R v Droudis (No. 8)

JOHNSON J: The Crown has called as a witness OK. OK is the son of AK, who has already given evidence in the trial (T241ff).

OK was 17 years of age at the time of the events relevant to his evidence (and is thus not identified in this judgment because of s.15A Children (Criminal Proceedings) Act 1987).

A topic upon which he is asked to give evidence in the trial relates to an occasion, on 21 April 2013, when, together with his parents and the family of Mr Hossein-Noori, he travelled to the Werrington premises of Man Monis, and then spent much of the day with Monis, largely at the Penrith Swimming Pool.

OK has been asked by the Crown questions about what happened whilst the group were at the swimming pool. It reached a point where the Crown asked (T466.29):

At that point, the Crown indicated that application was being made under s.38 Evidence Act 1995. A short time later, the witness left the Court and argument has proceeded in his absence.

The Crown has based the application upon s.38(1)(b) and (c) Evidence Act 1995. To place the application in context, it is necessary to say something about the evidence giving rise to the present controversy.

OK made two statements to the police concerning the events relevant to this trial. One is dated 30 April 2013 (nine days after the events of 21 April 2013) and the second is dated 5 September 2016 (yesterday). The two statements are together MFI29.

The Accused is charged with murdering the deceased at Werrington on 21 August 2013.

The suggested relevance of the evidence that has led to this application may be found in the opening address on behalf of the Accused made after the Crown opening. At that point, Mr Ierace SC said (T33.20):

That submission was based upon what appeared in paragraph 12 of OK's first statement made on 30 April 2013. There, OK said:

In the second statement made yesterday, OK said in paragraphs 11 to 14:

It may be seen that the first statement of OK was considered of such significance to warrant mention in the defence opening, which I have outlined.

The Crown contends that the second statement of OK sheds light upon that aspect, in a manner which bears on a significant issue in the trial. The Crown contends that the contents of OK’s second statement raises the prospect that this is a reference to the text message from the deceased to Monis at 3.34 pm, as summarised in Exhibit A at Tab 4(b).

I merely record the competing arguments that may be put by reference to the evidence on this topic. This is not the time to weigh them up or attempt any resolution of them. What is sufficiently notable is that there is a significant trial issue in the context of the present application.

To my observation, OK appeared tentative while giving evidence. He is now 20 years old but the evidence relates to events when he was only 17 years old. I infer that there is a degree of nervousness on his part, which is understandable for a young man called to give evidence in the Supreme Court in a serious criminal trial.

The principles applicable on an application under s.38 are not in doubt and were referred to in an earlier judgment in this trial: R v Droudis (No 3) [2016] NSWSC 1150. The Court must consider whether the threshold for a grant of leave under s.38(1) has been crossed and have regard as well to factors arising under s.192 Evidence Act 1995.

In my view, there is inconsistency between what was said by OK in Court today in his evidence, at the point where the s.38 application was made (see [4] above) and indeed what was said in both of his earlier statements with respect to observations of Monis at the Penrith Swimming Pool with a phone (see [10] and [11] above).

The second statement was only made yesterday. That does raise for consideration whether there is an unwillingness on the part of the witness to give evidence along the lines of what he said just one day ago. This may trigger s.38(1)(b) of the Act. Having regard to the witness' nervousness, I am not at this stage satisfied that a s.38(1)(b) foundation has been established. I am, however, satisfied that there are prior inconsistent statements for the purpose of this application.

I observe that, if s.38 leave was not granted, the likely way in which events would unfold is that Mr Ierace SC would cross-examine the witness on paragraph 12 of his first statement. That, after all, is the foundation for what was said in his opening address. That may, in turn, provide a basis for the Crown to seek to re-examine on what the witness said at paragraphs 11 to 14 of his second statement. For this issue to arise in that way would give rise to potential complications.

I am satisfied that the appropriate way for the issue to proceed is by use of s.38. If leave is granted (and there is a foundation for a grant of leave), the Crown may cross-examine the witness on this topic before cross-examination on behalf of the Accused. This is consistent with s.38(4) of the Act.

This is an important issue in the trial. I am satisfied that, to proceed in this way, will fulfil the purposes of s.38. As was said in R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005 at [14]:

As Ipp JA observed in R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 at 464 [81], [83], this is the very purpose underlying s.38.

I grant the Crown leave under s.38 Evidence Act 1995 to cross-examine OK with respect to the prior inconsistent statements which I have nominated in this judgment.