DPP v McRae [2010] VSC 114

1 Clinton McRae is on trial for murder. The Crown case is that he was a party to a joint criminal enterprise to kill Stephen Witham. The Crown proposes to call four witnesses: Flaherty, Watson, Connally and McGillivray, who were variously involved in the events of 12 and 13 August 2006 when Mr Witham met his death. All four witnesses have pleaded guilty and have been sentenced in respect of their respective roles.

2 The Crown applies, pursuant to ss 38 and 192A of the Evidence Act 2008 (Vic) ('Evidence Act'), for an advance ruling granting leave to question the witnesses as though cross-examining each of them. The application is opposed by Mr Dane QC acting on behalf of Mr McRae.

3 Section 38 of the Evidence Act provides as follows:

"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.

Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(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 be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

(b) the party is a witness in the proceeding."

4 The Crown case may be summarised as follows: Michael Flaherty returned home to Van der Haar Avenue, Berwick, from work, on the evening of 12 August 2006. He decided to take action against his boarder, Stephen Witham, whose aggressive manner and violent behaviour over the previous months had become intolerable. Flaherty, with his girlfriend, Jodie Watson, went to a barbeque that evening at her sister, Danielle Reynolds' home, and there met with Clinton McRae. Clinton McRae was a friend of Adrian Connally, who lived on a rural property at Turtons Creek. McRae's mobile telephone call records reveal that McRae's telephone called Connally at 7.45pm and 9.30pm that night. The Crown will invite the jury to infer, by reason of those calls, that the plan to kill Mr Witham had been hatched before Watson, Flaherty and McRae returned to the house at Van der Haar Avenue later that night. Michelle Churchill is a friend of Jodie Watson's, and Jodie had complained to her about Mr Witham's behaviour. She enlisted Aidan McGillivray and Darren Whittaker to assist in assaulting Mr Witham. The three of them drove to Van der Haar Avenue but, en route at 1.00am, they were spoken to by the police. They all met up outside the house at Van der Haar Avenue and McGillivray and Whittaker were given instructions about where Mr Witham would be in the house. It is not disputed that Witham was subsequently assaulted, tied up and placed in the boot of Jodie Watson's car; nor is it disputed that Watson, Flaherty and McRae drove from Berwick to Turtons Creek with Witham tied up in a doona in the boot. The Crown contend (which is disputed) that McRae struck Witham with a baseball bat back at the house and that en route to Connally's property, McRae made a number of calls to Connally seeking directions.

5 Flaherty, in his record of interview made on 8 November 2007, nominates McRae as hitting Witham with a bat in the bedroom back at the house. He also said that McRae knew Connally and "teed up" the car. At the Connally property, once Connally had produced a gun, he, Connally and McRae drove to a remote location with Mr Witham wrapped in a doona in the back of Connally's four wheel drive. Flaherty admitted in his record of interview to untying Witham, talking to him and having a stubby with him, and then pushing him down a hill and pursuing him further and then shooting him in the back of the head. Flaherty stated that McRae was present prior to, but not at the actual shooting.

6 Connally, in his record of interview made on 8 January 2008, told the police that McRae had rung him saying that they wanted to go shooting,[1] that Flaherty had asked for a gun to go shooting with and, when Connally returned with a shotgun, something in a doona had been placed in the back of his four wheel drive. Flaherty then grabbed the gun from him and he, Flaherty, and McRae then drove into the bushland. Flaherty told him to stop and, as he got out of the car they "rolled the doona out and I walked off".[2] Shortly after, Connally said he heard a muffled sound and when he walked back to the car, Flaherty and McRae were standing around. There was nothing in the doona. He described them as happy, jovial and laughing. Connally described McRae's role that night as Flaherty's offsider and egging Flaherty on.[3] Connally also told the police that back at his house, Flaherty had burnt the doona in an incinerator and then, about a month later, Flaherty and McRae returned to his property and asked to be driven to where they had gone that night, and Connally, fearing that he may be killed, drove them to another location. Connally also said that McRae telephoned him on that night, although he could not say how many times.

7 Jodie Watson, in her record of interview made on 8 November 2007, said that she remained in the kitchen at the house in Van der Haar Avenue and did not see the assault on Witham. She drove the car with Witham in the boot into the country with Flaherty and McRae and, once at the Connally property, she fell asleep in the car but then saw both Flaherty and McRae come back to the car at a later point. She had been drug-affected on the night.

8 Aidan McGillivray, in his statement made on 8 November of 2007, said that outside the house, McRae had said that Witham was "an arsehole standover man and very violent". Inside the bedroom, he saw Clinton swing at Witham with something in his hand, "maybe a bat, pole or a piece of wood".[4]

9 Thus, it is apparent that the out of court statements of Flaherty, Connally, Watson and McGillivray, insofar as they do, implicate McRae in the assault, taking away and killing of Stephen Witham, and the Crown relies upon those out of court statements of McGillivray, Flaherty and Connally to establish McRae's role both at the house, en route to, and at the Connally property.

