[2000] NSWCCA 487
R v Teasdale (2004) 145 A Crim R 345
[2004] NSWCCA 91
R v Walton (1999) 113 A Crim R 308
Source
Original judgment source is linked above.
Catchwords
[2000] NSWCCA 487
R v Teasdale (2004) 145 A Crim R 345[2004] NSWCCA 91
R v Walton (1999) 113 A Crim R 308
Judgment (3 paragraphs)
[1]
Judgment
An issue has arisen on day 12 of the trial as to "unfavourable evidence" given in the Crown case by Lisa Chaffey.
I granted circumscribed leave to the Crown pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW) to question Ms Chaffey as though cross-examining her on the basis that an aspect of the evidence given by her was unfavourable to the Crown case. These are my reasons for granting that leave.
On 8 December 2018, Lisa Chaffey drove the accused and his girlfriend Sarah Hardes to the deceased's address in Beauford Street, Maryland and then drove them both back to other locations after the shooting at that address had occurred. She was at the time a friend of Ms Hardes.
There is no suggestion Ms Chaffey knew anything about what was to unfold that afternoon. It is common ground that she was just providing the accused and Ms Hardes with a lift.
The account provided in Ms Chaffey's statement to police made in February 2019 and in her evidence before the jury indicate that she dropped the accused at Beauford Street Maryland and he asked her to wait. A short time later she heard what she described as "loud bangs". Ms Hardes said "Go. Go." The accused came out and got into the car. Ms Chaffey was shocked and does not recollect what was said. She drove the accused and Ms Hardes to 4 Kenneth Street Wallsend. She describes herself as being at this time "in shock, upset, crying, quiet, not good"
The unfavourable evidence identified by the Crown was that in her police statement, Ms Chaffey said that Ms Hardes did not get out of the car when she dropped the accused back to 4 Kenneth Street Wallsend, but that only the accused got out. She says that she then drove Ms Hardes to a Christmas concert to attend to her children.
In her evidence before they jury, when asked whether Ms Hardes got out of the car when she dropped the accused to 4 Kenneth Street, Ms Chaffey said:
"No. I don't think so. I can't remember. I don't think so".
This evidence is significant because there is other evidence before the jury from Nakita Martyn that Ms Hardes came into the premises at 4 Kenneth Street with the accused and that in the presence of Ms Hardes, the accused's friend Scott Woodward and Ms Martyn, the accused made certain admissions.
The Crown Prosecutor argued that given that she will be submitting that Ms Martyn's evidence should be preferred, she is obliged to first put to Ms Chaffey that those parts of her account are inconsistent with the evidence of Ms Martyn were mistaken and or untruthful. In circumstances where the Crown Prosecutor will be submitting to the jury that they should prefer Ms Martyn's evidence over Ms Chaffey's evidence, the prosecutor's duties set out in the authorities such as R v Walton (1999) 113 A Crim R 308; [1999] NSWCCA 452 and R v Kennedy (2000) 118 Crim R 34; [2000] NSWCCA 487 and R v Teasdale (2004) 145 A Crim R 345; [2004] NSWCCA 91 require that as a matter of fairness, those questions be put to the witness to see whether she adheres to her version of events.
Counsel for the accused, Mr Steel, opposed the application. He argued that it cannot be said that Ms Chaffey has made a prior inconsistent statement nor could it be said she is not doing her best to make a genuine attempt to give evidence. Her evidence has remained effectively the same from the time of the first statement she made in February 2019, and that is that Ms Hardes remained in the car. Given the first statement was fairly close in time to the events that occurred, you would expect that she would not have a poor memory of something that significant. Really the only basis to allow the application is if the Court concludes that the witness is not being truthful about that matter.
Further, if the Court took the view that she is mistaken and therefore the alternative ought to be able to be put to her, it would cause unfairness to the accused if a process is permitted where she is cross-examined and is not, within that cross-examination, first taken by the cross-examiner to what she said about that matter in her first statement.
The Crown Prosecutor conceded that she ought to first put that part of the February 2019 statement to the witness as well as her evidence in chief given today, before she asks whether the witness could be mistaken or was not telling the truth as to what she said occurred.
