CRIMINAL LAW - Evidence - Cross-examination - Whether the Court should limit the use of leading questions
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CRIMINAL LAW - Evidence - Cross-examination - Whether the Court should limit the use of leading questions
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE (REVISED)
Two separate issues have arisen regarding aspects of evidence sought to be elicited from the witness Clinton Sarina. In order to put those issues in context, it is necessary for me to make some reference to Mr Sarina and the contents of the statement that he made to the police.
Mr Sarina was previously employed in the finance industry. Through that employment he was introduced to the deceased in about 2003. Over the ensuing years he came to know the deceased. He mixed with him both professionally and socially. He told the police that he facilitated millions of dollars worth of loans for the deceased, and for people who were referred to him by the deceased.
Mr Sarina made a statement to the police on 5 August 2009. There are three particular paragraphs of that statement which are relevant for present purposes. Firstly, Mr Sarina said the following at (11):
"Sometime early this year, 2009, I was at Michael's office one night about 6 or 7pm and we were having a couple (sic) beers. During a conversation Michael said that he was still getting threatened by this Lucky bloke. He handed a piece of paper and told me to start writing Lucky's details on to the paper. As Michael was talking to me, I wrote down the following details: 'Boomerang Funeral Fund level 1 131-135 George Street Liverpool 96009534'. Michael told me that it was Lucky's business address. I continued to write down what Michael was telling me and recorded the following: 'Lucky Gillardi 0427134477 86 Ascot Drive Chipping Norton'. Michael moved away for a moment and returned and (sic) asked him for the correct spelling of Lucky's surname. Michael spelt it out and I crossed out, 'Gillardi' and wrote, 'Gattelari'. Michael said, 'If anything ever happens to me, make sure that the police get these details'. I took that piece (sic) paper home and stored it in a safe location. I have handed this document to police when I made this statement. The writing on the back of this document is not related."
In (12) the following is stated:
"Michael would mention to me infrequently, about three or four times a month, that Medich had a hit on him. By this he meant that Medich contracted someone to kill him. Michael told me that he suspected that it was Lucky that was the one that was supposed to kill him."
In (17) the following is stated:
"About two weeks ago I believe the charges against Michael were dropped by the DPP. Michael became more concerned about his safety because advice from his solicitors was that he had an unlosable case civilly against Medich. His concerns were that Medich would go to any extent not to pay him. Michael believed that his safety was at risk due to this and due to the previous threats that had been made to him by Lucky on behalf of Medich. Michael used to say that Medich said to him on numerous occasions something similar to 'I've dealt with smarter people than you and you're not different'. Michael told me that he perceived this to be a threat."
I interpolate that the reference in (17) to the "charges against Michael (being) dropped by the DPP" is a reference to the fact that the deceased was at one point charged with arson. Evidence was given yesterday by Det. Hetherington, who laid those charges, that they were withdrawn by the Director of Public Prosecutions. Det. Hetherington also gave evidence that on 3 September 2009, that being the date on which the deceased was killed, he rang the accused and discussed with him the fact that the charges had been dropped. He said that when so informed, the accused was agitated and said words to the effect:
"The bastard is down at the Chop House now having lunch."
The reference to "the bastard" was obviously a reference to the deceased.
I should observe before going any further that there are various shortcomings in the form in which the statement of Mr Sarina has been prepared. I proceed to deal with these issues on the obvious assumption that if any of the evidence were allowed, it would be led in an admissible form.
The Crown proposes to call Mr Sarina, but will not lead any evidence in-chief from him. He will simply be made available for cross-examination. Senior counsel for the accused has foreshadowed an intention to elicit the contents of (11) in cross-examination. He has made it clear that any cross-examination of Sarina will be limited to that paragraph of his statement.
The Crown has submitted that if the contents of (11) were left on their own, it would result in an incomplete, and indeed distorted, picture being painted concerning the representations made to Mr Sarina by the deceased about the threats that he was receiving. In those circumstances the Crown has submitted that if I were to allow the contents of (11) to be elicited in cross-examination, the Crown should be permitted to re-examine Mr Sarina on the representations made to him by the deceased which are contained in (12) and (17). The Crown submitted that s. 65(9) of the Evidence Act 1995 (NSW) ("the Act") properly facilitated that course, and that if such a course were not followed, the evidence in (11) should be excluded under s. 135(b) of the Act.
The Crown submitted that in all of the circumstances the proposed re-examination was relevant within the terms of s. 55 of the Act. The Crown submitted, in particular, that the contents of (11), (12) and (17) were necessarily related. The Crown submitted that this relationship was such that absent the contents of (12) and (17), the contents of (11) had the capacity to leave the jury with an incomplete and inaccurate portrayal of the entirety of the representations which were made by the deceased to Mr Sarina regarding threats made to him.
In advancing its position, the Crown referred me to a number of authorities including R v Mankotia [1998] NSWSC 295 and Eastman v R (1997) 158 ALR 107. It was the Crown's submission that these authorities supported the conclusion that what was sought to be elicited in the proposed re-examination from Mr Sarina was evidence as to the same "matter" as that to which the proposed cross-examination in respect of (11) was directed.
