R v Sultana (No.3)

Before: Garling J

Decision: Application dismissed

Catchwords: EVIDENCE – Admissions – Criminal proceedings – Oral admissions – Whether the effective cross-examination of a witness by the defence would necessitate the adducing of inadmissible material likely to prejudice the accused’s ability to receive a fair trial – Where the credibility and accuracy of a witness’ testimony is to be determined by the jury and not the judge in advance of a trial – Whether the Court has the power to order the Crown not to call a witness
CRIMINAL PROCEDURE – Application for stay of proceedings – Application refused

Legislation Cited: Evidence Act 1995 (NSW) s 137

Cases Cited: Not Applicable

Texts Cited: Not Applicable

Category: Procedural rulings

Parties: The Crown
Paul Jason Sultana (Accused)
Commissioner of Police (Applicant)

Representation: Counsel:
Y Prowse (Crown)
Dr G Woods KC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Proctor & Associates (Accused)

File Number(s): 2023/17108

Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

1. Mr Paul Sultana (“the accused”) is arraigned on a charge that he murdered Dayna Isaac. After his arrest in January 2023, and whilst in custody, he mixed with other inmates, although he was in a segregated part of the Parklea Correctional Centre.

2. The Crown proposes to call, as a witness, a person who has been given the pseudonym “Person A”, who was a fellow inmate of the accused at Parklea Custodial Centre.

3. A statement of that witness dated 14 November 2024, has been served. In that statement, Person A records various conversations which he said he had with the accused whilst they were both in custody.

4. The Crown does not propose to adduce all of the contents of the statement, no doubt because some of it is not directly relevant and other parts of it may be regarded as inappropriate to adduce.

5. However, in two paragraphs of that statement, paragraph 17 and 18, Person A records a conversation with the accused which, if admitted, would be regarded as clear admissions of the accused having carried out the murder, what his intention was at the time, and why he had done so.

6. The Crown points to the fact that in particular in paragraph 18 of that statement, Person A has given evidence of conversations which disclose significant detail of how it is said, by the accused, he carried out the offence, including details which are unlikely to have been made public at the time this statement had been made.

7. Those details involve particular features of what had occurred and where. The accused does not put in doubt that a murder occurred, and that the Crown will be able to establish that the murder of the deceased occurred. The accused makes it plain that his defence is that he was not the person who carried out the murder, and that it was carried out by someone else.

8. It follows from that joinder of the principal issues that the accused disputes what Person A says occurred in the conversations, and that he disputes the accuracy of them and the terms in which the conversations are expressed.

9. The accused applies for the Court to stay his trial permanently, or else temporarily, for so long as the Crown persists in its intention to call Person A as a witness. Application is made for the Court to give such orders. Senior Counsel for the accused accepts that such relief is not usual, and points to the fact that the combination of circumstances is exceptional.

10. Senior counsel points to these features: Person A is not a man of good character; he is a convicted murderer presently serving a sentence of 20 years imprisonment with a non-parole period of 13 years; and he is a man who has a powerful motive to lie in order to ingratiate himself with authorities who may influence the length of his sentence or, I might add, the way in which it might be served and the conditions under which his sentence is served.

11. His evidence falls into the category of what one might describe as a “prison informer”. Consistently with that, senior counsel for the accused identifies that Person A is a "repeat" informer, in the sense that he has given assistance to police in more than one case, and that he is a man who has had access to legal advice at every step of the way, and appears to be a person who regards himself as knowledgeable of the court system and its workings.

12. The contents of the statement of 14 November 2024 of this matter, in part but not whole, relates to a series of handwritten notes in Person A’s handwriting. In paragraph 27 of the statement of Person A, which is marked Exhibit VD2, Person A says this amongst other things:

“During my time in custody with Paul [the accused] I would make notes of our conversations which I have kept with me. I have shown the police and given them a copy of these notes. I referred to these notes as I gave this statement to police."

13. Senior counsel draws attention to the fact that the handwritten notes are not sought to be relied upon by the Crown, per se, as tendency or coincidence evidence. He submits that, on careful reading, the handwritten notes do not contain any reference to the specific admissions by the accused to which I referred earlier, and which are contained in paragraphs 17 and 18 of the statement of Person A.

