R v Dunbar (No 5)

The accused wishes to put two phone calls to the witness Ms Tegan Grant in cross-examination. She is the partner of Mr Peter Henry. The first is to the Department of Communities and Justice Housing on 23 February 2022; and the second is to the Federal NDIS provider on 9 February 2022 where not only is she a participant in the phone call but Mr Henry is also. It is put that these calls set out details in relation to the nature of the relationship between this witness and Mr Henry, the extent to which she would lie in relation to her relationship with him, and indeed, not only that, but the extent to which she would simply lie to a government department in relation to housing and other assistance. As to the latter, it is submitted that the evidence would also be admissible pursuant to s 103 of the Evidence Act 1995 (NSW).

The Crown has submitted that except for the allegation contained within the calls that Mr Henry had been domestically violent towards Ms Grant, the material is otherwise not relevant or, in terms of s 103 of the Evidence Act, does not apply because it could not substantially affect the assessment of the credibility of the witness.

I am of the view that this evidence does shed light, at a relevant time, on the nature of the relationship between this witness and Mr Henry, as well as the preparedness of each of them to lie for each other.

Further, the Crown is putting this witness forward, so far as I can observe, as a person who is a witness of truth. I hear the Crown saying, well, that is to be seen in the context of this very important murder trial and it is in that context where she would only tell the truth, and these other instances are much more minor by comparison.

However, given this trial does involve the jury assessing various witnesses and Ms Grant is certainly an important one, I am of the view that the jury would be assisted by her evidence being tested in relation to these calls. It may be that the jury understands that lying to, or misinforming, these government departments is a totally different situation to her evidence in this Court which involves a solemn undertaking to tell the truth. In my view, however, not only do these calls give further colour to the relationship and the nature of the relationship between her and Mr Henry, they also, under s 103, could - and it is not "would" but "could" - substantially affect the assessment of the credibility of the witness. In making this assessment, I have had regard to the matters set out in s 103(2) of the Evidence Act.

In my view, the evidence should be admitted.