Regina v MTN; Regina v CVH

IN THE SUPREME COURT OF NEW SOUTH WALES criminal DIVISION O'Keefe J 12 February 2002 70034/00 - Regina v MTN 70012/01 - Regina v CVH

JUDGMENT - on application by the Crown for leave to cross-examine Andre Nasr under s 38 - see page 538. HIS HONOUR: 1 Application has been made by the Crown for leave to cross-examine Andre Nasr (the witness) pursuant to s 38 of the Evidence Act 1995. The basis of the application is threefold, namely:

1. That the witness has given evidence in the trial of the present matter which is unfavourable to the Crown; 2. That the witness has given evidence in such trial about a matter of which he has or may be supposed to have actual knowledge but in his examination in chief the witness has not made a genuine attempt to give correct evidence; 3. That the witness has on a previous occasion, namely on 3 October 1999, made a statement which is inconsistent with a material part of the evidence which he has given at the present trial. 2 The trial in which the witness has been called by the Crown involves the death of one young person, the wounding of another and an affray, all of which took place at Lahood's Snooker and Amusement Centre, Campsie on 10 November 1997. 3 Both accused, namely MTN and CVH, have been charged with murder and affray. One has also been charged with malicious wounding; the other with assault. 4 The witness was present in the period leading up to and at the time of the events out of which the charges arise. He has pleaded guilty to assault occasioning actual bodily harm and to affray. As a result of his pleas, an undertaking to give truthful evidence at the trial of the two accused and to assist the authorities in the prosecution of the charges against such accused, he was dealt with leniently by the court when his pleas were accepted in satisfaction of a charge of murder which had been previously laid against him. 5 The witness made two statements, one dated 3 December 1997, the other dated 3 October 1999. Both of these were stated on their respective faces to be "true to the best of my knowledge and belief". The second statement was made a matter of days before the giving by the court of the decision referred to above. In his statement of 3 October 1999 the witness said: "7. ...Where it says I stood in the doorway of the centre, that is where I saw JD walked (sic) up to MTN and CVH who were also near the doorway. JD had in his hands something wrapped up in like a thin white shirt or singlet.

8. I could see that the item wrapped up in the thin singlet was long and sharp. At that time I formed an opinion in relation to what the item in the singlet was.

