R v Spiteri-Ahern; R v Barber; R v Zraika (No 4)

[2017] NSWSC 1278

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Spiteri-Ahern; R v Barber; R v Zraika (No 4) [2017] NSWSC 1278

Hearing dates:

6 September 2017

Date of orders:

06 September 2017

Decision date:

06 September 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Leave granted to the Crown pursuant to s 39(b) of the Evidence Act 1995 for the Crown to adduce evidence in re-examination to re-establish credit.
(2)   Leave granted to counsel for the accused to cross-examine on material that might not otherwise have been available to them prior to re-examination.

Catchwords:

EVIDENCE – leave sought to adduce evidence re-establishing credit in re-examination – different operation of s 108(1) and s 108(3) of the Evidence Act 1995 discussed – need to comply with s 39 of the Evidence Act 1995 in re-examination, even on credit;

 CRIMINAL PROCEDURE – re-examination of witness by Crown – re-establish credit – matter arises – if not, leave granted.

Legislation Cited:

Evidence Act 1995, ss 37, 38, 39, 102, 108

Category:

Procedural rulings

Parties:

2014/00180060:
Regina (Crown)
Louise Catherine SPITERI-AHERN (Accused)

 

2014/00180279:
Regina (Crown)
April BARBER (Accused)

  2014/00235123:
Regina (Crown)
Amin ZRAIKA (Accused)

Representation:

Counsel:
2014/00180060:
D Patch (Crown)
J Trevallion (Accused)

 

2014/00180279:
D Patch (Crown)
A Francis (Accused)

 

2014/00235123:
D Patch (Crown)
Dr R Webb (Accused)

   

Solicitors:
2014/00180060:
Office of the Director Public Prosecutions (Crown)
Archbold Legal Solutions (Accused)

 

2014/00180279:
Office of the Director Public Prosecutions (Crown)
Bannisters Lawyers (Accused)

  2014/00235123:
Office of the Director Public Prosecutions (Crown)
Macquarie Lawyers Burwood (Accused)

File Number(s):

2014/00180060; 2014/00180279; 2014/00235123

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is a question of some general import relating to the operation of s 108 of the Evidence Act 1995 (“the Act”). Section 108 is divided in two subsections: the first deals with re-examination; and the second with evidence of consistent statements sought to be adduced in circumstances where a prior inconsistent statement has been adduced.

2. The first aspect of note is that s 108(3) of the Act is not confined to re-examination. The provision deals with evidence of consistent statements that may arise during the course of cross-examination, for example, where the Crown may have cross-examined under s 38 of the Act and the accused subsequently cross-examines more generally.

3. The next aspect of note is that, on its face, the legislation does not refer to documentary evidence, but refers to evidence adduced of inconsistent statements. That evidence can be adduced orally through the witness, for example, during the course of cross-examination or examination on credit.

4. It seems in the matters that are currently before the Court, those two aspects are not matters that are essential to the determination of the issue between the parties. More relevant is the operation of s 108(1) of the Act.

5. The provisions of s 108(1) of the Act are not confined to the circumstances where there has been a prior inconsistent statement adduced through a witness. The legislature has seen fit to render inapplicable the credibility rule contained in s 102 of the Act to questions in re-examination.

6. That exemption is absolute. As a consequence, credibility evidence about a witness is admissible, if relevant, and if it arises in re-examination, or otherwise meets the test or tests compounded in s 39 of the Act.

7. I accept, as it has been put, that the provisions of s 37 of the Act relating to leading questions continues to apply to re-examination, notwithstanding the terms of s 108(1) of the Act. Nevertheless, on the face of it, it seems that the effect of s 108(1) of the Act is to render admissible, in re-examination, evidence relevant to the credibility of the witness, even though it only effects the assessment of the credibility of the witness, if it otherwise were to meet the restrictions in s 39 of the Act.

8. It has to be said that the objection to the evidence sought to be adduced by the Crown has to some extent concentrated on the operations of s 108(3) of the Act. There are some difficult aspects of the operation of s 108(3) of the Act and, in particular, I refer to the reference to a prior consistent statement and a prior inconsistent statement, neither of which term uses the definite article.

9. In those circumstances it would seem that where a witness has had a prior inconsistent statement adduced, a prior consistent statement that may re-establish the credibility of the witness, which is unrelated to the previously admitted prior inconsistent statement, may be caught by the provision of s 108(3) of the Act. It is unnecessary to determine that question finally or at all.

10. As a matter of practice, it has usually been assumed that the prior consistent statement which is to be adduced under s 108(3) of the Act, is one that negates the effect of the admission into evidence of the prior inconsistent statement.

11. Nevertheless, I turn to the operation of s 108(1) of the Act and the rules relating to re-examination. One of the issues that arises as a result of the objection being taken at this point, and in the way it has, is what in fact has arisen out of the evidence given by the witness in cross-examination. The last question is not intended as a criticism of counsel on either side. Indeed, it is a compliment to their foresight and their courtesy in giving notice of the questions that were to be asked in re-examination and thereby foreshadowing the issues that would arise as a result of those questions.

12. A difficult question arises as to whether, if a witness’ credibility were put in issue at all, does the question of credibility, or re-establishing it, arise in re-examination to allow re-examination on unrelated issues to that put in issue? I doubt that on re-examination, a witness could be questioned about all matters or any matter, simply because it may go to credit in circumstances where credit has been raised in cross-examination. I operate on the assumption that that doubt precludes such a course.

13. Nevertheless, the questions that are proposed are to re-visit issues of credit going to consistent statements made concerning a threat and some other matters. These are said by this witness to have been uttered by the accused, Ms Spiteri-Ahern, and seem to me to arise. Amongst other things, it has been said that the evidence was fabricated and the credit of the witness has been put in issue on a subject matter similar to, or the same as, the evidence about which the Crown seeks now to adduce material.

14. I am not wholly convinced that the matters arise in the strict sense, but they are so closely connected with the matters of credit that have been raised by the cross-examination by defence counsel, that I grant leave pursuant to the terms of s 39(b) of the Act. Further, to the extent they desire it, although I do not encourage it, I allow counsel for the accused to cross-examine on material that might not otherwise have been available to them prior to re-examination.

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Amendments

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023