The Crown Prosecutor also sought leave to put to Ms Chaffey that she was not telling the truth because she is a friend of Ms Hardes. The basis for this assertion was that in 2019 when first approached by the police to state who was driving the car, Ms Chaffey filled out a form saying it was Ms Hardes because Ms Hardes had told her to do so and that Ms Hardes would take responsibility. Ms Chaffey became uncomfortable with that and told Ms Hardes she wanted to tell the truth and in her February 2019 statement to the police she did tell the truth
Mr Steel submitted that the further assertion as to why Ms Chaffey was not telling the truth should not be permitted because it may lead the jury to reason impermissibly about what motives Ms Chaffey had to lie and would tend to impugn her account generally, in circumstances where there is no basis to do so and where her account of this part of the events on 8 December 2018 has remained the same.
[2]
Reasons for the ruling
Section 38 of the Evidence Act provides:
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 -
1. evidence given by the witness that is unfavourable to the party, or
2. 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
3. whether the witness has, at any time, made a prior inconsistent statement.
1. Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
2. 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.
3. Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
4. If the court so directs, the order in which the parties question the witness is to be as the court directs.
5. 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 -
1. whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
2. the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
1. A party is subject to the same liability to be cross-examined under this section as any other witness if -
1. a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and
2. the party is a witness in the proceeding.
When considering whether any such leave should be given, I am required to take into account s 192 of the Evidence Act:
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 -
1. the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
2. the extent to which to do so would be unfair to a party or to a witness, and
3. the importance of the evidence in relation to which the leave, permission or direction is sought, and
4. the nature of the proceeding, and
5. 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.
Ms Chaffey's account that Ms Hardes did not get out of the car when they arrived back at 4 Kenneth Street is one that is unfavourable to the prosecution. The prosecution case places reliance upon Ms Martyn's account, which included an assertion that both the accused and Ms Hardes came into the premises (Scott Woodward's flat at 4 Kenneth Street) together, and it was then that the accused said certain things that Ms Martyn heard that the Crown will submit to the jury were admissions.
There is no basis to conclude that Ms Chaffey was being untruthful or that she had (or has) any motivation to lie. The account of Ms Hardes staying in the car when she delivered the accused to 4 Kenneth Street was made in February 2019 and was given again, consistently, in her evidence before the jury. Whilst initially Ms Chaffey apparently told an untruth to the police in completing a form as to who was driving her car on the day, saying - at Ms Hardes request - that it was Ms Hardes, she later told Ms Hardes that she was going to tell the police the truth, including that she (Ms Chaffey) was driving the car. I accept Mr Steel's submission that leave to cross-examine Ms Chaffey on the basis of suggesting a motive to lie should not be granted.
It is however not impossible that given the shocking events of the afternoon of 8 December, Ms Chaffey has forgotten that Ms Hardes left the car for a brief period of time before Ms Chaffey drove her elsewhere. In fairness to her she should be given an opportunity to reflect, given the contrary evidence of Ms Martyn.
I have taken into account s 192 considerations and whether it would be unfair to the accused to allow limited cross-examination in the way proposed. I accept Mr Steel's submission that any leave given should require the cross-examination to first make it clear that Ms Chaffey's first (and only) version is that Ms Hardes remained in the car and, only after that is established by the questioning, should any questions challenging that be permitted. I consider Ms Chaffey's evidence in this respect to be important evidence that tends to undermine the Crown case. It is fair to the prosecution, and not unfair to the accused, for her account to be tested in the limited way proposed. It would however be unfair to the witness and unfair to the accused to permit cross-examination to proceed to include posing a motive to lie which has no sound basis.
In those circumstances I considered that leave should be given under s 38(1)(a) of the Evidence Act to question the witness as though the Crown were cross-examining the witness, but that the leave must be circumscribed as follows. First, the Crown must put to the witness the contents of her February 2019 statement (paragraph 14) in which she said "Sarah stayed in the car with me so I dropped her off at the Carols". Second, her evidence in response to the question "Did Ms Hardes get out of the car when you dropped Daniel?" and her answer was "I can't remember. I don't think so" must be put to her. Third, in that context it can then be put to her that she is mistaken about her account. The following propositions can then be put to her as the fact of what occurred and that is that Ms Hardes got out of the car went inside with the accused and that she was inside for about 10 minutes.
I further ruled that it can also, at that stage, be put to Ms Chaffey that she has a poor recollection of that part of the afternoon and that the reason for that may be because she was scared and stressed. Only after that, finally, can it be put to her that she is not telling the truth.
I specifically ruled that it may not be put to Ms Chaffey that the reason that she is "not telling the truth" is because she was at the time a friend of Ms Hardes.
[3]
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Decision last updated: 19 November 2020