R v Sultana (No.6) [2025] NSWSC 1101 | Case summary | Zoe

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R v Sultana (No.6) [2025] NSWSC 1101 | Case summary | Zoe

This morning, I conducted a voir dire during which a witness, who is known to the Court as "Person A", gave evidence. He was subject to cross-examination and to re-examination. Prior to commencing that voir dire, the accused, through his senior counsel, had strenuously objected to the taking of any evidence from Person A. By way of summary, that objection related to the fact that Person A was in custody at the time he says the accused described to him in different ways what he had done and what he had thought about with respect to the murder of the deceased.
Objection was taken to any evidence from Person A because in the context, he could not be regarded as a reliable or proper witness. As well, it was proposed to tender on the voir dire together with his written statement, was a series of handwritten notes. Objection was taken to his evidence because it had been, in substance, based upon an appearance of contemporaneous accuracy said to be a misleading and deceptive appearance conjured up by apparently contemporaneous handwritten notes made at or shortly after the conversations in question.
It was submitted that the notes contained florid language, were not in any rational sequence, and omitted various critical parts of the account given by Person A, in particular, various parts of paragraphs 17 and 18 of his statement of 14 November 2024.
When objection was taken, I directed that, in lieu of ruling on it in advance of the evidence being given in court, the appropriate course to follow was that the evidence of Person A be taken in full on a voir dire, and then consideration being given to its admissibility.
That voir dire was conducted, as I have earlier said, today, and in circumstances where senior counsel for the accused made it plain that he was maintaining his opposition as to the admissibility of, and the admission of, that evidence.
The Crown submitted, whilst not opposing taking evidence on a voir dire, that as the evidence was apparently credible and was of significant probative value, it was not appropriate for the Court, in considering admissibility, to devalue the evidence in some artificial or formulaic way. Put differently, the Crown submitted that if one was to take the evidence at its highest for the purposes of considering admissibility, then the evidence was relevant, it had significant probative value and was admissible. The Crown submitted that since the accused would have the opportunity of cross-examining the witness, there would be no unfair prejudice.
Today, the witness has given evidence. As earlier noted, he gave evidence in chief during which there was reference to the fact that he took or made handwritten notes, but the notes were neither shown to the witness and marked for identification, nor were they tendered as part of the Crown case in chief.
The witness was cross-examined and confronted by an essential difference between his evidence and the case for the accused, i.e., that he had made up the evidence of the admissions, that he had not had any discussions with the accused about the facts of the case, and that, having regard to some evidence which he had given about another statement he had made, he was engaged in the campaign for his own benefit, namely, to obtain a reduced sentence - the campaign being to generate false information about people, including the accused.
As is clear, I am hearing this trial sitting as a judge alone. Without indicating whether I accept any of Person A's evidence, I am in a position to make these remarks. First, if it is to be accepted, it is of significant probative value; secondly, there is no reason for the purposes of admissibility to categorise the evidence as being incapable of acceptance. This is not a finding that I do accept the evidence, but it is a finding that it is not, in my view, incapable of acceptance. Whether it is accepted is something which I do not know because the evidence in the Crown case is not finished, the case for the accused has not been opened, I have not heard closing submissions, nor have I had the opportunity to reflect on the contents of the evidence and compare the contents of Person A's evidence with the entirety of the evidence in the proceedings. However, I do not think it can be said, and I am of this conclusion, that it is incapable of acceptance.
Finally, I can detect no unfair prejudice in the confrontation of counsel for the accused and Person A, nor in the way in which the evidence has been adduced.
In all of those circumstances, I am persuaded that the evidence of Person A taken on the voir dire is admissible, and will be admitted in the trial, including any observation which I have made about the demeanour of Person A in giving evidence.
It is not appropriate, unless either party wishes to, to admit the contents of Exhibit VD4, which were the two statements of Person A and the handwritten notes. Accordingly, it is the evidence taken today given by Person A in the witness box which will be admitted.
In light of the fact that it will be contained on the transcript, I do not think it necessary to mark it separately as an exhibit, but if either party on reflection wishes me to do that, I will take submissions about that.
For those reasons, the evidence on the voir dire is admitted as a part of the evidence in the trial.