R v Terkmani - [2017] NSWSC 1154

Supreme Court

New South Wales

Medium Neutral Citation: R v Terkmani [2017] NSWSC 1154
Hearing dates: 8, 10 August 2017
Date of orders: 10 August 2017
Decision date: 30 August 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Leave granted to the Crown pursuant to s 38 of the Evidence Act to cross-examine Crown witnesses Mahmoud Terkmani, Mohammed Abdul-Rahman and Mohamad Terkmani

Catchwords: CRIME – trial for murder and aggravated sexual intercourse without consent – applications by Crown for leave to question Crown witnesses as though cross-examining them – where witnesses gave evidence inconsistent with their statements to police which tended to provide an innocent explanation for aspects of the Crown’s forensic evidence against the accused – where accused’s father gave evidence of alibi – Crown’s obligation to call the alibi witness in the Crown case – greater availability of cross-examination by the Crown in that circumstance – consideration of the need to constrain the manner and extent of cross-examination by the Crown
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 150
Evidence Act 1995 (NSW), ss 38, 103, 192
Cases Cited: Browne v Dunn (1983) 6 R 67
Kanaan v R [2006] NSWCCA 109
Category: Procedural and other rulings
Parties: Regina
Aymen Terkmani (accused)
Representation:
Counsel:
A Robertson (Crown)
M Austin (accused)
Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
Avant Legal (accused)

File Number(s): 2015/208844
Publication restriction: None

Judgment

HER HONOUR: Aymen Terkmani stood trial by jury for murder and aggravated sexual intercourse without consent. On 21 August 2017, he was found guilty of both offences. During the course of the trial, I granted leave to the Crown pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine a number of Crown witnesses, on each occasion reserving my reasons so as not to interrupt the flow of the evidence. These are my reasons for granting that leave.
Section 38 of the Evidence Act relevantly provides:

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 the purposes of this Act (other than section 39).
(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.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to…

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.

Continue reading R v Terkmani

Details

AGLC: R v Terkmani [2017] NSWSC 1154
Case: [2017] NSWSC 1154
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the case of R v Terkmani, the appellant was convicted of murder and aggravated sexual intercourse without consent. The Crown sought leave to cross-examine certain witnesses in a manner akin to cross-examination, specifically to address inconsistencies between their testimonies and prior statements to police, which appeared to provide an innocent explanation for aspects of the Crown's forensic evidence against the accused. The appellant's father provided evidence of an alibi, which led to the Crown's obligation to call this witness in the Crown case. This situation raised questions about the extent to which the Crown could cross-examine witnesses in light of the need to balance the accused's right to a fair trial with the Crown's duty to effectively challenge the defence.

The primary legal issue revolved around the extent to which the Crown could cross-examine witnesses in a manner that went beyond the usual scope of examination-in-chief. The court had to determine whether the Crown's right to call witnesses in the Crown case, particularly in light of an alibi defence, justified a greater availability of cross-examination. Additionally, the court considered the need to constrain the manner and extent of the Crown's cross-examination to ensure the accused's right to a fair trial was not compromised.

The court concluded that the Crown's obligation to call the alibi witness in the Crown case did not automatically entitle the Crown to cross-examine those witnesses in the manner it sought. While the court acknowledged the importance of the Crown effectively challenging the defence, it emphasised the necessity to protect the accused's right to a fair trial. The court held that the Crown's cross-examination must remain within the bounds of fairness, and any deviation from the standard examination-in-chief should be justified by the circumstances of the case. The court granted the Crown limited leave to question the witnesses as though cross-examining them, but this was carefully circumscribed to ensure the accused's rights were not unduly prejudiced.

The court's final orders reflected its reasoning, granting the Crown limited leave to cross-examine the witnesses in a manner that was narrowly tailored to address the inconsistencies in their testimonies. The court's decision underscored the delicate balance between the Crown's investigative and prosecutorial duties and the accused's fundamental rights, ensuring that the trial remained fair and just.

Orders