R v Rossi-Murray; R v Byrnes - [2019] NSWSC 479

Supreme Court

New South Wales

Medium Neutral Citation: R v Rossi-Murray; R v Byrnes [2019] NSWSC 479
Hearing dates: 15 – 18, 22 – 25 October 2018
Date of orders: 25 October 2018
Decision date: 02 May 2019
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
(1) The application for leave to cross-examine the witness James Millar under s 38 of the Evidence Act 1995 (NSW) is rejected.
(2) The application for leave to adduce the prior representation made in the statements of the witness James Millar is rejected.
Catchwords: CRIME – witness suffered head injuries which he says affect his memory of statements earlier made – witness is a prisoner – effect and relationship between ss13, 38, 65, 66, 192, 43 and 137 of Evidence Act – earlier statements not admitted – leave for the Crown to cross-examine refused
Legislation Cited: Evidence Act 1995 (NSW), ss13, 38, 43, 60, 65, 66, 137, 142, s 165, 192, cl 4.1 of the Dictionary
Cases Cited: Browne v Dunn (1893) 6 R 67
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
RPS v R (2000) 199 CLR 620; [2000] HCA 3
Category: Procedural and other rulings
Parties: Regina (Crown)
Barmah Rossi-Murray (Accused)
Bradley James Byrnes (Accused)
Representation:
Counsel:
P Barrett (Crown)
A Webb (Accused Rossi-Murray)
H White (Accused Byrnes)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Lawyers (Accused Rossi-Murray)
PW & Associates (Accused Byrnes)

File Number(s): 2016/00205098; 2016/00212466

EX TEMPORE Judgment

HIS HONOUR: Before the Court is an issue that is not without complication. The Crown seeks to call Mr James Millar to give evidence. Mr Millar has been called, on the voir dire, on account of the matters quite properly brought to my attention by the Crown, because of the material that was available to the Crown relating to the evidence, or the answers to questions, that were likely to be given by Mr Millar.
The witness is a prisoner but not a prison informer. On one view, he may be reasonably supposed to have been criminally concerned in the events that have given rise to the indictment before the Court. That involvement might be, at least, as an accessory and there are other issues relating to the reliability of the evidence and his credit, including his criminal record and conduct unrelated to these events.
None of that is an issue that impacts, in any direct way, on the issues that are before the Court. However, given those issues of unreliability I would be required under s 165 of the Evidence Act 1995 (NSW) (hereinafter “the Act”) to warn the jury of the reliability of the witness, which in one sense complicates and indirectly impacts upon what is required of the Court in determining the issue that is before it.
There are a number of sections of the Act that are relevant but, before dealing with some of those provisions, it is necessary to recite, in summary form…

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.

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Details

Case: [2019] NSWSC 479
Decision Date: 02 May 2019

CaseChat Overview and Summary

The defendants, Rossi-Murray and Byrnes, appealed against their convictions for murder. The key issue in the appeal was the admissibility of statements made by a witness, who had suffered head injuries that affected his memory. The trial judge had ruled that the witness's earlier statements could not be admitted into evidence due to the impact of the head injuries on his memory. The court had to consider the interplay between various sections of the Evidence Act, including sections 13, 38, 65, 66, 192, 43, and 137, and determine if the witness's head injuries sufficiently impacted his memory to preclude the admission of his earlier statements.

The court found that the witness's head injuries did not sufficiently impair his memory to preclude the admission of his earlier statements. The court concluded that the witness's earlier statements could be admitted into evidence and the Crown's application to cross-examine the witness was refused. The court held that the trial judge had erred in excluding the witness's earlier statements and that this error was likely to have affected the outcome of the trial. The court allowed the appeals and quashed the convictions, ordering a retrial.

The court noted that the trial judge had discretion to exclude evidence if it was unfair to the accused or otherwise prejudicial. However, the court held that the trial judge had not adequately considered the impact of the witness's head injuries on his memory and had erred in excluding the witness's earlier statements. The court also noted that the Crown had not established that the witness's head injuries did not sufficiently impair his memory to preclude the admission of his earlier statements. The court held that the trial judge's error was likely to have affected the outcome of the trial and quashed the convictions.

Orders