, for various reasons, might also be seen as more credible witnesses. Furthermore, from last week until Day 2 of the trial, it seems that the prosecution was not planning to call Mr Lau as a witness at all.
Finally, I note for the purposes of s 192(2)(d) and (e) that this is a criminal trial involving a jury, so that the scope for adjourning the hearing is limited. But in any case, I cannot see that either an adjournment or any other particular order or direction would be useful in resolving the issue of how to deal with Mr Lau’s evidence in a way that ensures a fair trial for the accused in this matter.
Order
Accordingly, I refuse leave to the prosecution to cross-examine Mr Lau under s 38 of the Evidence Act about either of the matters so far identified by counsel.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 23 March 2010
Counsel for the Crown: Mr D Sahu Khan
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr S Gill
Solicitor for the defendant: Ken Cush & Associates
Date of hearing: 9, 10, 11, 12 March 2010
Date of judgment: 12 March 2010
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