10 Mr McRae effectively made a no comment record of interview, and in the defence response he does not admit making any phone calls on his mobile phone or striking Mr Witham with a bat. He does admit that he travelled to Connally's property with Flaherty and Watson, with Witham wrapped in a doona in the boot of the car and that after arriving at Connally's property, with Witham still bound and wrapped in the doona, he was placed in the rear of the four wheel drive and that Connally supplied Flaherty with the gun. He does not admit being present at the remote location with Flaherty, Connally and Witham, and he does not admit to any direct knowledge of what happened there or any participation in a joint criminal enterprise.

11 A Basha inquiry was held in respect of Flaherty, Watson, Connally and McGillivray. Flaherty and Watson indicated that they were prepared to make statements and give evidence. The statements were taken from them that day, 22 February 2010. Flaherty, in his statement said that it was he who struck Witham with the baseball bat back at the house and that it was he who suggested going to Connally's place, whom he referred to as Wellsy, a name previously used by Connally. En route, he said McRae called for directions. On arrival at Turtons Creek, there was a discussion about killing Witham which Connally became excited about, but McRae did not have much to do with. Flaherty stated that it was he and Wellsy, as he referred to Connally, who then drove into the bushland with Witham, leaving Jodie Watson and McRae behind. He stated that he and McRae returned to the Turtons Creek property some weeks later to pay Connally money for the help he had given Flaherty to get rid of Witham.

12 Jodie Watson, in her statement, gave much the same account as she had in her record of interview, except that she said she slept in the house and not in the car. She did not attribute any role to Mr McRae at the Connally property in either her record of interview or statement.

13 Mr McGillivray gave sworn evidence on the Basha inquiry that since making his statement on 8 November 2007, he had been involved in a motor bike accident and had sustained severe head injuries and was in a coma for two weeks, as a result of which he has difficulty with his memory. He remembered wrestling with Steve Witham, but he did not remember much more, although he did say he could remember about 50 per cent of the night, but that otherwise, to his knowledge, his statement was true and correct.

14 Connally, at the Basha inquiry, resiled from his record of interview and the two previous statements that he had made on 8 January 2008 and 20 July 2009 respectively wherein he had attributed certain actions and utterances to McRae. Generally, he now maintains that any reference to "they" should have been read as a reference to Michael Flaherty only, and he is uncertain, and could not swear that McRae had said the things that he previously had attributed to him.

15 Pursuant to s 38 of the Evidence Act and consistent with the practice adopted in Adam v R ("Adam's case"),[5] I granted leave to the Crown to cross-examine, in evidence-in-chief, Flaherty, Connally, Watson and McGillivray on a Basha inquiry, either because they were unfavourable or they had made prior inconsistent statements or both. I should say at this stage that the prior inconsistent statement in respect of Ms Watson related to comments she had made in a conversation with Flaherty on 4 November 2007, that is, four days before her record of interview, which, unbeknown to each of them, was taped. I permitted cross-examination of Mr Flaherty on this same material, the Crown contending that the import of the conversation where reference was made to Clinton "clinching the deal", if accepted as a reference to the killing of Mr Witham, suggested that Ms Watson was not telling the truth in her record of interview and statement when she made no reference to any role played by Mr McRae at the Turtons Creek property.

16 Apart from the particular matters pertaining to the evidence of Watson and McGillivray, Mr Dane QC did not particularise his opposition in respect of each application, but, rather, concentrating on the discretions to be exercised pursuant to s 192[6] and s 137[7] of the Evidence Act and the matters relevant to that exercise, he submitted the following:

(1) Section 38 is an evidentiary section designed to facilitate the quality of evidence;

(2) The witnesses are not themselves hostile to the Crown; they are prepared to give evidence;

(3) The witnesses' prior statements are not made on oath, they were prepared in conjunction with the police and made at a time when they had their own interests to protect and when they would not expect, because the law was then different, that as a result of what they said, they would become witnesses in the case against Mr McRae;

(4) Some of the witnesses have criminal histories and Watson was adversely affected by drugs throughout this period. Therefore, as I understand his submission, reliability and credibility of the witnesses are to be taken into account;

(5) The Crown case is to be found in the out of court statements of each of the witnesses, which statements the witnesses, with the exception of McGillivray, will say on oath is not the truth. The defence will rely upon what each witness says on oath in evidence before the jury as the truth. The only way the Crown can prove its case is on the unsworn prior statements which will have been rejected by the witnesses on oath. Therefore, the Crown is erecting its whole case on the testimony of witnesses whom it will be inviting the jury to find have lied on oath before them;

