R v Lupton (No 5)

[2022] NSWSC 38

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Lupton (No 5) [2022] NSWSC 38
Hearing dates:	25 January 2022
Date of orders:	25 January 2022
Decision date:	25 January 2022
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Pursuant to section 38 of the Evidence Act 1995 (NSW), leave is granted to the Prosecutor to cross-examine Sherie O’Neill about: (1)   Evidence that is unfavourable to the prosecution (2) Evidence relevant only to her credibility Subject to the exclusion of items 339, 345 and part of paragraph [12] of a statement of Ms O’Neill dated 27 February 2020.
Catchwords:	EVIDENCE - leave to cross-examine prosecution’s own witness – evidence unfavourable to the prosecution – prior inconsistent statement – whether Prosecutor should have leave to cross-examine on matter relevant only to credibility – motive to give evidence favourable to accused – on again off again relationship – loving messages after stabbing – “We love you to the ends of the world and back” – “[winky kissy smiley face emoji]” – application granted – limitations on grant of leave – text messages to third party -
Legislation Cited:	Evidence Act1995 (NSW) ss 38, 192
Category:	Procedural rulings
Parties:	Regina Jay Lupton
Representation:	Counsel: G Harrison (Regina) A Webb (Lupton) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Lupton)
File Number(s):	2020/73934

EX TEMPORE Judgment (REVISED)

1. At the end of the evidence-in-chief of the current witness, Sherie O'Neill, the Prosecutor made an application under s 38 of the Evidence Act1995 (NSW) for leave to question Ms O'Neill as though he was cross-examining her. The application is based on a number of matters which the prosecution says fall within either sub-paragraph (1)(a) or (1)(c) of s 38 and I will move back to those. Those provisions generally relate to (a) evidence given by the witness which is unfavourable to the party seeking to cross-examine its own witness, and (c) the circumstance where a witness has previously made an inconsistent statement in relation to matters about which they are testifying.

2. To understand that submission it is necessary to understand in very brief and general terms the prosecution case and its reliance upon Ms O'Neill's evidence in making out that case. It seems that Ms O'Neill is the only witness who will give direct evidence of what happened between the accused and the deceased on the prosecution’s version of the events.

3. As I understand it from arguments advanced on other issues earlier in the trial and pre-trial voir dire, the defence case is quite different in terms of where the stabbing occurred, who may have been present, and what preceded it. But the prosecution relies on the observations of Sherie O'Neill and, in particular, her foreshadowed evidence, that is foreshadowed in her police statement dated 27 February 2020, where she described various things:

“11. Hady was sitting up on a pile of rubbish against my mum’s house, out the back, Jay was at the shed, it looked like he was looking for something. I told Hady to go, I said ‘Hady, just go, leave now’. Hady went to get up and go, he didn’t say anything. Jay turned around and told Hady ‘don’t fucken go anywhere’. Hady was still getting up to leave. I stood between Jay and Hady, because I didn’t want there to be a fight, I thought Jay would punch on. Jay walked from the shed towards Hady, and pushed me aside, as he was walking still towards Hady, Jay said ‘move’ as he pushed me.

12. Jay moved towards Hady, kind of like lunged towards him and I thought he was grabbing him, it looked like he was trying to grab Hady by the shirt. I now think he must have been stabbing him. Hady didn’t cry out, or say anything, he just sat back down, and sat there quietly. Jay was yelling at Hady, I don’t know what he was yelling, I think he yelled ‘look what you’ve done’ towards me.

4. The essence of the prosecution case is that – when Ms O’Neill described in her statement Mr Lupton lunging towards, and appearing to try to grab Hady –what was happening, although Ms O'Neill did not see it, was the infliction of the single stab wound that led to the death of Mr Jaouhara.

5. Just to return to the matters identified by the Prosecutor as being either inconsistent or unfavourable:

1. The witness said in her statement that the deceased was sitting on a pile of rubbish in the backyard, whereas her evidence in Court was that he was standing up.

2. The witness said in her statement that she asked the deceased to leave ("Hady just go, leave now"), whereas in evidence she said on a number of occasions she told him to “piss off”. The Prosecutor submitted, and I accept, that the use of those different expressions or descriptions are capable of conveying a somewhat different meaning, even though on one view they are expressing more or less the same thing.

3. The witness said in her statement that the deceased went to get up and go, whereupon Mr Lupton said, "Don't fucking go anywhere". In her evidence in Court she gave evidence at least to the effect of Mr Lupton telling the deceased not to go anywhere but she did not give evidence that Mr Jaouhara actually got up and went to leave.

4. The witness said in her statement that Mr Lupton lunged towards him and tried to grab him, while in evidence she described, in words and by gestures, an action consistent with an open palmed push to the chest using both hands. As I have said, this is the moment, on the prosecution case, that Mr Lupton stabbed Mr Jaouhara.

5. The witness started to say in evidence, and perhaps did say although there was an objection taken in the course of her answer, that she met with Mr Lupton after the stabbing whereas her statement is completely silent on that issue.

