(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."
66 S38(1) thus provides three distinct gateways to the grant of leave under the sub-section. The same gateways identify the subject matter about which the witness is permitted to be so questioned. However, the scope of questioning is not to be unduly confined. The questioning is not required to be specifically directed to the subject matter that triggers the grant of leave, but extends to questioning directed to establishing the probability of the factual state of affairs in relation to that subject matter contended for by the party conducting the questioning, or the improbability of the witness's evidence on that subject. It also extends to questioning relevant to the witness's credibility in relation to that subject matter: R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [67] per Heydon JA (as his Honour then was) with whom Dunford and Buddin JJ agreed.
67 I am satisfied that each of the three gates has, in the present circumstances, been unlocked. The evidence given by Dr Allen was, in material respects, unfavourable to the Crown in that it failed to acknowledge that vaginal administration of prostaglandin drugs had taken place at the clinic; and the cross examination on the voir dire from MFI 25 shows that Dr Allen had made a prior inconsistent statement. Of most significance, it appeared to me that Dr Allen had not, in examination in chief, made a genuine attempt to give evidence on a matter of which he may reasonably be supposed to have knowledge. In reaching this view, I took into account both the answers given by him to questions asked in his evidence in chief, and the answers given by him in cross examination on the voir dire.
68 Unlocking the gate, however, is not necessarily conclusive that leave ought to be given. It is necessary that the evidence sought to be adduced by s38(1) questioning is relevant: Evidence Act, s56. It is also necessary to take into account each of the matters specified in s192(2); and to apply the tests contained in ss135 and, more particularly, 137.
69 It became necessary to identify with some precision the basis upon which the Crown sought to rely upon any evidence it anticipated would be adduced from Dr Allen in the proposed cross examination. Senior counsel for the Crown said, in the first instance, that the evidence:
"…would be admissible to prove it more likely that this doctor inserted a tablet vaginally."
When it was put to him that this was a tendency purpose, he replied:
"It's admissible on two bases: Firstly, it's admissible to prove a lie told by the accused in paragraphs 30 to 32 of the admissions."
70 He maintained that it was open to the Crown to prove, by admissible evidence, that, on another occasion, Dr Sood had told a lie, and that this was relevant to the assessment of her credibility. The lie was that she did not (as a matter of practice) ever administer prostaglandin drugs vaginally. Alternatively, he sought to rely upon the lie allegedly told in the Medical Board as evidence of consciousness of guilt: see Edwards v The Queen [1993] HCA 63; 178 CLR 193. This was a departure from the position previously adopted by the Crown.
71 In a previous judgment concerning the admissibility of evidence in this trial (R v Sood [2006] NSWSC 695, 10 July 2006), I dealt with the very same proposition in relation to evidence that Dr Sood had told the Medical Board that she did not carry out pregnancy terminations on patients whose pregnancy exceeded 20 weeks. I there held that it was not open to the Crown so to impugn the credibility of any person except when that person is a witness in the proceedings. I see no reason to change the view there expressed.
72 It is true that there have been instances where the credibility of an accused person has been challenged by reference to out of court statements made by that person, the statements said to be false. One such case is R v Villa [2005] NSWCCA 4, a decision to which I was a party. There the issue concerned directions given to a jury in respect of lies allegedly told by the appellant.
73 Within a short time of the events the subject of the trial, the appellant, who was not then a suspect but was considered a potential witness, gave a number of accounts of his movements and observations at around the time of the offences. Some of these accounts were given to police, others to acquaintances. There were significant discrepancies and inconsistencies in these accounts. The appellant did not give evidence in the trial, but, as the judgment shows ([36]), he relied upon what he had told police in a recorded interview that had been conducted when he was regarded as a potential witness. The Crown sought to rely upon certain of the content of his various statements as lies evidencing a consciousness of guilt, in accordance with Edwards. The trial judge ruled against that, but did allow the prosecution to rely on, as relevant to his credibility, inconsistencies in the various versions he had given.
74 It is not entirely clear from the judgment on what basis the record of the interview was admitted in the trial. It does seem that there were parts of the recorded interview that did, properly, constitute admissions for the purposes of s81 of the Evidence Act. In any event, it seems clear that there was no issue about the admissibility of the record of the interview. What was there at issue, then, was the use that could be made of the alleged lies and inconsistencies contained in a document which was uncontroversially otherwise before the jury. The evidence of alleged lies was not tendered for the purpose of challenging the credibility of the accused at a time when he had not given evidence. As it happened, he never did give evidence.
75 The basis on which exculpatory statements, made out of court, by an accused person may be admitted was extensively canvassed by Grove J in R v Rymer [2005] NSWCCA 310; 156 A Crim R 84, a decision upon which the Crown relied. Such statements are, as hearsay statements, by s59 of the Evidence Act, not admissible unless they come within one of the exceptions provided for in the succeeding sections. Unless made at a time when the events the subject of the statements were fresh in the memory in the sense explained by the High Court in Graham v The Queen [1998] HCA 61; 195 CLR 606, they are not admissible either in the Crown case, or in support of a defence case. However, as the history traced by Grove J shows, they have traditionally been admitted out of fairness to the accused person, and that tradition does not appear to have altered (in practice) following the enactment of the Evidence Act, even though the basis of admissibility of the statements may be more questionable since that enactment.
76 The facts of Rymer were not complex (although the judgment has its complexities). There the accused person had made exculpatory statements when questioned about the events the subject of the charges. Contrary to the usual practice the Crown declined to tender those statements as part of the Crown case. It was in those circumstances that Grove J traced the history of the practice of admitting evidence of statements made by an accused person when first questioned, to which I have already referred.
77 The trial judge had ruled that the statements were admissible, under s66 of the Evidence Act, but only in the event that the accused gave evidence. This was held on appeal to have been incorrect. As a result of the ruling, and in order to secure the admission of the statements, the accused made a decision to give evidence. This, on appeal, was said to have been brought about as a result of the incorrect ruling by the trial judge.
78 The Court of Criminal Appeal, constituted by Grove, Barr and Latham JJ held that, by reason of the timing of the making of the statements, they were not admissible under s66 of the Evidence Act. Their Honours held, however, that the statements were admissible under s60, which provides as follows:
" 60 Exception: evidence relevant for a non-hearsay purpose