(6) There is no central narrative of the Crown case. Independent of these witnesses, there are no other witnesses against whom the reliability of these witnesses can be tested;

(7) The witnesses will be shown to have lied either on oath in their evidence or in the making of their prior inconsistent statements, and that fact of lying will impact upon the accused adversely;

(8) An acquittal can only be secured if the jury accept what the witnesses say in their evidence-in-chief, that is, what is said not as a result of the cross-examination by the Crown. The Crown will contend that each of the witnesses is lying on oath so the defence have lost the ability to invite the jury to rely on Crown witnesses in support of the defence case, and the defence is precluded, therefore, from any effective cross-examination;

(9) There would be an imbalance in the presentation of the evidence between the previous inconsistent statements being tendered and physically placed before the jury and the viva voce evidence given in court, and the jury, with the provision of these additional materials, would be overburdened in their task;

(10) All of these matters, compendiously, are productive of an unfair trial.

17 Mr Beale, in his comprehensive and helpful submissions, relied upon the following in support of his application.

(1) The rule against calling a witness for the express purpose of hostiling that witness[8] does not apply under the provisions of the Evidence Act. There is, therefore, nothing improper in the course proposed by the Crown.

(2) Each of the witnesses proposed to be cross-examined meets the requirements of s 38, whether it be unfavourable, not making a genuine attempt to give evidence or having made a prior inconsistent statement.

(3) Although the parameters of cross-examination are limited to the matters giving rise to the pre-conditions in s 38(1)(a), (b) and (c), the authorities permit cross-examination with the view to demonstrating the implausibility of the version which the Crown contends should be rejected.

18 As to the exercise of the discretions, Mr Beale submitted the following.

(1) Regard must be had to s 38(6)(a) and (b), and ss 135, 136, 137 and 192(2) of the Evidence Act.

(2) Section 137 of the Evidence Act replicates the Christie discretion. In assessing the probative value of the evidence, the court must assume its reliability.[9] Reliability only becomes an issue if no reasonable jury could accept the evidence.

(3) The fact that the previous statements were not made contemporaneously with the events does not justify exclusion.

(4) The defence bears the burden of proving the risk of prejudice outweighs the probative value.

(5) The prejudice affected by the evidence must be more than strengthening the Crown case; there must be a risk that the jury will misuse or overvalue the evidence.

(6) The previous representation of the witnesses fit together; in particular, Flaherty and McGillivray both say that McRae struck Witham at the house. Flaherty and Connally both say McRae went with them in the four wheel drive up to Campbells Road, being the remote location; and Watson says that Flaherty and McRae got out of her car at Connally's property and both returned to it some time later.

(7) There is conflict in the subsequent statements of Flaherty and Connally as to the role of McRae. Flaherty claims that it was he who struck Witham with the bat at the house and the Crown contends that his explanation that he did not say that in the record of interview because it sounded cruel is implausible given his later actions in shooting Mr Witham. Flaherty also describes Mr McRae as staying behind and Connally going with him up to Campbells Road. The current version is implausible, the Crown submit, and that is emphasised by the variations in the witnesses' respective accounts.

(8) Mr Beale would not pursue a line of cross-examination which suggested Mr McRae put the witnesses up to lying. The variation in their accounts suggests the contrary.

(9) The risk of impermissible reasoning can be addressed by appropriate directions.

(10) Flaherty, in his record of interview, was not trying to shift the blame onto anyone else and, hence, this is not a situation where he was trying to maximise the role of others and limit his own.

(11) The authorities suggest there is no numerical limit as to the number of witnesses who can be cross-examined by the Crown pursuant to s 38; and

(12) The prosecution case is a strong one.

19 Mr Beale conceded that his purpose in calling Flaherty and Connally is to get into evidence their previous statements as proof of the facts. Likewise, the account given by Mr McGillivray as he now claims a lack of recollection of the events. Jodie Watson falls into a different category because the prior inconsistent statement that the Crown seeks to cross-examine her about is not her previous record of interview, which substantially conforms with her most recent statement, but rather her taped conversation with Flaherty made on 4 November 2007.

20 There is no criticism to be made of such a course; it was not criticised by the High Court in Adam's case[10] and, in any event, it is consistent with the prosecutor's duty to call all relevant witnesses,[11] nor is there anything improper in the course proposed by the Crown. Section 38 applies in circumstances where it may be anticipated that the witness will be unfavourable. It is not confined to a situation where a party calling a witness is confronted unexpectedly by evidence which is unfavourable or by a witness who unexpectedly appears not to be making a genuine attempt to give evidence. So much is apparent from the decision of the High Court in Adam's case[12] and R v. Petroulias (No.29).[13] Further, as s 192A of the Evidence Act provides for advance rulings and as a Basha inquiry has been held in respect of each of these witnesses, both the Crown and the defence know what the witnesses will say if they give evidence before the jury in the same terms as they did on the Basha inquiry. I can see no impediment to a ruling in advance and no unfairness to the accused in so doing.