9. JD handed the wrapped item to MTN who took it. MTN put the item inside his jacket and walked back with CVH (sic) to where MT and HDN were still standing...I looked over to where they were standing. I could see them talking but I could not hear them." 6 In his evidence in chief the witness said in effect that he did not see the item that was wrapped up except the end of a black hilt, that it was wrapped in a jumper and that he did not know to whom it was given, namely whether it was given to the accused MTN or to the accused CVH. 7 The Crown case is that the knife was given by JD to MTN who stabbed Tremaine Watene with it and to whose manslaughter the accused MTN has proffered a plea of guilty. 8 The witness presented as truculent and somewhat arrogant. He displayed a reticence to answer a number of questions asked on behalf of the Crown but was quick to give helpful answers in the cross-examination undertaken on behalf of the second accused. His attitude to the court and approach to the giving of evidence were, according to what he told the police, affected by statements amounting to threats made in respect of him by a person who was in court whilst the witness was giving his evidence. That person (described as Asiatic in appearance and as wearing a brownish/purplish shirt) and the witness had a good deal of eye contact whilst the witness was giving his evidence to date. 9 The witness claimed to the police that he would prefer to go back before the court and be sentenced for his offences than to give evidence in the present trial. He said, rather than give evidence, he would prefer that to having to look over his shoulder for the rest of his life. 10 I think it is highly likely that the attitude of the witness and the evidence which he gave in the witness box relevant to the present application were a consequence of his fear. No one would, as a matter of common sense, forsake the advantage that the witness had gained in relation to the sentences imposed in respect of his offences without adequate, indeed weighty, reason. Fear is one such reason; the extent and reality of the fear made more probable and weighty by the gang type atmosphere involved in the events of 10 November 1997. 11 What is clear as a matter of judgment on my part in relation to the evidence given by the witness in the witness box is that he was attempting by his attitude and answers to assist the accused and conceal what he had actually seen. 12 The witness and both accused were associates, almost certainly close friends. Each was a member of or was associated with the membership of a gang known as Sing Wa. 13 The evidence of what the witness said in his statement and which is now sought to be adduced is important in the Crown case as direct evidence of events that may be regarded as touching on the culpability, especially the intent, of the accused. Furthermore, if accepted by the jury it would add weight to the evidence already given by the witness JD, the acceptance of whose evidence may well be of critical importance to the Crown. 14 In his cross-examination the witness denied certain matters that he had assented to in his evidence in chief, asserted in effect that the words in his statement of 3 October 1999 had been put into his mouth by the investigating police officers and variously stated that relevant parts of the paragraphs from his statement to which I have referred above were true, untrue, and then later true again. 15 For the purposes of this hearing and based on the evidence adduced at it, I am satisfied that his recantation should not be accepted. He has, in my opinion, given evidence which is unfavourable to the Crown, as the party calling him. Furthermore, I do not accept his assertions that he is unable to remember critical matters such as the identification of what was clearly a knife and of it being handed to the first accused MTN. His claim that he did not remember this because it occurred some four and a half years ago is inconsistent with his statement of some sixteen months ago. 16 In addition I do not accept his assertion to the effect that the relevant parts of paragraphs 7, 8 and 9 of his statement of 3 October 1999 were untrue. His statement in my opinion is probably a statement of his actual observation at the critical time. In the result I am satisfied that the witness, who has knowledge of the events that transpired and in fact a recollection thereof, has not in his evidence in chief made a genuine attempt to give evidence of the matters of which he has knowledge. 17 It is clear beyond argument that the evidence given by the witness is inconsistent with his written statement of 3 October 1999. The inconsistency is quite pivotal to the effect of his statement, important in the Crown case and significant in relation to his credibility as well as to the proof of matters to which I have already adverted. 18 The present case has many features similar to those adverted to in both the High Court and the Court of Criminal Appeal in Adam v The Queen [2001] HCA 57; [1999] NSWCCA 197, which decisions I apply in reaching my ultimate conclusions in this matter. 19 I am satisfied that the requirements of sub-paras (a) (b) and (c) of s 38(1) of the Evidence Act 1995 have been complied with. In reaching this conclusion I am satisfied that the Crown has also complied with the provisions of s 38(6)(a) and (b) of the Evidence Act. 20 Section 137 of the Evidence Act requires the court to refuse to admit evidence adduced by the prosecutor in a criminal proceeding if its probative value is outweighed by the danger of unfair prejudice to the accused. Whilst the evidence in the prior inconsistent statement made by the witness may be prejudicial to the accused, I do not think that in the circumstances of the present case it would be unfairly so. As a consequence s 137 of the Evidence Act does not operate as a bar to the admission of the evidence sought to be adduced by the Crown and hence does not operate to cause the discretion to grant leave to cross-examine the witness to be exercised against such grant. Nor do I think that the discretions conferred by ss 135 and 136 of the Evidence Act to reject evidence which would be otherwise admissible are activated or operate to prevent the admission of the evidence in question. 21 One further matter needs to be considered, namely the provisions of s 192 of the Evidence Act. Without limiting the matters that the court may take into account in deciding whether to give any leave permitted by the Act, or as in relation to the terms on which any such leave may be given, the section requires the court to take into account certain matters (s 192(2)(a-e)). 22 The introduction to s 192(2) uses the compound verb "is to take" into account. In Director of Public Prosecutions (NSW) v Sinton (unreported [2000] NSWSC 473) I had occasion to consider the meaning and effect of a similar compound verb (see para 18). In that decision I concluded that such a compound verb had the same effect as the word "shall" or "must" when used in the context of the statute there under consideration. Although the ultimate conclusion to which I came in that case was reversed on appeal, the analysis of the relevant compound verb was not reversed. 23 In my opinion the compound verb in s 192 of the Evidence Act has the same effect. The court is therefore obliged, i.e. must take into account the matters specified in s 192(2)(a-e) inclusive to the extent to which such matters are germane to the proceeding before the court. 24 I have taken into account each of the matters specified in s 192(2). Granting the leave would not be likely to add unduly to the length of the hearing. As already indicated to allow the cross-examination would not be unfair to either accused. Likewise I have already determined that the evidence in question is important to the Crown case and the proceedings, as they involve a murder charge, are clearly such as to require that the community interest be had regard to as well as questions of prejudice and/or unfairness to each of the accused. No question of any adjournment has been raised and appropriate directions in relation to the evidence of the witness generally and the evidence presently in question in particular will be given in the summing-up. 25 When regard is had to each of the considerations to which I have adverted above I am satisfied that the relevant leave should be granted and I give such leave.

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