R v Spiteri-Ahern; R v Barber; R v Zraika (No 6)

[2017] NSWSC 1280

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Spiteri-Ahern; R v Barber; R v Zraika (No 6) [2017] NSWSC 1280

Hearing dates:

11 September 2017

Date of orders:

11 September 2017

Decision date:

11 September 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Leave under s 32 and/or s 38 of the Evidence Act 1995 refused;
(2) To the extent necessary, leave under s 39(b) of the Evidence Act 1995 granted.

Catchwords:

EVIDENCE – application to cross-examine by Crown in re-examination under s 38 of the Evidence Act 1995 – whether matter arises – leave under s 39(b) of the Evidence Act 1995 granted but not to cross-examine.

Legislation Cited:

Evidence Act 1995, ss 32, 38, 39

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 an application purportedly pursuant to each of s 39 and/or s 38 of the Evidence Act 1995 (“the Act”) to adduce evidence from the Crown witness by way of cross-examination. The application is made by the Crown in, or at the time of, re-examination.

2. The application relates to a conversation about which the witness gave evidence at page 53 of the transcript of the trial now before the Court and that occurred on 18 August 2017. Between 18 August 2017 and the cross-examination of the witness, which occurred on 21 August 2017, there was a weekend. The transcript of the proceedings was sent to the Crown on 18 August 2017, albeit in the evening after the trial on that day had concluded.

3. Some questions have been asked during the course of cross-examination which have gone to the circumstances, at least, of the telephone conversation that the witness alleged occurred between Ms Barber, an accused, and the deceased on or about the evening of 29 October 2013. The deceased was killed on 30 October 2013.

4. The Crown says that it is important in its case to establish that Ms Barber was aware, prior to 4pm on 30 October 2013, that the deceased was expecting or required to travel to Sydney on 30 October 2017.

5. It is fair to say that there has been some significant cross-examination on the subject telephone call which has, from time to time, been referred to as the “Charmhaven telephone conversation” or “Charmhaven call”. The difficulty the Court has is this; if the evidence that the Crown now seeks to adduce is as important to the Crown case as is suggested by the Crown in its application, then frankly, it is inexplicable as to why these matters were not adduced in-chief.

6. If, as the Crown suggests, having been through one trial before a Judge of this Court, involving, as I understand it, the same counsel, and having a number of statements, this question of timing and the reliance upon the knowledge by Ms Barber of the whereabouts of the deceased is of such crucial importance - which, I hasten to add, I do not doubt - there can be no possible reason why this matter has been left to re-examination.

7. Ms Francis, who appears for the accused, Ms Barber, refers the Court to the terms of s 38(4) of the Act which require that questioning of the kind to which the section refers is to take place before the other parties cross-examine the witness, unless the Court directs otherwise.

8. Plainly, given that the Crown is now in re-examination, it would be necessary, if the Court were minded to grant the application made, for the Court to order otherwise. The purpose to which s 38(4) of the Act goes, and the obvious mischief which it seeks to remedy, is the difficulty in procedural fairness on a party who cross-examines on the basis of evidence adduced in-chief only to find out, after the cross-examination, that the evidence to be adduced is different from that which is or has been otherwise obtained from a witness. On the other hand, the Court is not playing games. The procedures of the Act and the role of the Court is, amongst other things, to obtain that evidence which is available in a manner that is fair to all of the parties.

9. In the same way as an earlier application of the Crown, the application involves the intertwining of ss 38 and 39 of the Act. On the one hand, this evidence should have been adduced in-chief, particularly given the importance that the Crown places upon it in the trial and in its theory of the case. Furthermore, the evidence is sought to be adduced by cross-examination and leading the witness through material that the witness did not volunteer or did not recall at the time that the evidence was given in-chief, or, on one view, during the time that the cross-examination occurred. I am bound by the terms of s 192 of the Act and have considered the criteria there prescribed.

10. I have already remarked that an application of this kind would necessarily involve, as a matter of fairness, the requirement for the Court to allow the parties, that is, those representing the accused, further opportunity to cross-examine the witness. Frankly, such a course is not commendable.

11. The witness has already been in the witness box some days and has had, at times, difficulty in giving evidence. She was, at the time of the death of the deceased, his partner.

12. In my view, the overall effect of the evidence of the witness could not be described as unfavourable to the Crown. Further, it seems to me in this particular aspect, it is illegitimate to describe the witness’ evidence as being such that she would or should recall the evidence in full and was not making a genuine attempt to recall it.

13. Lastly, given the terms of s 38(1) of the Act, it cannot be said, in real terms, that the witness has made a prior inconsistent statement. I am not there suggesting that a description of the totality of a conversation that omitted significant aspects cannot be inconsistent with an earlier version of that same conversation which had a significant aspect omitted. Nevertheless, the evidence only just gets within s 38 of the Act, if it gets in at all.

14. Importing a phrase from another area of law, it seems the Court, in the exercise of its discretion, must synthesise each of the aspects in a way that allows the evidence to be adduced in the best possible way without unfairness to the accused or, I hasten to add, the Crown.

15. In those circumstances, to the extent leave under s 39 of the Act is needed, I will grant leave for the witness to be questioned on the totality of the conversation, particularly given the fact that the conversation and some of its content was the subject of cross-examination.

16. The application under s 38 is premature. Ordinarily, in circumstances such as this, if a prior statement were made which more fully described the terms of a conversation or other evidence, leave would be sought under s 32 of the Act to refresh the witness’ memory and then, and only then, would leave be sought and granted under s 38 of the Act. I am aware that, in practice, many elide that process.

17. Nevertheless, as a matter of fairness, and in order to avoid the almost indefinite examination of this witness, I will not grant leave under s 32 or s 38 of the Act, but, as earlier stated, will allow questions to be directed to the witness as to the totality of the conversation in question.

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Amendments

21 September 2017 - System error - no amendment made

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023