21 Section 38 and s 60 of the Evidence Act represent a fundamental change to the common law. The principles of Blewitt's case[14] are no longer applicable in light of these statutory provisions.[15] In R v Lozano ('Lozano's case'),[16] it was acknowledged that the purpose of the section was to ensure that the courts are not deprived of relevant testimony which had previously been excluded by operation of the hostile witness rule. The Australian Law Reform Commission, in its report of 2005, refers to the guiding principle under s 38 as "improvement in fact-finding by enabling a party who calls a witness to challenge unfavourable evidence by cross-examining that witness", and the report comments that the principle has been upheld by the operation of the section over the ten years since its inception, as it then was, and that despite some criticism, it had received strong judicial support.[17] Further, the defence here was put on notice that the Crown would seek leave to cross-examine Flaherty and Watson in respect of their records of interviews in December 2009 and most recently on 27 January 2010. The defence having been put on notice in respect of Watson and Flaherty, the provisions of s 38(6)(a) have been met in respect of those applications, and the defence have had notice since the Basha inquiry in respect of Connally and McGillivray that applications would be made in respect of their testimony.

22 The first issue to be decided in respect of each of the four witnesses is whether their evidence is relevant. Mr Dane QC did not suggest to the contrary. They are all relevant, as the Act defines that term,[18] because they are all eyewitnesses to various aspects of what occurred on the night of 12 and 13 August 2006, and their evidence relates to the accused's conduct on that night, the central issue in the trial being whether Mr McRae was a party to a common purpose, if he participated in it and if he withdrew from it. Each of the witnesses are persons whom the Crown has a duty to call. I am satisfied that each witness is able to give relevant evidence and, therefore, the threshold question of admissibility is met.[19]

23 The Crown seeks leave pursuant to s 38(1) of the Evidence Act, either on the grounds that the witness is unfavourable, is not making a genuine attempt to give evidence, or has made a prior inconsistent statement. It is not to the point that each of the witnesses is prepared to give evidence and be called by the Crown. The section does not require that the evidence, or the witnesses themselves, be adverse, hostile or not cooperative with the party proposing to call them. The section requires only that one of three preconditions be met.

24 The word "unfavourable" does not mean adverse or hostile. It is taken to mean "not favourable" as was held by Smart J in R v Souleyman ("Souleyman's case")[20] and subsequently followed by courts in New South Wales. Although the Federal Court in Hodgkiss v Construction, Forestry, Mining and Energy Union ("Hodgkiss's case"),[21] characterised "unfavourable" as having "to detract from the case of the party calling the witness", it appears from my reading of the authorities that the approach of Souleyman's case[22] is generally preferred and I would apply that definition. Nonetheless, even on the more restricted approach as stipulated in Hodgkiss's case,[23] Flaherty and Connally would meet the requirements of unfavourable.

25 If Flaherty gives evidence consistently with the terms of his statement made on 22 February 2010, then his record of interview is a prior inconsistent statement and the preconditions of s 38(1)(c) will also have been met. Likewise, if Connally, in his evidence-in-chief, seeks to resile from his two statements as he did in the Basha inquiry, then both those statements and his record of interview are prior inconsistent statements, about which the Crown will seek to cross-examine him, and hence the requirement of s 38(1)(c) will also have been met.

26 As to the application in respect of Mr McGillivray, the Crown does not dispute that he suffered an accident which left him hospitalised. Irrespective of whether his lack of memory is genuine or feigned, it would appear on the authority of Lozano's case[24] that leave pursuant to s 38 may be granted, either under s 38(1)(a), if the witness genuinely does not recall the events, or under s 38(1)(b) if I am satisfied that the witness does not genuinely not have a recall of the events. As I await the report of the Alfred Hospital to determine the nature and extent, if any, of the witness's amnesia, I do not propose to rule any further, other than to say it would appear that leave may be granted under either s 38(1)(a) or s 38(1)(b).

27 Ms Watson's position is perhaps not as clear. Neither her record of interview nor her most recent statement make any reference to Mr McRae's conduct once they arrive at the Connally property because she stated she fell asleep, other than to say that McRae got out of her car and, at a later point, returned to it. Thus, there is a hiatus in her evidence and the question becomes - is she unfavourable simply because she does not give a complete narrative of the events? In that sense, it may be said that her evidence is neutral, that is, that it does not have an unhelpful quality about it,[25] it is simply limited by how far it goes. However, the Crown does not rely upon her record of interview as a prior inconsistent statement. Indeed, the Crown acknowledges that as between the two accounts, they are consistent.

