JOHNSON J: In the course of the evidence-in-chief of a Crown witness, John Aspros, the Crown has made application under s.38 Evidence Act 1995 to cross-examine the witness.
The Crown has submitted that Mr Aspros should be cross-examined by the Crown about a matter of which it is said he may reasonably be supposed to have knowledge, and about which it appears to the Court he is not in examination-in-chief making a genuine attempt to give evidence, and about what is said to be a prior inconsistent statement: s.38(1)(b) and (c) Evidence Act 1995.
In considering whether the Crown should be granted leave under this provision, it is necessary to have regard not only to the requirements of s.38, but the further requirements of s.192 Evidence Act 1995.
It is appropriate, in the present context, to keep in mind the definition of "prior inconsistent statement" in the Dictionary to the Evidence Act 1995. "Prior inconsistent statement" is defined as meaning "a previous representation that is inconsistent with evidence given by the witness". The term "previous representation" is also defined in the Dictionary as meaning "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced".
In the course of giving a separate judgment on another issue earlier today (R v Droudis (No. 4) [2016] NSWSC 1150), I said something about the relevance of the evidence of Mr Aspros to issues in this trial. The evidence is taken to be of considerable importance by both the Crown and the defence.
There is evidence in the trial from Detective Senior Constable Megan Oxley that, on the evening of 21 April 2013, she and another police officer attended premises at Belmore where they spoke to Mr Aspros. Put shortly, it is alleged that in that conversation Mr Aspros said, amongst other things, that he had not seen his sister, the Accused, since "last Friday at the markets" (T169-170).
The Accused has given notice under s.150 Criminal Procedure Act 1986 of intention to raise alibi that on the day and at the time of the murder, which was in the late afternoon of 21 April 2013 at Werrington, she was at the family premises (at Belmore). As I understand it, the Crown seeks to rely upon the evidence of Mr Aspros to rebut the anticipated alibi evidence to be relied upon by the Accused.
Mr Aspros, as I have said, is the brother of the Accused. It is apparent from evidence before the Court from his cousin, Anastasia (Sue) Droudis, and from other material now before the Court as well, that he has some health difficulties. He has suffered from schizophrenia since the mid-1990s.
Before the Court, on the present application, are statements of a general practitioner, Dr Richard Sue, dated 10 December 2013 (MFI22) and a certificate of Dr Joanne Ferguson, psychiatrist, dated 25 February 2014 (MFI23). Both medical practitioners attest to Mr Aspros' mental health issues and the treatment which he is receiving for that condition.
Both Dr Sue and Dr Ferguson refer to the possibility that Mr Aspros' condition may bear upon his memory and cognitive ability. Dr Sue says that, in his opinion, Mr Aspros appears quite normal in respect of his memory and cognitive ability. He considered he would be a reliable witness assuming he has had his medical treatment. Any evidence he provided, when fully medicated, could be considered reliable, relevant and fair.
Dr Ferguson indicated that, in January 2014, she had undertaken specific cognitive testing of Mr Aspros. She expressed the opinion that he would cope with giving testimony in Court. No opinion expressed by her, or indeed by Dr Sue, points to some underlying difficulty of a medical type with Mr Aspros giving reliable evidence.
There is, of course, other evidence before the Court from his cousin as to memory issues that she has observed over the years. All that is by way of preamble to the present application.
The particular question by the Crown which triggered the present application is as follows (T351.18):
"Q. Mr Aspros, prior to police coming to your home, do you remember how long before that it was that you had last seen your sister?
A. Can't remember."
The Crown made application pointing primarily to notes of a conference held earlier today, 31 August 2016, with Mr Aspros and the Crown legal representatives. The notes, in question and answer form, are MFI24. In those notes, it is said that the Senior Crown Prosecutor asked Mr Aspros, "When was it before that night that you had last seen your sister?". Mr Aspros then replied, "Probably the Friday or Saturday because we go to Flemington Markets".
Prior to that, there had been discussion in the conference with Mr Aspros. The Crown had indicated to him that the night the police saw him was a Sunday night. After Mr Aspros provided the answer which I have set out, there was further discussion as to who was with the Accused when they attended Flemington Markets.
