Criminal Law - Procedure - Prosecution - Other matters - Tasmania - Preliminary proceedings - Limiting matters for cross-examination.

Judgment Number [2021] TASSC 35

1 The accused has been committed for trial on a charge of wounding. It is alleged that on 7 April 2013 he wounded another man, Tye Paul Silver, by shooting him in the legs. His counsel sought an order pursuant to s331B(2) of the Criminal Code that seven witnesses give evidence on oath in preliminary proceedings before a justice of the peace or a magistrate. The application specified the topics in respect of which it was proposed that each witness would be cross-examined. The Crown did not oppose the making of an order for all seven witnesses to give evidence in preliminary proceedings, but, in respect of some of those witnesses, the Crown prosecutor argued that the proposed cross-examination topics were too wide, and that their cross-examination should be limited pursuant to s331B(4)(a) to only some of the topics specified in the application. On 22 October 2013 I rejected that submission, and decided to make an order permitting cross-examination on all the topics specified in the application. These are my reasons for that decision.

2 The relevant legislative provisions, which are all in s331B of the Code, read as follows:

"(2) At the first or a subsequent appearance before the Supreme Court of a defendant committed to the Court on any plea, other than a plea of guilty -

(a) the defendant or a Crown law officer may apply for an order that the witnesses named in the application give evidence on oath in preliminary proceedings; and

(b) the Court may make such an order;

(3) The Supreme Court may only make an order under subsection (2)(b) requiring a witness named in the order to give evidence on oath in preliminary proceedings -

(a) if the defendant, or Crown law officer, in his or her application for the order has identified a matter in respect of which the witness is to be questioned, has specified why the evidence of the witness is relevant to that matter and has specified why cross-examination, or examination, of the witness is justified; and

(b) ...

(c) the Court is satisfied that it is necessary in the interests of justice.

(a) in respect of a witness who is not an affected person within the meaning of the Justices Act 1959, may limit the matters on which the witness may be examined, cross-examined and re-examined and impose conditions in relation to such examination, cross-examination and re-examination ...".

3 Section 331B commenced on 1 February 2008. Before then, criminal cases were often delayed in the courts of petty sessions for months, and sometimes years, as a result of witnesses being unnecessarily or pointlessly cross-examined before magistrates or justices, and as a result of all sorts of inefficiencies in the taking of the depositions of witnesses. When s331B(3)(a) commenced, and counsel were forced to say what purpose would be served by the cross-examination of each witness in preliminary proceedings, the number of cases in which witnesses were cross-examined before magistrates and justices dropped very substantially.

4 However it is very important that defence counsel should be able to cross-examine witnesses in preliminary proceedings when appropriate, for a number of reasons. The witness statements and proofs of evidence provided to accused persons and their counsel before trial will often lack detail, or lack information about points that are important, or potentially important. An accused person will not receive a fair trial unless he or she knows what evidence the Crown witnesses can be expected to give on important points before the trial starts. Preliminary proceedings therefore have a very important role to play in filling any gaps. Often, cross-examination in preliminary proceedings will clarify the strengths and weaknesses of a case and result in a discharge of an accused person, the abandonment of one or more charges, the substitution of a less serious charge in place of a more serious one, the abandonment of a defence that is shown by cross-examination to have no merit, or a plea of guilty. When preliminary proceedings are conducted well, they can result in a shorter trial, or in a trial becoming unnecessary.

5 When a preliminary proceedings order is sought under s331B in respect of witnesses who are not "affected persons" within the meaning of the Justices Act 1959, the Court has an unfettered discretion as to the making of the order, the limitation of subject-matters, and the imposition of conditions. Factors relevant to the exercise of those discretions include the seriousness or otherwise of the charge or charges, the apparent significance of the evidence that each witness can give, the timeliness of the application, whether the preliminary proceedings will or might result in inordinate delay, and factors relating to the individual witnesses such as their availability and state of health. This is not intended to be an exhaustive list.

6 In this case, the accused is represented by a legal practitioner who is experienced and competent. There is no dispute as to who should give evidence in the preliminary proceedings. The dispute is only as to the scope of the cross-examination of some of the witnesses. As a general rule, if a witness is to give evidence in preliminary proceedings, I think it is desirable that counsel should have the right to conduct a thorough cross-examination in relation to any issues that are relevant or potentially relevant since that is likely to result in saving time at trial. In particular, if there is a minor issue that might or might not be worth exploring at trial, it is often a good idea to explore it in preliminary proceedings with a view to avoiding unproductive exploration of the issue in front of a jury.

7 Having said that, I wish to make it clear that there will often be good strategic reasons not to explore every aspect of a case in preliminary proceedings, particularly when there is a possibility that taking that course would forewarn a dishonest witness and give that witness an opportunity to concoct a story to meet the cross-examination that will be expected at the trial. I of course have no idea whether there is any reason to doubt the honesty of any of the witnesses in this case.

8 The dispute as to the scope of the proposed cross-examination in this case concerns three witnesses: Mr Silver, who is alleged to have been shot by the accused; a man named Fish; and a man named Wordsworth.

9 Counsel for the accused sought an order permitting Mr Silver to be cross-examined as to nine matters. The Crown did not oppose him being cross-examined as to three topics, namely:

"(v) Conversations he has had with others regarding alleged threats made by the Accused and Craig Silva;

(viii) His observations of vehicles, drivers and passengers on 7 April 2013, both prior to and at the time of the incident;

(ix) His actions and the actions of the Accused prior to, during and after the allegation of Wounding on 7 April 2013."

