R v Salcedo; R v Stretton
[2018] ACTSC 96
•16 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Salcedo; R v Stretton |
Citation: | [2018] ACTSC 96 |
Hearing Date: | 16 April 2018 |
DecisionDate: | 16 April 2018 |
ReasonsDate: | 17 April 2018 |
Before: | Loukas-Karlsson J |
Decision: | The application for leave for the Crown to cross-examine the unfavourable witness is allowed. |
Catchwords: | EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses |
Legislation Cited: | Evidence Act 2011 (ACT) ss 38, 135 |
Cases Cited: | R v SH, MV and KC [2011] ACTSC 198; 6 ACTLR 1 R v Souleyman (1996) 40 NSWLR 712 |
Parties: | The Queen (Crown) Reece Salcedo (Accused) Nathan Stretton (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Stewart (Accused - Salcedo) Mr R Davies (Accused - Stretton) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gabbedy Lee Milson (Accused - Salcedo) Legal Aid ACT (Accused - Stretton) | |
File Numbers: | SCC 138 of 2017; SCC 228 of 2017 |
LOUKAS-KARLSSON J
Introduction
During a pre-trial Basha inquiry, the witness Rory Booth (‘the witness’) gave evidence on a voir dire.
The witness gave evidence that he may have been with the co-accused Mr Salcedo on 10 February 2017, the day of the commission of the offence. The transcript records the question and answer as follows:
MR WILLIAMSON: You went to see your good friend in the AMC and you didn't talk to him about why he's in there. Is that your evidence?
WITNESS: Yeah
MR WILLIAMSON: And you can't say what you were doing on 10 February 2017?
WITNESS: Would not have a clue.
MR WILLIAMSON: Would you know whether Mr Salcedo was with you at any time of the day on 10 February 2017?
WITNESS: Yeah, he probably was.
MR WILLIAMSON: Probably was?
WITNESS: Yeah, (indistinct) it's most likely.
MR WILLIAMSON: Do you have any memory of that?
WITNESS: Not really, no.
The Crown Prosecutor sought leave under s 38(1)(a) of the Evidence Act 2011 (ACT) to cross-examine the witness on the issue.
Application for Leave to Cross-Examine
The Crown Prosecutor stated that the evidence given goes part way to establishing an alibi for Mr Salcedo, which is not favourable to the Crown case. The Crown Prosecutor referred to the judgment of Refshauge J in R v SH, MV and KC [2011] ACTSC 198; 6 ACTLR 1 (‘R v SH’), where at [35] his Honour stated that:
…the Crown, having laid certain charges, should be able to test the evidence that is inconsistent with those charges….Where no other party is likely to test evidence inconsistent with the Crown’s allegation, there may well be a need for the Crown to do so in the interests of truth.
Counsel for the accused initially questioned how the evidence was unfavourable, but was not heard further on the matter once the potential to create an alibi for the accused was elaborated upon by the Crown.
Section 38 of the Evidence Act 2011 (ACT) provides as follows:
38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a)evidence given by the witness that is unfavourable to the party; or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination-in-chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for this Act (other than section 39 (Limits on re-examination)).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
NoteThe rules about admissibility of evidence relevant only to credibility are set out in pt 3.7.
(4) Questioning under this section must take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court gives a direction under subsection (4), the order in which the parties question the witness must be as the court directs.
(6) Without limiting the matters that the court may take into account in deciding whether to give leave or a direction under this section, it must take into account—
(a)whether the party gave notice at the earliest opportunity of the party’s intention to seek leave; and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or someone else; and
(b)the party is a witness in the proceeding.
Refshauge J in R v SH adopted the approach to the meaning of ‘unfavourable’ provided by Smart J in R v Souleyman (1996) 40 NSWLR 712, 715 which is as follows:
The word “unfavourable” in s 38(1)(a) does not mean “adverse”. It means “not favourable”. That construction could have wide ranging ramifications but the Court is given a discretion and would carefully examine the circumstances to see how the discretion should be exercised. A far fetched example would be if a witness said he could not remember something that happened three years ago. The discretion is important and designed to prevent any form of abuse in the administration of the more liberal test of “unfavourable”
At [30] of R v SH, Refshauge J notes that:
This approach has been followed in a number of decisions including of the New South Wales Court of Criminal Appeal. See R v Lozano (NSWCCA, No 60487 of 1996, 10 June 1997, unreported). It has also been followed by the Full Court of the Federal Court of Australia in Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 (at 430). See also Velevski (No 2) (1997) 93 A Crim R 420 (at 422); Cakovski (2002) 133 A Crim R 18 (at 22; [13]); R v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]); R v Ronen & Ors [2004] NSWSC 1298 (at [49])and Lee v The Queen [2009] NSWCCA 259 (at [30]).
I am satisfied that so far as the evidence of the witness goes to establishing an alibi for the accused, the evidence was unfavourable to the Crown within the meaning of s 38(1)(a) of the Evidence Act 2011 (ACT) .
The question is then whether leave should be granted. There were no submissions from counsel for the accused that leave ought not to be granted. Pursuant to s 38(6)(a) of the Evidence Act 2011 (ACT), the Crown Prosecutor sought leave at the earliest available opportunity to cross-examine the unfavourable witness, as the witness had not given evidence on this matter previously.
Pursuant to s 38(6)(b) of the Evidence Act 2011 (ACT), no submission was made as to whether a party other than the Crown would be questioning the witness.
No submissions were made regarding any unfair prejudice pursuant to s 135 of the Evidence Act 2011 (ACT).
In all of these circumstances, I exercised my discretion to grant leave under s 38(1)(a) of the Evidence Act 2011 (ACT) for the Crown to cross-examine the unfavourable witness.
Orders
The orders of the Court are:
1. The application for leave for the Crown to cross-examine the unfavourable witness is allowed.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 17 April 2018 |
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