I have received extensive material and heard extensive submissions on the s.38 application. It is the case that no prior written statement was sought to be obtained from Mr Aspros about what had been said on the occasion when the police visited the Belmore premises on 21 April 2013.
There are a number of documents setting out accounts which Mr Aspros has given. There are investigator's notes of the officer-in-charge, Detective Senior Constable Melanie Staples, dated 18 July 2013 (MFI20). These notes recount a telephone discussion she had with Mr Aspros which included some discussion of what had occurred, and had been said, on the occasion when police visited.
Mr Aspros recalled that that occasion had been about a month before. That recollection was faulty, the occasion was some three months before (on 21 April 2013). Apart from that, Mr Aspros did have some recollection of some of the topics discussed on that occasion when the police visited.
The next occasion when police spoke to Mr Aspros was on 27 November 2013 when a lengthy record of interview took place (MFI21). He was reminded, in the course of that interview, of what the police notes had asserted he had said on 21 April 2013, and also of what it was asserted that he had said during the telephone discussion with Detective Senior Constable Staples on 18 July 2013.
A number of submissions have been made by reference to that record of interview. It was submitted for the Accused that, on some of these issues, Mr Aspros appeared to have a limited recollection, with certain things being suggested to him by the police (in the sense of him being reminded what the 21 April 2013 or the 18 July 2013 notes had said) and with the conversation then flowing. It must be said that there are elements of Mr Aspros being reminded of these matters by police. It is not a statement which, on its face, involved him volunteering things from his memory alone.
It is appropriate to turn to the issue at hand. The question is whether there is a prior inconsistent statement, or a foundation under s.38(1)(b) (in the alternative), for Mr Aspros to be cross-examined by the Crown with particular respect to the contrast between what he said in evidence in the question and answer I referred to earlier (at [13]), and what he had said not long before to the Crown representatives (at [14]) in the question and answer contained in MFI24.
A number of features bear on this issue. As to the general reliability of Mr Aspros, this is not the time for any detailed examination of that topic. There will, I apprehend, be submissions in due course by reference to the totality of the evidence.
I note, however, that the police account of what was said on the evening of 21 April 2013 had Mr Aspros telling the police something about what had happened "last Friday at the market". Now that topic, and the context of it, would seem to relate to when he had last seen the Accused. That is what the Crown contends in the context. I say no more on that aspect.
In the record of interview (MFI21) there is extensive questioning. Police officers, as it happens, make repeated errors asserting that it is the "fish markets". Mr Aspros demonstrates a capacity to hold his own by correcting the police and saying it was the "Flemington Markets". That may have some bearing on issues of suggestibility.
Most importantly, for present purposes, it seems to me is that there is, on the face of it, a direct contrast between what was said in evidence in this Court this morning by Mr Aspros on the question of when he had last seen his sister (with him indicating an inability to remember), and what he had said not long before outside the Court in this building when discussing the matters with the Crown representatives.
I am satisfied in the circumstances that that particular issue involves a prior inconsistent statement for the purpose of s.38(1)(c).
With respect to s.38(1)(b), I bear in mind that Mr Aspros has been questioned on these issues on a number of occasions, including a lengthy record of interview. I do keep in mind what the medical evidence indicates about his health difficulties, and the further evidence of his cousin as to the impact on his memory.
It seems to me, however, that where there is a clear contrast between what was said in Court and what was said not long before in a discussion with counsel on this issue, a foundation exists as well under s.38(1)(b) on this question. I make it clear, however, that the primary basis for my ruling is the prior inconsistent statement basis.
I should indicate that this is not an open-ended grant of leave to the Crown to cross-examine Mr Aspros. This is a grant of leave on a confined topic, which involves a contrast between what he said in MFI24 compared with what he said in evidence in this Court. I am not granting the Crown leave to conduct some broad cross-examination on what was said allegedly to the police by him.
Although it has taken a considerable time to resolve this issue, this is a relatively narrow grant of leave which is being ordered.
In reaching this conclusion, I have considered issues relevant under s.192 as well. Having done so, I propose to grant the Crown leave under s.38 to cross-examine John Aspros with respect to the particular matters which I have identified in this judgment.
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Decision last updated: 07 November 2016