R v Klein (No.6)

[2008] NSWSC 338

CITATION:	R v Klein (No.6) [2008] NSWSC 338
JUDGMENT DATE :	4 April 2008
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld.
CATCHWORDS:	Application by Crown to cross-examine witness about prior inconsistent statement
LEGISLATION CITED:	Evidence Act
CATEGORY:	Procedural and other rulings
PARTIES:	Regina Gaby Michael Klein
FILE NUMBER(S):	SC 2002/2281
COUNSEL:	G Tabuteau (Crown) P McGrath (Accused)
SOLICITORS:	S Kavanagh (Director of Public Prosecutions) Crown Andrews Solicitors (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 4 APRIL 2008

2002/2281 – R v GABY MICHAEL KLEIN

JUDGMENT – Application by the Crown for leave pursuant to s 38 of the Evidence Act to cross-examine Pieta Lane (No.6)

1 HIS HONOUR: The Crown seeks leave, pursuant to s 38 of the Evidence Act, to cross-examine the witness Pieta Lane upon the basis of what it contends is a prior inconsistent statement with the meaning of s 38 (1)(c) of the Act. The application was made after the witness was cross-examined on behalf of the accused. Nevertheless it is common ground that there is no procedural impediment to an application being made at this stage of the evidence.

2 In her evidence in chief the witness gave the following evidence:

Q. I want to ask you about 15 February 2001. At that time whereabouts were you working?
A. J & K Tree Services at Kenthurst.
…

Q. And at that time what days of the week did you normally work?
A. Monday, Wednesday and Friday.

Q. And on some occasions did you work the other two days as well?
A. Yes, I did.

Q. And is it the situation you didn't work there on weekends?
A. That's correct.

Q. At that time for how long had you known the accused, or how long, how many years had it been since you'd met him?
A. I met Gaby in about '94.

Q. Is it--
A. 1994.

Q. Is it fair to say that certainly by 15 February 2001 you knew him very well?
A. Yes.

Q. As you did the other Kalischers - or certainly Danny Kalischer?
A. That's correct.

Q. What about Jacob Compagnon.
A. Not as well, but I had known him for some years, yes.

Q. On that day do you recall whether you saw the accused at Kenthurst where you were working?
A. Yes, I did. I believe I did.

Q. And do you have any memory of what part of the day it was?
A. It would have been about lunch-time, about midday.

Q. And did you see him with anyone?
A. Yes. He was with Jacob.
…
Q. From what you came to know, you recall 15 February 2001, do you, as the day on which Gary Moustafa was shot, is that right?
A. Since, since that day, yes, I know that to be the day.

3 In cross-examination she gave the following evidence:

Q. Or is this the case; you just don't know--
A. I can't remember.

Q. --the date on which you saw Gaby and Jacob at the Kenthurst property?
A. That's correct.

Q. You don't know the date or the day of the week?
A. No.

4 The witness was then taken to the following evidence which she had given at the previous trial:

Q. So might it well be the case that on Thursday 15th if you did work that day you would have worked in the morning?
A. Possibly, yes.

Q. You said possibly. I am asking?
A. Most likely, yes.

Q. Most likely. If that were the case might it then be the case working full time on the Friday the day after the 16th you might have seen Jacob there that day, that is Friday 16th?
A. Yes, I could have".

5 Counsel for the accused in this trial then asked:

Q. Is the position that you just still don't know what day of the week it was that you saw Gaby and Jacob at the Kenthurst property?
A. That's correct.

6 It is thus apparent that in cross-examination the witness resiled from the evidence which she had given in chief to the effect that the day on which she made observations of the accused and Jacob Compagnon together was Thursday 15 February 2001, which was the day of the murder of Gary Moustafa. The Crown contends that that evidence is inconsistent with what the witness said when she gave evidence before the Crime Commission on 2 August 2001. At that hearing she gave the following evidence:

Q Do you have a clear recollection on the day of the murder where you were?
A I’m…I’m thinking that I was at work. Yeah, no, I was, I was at work.

Q And do you have a recollection of Gabby Kalisher coming to Danny’s house that day?
A Yes I do.

Q And was he by himself?
A No, I believe he was with a friend of his.

Q And who was that?
A Jacob Compagnon.
…

Q How do you recall the day of the murder?
A Doesn’t stand out in my mind as anything specific. I was at work, working, doing a normal day…

Q However, you recall seeing Gabby and Jacob that particular day?
A Yeah. They came into the office. To talk to Danny.

Q How do you know it was that day?
A I…I’m assuming that it was that day. Sorry.

Q Why are you assuming it was that day?
A Why am I assuming that it was that day? Because I remember seeing the newspaper, and I remember something on television about it.

Q What, the same day?
A I don’t know. It was around that…around that time. I can’t recall exactly. I can’t recall exactly.
…

Q Do you always work on Mondays, Wednesdays and Fridays?
A As a rule, yes. But there was a time when I would go in for a couple of hours on the Tuesday and the Thursday as well.
…

Q I’ve been told the murder occurred on Thursday. So it’s possible you could have been at work on a Thursday.
A Perhaps. Yep. (at 26-7, 29-30)

7 In opposing the application, Mr McGrath submitted that when the two passages are read together, which plainly enough they must be, it is apparent that the witness qualified in her later answers what she appeared to have said in the earlier answers. Moreover, the subsequent answers indicated that the witness had made an assumption about the occasion in question. In essence, it was submitted that the position which she adopted on 2 August 2001 was somewhat ambiguous. I accept the submission that her evidence, read as a whole, did not amount to an unequivocal acceptance of the date as being the 15 February. That being so, I am of the view that a fair reading of her evidence on 2 August 2001 could not be said to meet the description of a “prior inconsistent statement”.

8 Even if I was to be wrong in that view, the state of affairs which I have described would constitute a highly relevant factor in declining to grant the leave which the Crown requires, particularly when regard is had to the matters set out in s 192 of the Act. Even if leave were to be granted, and further cross-examination by the accused was then permitted as it would have to be, I very much doubt that the witness’ position would materially alter. In those circumstances, such an exercise “would be likely to add unduly to…the length of the hearing”: s 192(2)(a) of the Act.

9 I have already indicated that I would uphold the objection (T1088). These are my reasons for so ruling.

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