At the conclusion of the cross-examination by Mr Driels (counsel for Mr Zarshoy), the Crown Prosecutor sought leave to cross-examine Witness M pursuant to s 38(1)(a) of the Evidence Act 1995 (NSW). It was submitted that part of her evidence was unfavourable to the Crown. Mohammad Zarshoy opposed the granting of leave. I refused the Crown's application, while leaving it open to the Crown to make a further application depending on the evidence given in re-examination. These are my reasons for refusing leave to cross-examine and also for refusing to make a direction under s 38(4) of the Evidence Act that such cross-examination take place after the cross-examination of the accused.
Witness M [1] was the driver of the vehicle that drove the shooters to Revesby Heights on the night of 28 October 2013. It is the Crown case that there were four people in the car and that three of them were armed. When the car arrived outside the Hamzy residence, the three armed men entered the premises and discharged their weapons with murderous intent. As a result, Mahmoud Hamzy was killed and Omar Ajaj was wounded. The three men were driven away from the scene by Witness M. It is the Crown case that the three armed men were Witness L, Jamil Qaumi and Mr Zarshoy. Witness M nominated Witness L and Jamil Qaumi but did not identify or nominate Mr Zarshoy.
The Crown sought leave to cross-examine Witness M to put to the witness that the third man in the car was Mr Zarshoy. In making the application the Crown made the following submissions:
"CROWN PROSECUTOR MCKAY: In relation to cross examination by Mr Driels of Witness M, I have just spoken to my friend and clear understanding of the Crown case will be that on other evidence the jury can be satisfied that Mr Zarshoy is present and we have put there will be some reasons why Witness M only saw him on the one occasion and some time after that Witness M saw another person. I have just spoken to my friend about that because if there is no issue that the Crown can go to the jury on that basis, then I wouldn't make an application under 38 on this part of the evidence.
HIS HONOUR: Is somebody going to say that Mr Zarshoy was there?
CROWN PROSECUTOR MCKAY: Two witnesses will be saying that.
HIS HONOUR: Okay. Then it will be up to the jury, won't it, to assess the conflict.
CROWN PROSECUTOR MCKAY: Exactly. I wanted to make sure that it wouldn't be raised at a later point that the Crown should have made an application under 38 and put to the witness that what you said about that is not correct, mistaken. If there is no problem, my friend doesn't have a problem that the Crown can still go to the jury based on other evidence, then I don't need to make that application." [2]
When asked whether Mr Driels took the view that the Crown was required to put to Witness M that Mr Zarshoy was the third man in the car, Mr Driels responded:
"How the Crown runs its case is a matter for the Crown. How I go to the jury and how the Crown goes to the jury are matters for each of us."
Based on that absence of concession, the Crown made the application under s 38 of the Evidence Act. Section 38 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:
(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.
(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."
Because of the provision in subsection (4), the Crown also (implicitly at least) sought a direction that the cross-examination take place after the cross-examination by Mr Driels.
In the course of Witness M's evidence in chief, Witness M described the fourth person in the car that went to Revesby to commit the Hamzy killing:
"Q. When you say "planning it" ‑ just before that, did anyone else arrive at the park?
A. Someone else arrived but I don't know when.
Q. Can you describe that person?
A. Fat with a beard, dark eyes and a hood.
Q. Do you know the name of that person?
A. They're saying it's Mohammad Zarshoy but from what I know, like, when I got arrested and met him for the first time in the witness box, to me that's not the guy from that night.
Q. All right. But you‑‑
A. They didn't introduce me to him. They didn't say his name.
Q. Did you see that person again after that night?
A. Not after that night. I saw him again that night but I didn't see him after that night.
Q. So this person you referred to as fat with a beard, dark eyes and a hood, by a hood, is that some top he was wearing?
A. A hooded jumper.
Q. Was the hood up on the head?
A. Yes.
Q. The colour of the beard that you could see, what colour was it?
A. Dark.
Q. Was it dark in the park?
A. Yep. Yeah, but I could see. Like, there's light in the park but it's dark at night." [3]
(My emphasis)
Witness M's subsequent evidence in chief was that the fat man with dark eyes was the third armed man.
In cross-examination, Witness M agreed that Mr Zarshoy was not present on 28 October 2013 at the incident that occurred at the Hamzy shooting.
"Q. You have told this Court that Mohammad Eimal Zarshoy was not present on the night of 28 October 2013 at the incident that occurred at the Hamzy's.