14. Senior counsel submits that, to effectively cross-examine Person A to expose him as being a witness of no credibility generally, and to challenge him specifically about the admissions which his evidence contains which are said to have been made by the accused, it will be necessary for senior counsel to address both the glaring disparity between the florid allegations of the supposed admissions, and the absence in the apparently contemporaneous notes of any reference to those admissions.

15. Senior counsel draws attention to the fact that it will be at his feet to elect between a course of cross-examination which requires him to reveal the existence of the contemporaneous notes and the absence of any reference in those notes to the particular admissions, therefore attacking the credibility of the witness, or else to decide whether an approach to the witness should take the course of not referring to contemporaneous notes at all, lest the reference to contemporaneous notes, in fact, has the effect of bolstering the witness' credibility.

16. Senior counsel submits that the notes themselves would not ordinarily be admissible in the normal course as part of the Crown's case in chief. Of course, a cross-examination which is not carefully conducted may inadvertently permit the Crown in re-examination to tender the notes. However, there is certainly an obvious path of cross-examination available to counsel for the accused which would not risk the tender of the notes by the Crown in re-examination.

17. It follows that I am not persuaded that it is inevitable that if Person A gives evidence, the contents of the contemporaneous notes will thereby and without more become admissible. In any event, even if the circumstances arise which may permit the Crown to tender the contents of the notes, the Court will need to consider the provisions of s 137 of the Evidence Act 1995 (NSW) as to whether unfair prejudice of a sufficient kind arises to the accused if the notes are to be admitted in evidence. Now is not the time to determine that objection. It is best determined at a later point when the trial is or has unfolded.

18. The accused submits that, such is the obvious prejudice even at this stage of the proceedings, that the Court should order a stay of the trial because it cannot be fair. Of course, it is not the Court's task at this stage to determine whether Person A's evidence is truthful and accurate. On its face, it is relevant and therefore admissible. Whether it is accurate or inaccurate, in other words, whether the accused did say the things that Person A will give evidence about or not, is a matter which is determined by the jury, and not by the judge in advance of the trial.

19. No doubt one of the features which the jury will be asked to consider is whether, in the absence of any contemporaneous notes, they should believe Person A's evidence of the specific admissions.

20. As well, I need to keep in mind that relevant directions may be able to be given, depending on the evidence in the trial and the unfolding of the evidence, which would draw the jury's attention to the nature of the evidence, by whom it is given and the circumstances in which it is said to have arisen. But these are matters that must await the unfolding of the evidence at the trial and submissions of counsel at the time as to whether a direction is appropriate and, if so, the content of it.

21. Whilst a judge has an obligation to ensure that a fair trial is held for an accused, that obligation does not extend to the trial Judge determining, in advance of the unfolding of the evidence, whether the evidence of one witness or another is capable of belief or is to be dismissed as wholly incapable of any credibility or belief.

22. I acknowledge that there will be a significant contest at the trial about the credibility of Person A, and the accuracy of the evidence which Person A is expected to give. Of itself, and without more, that is not sufficient for the Court to conclude that there will not be a fair trial.

23. As well, because there is a pathway to cross-examination of Person A, which does not involve the voluntary tender of, or the accused's counsel being the subject of a requirement to tender, the contemporaneous notes, I cannot conclude that a fair trial would not be possible.

24. In all of the circumstances it is a matter of basic principle that a criminal trial remains an adversarial process in which each party, advised and represented by lawyers, is required to take a view, on the side of the Crown, as to what witnesses will be called and as to what evidence will be led from those witnesses and, on the side of the accused, perhaps a similar, but more general question of how it is that any challenge is to be made to that witness.

25. It is not the role of a trial judge to involve themselves in the making of decisions which impact upon the conduct of the trial by the retained advocates for the Crown and the accused.

26. I am unpersuaded that the circumstances are such that there cannot be a fair trial or, alternatively, that there is a real risk that there cannot be a fair trial.

27. I am unpersuaded that a court has the power to order a Crown not to call a witness, and I am unpersuaded that, assuming the existence of a power to stay a trial because a fair trial cannot be had, this is a case in which any such power should be exercised. I decline to accede to the application of the accused that I order that the Crown not call Person A and, in the alternative, that I order a permanent or conditional temporary stay of the trial.

28. The application is dismissed.

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