28 The Crown seeks leave to cross-examine this witness on the basis that her conversation that she had with Flaherty on 4 November 2007, which conversation was taped, amounts to a prior inconsistent statement. Ms Watson's comments arise in the course of the conversation she was having with Flaherty, with whom she had a relationship both at the time of the killing and at the time the conversation was recorded, and with one Gary Ross, who has no other involvement in this matter other than that he was present during that conversation. In that conversation, Ms Watson speaks with Michael Flaherty and one Gary Ross. The transcript records her as saying:

Jodie: No, we done a good job, fuckin' actually Clinton might've done a good job. Clinton fuckin' clinched the deal.

Jodie: Yep, he's the one that actually made it happen.

Mick: He's the one that killed him though, Gary, he's a machine.

29 The Crown seeks to rely upon this passage as a prior inconsistent statement of Ms Watson and, indeed, of Mr Flaherty and, as such, the Crown would seek to challenge Ms Watson's assertion that her statements are a complete account as to her knowledge of McRae's role. Of course, if leave were granted, once those statements were admitted, by reason of s 60 of the Evidence Act, they would become evidence of the truth, that is, in proof of McRae's role.

30 In the lead-up to the passages relied upon, Watson and Flaherty are clearly talking about the events prior to the arrival at Turtons Creek. There is a reference to driving with Witham in the boot, to his not making any noise, to his trying to get out of the boot, to driving through towns with rope with blood on it hanging from the back of the boot, and it was in this context that the comments were made. Ms Watson at the Basha inquiry agreed in part that the conversations related to the events concerning the killing of Mr Witham, some of which she could recall, but otherwise she professed a lack of recollection and said that she was drug-affected on the night and at that time of her life. Indeed, on the tape she certainly sounds excitable and voluble.

31 Mr Dane QC has submitted that the reference to a deal in that conversation is non-specific, that it could be a reference to something that she was told or a reference to drug dealing, which is the topic of conversation some ten minutes later, or a reference to anything else. Indeed, it was submitted, and the expression certainly has that colour, that the utterances may be no more than an expression of an opinion. Indeed, when one has regard to the balance of that particular passage where the transcript records Flaherty saying, "He's the one that killed him, though, Gary, he's a machine", that statement cannot be the truth as it is spoken by the person who did kill Stephen Witham; however, for the purposes of this exercise, the reliability of the evidence is to be assumed.

32 I am satisfied that the words spoken by Ms Watson are capable of being regarded as a prior inconsistent statement, that is, indicating that, to her knowledge, McRae had an active role in what occurred that night, although it is not clear whether that is from her knowledge per se or from something she has been told. The evidence has particular relevance in light of the fact that Mr McRae does not admit making the telephone calls that are recorded on his mobile phone, which calls the Crown would rely upon to invite the jury to draw the inference that at the time of the barbecue, that is, prior to returning to the Van der Haar Avenue property, and en route to Turtons Creek, Mr McRae was telephoning Connally in the first instance to secure an invitation to go shooting and, in the second instance, to seek directions to get to the property. Once at Connally's property, then Flaherty had access to a gun and to a means of disposing of Mr Witham's body in a remote location. In these circumstances, the expression that Clinton "clinched the deal" is probative of the Crown case that it was he who was involved in the killing and not Connally, as Flaherty now asserts.

33 I am satisfied that in respect of Jodie Watson, she has made a prior inconsistent statement and, as such, meets the requirements of s 38(1)(c).[26] I am satisfied also that in respect of Flaherty and Connally, they are both unfavourable to the party calling them and that they have each made a prior inconsistent statement, and the pre-conditions of the grant of leave have been met in their respective applications also.

34 As to the discretion to be exercised pursuant to s 38(6)(a),[27] as stated previously, the defence has written notice in respect of Flaherty and Watson and were put on notice in respect of Connally and McGillivray by reasons of their answers at the Basha inquiry. As I understand it, this was the first time the Crown was aware of Mr Connally's position and there may have been some prior knowledge in respect of Mr McGillivray's medical condition.

35 As to s 38(6)(b),[28] it is highly unlikely that the witnesses would be questioned by the defence about their prior inconsistent statements, as those statements implicate Mr McRae in the assault on Mr Witham, the arrangements to travel to Turtons Creek and his presence and conduct at Connally's property and in the bushland where Witham was killed. In these circumstances, if leave were not granted, the interests of justice would not be served because the witnesses' accounts could not be tested by what they had said previously, and for this evidence to go before the jury in an unqualified way may be said to be damaging to the public interest and contrary to justice.[29] These considerations are relevant to the grant of leave.

