R v Spiteri-Ahern; R v Barber; R v Zraika (No 5)

[2017] NSWSC 1279

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Spiteri-Ahern; R v Barber; R v Zraika (No 5) [2017] NSWSC 1279

Hearing dates:

6 September 2017

Date of orders:

06 September 2017

Decision date:

06 September 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Pursuant to the terms of s 136 of the Evidence Act 1995, limit the use that may be made of the evidence adduced in re-examination, for which leave has already been granted, to that which goes to credit pursuant to the terms of s 108 of the Evidence Act 1995.

Catchwords:

EVIDENCE – documents tendered – documents are Statements to Police by witness – sought to be adduced in re-examination – purpose is to re-establish credit – s 108 of the Evidence Act 1995 – Crown desires that it be used as evidence of the fact asserted – unfair and prejudicial in circumstances that adduced in re-examination – order to limit rise to credit.

Legislation Cited:

Evidence Act 1995, ss 32, 38, 39, 108, 136, 192

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: The issue before the Court is the admissibility and the use of documents tendered or sought to be tendered, amongst other things, for the purpose of re-establishing credit. I have dealt already with the provisions of s 108 of the Evidence Act 1995 (“the Act”) and its relationship with s 39 of the Act, when evidence going to credit is sought to be adduced in re-examination.

2. To that end, I have allowed the tender of material on credit which it is anticipated would be adduced by the Crown. I did so because such evidence was being adduced in re-examination and I was satisfied that it went to the credit of the witness in question. I also made clear that, notwithstanding the terms of s 39 of the Act, I would grant leave to allow that evidence to be adduced for the purpose of re-establishing the credibility of the witness. There were some conditions. The material may not directly arise in or from the cross-examination of the witness.

3. The question that now arises is whether the evidence, once adduced, ought to be able to be used for a purpose other than the credit of the witness. The Crown has most competently submitted that the evidence of that which was said on 31 October 2013, being immediately after the commission of the offence, whomever may have committed it, is likely to be more reliable than evidence adduced here in Court some 4 years later. The facts would have been more fresh in the mind of the witness; and insufficient time, or no time, had elapsed that would have enabled the witness to concoct the evidence such as to make it unbelievable. I accept those propositions.

4. If I were dealing with this matter as a matter of evidence-in-chief, those matters would be of greater persuasiveness than the situation when the matter is being raised in re-examination. There are a number of provisions of the Act, the purposes of which need to be borne in mind in dealing with these issues.

5. First, s 108 of the Act allows the re-establishment of credit. I have already dealt with that issue: see R v Spiteri-Ahern; R v Barber; R v Zraika (No 4) [2017] NSWSC 1278. The Crown submits, correctly in my view, that once admitted, the evidence could be utilised for all purposes, including proof of the fact in issue, unless an order is made by the Court limiting its use.

6. So much is uncontroversial. The debate, however, has occurred, on question from the Court, as to whether or not such use ought to be limited. The Crown’s submission has concentrated on opposing any limitation to the use of the evidence to, as earlier said, credibility - that is, the credibility of the witness as a result of the additional evidence now sought to be adduced and its contemporaneity, if that be different.

7. A difficulty is posed by the interplay of s 32, s 38, s 39 and s 192 of the Act. Pursuant to the prescription in s 192 of the Act, the Court is required, or allowed, to take into account the extent to which evidence that is sought to be adduced would be likely to add unduly to the length of the hearing, or shorten it; the extent to which allowing the evidence would be unfair to a party or witness; the importance of the evidence in relation to which the leave, permission or direction is sought; the nature of the proceedings; and the power of the Court to adjourn to resolve any unfairness.

8. There can be no doubt as to the importance of the proceedings. This is a murder trial. One of the accused is charged with murder, and, as has been said in submissions in this Court, and by the Court, murder is seen to be the most serious crime in the criminal calendar.

9. It would be inappropriate for the Court to stop the Crown from adducing evidence it had available, in ordinary circumstances, unless to do so would be clearly in the interests of justice.

10. A further difficulty is this. If the Crown were in-chief and examining the witness, the tender of the statements made to the police on 31 October 2017 would, in effect, be to provide the Court with a written statement of the evidence that the witness would provide without having the witness give the evidence viva voce, as would normally be the case.

11. If the Crown had sought to refresh the memory of the witness as to what it was she saw, heard or otherwise observed, the Crown could have done so by providing to her the statement, assuming leave were granted, at the time of examination in-chief. The Crown chose not to do that.

12. What it seeks now to do is adduce evidence by way of a statement, otherwise than pursuant to the restrictions in s 32, and otherwise than pursuant to leave granted under s 38 of the Act.

13. It is not the evidence, itself, that causes such difficulty in terms of the proof of the fact. It is the form of it.

14. The witness’ original statement on 31 October 2017 is being sought to be tendered as proof of the fact, in circumstances where the witness has not attested to it, and, I hasten to add, did not attest to it on 31 October 2017. She has said in evidence that what she said to police was intended to be true. She also said in evidence that she was not in a state to remember everything as clearly as she might otherwise have done.

15. In my view, adduced in the form that it is sought to be adduced, the evidence would be highly prejudicial to each of the accused and unfairly prejudicial.

16. Pursuant to the terms of s 136 of the Act, I limit the use that may be made of the evidence to be adduced, and for which leave has already been granted, to that which goes to credit pursuant to the terms of s 108 of the Act.

17. If a matter arises from the cross-examination and can be adduced in re-examination pursuant to the rules of s 39 of the Act, then it may be done, but it may not be done by the tender of a statement made on 31 October 2017. If leave were sought under s 32 of the Act, I would have to be convinced that such leave was appropriate in re-examination, and if otherwise it is suggested in re-examination that the witness’ evidence was such that leave under s 38 of the Act ought be granted, again I would need to be so convinced.

18. I reiterate that I am satisfied the evidence is admissible as to credit, and I think it would be extraordinarily unfairly prejudicial to the accused if it were used for any other purpose. I limit the evidence to the credit of the witness and re-establishing it.

19. I also reiterate that the Crown is at liberty to ask any question that is not leading that arises from the cross-examination of the witness, and if the witness were likely, or able, to give a more complete answer, so be it. However, the question would have to arise from cross-examination, and it would have to be asked and answered in the ordinary way.

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Amendments

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023