R v Flentjar (No3)

HIS HONOUR : The Crown seeks leave, pursuant to s 38 of the Evidence Act , to cross-examine Arthur Timbery who is one of the witnesses called in its case. Mr Timbery is the next door neighbour of the accused. An alibi notice has been filed on behalf of the accused. It contains an assertion that at a particular point in time, which is in close proximity to when the deceased couple were killed in premises at 14 Calymea Street, Nowra the accused paid a visit to Jay Timbery at the premises owned by the witness at 99 Kalander Street, Nowra. Jay Timbery is the witness’ son. The purpose of the assertion is to demonstrate that the accused could not have been involved in the alleged murders of the deceased. Indeed it forms part of an alibi notice which was served on the Crown on behalf of the accused. The witness gave evidence that his son was not then living at his premises. The Crown then asked the witness if the accused and/or his de facto wife had visited him that day. His answer was “I believe Andrew [the accused] may have come over and had a chat”.

In light of that answer, the Crown Prosecutor sought leave to cross-examine Mr Timbery upon the basis that what the witness said in court was inconsistent with what he had told him (the Crown Prosecutor) in conference immediately before he entered the witness box. During that conference the witness had informed the Crown Prosecutor that he was unable to say whether the accused or his partner had been at his premises on the night in question.

It is clear that s 38(1)(c) of the Act is triggered by reason of the witness’ prior inconsistent statement. Indeed counsel for the accused did not resist the application upon that basis. I granted leave and in doing so had regard to ss (6) of the section, together with ss135, 137 and 192. These are my reasons for granting that leave.