R v Nancarrow (No 2)

1. [1]

   In the course of the cross-examination of the accused, and shortly before the trial was due to be adjourned for lunch on its fifth day, an objection was taken to the tender of a diagram that had been marked by the accused while he was under cross-examination. The jury was sent to lunch and submissions were made in its absence. The submissions traversed more than the tender of the diagram and, in essence or impliedly, sought an advance ruling prohibiting the Prosecutor from asking further questions on the general subject area to which the marked diagram related, which is to say the circumstances in which the accused left the premises very soon after the knife he was holding caused a fatal wound to the deceased Mr Donald.

2. [2]

   I ruled that the diagram was admissible and indicated I would allow the Prosecutor to “put clearly what he is putting to the [accused] to give him the opportunity to accept or deny or not remember”. I also foreshadowed that I would not “allow further and extensive cross-examination on the issue”. I provided ex tempore reasons for those rulings and the Court adjourned for lunch. On resuming, with the jury waiting for the evidence to resume, I indicated that I would provide more substantial reasons in due course. These are those reasons which incorporate the relevant parts of the ex tempore reasons which have been revised both in substance and form.

3. [3]

   The objection made by counsel for the accused was initially couched in the following terms:

4. [4]

   The essence of the Prosecutor’s response was that the evidence went to more than the credibility of the accused as a witness:

5. [5]

   To understand the context in which the rulings were made, it is necessary to consider the issues in the case, the evidence of the accused, and the cross-examination that led up to the attempt to tender the marked diagram.

6. [6]

   The prosecution case is that the accused stabbed the deceased following an argument about drugs. The deceased wanted the accused to buy methylamphetamine and the accused refused. Both men were residing, along with two others, in the same home at Dondingalong. The accused went to his bedroom upstairs and the deceased went to his caravan outside. A short time later, there was a confrontation which took place on the stairs that led to the accused’s bedroom. In the course of that confrontation, a knife being held by the accused caused two stab wounds to the deceased. One of the wounds was fatal. The prosecution case is that this was a deliberate stabbing while the defence case is that the contact was incidental as the deceased charged up the stairs trying to get to the accused. The defence also relies on self defence.

7. [7]

   Immediately after the stabbing the accused left the premises and drove away. He turned around and returned to the premises and en route crashed his car.

8. [8]

   The cross-examination leading to the tender of the diagram commenced when the accused was being interrogated about the circumstances in which he left the scene. There is some evidence that Mr McClory, another witness and occupant of the house, said words to the effect “Just go, Shane”. That is the accused’s account and it receives some support in the evidence of the other occupant, Mr McMillan. Mr McClory gave evidence that he could not remember saying that.

9. [9]

   The prosecution case, based on the evidence of Mr McClory and Mr McMillan, is that, by the time the accused left the premises, the deceased had collapsed to the ground and one or other of the men was calling an ambulance. Contrary to this evidence, the accused said in his evidence-in-chief that, when he left the house, he was not aware how badly Mr Donald was injured. [3] This was taken up at the commencement of the cross-examination which included the following exchanges:

10. [10]

    The Prosecutor continued the cross-examination with questions relating to the details relevant to this conflict in the evidence and culminated in the attempt to tender the diagram to which objection was taken:

11. [11]

    Apart from objections as to form, no objection was taken to this line of cross-examination. In raising objection to the tender of the diagram and the “continuation of the line of questioning”, there was no suggestion that the evidence already given should be excluded retrospectively or somehow (as the Americans would say) “stricken” from the record. [6] In noting those matters, I am not being critical of counsel who raised the objection at a point he judged to be appropriate, a matter he explained in the course of submissions.

12. [12]

    I took the view that the evidence was relevant, at least to the accused’s credibility. The Prosecutor did not, as I perceive it, identify any other relevance apart from submitting, essentially, that it is all part of how the events unfolded.

13. [13]

    The objection was taken under s 104 of the Evidence Act 1995 (NSW). That section disallows cross-examination of a defendant in criminal proceedings in relation to matters relevant to the assessment of the defendant’s credibility, absent the grant of leave. Pursuant to sub-s (3), leave is not required to cross-examine about whether the defendant:

14. [14]

    There was no suggestion that these provisions applied although it may be that sub-paragraph (b) could, at a stretch, have some application given the evidence of the other witnesses. Sub-s (4) provides that leave must not be granted under sub-s (2) unless evidence adduced by the defendant has been admitted that –

15. [15]

    Sub-section (5) provides:

16. [16]

    The jury had, at the point in the trial when objection was taken, already heard the substance of the prosecutor’s cross-examination and to make sense of that, particularly the last moments of it, they would need to see the diagram. While that may not make the evidence admissible, I was satisfied that the diagram should be admitted into evidence. It arguably related to the events in relation to which the defendant is being prosecuted; it at least related to the moments immediately after those events and, on either case, to events between the time of the stabbing, the time that Mr Donald passed away and the time that the defendant left the home.

17. [17]

    Because it was not suggested, at the time the objection was taken, that the evidence was relevant to an assertion that the accused was exhibiting a consciousness of guilt (a matter that had been raised more than once during the trial to that point), I struggled to see that it had relevance beyond the issue of Mr Nancarrow’s credibility.

18. [18]

    Accordingly, to pursue the line of cross-examination further, leave would have been required. There was no formal application for leave.

19. [19]

    For those reasons, I allowed the tender of the document in order that the jury could make sense of the cross-examination that preceded it. I also allowed the Prosecutor to put to Mr Nancarrow what he was suggesting with clarity to allow the accused to respond to that suggestion. Otherwise, I disallowed continued cross-examination on the subject.

POST SCRIPT

1. [20]

   After this ruling was made, the Prosecutor indicated that, if permitted, he proposed to put to the jury that the accused’s hasty departure from the scene was relevant to a consciousness of guilt. After some discussion and debate, I determined that the evidence of “flight” (and the disposal of the knife), could be put to the jury as evidence capable of supporting the prosecution case as it might be held that it was evidence that the accused was aware that the wounding was not an accident, but rather the result of his deliberate act of stabbing the deceased. The evidence was not pressed as capable of distinguishing murder from manslaughter and was not admitted to rebut self-defence or to establish specific intention.