36 As to the discretions pursuant to ss 135, 136, 137 and 192(2),[30] I have had regard to the following:

In respect of s 192(2):

(a) The grant of leave to cross-examine will not result in additional witnesses being called so that the trial will not be unduly lengthened by that process, although clearly time in the witness box will be extended;

(b) Care must be taken to ensure that the focus of the trial does not shift. In R v. Hogan[31] cross-examination by the prosecutor was described as a wholesale attack on the credit of at least one of the witnesses. It was held there that because the witnesses were cross-examined widely about matters of credit, that had the effect of shifting the focus from the witnesses' testimonies to matters collateral to the issues in the trial. The court went on to say in that case:

"When considering a grant of leave, it is important to consider how far, at least initially, cross-examination might be permitted to extend and for leave to be confined to that seen as necessary".

The High Court in Stanoevski v R[32] also stated that,

"there was a grave possibility of unfairness if cross-examination amounts to an undertaking of an extensive collateral inquiry".

This is not the case here as I would propose that the cross-examination be limited to the matters outlined by the Crown in their written submissions. However, the proposed questioning about Mr Flaherty's changed attitude to giving evidence I would not permit until I have heard evidence on a voir dire as to the precise circumstances relating to the various requests alleged to have been made to him to give evidence where it is said that he declined.

(c) The grant of leave is not unfair to the witnesses or the accused. The defence are not taken by surprise by the application or by the evidence that the witnesses will give. Connally, Flaherty and Watson have had the processes explained to them at the Basha inquiry. Connally and Watson sought and obtained legal advice. Each of the witnesses have been convicted and sentenced in respect of their respective roles in the assault and murder of Mr Witham, so that the proceedings against each of them have been finalised. A certificate of indemnity may be granted, as it was in respect of Connally at the Basha inquiry in respect of any answers which may tend to incriminate the witness in the crime of perjury.

(d) The crime of murder is the most serious offence in the criminal calendar and the evidence is of vital importance to the Crown case.

37 As to the discretions enshrined in ss 135, 136 and 137, counsel principally relied upon s 137 of the Evidence Act which relate specifically to criminal proceedings and has been described as a stronger position from a criminal defendant's standpoint.

Section 137 replicates the Christie discretion. That section provides:

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused".

38 In each instance, the evidence is probative as the dictionary to the Act defines that term; that is, "the extent to which the evidence could rationally affect the assessment of a probability of a fact in issue". Mr Dane QC does not contend to the contrary. The issue is whether its prejudicial effect would outweigh its probative value, and for that reason I should refuse to admit it. For these purposes, unless no reasonable jury could act upon the evidence,[33] the evidence is to be taken as reliable and it is not for the trial judge to determine its truthfulness, for to do so would be to usurp the jury's function.

39 The factors which are relevant to the exercise of my discretion, in my view, in this case are as follows:

(1) The prior statements of Flaherty, McGillivray and Watson were made in November 2007, that is more than 15 months after Witham was murdered, and in respect of Connally, in January 2008 and July 2009, some 17 and 35 months respectively after the death of Mr Witham.

(2) It was, however, with the exception of Mr Connally's July 2009 statement, the first time that each of the witnesses had been spoken to by the police about Mr Witham's death, and on each occasion they have given accounts that included reference to Mr McRae's conduct. Mr Connally made his July statement at a time when he was endeavouring to advance his own position on his plea by giving an undertaking to give evidence in respect of his co-accused. In his July statement, he further particularised Mr McRae's role, but that was not the first time he had so nominated Mr McRae in Mr Witham's death.

(3) There is no requirement that the prior inconsistent statements be contemporaneous or relatively fresh. In MAH v R,[34] the prior inconsistent statements there relied upon were made three years after the alleged offence, and there was no criticism of that course in that case. Indeed, in the circumstances which occurred here, where "the murder of a man named Steve" was reported to the police in April 2007, that is eight months after Mr Witham was murdered, and the investigation was conducted over several months, including arrests in November 2007, it would not be in the interests of justice to say that in such a case the delay in making a statement would operate as a bar to its use in this way.

(4) Although Connally, Watson, Flaherty and McGillivray were interviewed by the police as suspects, and it might be thought that they would have their own interests at the forefront of their mind, none of those witnesses implicated McRae at the expense of their own conduct. That is, neither sought to exculpate themselves by implicating Mr McRae.

(5) Flaherty, in his record of interview, was anxious to distance others from the murder and took sole responsibility for killing Mr Witham, but in doing so he placed Mr McRae at the scene and had him helping him immediately prior to the killing.

(6) All of these witnesses have pleaded guilty, and it appears that they so pleaded consistently with the accounts given in their interviews with the police and, in the case of McGillivray, also with the statement that he made.

(7) The prior inconsistent statements, including the conversations as between Watson and Flaherty, are all recorded and, with the exception of the conversation that passed between Watson and Flaherty, the prior inconsistent statements were made to the police. Watson and Flaherty were in a relationship at the time of the offence and at the time the conversation was taped, and both were present at the house and en route to Connally's property and at the property, although Watson did not go to Campbells Road, the remote location. In those circumstances, it might be expected that there would be no reason for Watson and Flaherty not to speak truthfully and frankly with each other.

