R v Pulbrook; R v Smith

[2023] NSWDC 400

District Court

New South Wales

Medium Neutral Citation:

R v Pulbrook; R v Smith [2023] NSWDC 400

Hearing dates:

21 September 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Application refused – Leading questions permitted

Catchwords:

CRIME — Violent offences — Offensive weapon — intimidation — Two co-accused with similar defences

CRIMINAL PROCEDURE — Jury trial — Cross-examination

EVIDENCE — Rules of evidence — Application

EVIDENCE — Witness evidence — Two co-accused —Cross-examination — Leading questions — s 42 Evidence Act 1995 — Crown application to restrict use of leading questions in cross-examination of co-accused

TRIAL PROCEDURE — Objection to leading questions — Application refused — Procedural measures can be taken to prevent unfairness to Crown — additional cross-examination allowed

Legislation Cited:

Evidence Act 1995 (NSW), s 42

Cases Cited:

Kirk v Industrial Court New South Wales (2010) 239 CLR 531; [2010] HCA 1

R v A2, R v KM, R v Vaziri (No.14) [2015] NSWSC 1544

R v A2, R v KM, R v Vaziri (No. 21) [2016] NSWSC 24

R v Droudis(No. 6) [2016] NSWSC 1263

R v Merritt [2023] NSWDC 339

R v Rogerson [2016] NSWSC 110

R v Xie (No. 13) [2015] NSWSC 2125

Stack v State of Western Australia (2004) 29 WAR 526; [2004] WASCA 300

Texts Cited:

R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (3rd ed, 2020, LexisNexis)

Category:

Procedural rulings

Parties:

Holly May Pulbrook (accused)
Nathan Smith (co-accused)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
B Hart (for Pulbrook)
J Hibbard (for Smith)
C Todd (for Crown)

Solicitors:
EB Law (for Pulbrook)
James and Jaramillo Lawyers (for Smith)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/189625

JUDGMENT – Ex Tempore reVISED

Introduction

1. Holly May Pulbrook and Nathan Smith are before a jury charged with Using an Offensive Weapon with Intent to Commit the Indictable Offence of Intimidation whilst in Company. The Crown case against the accused has closed. Ms Pulbrook has given evidence in chief and been cross-examined by the Crown. She is now being cross-examined by Mr Hibbard, counsel for Mr Smith.

2. Objection was taken by the Crown to Mr Hibbard asking leading questions of Pulbrook. The Crown submits that a s 42 Evidence Act1995 (NSW) direction should be given restricting that cross-examination. The Crown submit the restriction is required because the co-accused has an interest consistent with the interests of the cross-examiner and is sympathetic to the interests of the cross-examiner: Evidence Act1995, s 42 (2)(b) and (c).

3. The Crown ask that I restrict cross-examination in the following areas – the impact of methylamphetamine on drug users and questions that tend to reinforce Ms Pulbrook’s case and, by inference, the similar a case that will be made for Mr Smith.

4. Section 42 is rarely raised by the Crown, particularly when the witness is a co-accused, and never in matters where there is a ‘cutthroat defence’. Those cases where a request for a s 42 restriction has been raised relate to a Crown witness, called in fairness to the defence, but who is sympathetic to the accused and/or has an intellectual disability or learning difficulties.

Relevant legislation and authorities

5. My attention was drawn to s 29 and s 42 Evidence Act 1995 and the definition of Cross-examination in the Dictionary at Part 2 Clause 2:

“(2)    A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.” (Emphasis in original).

6. The application also requires I consider s 192 Evidence Act 1995.

7. Only a limited number of authorities have considered the scope and operation of s 42. They include the very helpful decision of Justice Johnson in R v Droudis(No. 6) [2016] NSWSC 1263. See also Justice Fullerton J in R v Xie (No. 13) [2015] NSWSC 2125, Justice Bellew in R v Rogerson [2016] NSWSC 110, and two further decisions of Justice Johnson in R v A2, R v KM, R v Vaziri (No. 14) [2015] NSWSC 1544 and R v A2, R v KM, R v Vaziri (No. 21) [2016] NSWSC 24.

8. Some guidance on matters of principle can be found in Stack v State of Western Australia (2004) 29 WAR 526; [2004] WASCA 300 and from R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (3rd ed, 2020, LexisNexis) at par 42-2.

Consideration

9. Mr Hibbard is presently putting a series of in leading propositions to a co-accused. He wants to draw from her evidence, that goes to her knowledge of the victim of the offence, his drug use and previous supplies by him. He also seeks support for the proposition that a third person committed the offence without any agreement with either accused: see R v Merritt [2023] NSWDC 339.

10. Generally, the interest of justice requires an accused be given free rein (subject to s 41 Evidence Act 1995 considerations) when cross-examining any witness including a co-accused.

11. Restraint is often required however because of tactical issues, as Justice Heydon J noted in Kirk v Industrial Court New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [117]. His Honour observed that a cross-examiner who persistently asked leading questions of a witness in total sympathy with the interest of the cross-examiner's client is employing a radically flawed technique.

12. But technique and tactics are for counsel.

13. The questions being asked on behalf of the accused seek to elicit answers of evidentiary value to his case. They are central to Mr Smith’s case as opened to the jury. They create no unfairness. The prosecution objection covers too broad a range of topics. In those circumstances it would not be fair to Mr Smith to restrict the cross-examination despite the obvious confluence of interest of both accused. The jury can make its own assessment of the efficacy of the questions asked and answers given.

14. However, given the nature of the matter and the order of cross-examination, fairness dictates that if fresh matters that are relevant to the Crown case are raised by Mr Hibbard in cross-examination, the Crown should be given an opportunity to test the witness again on those topics only (or others by leave) at the conclusion of Mr Hibbard’s cross-examination and before re-examination.

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Decision last updated: 28 September 2023