R v Kilincer (No. 9)

[2022] NSWSC 1736

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kilincer (No. 9) [2022] NSWSC 1736
Hearing dates:	26 August 2022
Date of orders:	26 August 2022
Decision date:	26 August 2022
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Section 38 Crown application to cross examine witness granted.
Catchwords:	CRIME – TRIAL – charge of murder – application by the Crown to cross-examine its witness - question of unfavourable or inconsistent evidence – witness called by the Crown pursuant to duty to call all material witnesses – witness in “accused’s camp” – clear inconsistencies between evidence in chief and earlier statements – evidence unfavourable to the Crown
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural rulings
Parties:	Regina (Crown) Kubilay Kilincer (Accused)
Representation:	Counsel: B Hatfield (Crown) E Ozen SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Abbas Jacobs Lawyers
File Number(s):	2020/30002
Publication restriction:	Nil

Ex TEmpore JUDGMENT (revised)

1. HER HONOUR: At or near the conclusion of the evidence in chief of the accused’s wife, Gulser Kilincer, the Crown - which has called, as part of its obligation, Mrs Kilincer to give evidence, makes application to cross-examine her pursuant to section 38 of the Evidence Act with respect to a number of discrete areas of her evidence and of the Crown case.

2. I don’t propose to set out the terms of section 38 of the Evidence Act. Suffice to say that it provides a power for the Court to permit a party calling a witness to cross examine that witness about evidence which is unfavourable to that party pursuant to subs (1)(a) and, pursuant to subs (1)(c), whether the witness has at any time made a prior inconsistent statement. The Crown has particularised the areas upon which it seeks to cross examine Mrs Kilincer and for reasons of economy of time, given that the jury is waiting, I do not propose to go through those individually. They will be reflected by the transcript in which the Crown has set out each area.

3. Having listened to Mrs Kilincer’s evidence and been directed to the relevant portions of a statement that she made on 12 December 1995 together with two recorded interviews with investigating police, respectively of 30 April 1996 and 1 May 1996, it is clear to me that Mrs Kilincer has certainly given evidence which is unfavourable to the Crown.

4. She has, equally, given evidence which is inconsistent with the statements and accounts that she has earlier given of those matters raised by the Crown.

5. The accused takes no issue, sensibly, with the Crown’s application to cross examine the witness on all of these matters with one exception. The exception is as to an area of evidence concerning the source of funds paid for overdue rent. The accused’s submission is that there is no inconsistency with respect to that evidence and it is not necessarily evidence unfavourable to the Crown.

6. It seems to me it is clearly inconsistent with the evidence that the witness has given in chief. That is, in her statement, the witness gave as the source of funds used to pay outstanding rents loan moneys from Mr Kutluturk; in her evidence she has indicated that she received only part of the moneys payable for the rent from her husband with the balance withdrawn by her from a bank account, the details of which she cannot provide.

7. I think there is a sound basis to cross examine the witness. Because of the Crown’s obligation to call all material witnesses, Mrs Kilincer has given evidence in the Crown case, but she is effectively the accused’s witness.

8. There is good reason to think that she has given evidence which is unfavourable to the Crown and inconsistent with earlier accounts and the Crown is permitted to cross examine her with respect to each of the areas which have been particularised, including those areas where the Crown wishes as part of its obligation to a witness about whom I expect a suggestion will be made that she is untruthful, to put aspects of its case so that she has an opportunity to answer those criticisms.

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Decision last updated: 15 December 2022