JOHNSON J: Once again, an issue has arisen during the evidence of John Aspros, a Crown witness, who is the brother of the Accused, Amirah Droudis.
I have delivered two judgments on other aspects bearing upon his evidence: R v Droudis (No. 4) [2016] NSWSC 1150; R v Droudis (No. 5) [2016] NSWSC 1211. Yesterday afternoon, I granted the Crown limited leave to cross-examine Mr Aspros under s.38 Evidence Act 1995 and that has occurred this morning.
Senior Counsel for the Accused has commenced to cross-examine Mr Aspros. A point was reached in the cross-examination where Mr Ierace SC was asking Mr Aspros a series of questions relating to what is said to have occurred between the time when (according to Mr Aspros), the Accused, Mr Aspros and others went to the Flemington Markets on a Saturday, and the occasion when police visited Mr Aspros' home.
A number of leading questions were put and Mr Aspros has responded to those questions with the words "That's right". Questions included the following (T386.31-T386.50):
"Q. Whatever time it was you went, you and your sister and perhaps your mother and your niece were there around 11 o'clock on the Saturday at the markets?
A. That's right.
Q. After the visit to the markets your sister drove you home to Belmore?
A. That's right.
Q. And then she left, she drove off?
A. That's right.
Q. At that time it was school holidays and your niece was staying overnight at your place, that is, the Saturday night?
A. That's right.
Q. On the Sunday at home in the morning were you, your mother, your father and your niece?
A. That's right.
Q. Your sister..."
At that point, the Crown Prosecutor indicated he had an application to make which has proceeded in the absence of the witness. That application is under s.42 Evidence Act 1995, namely, that leading questions not be used in cross-examination on the events said to have occurred on the relevant Sunday.
As I have noted in earlier judgments concerning Mr Aspros, this issue is a significant one in the trial and bears upon the alibi notice served for the Accused.
Senior Counsel for the Accused has indicated that the cross-examination would continue with respect to Sunday (21 April 2013) involving a proposition that Mr Aspros' sister (the Accused), arrived at the Belmore residence at about 2.20 pm that day. The deceased was killed soon after 4.20 pm on the afternoon of Sunday, 21 April 2013 at Werrington.
Section 42 Evidence Act 1995 provides for the Court to disallow the use of leading questions in cross-examination. Section 42(2) contains a non-exhaustive list of factors which can be taken into account. The test to be applied in s.42(3) is that the Court is to disallow the question, or direct the witness not to answer it, if the Court is satisfied that the facts concerned would be better ascertained if leading questions were not used.
There are a limited number of authorities that have considered the scope and operation of s.42. These include the unreported decision of Fullerton J in R v Xie (No. 13) [2015] NSWSC 2125 and two decisions of mine, R v A2, R v KM, R v Vaziri (No. 14) [2015] NSWSC 1544 and R v A2, R v KM, R v Vaziri (No. 21) [2016] NSWSC 24.
The Crown submits that a s.42 direction should be given by reference to a number of factors in s.42(2), including a submission that Mr Aspros is sympathetic to the Accused and that his mental or intellectual disability may affect his answers. The Crown argues that it is appropriate to adopt a two-stage approach as explained in R v A2, R v KM, R v Vaziri (No. 21) at [58]ff.
As has been submitted correctly by Senior Counsel for the Accused, the evidence so far of Mr Aspros reveals questioning of him by police officers on a number of occasions outside Court, the discussion with the Crown representatives yesterday morning and his in-Court questioning in the trial. It is submitted for the Accused that the Court would already have real concerns about the reliability of the memory of Mr Aspros on many aspects. Some of these aspects were touched upon in the two judgments which I have already delivered with respect to the evidence of Mr Aspros.
It is submitted for the Accused that, in circumstances where the Crown has had leave under s.38 to cross-examine the witness in certain areas, that this is relevant, as well, to the question of whether a s.42 direction should be given.
I accept the submission for the Accused that it is necessary to have regard to everything that the Court has been told about Mr Aspros, including the MFI documents which were taken into account for the purpose of the s.38 judgment. On one view of it, the submission for the Accused is that the use of leading questions, and the answers which would be given by Mr Aspros, will not really be of any value in any event. Indeed, the defence argument may be that the Court might ultimately form the view that his evidence does not really assist anyone in the trial.
In R v A2; R v KM; R v Vaziri (No. 14) at [9], I noted what Heydon J had said in Kirk v Industrial Court New South Wales [2010] HCA 1; 239 CLR 531 at 586-587 [117] (referred to by Fullerton J in R v Xie (No. 13) at [9]) as to the concept of "gratuitous concurrence" by a witness with propositions put by a cross-examiner, and that such an approach may not assist the cross-examiner's client. There is much to be said for the view that, if what may occur is "gratuitous concurrence" by Mr Aspros, then that is a factor that bears on this application as well.
I apprehend that the present questions are being asked on behalf of the Accused for the purpose of eliciting answers of evidentiary value, and not for the purpose of demonstrating a propensity on the part of the witness to agree with anything that is put to him.
The critical question is posed by s.42(3). Should the Court be satisfied that the facts concerned would be better ascertained from the witness if leading questions were not used? This involves consideration of matters listed in s.42(2) and all other factors relevant to the particular application.
Given the point that has been reached in the evidence of Mr Aspros, it seems to me that the position of the Accused can be protected (and perhaps even enhanced) by adopting the two-stage approach which I utilised in R v A2, R v KM and R v Vaziri (No. 21) at [58]ff.
That approach would permit questions to be asked initially on behalf of the Accused, in this important area, without the use of leading questions. However, there would be a clear understanding that, depending upon the answers which were given, if Senior Counsel for the Accused considered it necessary for the purpose of putting his instructions to the witness on these issues, then leading questions could thereafter be used.
This approach allows the Court to have the benefit of the account of the witness on these matters in response to non-leading questions but with the capacity, as a matter of fairness and to ensure that a full account may be given by the witness, for leading questions to be used thereafter.
I am conscious, in expressing this approach, that Mr Aspros was cross-examined in certain areas by the Crown under s.38. They were limited in nature, as contained in the document MFI26, with some additional matters that did not seem to be controversial in that no objection was made.
In the circumstances of the evidence of this witness (which are, in some respects, quite unusual) and where the defence is seeking to elicit evidence from him as to which some evidentiary value should be attached, I am satisfied that the appropriate course is that Senior Counsel for the Accused should use non-leading questions in the first instance with respect to events said to have happened on Sunday, 21 April 2013, but with the clear understanding that, should Mr Ierace SC wish to do so, he may move to the use of leading questions thereafter.
I would ask, if that course is to be followed, that counsel indicates when the time has arisen where he seeks to use leading questions.
This is, in effect, the two-stage approach utilised in R v A2; R v KM; R v Vaziri (No. 21). I consider that this is the appropriate course to be adopted in this case, as I am satisfied that the facts concerned would be better ascertained if leading questions were not used with Mr Aspros in this area, at least in the first instance.
[2]
Amendments
02 March 2017 - R v Xie (No. 13) previously unreported. Now reported - R v Xie (No. 13) [2015] NSWSC 2125.
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Decision last updated: 02 March 2017