R v Wilkie

[2008] NSWSC 915

CITATION:	R v Wilkie [2008] NSWSC 915
HEARING DATE(S):	3 September 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
EX TEMPORE JUDGMENT DATE:	3 September 2008
DECISION:	Motion for stay dismissed
CATCHWORDS:	EVIDENCE - Witness - Prior inconsistent statement - Leave for party calling witness to cross examine
CATEGORY:	Procedural and other rulings
PARTIES:	REGINA (Commonwealth) - Crown Daniel WILKIE - Accused
FILE NUMBER(S):	SC 2007/2619
COUNSEL:	A MacSporran SC; M Wigney SC; T Berberian - Crown L Robberds QC; M Thangaraj - Accused
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown Speed & Stracey - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GROVE J
AND A JURY OF TWELVE

Sixth Day: Wednesday 3 September 2008

2007/2619 REGINA (COMMONWEALTH) v Daniel WILKIE

JUDGMENT (On Crown application to cross examine a witness – see Transcript p 328)

1 HIS HONOUR: This is an application for leave by the Crown Prosecutor to cross-examine a witness. Leave is sought pursuant to s38(1)(c) of the Evidence Act.

2 In evidence thus far in the trial the witness has been asked about a telephone conversation which he said he had either with Mr Kamha or Mr Spratt, probably with the former. He described the conversation as containing an instruction from the caller to the effect that within certain files it was necessary to have reserves reduced. The evidence of Mr Kamha shows that it is clearly an important piece of evidence in this trial to examine the content of this conversation and indeed whether or not any reference to the list of files from which reserve reductions were made was the subject of mention in a preceding call involving Mr Kamha at all.

3 The Crown seeks leave on the basis that the witness has made prior inconsistent statements. For that purpose, going back in history, I have been provided with, first of all, a statement of the witness made for the purpose of the HIH Royal Commission which statement was made on 10 April 2002. In that statement the relevant part of the conversation recounted by the witness was that a sheet would be coming down with claims reserves to be amended as at 31 December 1997. It is, as I have indicated, a critical matter of distinction whether he was told that there were to be amendments of such or, more precisely, that there were to be reductions.

4 The witness was called to testify at the Royal Commission. The relevant question and answer is to be found at p 5192 where it was put to him in these terms:

“Q. I think your statement records that, in effect, you were instructed to reduce reserves in respect of a number of files on a list that you were to be provided?
A. That is correct.”

5 As my observation of the statement shows it recorded only that he had been told that amendments were required rather than being precisely told that these amendments would be in the form of reductions.

6 The witness was interviewed and made a statement dated 9 December 2004. The statement was apparently taken by an officer of the Australian Securities and Investments Commission. That statement at par 50 contains a recounting of the alleged telephone call and again, the relevant part refers to the reserves being amended as distinguished from the proposition that the reserves would be reduced.

7 The witness also gave evidence at committal and was cross-examined by senior counsel then appearing for Mr Kamha who was at the time a joint defendant with the present accused. In that cross-examination the issue of whether the witness had been told that there were reductions or amendment was raised with him. The question was put in these terms after reference to the conversation:

“Q. To case estimates?
A. He may have used amendments.
Q. He certainly did not say reductions because that would have been an absurdity?
A. Well with respect he might have said reductions but I cannot now recall but it was either reductions or amendments.

Q. Your best recollection at the earliest time in which you gave it was that he talked about amendments?
A. Mm.”

8 The matter was further raised in cross-examination and he was referred to a note which quotes the words of Mr Kamha said to read:

“You will be getting a list of files for reserves to be altered.”

9 He was asked whether that was his recollection as part of the conversation in any event and he replied in the affirmative.

10 Mr Robberds QC for the accused has opposed the grant of leave, he submits that there is no essential difference between the descriptions and words used by the witness. In my view, there is a critical difference between alterations or amendments on the one hand and the specification of reductions on the other. That discrimination is, as I indicated at the outset, of considerable possible consequence to this trial.

11 My attention has been drawn to the care with which the witness has apparently approached his task in giving evidence today and my attention is drawn to his acceptance of the proposition put to him at the Royal Commission in oral evidence which I have quoted. Nevertheless, I am satisfied that there is a significant difference in what he has said today in evidence and those parts of the various records to which I have referred where he has accepted that the expression “reduced” or “reduction” may not have been used at the time.

12 In those circumstances I am of a view that leave to cross-examine in relation to this matter should be granted and I so order.

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