A. Yes
Q. You've been accused of telling lies here in Court?
A. Previously, not in this court case.
Q. People have said you've told lies here?
A. Yeah, they're calling me a liar.
Q. Is that the truth that you said about Mr Zarshoy when you gave that evidence?
A. I don't know him. I met him here in the dock when I was at Court." [4]
The portion of the evidence in chief that I have italicised and emboldened in [7] should have put the Crown Prosecutor on notice, if he was not already on notice, that Witness M's evidence was unfavourable to that part of the Crown case that asserts that Mr Zarshoy was the third man who entered the Hamzy premises on the night of the murder. I was not provided with the statements of the witness on this application (although I have seen them in other contexts). There is nothing to suggest that Witness M had said anything relevant to this issue that was inconsistent. In any event, because Witness M's italicised answer is directly contrary to the proposition that Mr Zarshoy was the third armed man, it may have been appropriate to grant leave to cross-examine on that issue if an application was made before the witness was cross-examined.
However, the application came after Mr Driels had engaged in a very brief and targeted interrogation. Mr Driels told the Court (and I accept) that he deliberately did not go into evidence (consistent with Witness M's current account) that the Witness M gave at the NSW Crime Commission on the same subject. No doubt, the refreshing sparseness of the cross-examination (which came after the witness had been cross-examined over several days by three other counsel) was tailored to the circumstances and guided by the manner in which the evidence in chief was elicited.
Section 38(4) of the Evidence Act makes it clear that, ordinarily, a party that seeks to cross-examine its own witness ought to do so prior to the other party's cross-examination. I could see no basis in the circumstances to make a direction that this order of examination not be followed. Neither the matters referred to in s 38(6) nor the catalogue of matters to be taken into account under s 192 of the Evidence Act dissuades me from that conclusion. Some of the matters in s 192 support the conclusion. For example:
(a) Granting leave would have unduly lengthened the proceedings.
(b) Making the direction for the cross-examination to occur after the cross-examination by the accused would have been unfair to the accused. The extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing.
(c) The cross-examination was not important in the sense that the Crown sought to attack the truthfulness of the witness.
(d) The nature of the proceedings could not be more serious. That consideration cuts both ways. While it is important to give the Crown every opportunity, within the rules of evidence and procedure, to establish its case, it is equally important that the citizen receives a fair trial.
As to the importance of the evidence, it seemed that the Crown's application was really an attempt to avoid criticism for failing to comply with its obligation of fairness; that is, to put to the Witness M that the evidence was not correct in order to be able to make submissions to the jury in that regard: see, for example, R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 at 41 and Livermore v R [2006] NSWCCA 334; 67 NSWLR 659.
In view of the fact that the application has now been made and refused, it seems unlikely that such criticism (either from the bench or counsel) could be justified. While the Crown has not suggested (and, as I understand it, did not intend to suggest) that Witness M was deliberately writing Mr Zarshoy out of the script, it has led as calculated to undermine the reliability of Witness M's evidence. This included the fact that Witness M had only met the third armed man once, had not met Mr Zarshoy before and did not see him in the dock for 2 years after the Hamzy shooting. It will be no breach of the rules of fairness discussed in Livermore and Kennedy for the Crown to go to the jury on the basis that the evidence of other witnesses should be preferred of that of Witness M on this issue.
In re-examination, the Crown elicited to the following evidence:
"Q. Just in relation to evidence you gave before lunch where you referred to Mr Zarshoy and said, "I met him here in the dock when I was at court."
A. Yes.
Q. It was October 2014 that you were arrested by police, is that correct?
A. Yes.
Q. How long after that did you see Mr Zarshoy in court?
A. I don't know. Only met him in court.
Q. I understand that, what you are saying. But how long after you were arrested did you see him, Mr Zarshoy?
A. Maybe a year. I can't tell you exactly. I don't know.
Q. A year after being arrested?
A. Yeah. I can't say a hundred per cent but roughly a year.
Q. Would that make it almost two years after the Hamzy shooting?
A. Yes.
Q. You said in evidence that one of the persons in the car, you weren't introduced so, is that right?
A. Yeah.
OBJECTION (DRIELS)
HIS HONOUR: It is an introductory question reminding Witness M of the evidence the Witness gave in chief.
DRIELS: Yes, which car when?
CROWN PROSECUTOR MCKAY
Q. The night of the Hamzy shooting, there was one person in the car you said you weren't introduced to?
A. Yes.
Q. Other than that night, did you have any other involvement with that person?
A. I wasn't introduced to Witness L either but I had met him afterwards so I came to know that was Witness L.
Q. But this other person?
A. No, never met him again after that. Never met him.
Q. You gave a description of that person?
A. Yes.
Q. Is that your best recollection of the person?
A. Yes.
Q. Apart from saying never met him again, had you met that person before that night?
A. Never.
Q. Or even seen that person before that night?
A. Never."
No further application was made for leave to cross-examine Witness M or for a direction that such cross-examination take place after counsel for Mr Zarshoy had completed his cross-examination.
[2]
Endnotes
Orders have been made to protect the identify of this witness and a number of other witnesses.
T 2696.
T 2226-2227.
T 2692.
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Decision last updated: 24 November 2016