R v Wrigley (No 4)

The Crown seeks leave pursuant to s 38 of the Evidence Act 1995 (NSW) (the Act) to cross-examine the witness, Natalie Riley, on the subject of a conversation that she had with police on 21 February 2023 with Detective Sergeant Gardiner and Detective Senior Constable Dimmock. The version of that conversation according to Detective Sergeant Gardiner is set out in his statement dated 23 August 2023. The Crown has foreshadowed that it would seek a similar direction in relation to a further conversation between Detective Sergeant Gardiner and the witness that occurred on 23 February 2023. The Crown notes that the evidence, if adduced, is likely to reduce the witness’s credibility and that it would be admissible on that basis as an exception to the credibility rule stated in s 102 of the Act, pursuant to s 103 of the Act.

Thus far in the evidence before the trial, the witness has not been asked questions concerning those conversations. Both conversations were the subject of examination in chief during a voir dire with the witness on 1 April 2025 in relation to a different issue. The application is opposed by Mr Broadbent of Senior Counsel who submits that, as well as the threshold requirement in s 103(1) of the Act, the discretionary provisions of the Act should be engaged, permitting the Court to exclude evidence otherwise admissible.

Factors that are relevant to both statutory considerations include the passage of time between the events in question in the trial which occurred from Saturday 21 January 2023 to and including the early hours of Monday 23 January 2023, and the dates of the two conversations with police. In other words, that there was no reason for the witness to particularly recall the matters about which she was questioned in the February conversations with police.

Further, that the passage of time since those two conversations with police, being two years and two months, is a matter that militates against a presumption that the witness is either lying or not being cooperative, at least thus far in relation to the first conversation when she has explained that she has no recollection of the events in question.

Having regard to the singular nature of the conversations, that is, being spoken to by police as to the whereabouts of her partner and other related matters in the context of having been told by police that it was a murder investigation, I am of the view that the witness’s explanation that she has either no recollection, or virtually no recollection, of the content of the conversation that occurred on 21 February 2023, is difficult to believe.

Taking into account the witness’s evidence on other matters, in particular, that she has no recollection of a phone gaol call with the accused that occurred four weeks ago, which I consider to be most unlikely, I am inclined to the view that the witness is not dong her best to recall relevant events and that the basis for the application of leave pursuant to s 38 is made out.

A further submission is made by Mr Broadbent SC that the questioning of Ms Riley in which she denied that she had previously been to the properties known by the names Rosehill and Neeroc was unfair. The police questioning involved references to those properties by those names, rather than in terms by which those locations were more readily identifiable by the witness as to where she spent the night with the accused on Saturday 21 January 2023. However, I am satisfied by the context of those references in the conversations as recorded by Detective Sergeant Gardiner that it would have been apparent to Ms Riley where Detective Sergeant Gardiner was referring to.

I also take note that in one of those conversations Ms Riley said that she had not previously met her partner’s boss, contrary to CCTV images and other evidence which strongly supports a proposition that she had met him on 21 January 2023.

In view of all of those matters, I am satisfied that it would not be unfair to the accused to permit the Crown Prosecutor to cross-examine Ms Riley and I grant leave to the Crown to do so, as to the two conversations and her evidence on those topics on the voir dire on 1 April 2025. Although notice has not been given for this application, I take into account that it would reasonably have been expected that the witness would have some recollection of the content of those two phone calls.