6. Mr Webb, on behalf of the accused, accepted that at least a number of those matters would probably lead to the Prosecutor having an entitlement to cross-examine. However, he raised some particular aspects of the matter, to which I will return, which I need to consider when deciding what if anything the prosecution can cross-examine on. In particular, Mr Webb raised parts of the proposed evidence which involve the witness drawing conclusions and some text messaging between her and a person called Kerran.

7. Mr Webb also raised the absence of notice, noting that the text messages on which reliance is now placed by the Prosecutor to establish some bias, if I can call it that, on the part of the witness, have been in the hands of the prosecution and the police investigators for some considerable time. It is to be noted that the number of matters that I have identified in those five areas of either inconsistency or unfavourable evidence were not matters such as to give rise, probably, to the Prosecutor making the application that he has.

8. However, the third matter wherein the witness said that the deceased stood up, or went to get up and go, and the fourth matter in which she said that Mr Lupton lunged towards the deceased and tried to grab him, are matters about which the Prosecutor expected her to give evidence of and she did not. Had those matters been given in evidence, it may be that the Prosecutor would have let go of the other matters which might be seen to be relatively minor in the overall scheme of things, but those are the things that are said to provoke the application to cross-examine.

9. Sub-section (6) of s 38 requires me to take into account whether the party seeking leave gave notice at the first or earliest opportunity of their intention to seek leave. I accept the Prosecutor’s submission and word that the evidence to which I have just referred came as a surprise to him and that those matters provoked the application.

10. So I think it is fair to say, albeit that it is late in the day, on one view, the notice was given as soon as the matter became clear to the Prosecutor. I accept the Prosecutor’s submissions that the five factual matters identified earlier engage the terms of s 38(1)(a) and s 38(1)(c), that is to say, they are either prior inconsistent statements made by Ms O’Neill or they are statements that are unfavourable to the prosecution. In some instances, they are both.

11. Relevant considerations in s 192 which must be considered when leave is granted under the provisions of the Evidence Act1995 militate generally, in my assessment and evaluation, favourably to the application. In particular, the cross-examination will likely add to the length of the hearing but it will not “unduly” do so, particularly given the importance of this particular witness. I am unable to identify any relevant unfairness to Mr Lupton in allowing the Prosecutor to embark on the cross-examination. The evidence is plainly important given that it is the critical piece of eyewitness testimony upon which the prosecution relies in proving the nature of the act causing death. The nature of the proceedings, being a murder trial, is one in which the Prosecutor should be permitted to use such means as are available lawfully to establish its case. I do not think paragraph (e) of s 192(2) has any real relevance to the present application.

12. Taking all those matters into account, I propose to grant leave to the Prosecutor to cross-examine on those subjects.

13. The Prosecutor also makes an application to question Ms O’Neill pursuant to s 38(3) in relation to matters relevant only to her credibility.

14. The Prosecutor points to a number of text messages which occurred shortly after the incident suggesting there was a meeting between the witness and the accused after the stabbing. A message just after midnight, noting the stabbing occurred at abour 11:45pm, involves Ms O’Neill asking Mr Lupton where he is. That is item 321 in what was exhibit VDA in the pre-trial applications. At item 344, at 52 minutes after midnight, there is a message from Ms O’Neill to Mr Lupton saying:

“We’re going to be okay. We love you to the ends of the world and back. Please be careful xo [winky kissy smiley face emoji] Call me when you get a chance x”.

15. Those matters are plainly relevant to credibility and to the possibility that the witness is making an attempt, perhaps, to give evidence unfavourable to the prosecution because of some ongoing relationship between her and the accused. The evidence is plain that they have had an on again off again relationship for many years and that he is the father of one of her children.

16. I would therefore grant leave to the Prosecutor to question the witness about matters relevant only to her credibility, subject to my assessment that two of the messages and one aspect of her statement should be excluded from cross-examination undertaken pursuant to that grant of leave. Those are matters where really the witness is purporting, at least in the expressions used, to get into the mind of the accused and attribute either motive or intention to him. This is impermissible because, even if that material is relevant and has some probative value, its probative value is far outweighed by the potential for unfair prejudice.

17. Those matters to which I have just referred are that part of the statement in paragraph 12 where the witness states the conclusion, “I now think he must have stabbed him”. I do not permit cross-examination on that aspect of the statement. That is a matter for the jury to draw inferences about, if they accept what is put to her in cross-examination is what, in fact, actually happened.

18. Then there is part of the text message to “Kerran”, item 339 in exhibit VDA, stating “So Jay decided to stab him” and similarly, in item 345, where the text message to Kerran asserts “Jay, being in a bad mood, took it out on him”. I do not propose to allow that and I note that in the course of argument in reply the Prosecutor very fairly indicated that he did not propose to rely on those two text messages and they were the ones that Mr Webb was particularly concerned about in terms of the potential for prejudice and unfairness.

19. That matter may have to be revisited depending on where the cross- examination goes but, subject to that, I do propose to allow cross-examination on the question of what might be called motive to provide unfavourable evidence, which is to say, evidence that is relevant only to the credibility of the witness.

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Amendments

21 February 2024 - Publication restriction removed

Decision last updated: 21 February 2024