Senior counsel for the accused objected to the Crown's proposed re-examination. He submitted that in all of the circumstances it was not relevant and that if it was, it should be excluded pursuant to s. 137.
Senior counsel submitted that the contents of (12) and (17) were not related in any material way to the matters referred to in (11), and amounted to little more than a speculative opinion expressed by the deceased as to who may have been behind the threats said to have been made to him.
In the course of the matter being argued, I pointed out the obvious difficulties in determining, in advance of any cross-examination, what might be permitted by way of re-examination, without firstly hearing the cross-examination. In reaching the conclusions that I have expressed in these reasons, I have done so on the assumption that if the evidence in (11) were led, it would be adduced generally in accordance with what appears in the statement. I have also assumed that if the re-examination were permitted, it would be elicited (subject to questions of form) consistent with what appears in (12) and (17).
There are a number of provisions of the Act which are engaged by these issues. They include ss. 39, 55, 65(9), 135 and 137.
Section 39 is in the following terms:
39 Limits on re-examination
On re-examination:
(a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and
(b) other questions may not be put to the witness unless the court gives leave.
Section 55 is in the following terms:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
Section 65(9) is in the following terms:
65 Exception: criminal proceedings if maker not available
…
(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that:
(a) is adduced by another party, and
(b) is given by a person who saw, heard or otherwise perceived the other representation being made.
Section 135 is in the following terms:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
Section 137 is in the following terms:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
It seems to me that be contents of (11) are relevant and admissible. Accordingly, the first issue to be determined is whether or not the proposed re-examination is relevant in terms of s. 55 of the Act.
In a previous judgment I considered the admissibility of a statement said to have been made by the deceased to a member of the media. On that particular occasion the deceased was reported to have said:
"I don't think you understand what this guy is like and what he is capable of doing".
On the Crown case, the reference to "this guy" was clearly a reference to the accused. I concluded on that occasion that that evidence amounted to an expression of opinion about what the deceased may have thought. In excluding the evidence, I pointed out that the state of mind of the deceased was not, as matters stood at that point, a fact in issue: R v Medich (No 8) [2016] NSWSC 1713.
However, if the contents of (11) were admitted those circumstances would change. In particular, the deceased's state of mind about who he thought was behind the threats would be made relevant. Accepting that to be the case, the proposed re-examination, on the assumption that (11) was admitted, would fall squarely within s. 39.
As I pointed out in the course of argument, s. 65(9) is a facilitative provision which allows the admission of what would otherwise be inadmissible hearsay evidence. It plainly encompasses a situation where the Crown seeks to respond to the admission of other evidence: Eastman at [80].
The terms of s. 65(9) allow evidence about "the matter" to be adduced. In Mankotia, Sperling J observed that there was a "serious question" to be asked about the ambit of the phrase 'the matter' as it appears in the section. Having made that observation, his Honour was not called upon to definitively answer the question(s) to which he referred. However in the circumstances of the present case, it seems to me that the relevant "matter" concerns representations made by the deceased as to threats made against him. The proposed re-examination goes to the issue of those threats, and specifically to the issue of the deceased's belief as to who was behind them.
In my view s. 65(9) facilitates the admission of the evidence subject only to the operation of s. 137. Section 137 mandates the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The probative value of the evidence in (12) and (17) is, given the contents of (11), high. Certainly the evidence is prejudicial but as I have observed in other judgments, so is every piece of evidence in a Crown case. Section 137 refers to the danger of unfair prejudice. There is, in my view, no perceivable danger of unfair prejudice to the accused if the re-examination is permitted. In particular, there is no danger of the evidence being misused in any way.
Accordingly, and subject to the matters to which I have already referred, if the evidence in (11) is elicited in cross-examination, I propose to allow the Crown to re-examine Mr Sarina in respect of the remaining two paragraphs.
Finally, an issue has arisen having regard to s. 42 of the Act which is in the following terms:
42 Leading questions
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.
(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:
(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and
(b) the witness has an interest consistent with an interest of the cross-examiner, and
(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and
(d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers.
(3) 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.
(4) This section does not limit the court's power to control leading questions.
Section 42 gives the Court a power to limit the use of leading questions in cross-examination in certain circumstances. The considerations in s. 42(2) are mandatory but they are not exclusive. That contained in s. 42(2)(a) has no application in the present case. Those in s. 42(2)(b) and (c), have some application to the present circumstances. Certainly the evidence in (11) of Sarina's statement is evidence which assists the accused. Section 42(2)(d) has no application.
The underlying purpose of s. 42 is to foster the integrity of evidence: Uniform Evidence in Australia (Williams & Ors) at [42-2]. As I have observed, although the matters in s. 42(2) are mandatory, they are not exclusive. In my view, the nature of this evidence is such that the use of non-leading questions would better facilitate such evidence being adduced. Accordingly, if the contents of (11) are to be cross-examined upon, leading questions will not be allowed, save for any question which might go to an inconsistency between what the witness has said in oral evidence and what he said in his statement. The same will obviously apply to any re-examination.
[2]
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Decision last updated: 24 April 2018