10 The application was opposed in relation to the cross-examination of Mr Silver on the following six topics:

"(i) His relationship with the Accused, both generally over the time he has known him and in the months leading up to 7 April 2013;

(ii) His relationship with Craig Silva, both generally over the time he has known him and in the months leading up to 7 April 2013;

(iii) Difficulties and/or confrontations he has had with Craig Silva over the past seven years and in the months leading up to 7 April 2013.

(iv) His knowledge of and involvement in related firearm and shooting incidents;

(vi) Conversations he has had with the Accused and Craig Silva;

(vii) The events of 7 April 2013, including the actions of persons present and conversations he had with other witnesses and persons present regarding the Accused and Craig Silva."

11 I have not seen Mr Silver's witness statement, but counsel have provided me with information about the Crown case and the significance of Mr Silver's evidence. I understand the Crown case to be essentially as follows. On the day in question the accused was at Gagebrook with a number of male companions including Craig Silva. The complainant had four male companions. He and they were hostile to the accused and his companions. In particular, the complainant, Tye Silver, was hostile to the accused's friend, Craig Silva. The complainant's group set out to fight the accused's group. The accused owned a car. A vehicle matching his car had been seen arriving at the area in question. That vehicle was driven past the complainant's group, turned, and swerved towards that group. The accused was driving. As the vehicle passed the complainant's group, the accused placed a double-barrelled shotgun out of a window on the driver's side, and fired both barrels, hitting the complainant in the legs. The car was driven away without stopping. The complainant refused to speak to the police until nine days after the shooting.

12 I was told that the evidence identifying the accused as the driver and gunman is disputed. One issue in the case is whether the accused had a motive to shoot the complainant, possibly as a result of past differences that the complainant has had with the accused and Craig Silva. It follows that cross-examination on topics (i), (ii), (iii) and (vi) would be relevant.

13 Counsel told me that the two groups had escalating problems in the months leading up to the day of the alleged shooting, and that there had been other shooting incidents between the two groups. Evidence of those earlier shooting incidents must therefore be potentially relevant to the issue of motive. Cross-examination on topic (iv) would therefore be relevant.

14 Conversations and events on the day of the alleged shooting - topic (vii) - must also be relevant.

15 A number of factors weigh in favour of permitting cross-examination of the complainant on all the listed topics. The charge is serious. It is highly unlikely that defence counsel will waste time. It is desirable that the accused should go to trial knowing what the complainant is likely to say about matters relevant to motive, the earlier hostilities, and the events of the day in question. I therefore decided that defence counsel should be permitted to cross-examine the complainant on all nine requested topics.

16 Counsel told me that Mr Fish was one of the complainant's companions on the day of the alleged shooting. The application listed ten topics for the cross-examination of Mr Fish. The Crown did not oppose him being cross-examined as to five of those topics, as follows:

"(iii) 'Feuding' he describes having with a group of people, of which the Accused is a party to, generally and in the months leading up to 7 April 2013.

(iv) His knowledge of and involvement in related firearm and shooting incidents;

(v) Conversations he has had with others and his knowledge of alleged threats made by the Accused and Craig Silva;

(ix) His actions, the actions of the Accused and the actions of the Complainant prior to, during and after the allegation of Wounding on 7 April 2013;

(x) Conversations he had with the Complainant on 7 April 2013."

17 However the application was opposed in relation to the cross-examination of Mr Fish on the following five topics:

"(i) His relationship with the Accused, both generally and in particular, in the months leading up to 7 April 2013;

(ii) His relationship with Craig Silva, both generally, and in particular, in the months leading up to 7 April 2013;

(vi) Conversations he has had with the Accused and Craig Silva, relevant to his relationship with them and the stated 'feuding' and regarding Tye Silver;

(vii) The events of 7 April 2013, including the actions of persons present and conversations he had with other witnesses and persons present regarding the Accused and Craig Silva;

(viii) His observations of vehicles, drivers and passengers on 7 April 2013, both prior to and at the time of the incident ...".

18 Counsel told me that me that Mr Fish would be called as an eye-witness, and was expected to say that the accused fired the gun. No doubt his credibility will be in issue. It may be suggested that he was so hostile to the accused, or the accused's friend Craig Silva, that he had a motive to give false evidence against the accused. Cross-examination on topics (i), (ii) and (vi) would therefore be relevant, and appropriate in preliminary proceedings.

19 As to topics (vii) and (viii), it is entirely appropriate that his version of the events of the day, and his observations of them, should be fully explored in preliminary proceedings, given the seriousness of the charge.

20 The Crown wishes to call Mr Wordsworth at the trial to give evidence that he sold the car from which the shots were fired to "the boys" three or four days before the shooting. His witness statement ended, "I didn't have anything to do with the shooting".

21 The application listed four matters for the cross-examination of Mr Wordsworth. The Crown did not oppose him being be cross-examined as to one topic, namely "details of the transaction of the sale of his vehicle". The application was opposed in relation to the following three topics:

"(i) His knowledge of and involvement in events of 7 April 2013, in particular, his presence at the incident and his observations of the Complainant and the Accused on 7 April 2013;

(iii) Conversations he had with the Accused and the Complainant, prior to and after 7 April 2013;

(iv) Knowledge of a dispute between the Complainant and Craig Silva and/or the Accused."

22 Mr Wordsworth's statement does not reveal whether he saw the shooting, whether he can give any evidence as to the events leading up to it, or whether he can give any relevant evidence as to its aftermath. As he is to be called as a witness in preliminary proceedings, it is desirable that defence counsel should have an opportunity to explore what this witness can say as to those topics. If he can say nothing about them, it would be preferable to find that out in preliminary proceedings, rather than taking up time during a jury trial. If he can say anything of relevance in relation to any of those issues, then it is only fair that the accused should be able to find out through the preliminary proceedings what evidence the man can give.

23 For the reasons stated above, I decided to make an order permitting cross-examination on all the topics specified in the application.