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R v Orcher

R v Orcher

Case [2016] NSWSC 627 28 April 2016

Appeal

Admissibility of Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Orcher [2016] NSWSC 627
Hearing dates: 28 April 2016
Decision date: 28 April 2016
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
The objection to the question is upheld.

Catchwords: CRIMINAL LAW – procedure – application pursuant to s 108 of the Evidence Act 1995 (NSW) – objection taken by defence counsel – whether the Crown should be permitted to lead prior consistent statement in re-examination – objection upheld
Legislation Cited: Evidence Act 1995 (NSW), ss 79, 108, 108(3)(b), 137, 192
Category: Procedural and other rulings
Parties: Regina
Lyle Neil Orcher
Representation:
Counsel:
L Shaw (Crown)
A Webb (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid New South Wales (Accused)

File Number(s): 2014/376921

Ex tempore Judgment

An application has been made by the Crown to lead in re-examination a portion of paragraph 11 of voir dire Exhibit A. It is said, in a nutshell, that to the extent that defence counsel suggested to the witness that she had recently commenced to use dramatic terms to describe what the witness says the accused did to the deceased, the Crown should be permitted to get into evidence that, as long ago as 5 January 2015, the witness described the assault as "vicious", as shown by the paragraph in question.
It is also said, in a nutshell, that the Crown should be entitled to lead that evidence pursuant to s 108 of the Evidence Act 1995 (NSW). In short, in order to get into evidence a prior consistent statement after a suggestion has been made in cross-examination, in effect, of what used to be called recent invention, it is said that, in those circumstances, s 108(3)(b) is in play. The section is as follows:

108 Exception: re-establishing credibility
(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2) (Repealed)
(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.

There are two aspects of the application that are problematic. The first is that defence counsel's impugning of the witness was based upon the recent use of a particular word, namely, "slamming". But it can be seen that word does not appear in paragraph 11.
Separately from that, I think that there is a real issue of s 137 of the Evidence Act playing a role here. That is because, while I accept that the fact that the witness used a graphic descriptor on 5 January 2015 has some probative value, I think there will be a significant prejudicial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Orcher

Details

AGLC: R v Orcher [2016] NSWSC 627
Case: [2016] NSWSC 627
Decision Date: 28 April 2016

CaseChat Overview and Summary

The case of R v Orcher was brought before the court to address the admissibility of a prior consistent statement in re-examination. The defendant, Orcher, was on trial for criminal charges, and the Crown sought to introduce a prior statement made by a witness to corroborate their testimony. Defence counsel objected to the introduction of this statement, citing relevance and potential prejudice. The central issue before the court was whether the Crown should be permitted to lead the prior consistent statement in re-examination, given the objection by the defence.

The court examined the legal framework provided by section 108 of the Evidence Act 1995 (NSW), which governs the admissibility of prior consistent statements. The court considered the purpose of such evidence, which is to support the credibility of a witness's testimony, and balanced this against the risk of prejudice to the defendant. The court noted that while prior consistent statements can be valuable in rebutting claims of recent fabrication or improper influence, they must also be relevant and not unduly prejudicial. In this instance, the court found that the statement did not sufficiently meet the relevance threshold to warrant admission, and the potential for prejudice outweighed any probative value.

Consequently, the court upheld the objection by the defence and ruled that the Crown was not permitted to lead the prior consistent statement in re-examination. The court emphasised the importance of adhering to the principles of fairness and relevance in the presentation of evidence. The decision underscored the need for careful consideration of the admissibility of prior statements to ensure a just and balanced trial process. The court's ruling reinforced the defence's right to object to evidence that may unfairly prejudice the defendant's case.

Orders