40 Mr Dane QC relied upon the forensic disadvantage to the defence in being limited in the way it conducts its cross-examination of the witnesses and of being denied the opportunity of inviting the jury to rely upon the testimony of witnesses called by the Crown. Certainly Mr Dane QC could not cross-examine as he would if the Crown had relied solely upon the witness's present statements. Any such cross-examination, no doubt, would be designed to shore up the witness's evidence-in-chief, but that is not the present circumstances, and where the defence must fashion their cross-examination in light of the grant of leave to the Crown to question their own witnesses as if they were cross-examining them, the forensic disadvantage must be limited by the fact that the section allows for such a course. Mr Dane QC was able to cross-examine Flaherty[35] and Connally on the Basha inquiry as to why they now give different accounts than they did previously, and Watson was cross-examined and professed little recall and understanding as to what she meant in that conversation with Flaherty and on that point, the evidence in chief, neither could Flaherty say why it was that he had referred to Clinton in that conversation as a "lucky charm".

41 Mr McGillivray said in his cross-examination that he remembers 50 per cent of the night and, indeed it may be possible to cross-examine him on the basis that at the time he made his statement in November 2007, he was recollecting the events of the night after he had, on that night, drank alcohol and smoked marijuana and in circumstances where he described "the adrenaline was flowing"; so it may be that a line of questioning could be pursued so that the jury might be invited to doubt his reliability and truthfulness.

42 As to the inability of the defence to rely upon a witness for the Crown supporting the defence case, that, of itself, would not warrant the exercise of the discretion in the accused's favour. Although it appears to be an unusual case where all four witnesses to the events who the Crown proposes to call are subject to a s 38 application, the Act prescribes no numerical limit or a pre-condition that such leave should only be granted in circumstances where the witness's evidence is contrary to the preponderance of other evidence called in the case. Indeed, in Aslett v R ('Aslett's case'),[36] the witness the subject of the application was the only witness to implicate the accused.

43 In R v. Randall ('Randall's case'),[37] the Court of Appeal of Tasmania approved the grant of leave to the Crown to question, as though cross-examining, two witnesses who gave evidence contrary to the preponderance of the Crown evidence as to a complainant's intoxication and demeanour in a rape case, which evidence was relevant to the issue of consent. The complaint there was made that to grant the application in respect of two witnesses would be unfair because it would single them out. The court held there that it was not a relevant unfairness although the court went on to say that there might be a justified cry of unfairness if all of the Crown witnesses had been treated in the same manner and been questioned as though the Crown were cross-examining them.

44 In my view, that obiter may be distinguished from the present case because in Randall's case the rape had occurred in the presence of a number of eyewitnesses who were standing in, or at the entrance to, a room where the complainant was seen to be lying naked. In these circumstances, where the event is confined in time and place, where all of the witnesses are testifying about one aspect, that is, the condition of the complainant, which related to one issue, that is, consent, one would expect that the witnesses would substantially make the same observations.

45 That is not this situation where the events took place at three, if not, four locations at Van der Haar Avenue, en route to Connally's property, at Connally's property and at Campbells Road, and the witnesses' give an account of McRae's conduct at various times throughout the night. In this case there is a unity in what the witnesses say in their out-of-court statements, and a contradiction in what they say in their most recent statements, that is, those statements do not sit with each other. For example, Flaherty has McRae staying behind when he and Connally went with Witham into the bushland, and Connally has McRae travelling with he and Flaherty and Witham into the bushland.

46 Although there is no one witness who provides a complete narrative of the events, I accept Mr Beale's analysis that the out-of-court statements provide a consistency between the account of what the witnesses say in a way that their present, most recent statements do not. I would be inclined to view the matter differently if there were no coherent account emerging from the previous statements of the witnesses and there was a risk that the jury would reason that the accused must be guilty, even though there was no cogent, reliable evidence upon which they could be so satisfied.

47 As to the potential unfairness to the accused that the jury may reason that because the Crown witnesses are lying he must therefore be guilty, the jury can be directed accordingly that such reasoning is impermissible.

48 As to Mr Dane's submission that the jury will be overburdened if the prior statements comprising the video/audio tapes go into evidence. The provisions of s 233 of the Criminal Procedure Act 2008 (Vic) permit audio and visual materials to be given to the jury and, of course, the appropriate directions would be given as to the use the jury could make of them. The transcript of the viva voce evidence, indeed, the video of that evidence, could also be given to the jury, but the jury would have to be directed that the evidence derived from both sources is capable of being relied upon as the truth, and that they should not give one account greater or lesser weight simply because it is placed before them in audio or video form as distinct from viva voce evidence.

