R v Garland

Over the last half an hour or so, the Prosecutor attempted by asking non‑leading questions to elicit various pieces of evidence from [redacted], which are reflected in the statement that she gave to police on 20 January 2022 (MFI 28). An application under s 32 of the Evidence Act 1995 (NSW) (“the Act”), as it became, was granted and the statement was put in the witness’s hand, in respect of three issues under consideration that arise in paragraphs [24], [25] and [33] of the statement. [1]

In some instances, when taken to those parts of the statement, the witness said the statement reflected her memory, or that it helped refresh her memory, but then did not, in fact, give the evidence that was contained in the statement. In another instance, when asked about paragraph [25], she said "[h]e didn’t say” that. In the third instance, she indicated that the statement did, I think, help refresh her memory, but the evidence she then gave was confusing. [2]

I have to say that, at least, in parts of her evidence I formed the view – or to use the words of s 38(1)(b), it appeared to me – that the witness was not making a genuine attempt to give evidence about those subject matters and was deliberately obfuscating.

I think, at least in some of those respects, the evidence is “unfavourable”, at least in the sense that it is inconsistent with other evidence, or inferences that can be drawn from other evidence.

In at least one instance, that is the second relevant aspect in paragraph [25], those who have the statement in front of them, which is not the jury, but the lawyers in the courtroom and me, know that she has made a prior inconsistent statement, and she said as much when taken to that part of the statement.

I am satisfied the Prosecutor should have leave under s 38 of the Act to cross examine the witness on those subject matters that derive from those three paragraphs in her statement.