49 In R v. Taylor,[38] the witness's answers to questions put on the video re-enactment were tendered in evidence and no complaint on appeal was made about that tender. In R v. GAC,[39] an unreported decision of the New South Wales Court of Criminal Appeal, it was held that where a substantial part of the contents of the record of interview had already been put to the witness in cross-examination by the prosecution, the trial judge was held not to be in error when he admitted the videotape of the interview, because it was desirable that the jury could have available the full context of the interview so that they could evaluate the questions and arguments concerning the manner in which the interview was conducted. Similar considerations would apply here so as to permit the audio and video recording to be placed before the jury.

50 As to the unfair prejudice which the court is concerned with in respect of the discretions in ss 135-137[40], that prejudice must be more than evidence which strengthens the Crown case. Probative evidence upon which the Crown relies is, in a sense, always prejudicial, but the prejudice which the section refers to must be an unfair prejudice, that is, goes beyond the prejudice effected by the probative value of the evidence.

51 In R v. Yates,[41] the prejudice was described as warranting exclusion only if there was a real risk of danger of it being unfair. The court held that one of the ways such unfairness might arise is if it leads the jury to adopting an illegitimate form of reasoning, or gives evidence undue weight, or that the jury would rely on the evidence on a basis that is logically unconnected to the issues in the case. The unfair prejudice has also been expressed as a danger that the accused's case may be damaged "in some unacceptable way by provoking some emotional response in the jury". This approach drew no criticism from the Victorian Court of Appeal in R v. Darmody[42] where the trial judge adopted that concept of unfair prejudice.

52 In the circumstances of this case I can see nothing about the evidence which the Crown relies upon which is productive of an unfair prejudice in the way in which the authorities describe that expression. Indeed, any risk that the jury may engage in any impermissible reasoning can be addressed by directions which the jury must be taken to abide by. Accordingly, I decline to exercise the discretions to exclude the evidence pursuant to s 137[43]. Given that that section is the most favourable to the accused, it would follow that my discretion would be similarly exercised in respect of ss135 and 136 of the Evidence Act.

53 Accordingly, leave is granted to the Crown pursuant to s 38(1)(a) and (c) in respect of Michael Flaherty and Adrian Connally and in respect of s 38(1)(c) in respect of Jodie Watson and in respect of either s 38(1)(a) or (b) in respect of Aidan McGillivray. I propose to permit the line of questioning proposed by the Crown in respect of each witness with the exception as to the reasons why Flaherty has now decided to give evidence until the particulars about those previous requests are clarified on a voir dire. I propose also to permit the playing of the audio and video recordings of the prior statements and permit the tender of those statements into evidence, and I so rule.

1. [6] 192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

1. [7] 137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

[8] Blewitt v R ('Blewitt's case') [1988] HCA 43; (1988) 80 ALR 353.

[9] Adam's case (2001) 207 CLR 96 and R v Shamouil ('Shamouil's case') [2006] NSWCCA 112.

[11] See Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 and R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.

[13] [2007] NSWSC 1005.

[14] [1988] HCA 43; (1988) 80 ALR 353.

[15] Adam's case (2001) 207 CLR 96.

[16] R v Lozano [1997] NSWCCA 60487 of 1996 (Unreported, Hunt CJ, Sperling and Barr JJ, 10 June 1997).

[17] Citing R v Milat [1996] NSWSC 70114 of 1994 (Unreported, Hunt CJ) and Adam's case (2001) 207 CLR 96.

[18] That is, if accepted, it could rationally affect the assessment of the probability of the existence of some central facts in the trial.

[19] ss 55 and 56(2) of the Evidence Act.

[20] (1996) 40 NSWLR 712.

[22] (1996) 40 NSWLR 712.

[24] [1997] NSWCCA 60487 of 1996 (Unreported, Hunt CJ, Sperling and Barr JJ, 10 June 1997).

[25] See Hodgkiss' case [2006] 152 FCR 560, 562 citing Adam's case (2001) 207 CLR 96.

[26] s 38 (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:

(c) whether the witness has, at any time, made a prior inconsistent statement.

[27] s 38 (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave.

[28] s 38 (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

[29] R v Le (2002) NSWLR 474.

[30] Evidence Act.

[31] [2001] NSWCCA 292.

[32] [2001] HCA 4; (2001) 202 CLR 115.

[33] Shamouil's case [2006] NSWCCA 112.

[34] [2006] NSWCCA 226.

[35] Although he did not, in fact, cross-examine Mr Flaherty.

[36] [2006] NSWCCA 49.

[37] [2004] TASSC 42.

[38] [2003] NSWCCA 194.

[39] [1997] NSWCCA 60255 of 1996 (Unreported, Gleeson CJ, McInerney and Sully JJ, 1 April 1997).

[40] Evidence Act.

[41] [2002] NSWCCA 520.

[42] [2010] VSCA 41.

[43] Evidence Act.