R v Garland (No 2)

1. [1]

   On Wednesday 25 October 2023, the 10th day of Mr Garland’s murder trial, I made a ruling concerning the boundaries of re-examination of a witness, [redacted]. [1] In announcing the decision, I provided an ex-tempore explanation for the ruling, allowed the Prosecutor to cross-examine on the main statement over which objection was taken, and set out the limits on the permission granted to the Prosecutor to re-examine the witness. I indicated that I would provide full reasons later but for transparency I gave an overview of my thought process and the matters I took into account in permitting the Prosecutor to (further) cross-examine the witness about a statement that she made in a conference with the prosecution legal team. That statement was to the effect that she was not prepared to give evidence that might hinder Mr Garland in his defence. These are my fuller reasons for the rulings I made last Wednesday.

The rulings

1. [2]

   The Prosecutor raised the issue before he commenced to re-examine the witness. He sought to put to the witness the contents of a conference note dated 28 September 2023 in which she told the prosecution legal team:

2. [3]

   The Prosecutor sought then to put to the witness that her friendship with the accused explained inconsistencies between her evidence and the statement she provided to police on 20 January 2022 as well as her failure to give evidence that she perceived to be against his interests.

3. [4]

   Mr Hughes objected to the Prosecutor putting this statement to the witness, and the consequential cross examination, essentially on two bases. First, leave had already been granted to the Prosecutor to cross-examine the witness while she was giving her evidence-in-chief and this matter had not been put to her. Secondly, the proposed cross-examination, in the way it was put in argument and in light of Mr Hughes’ cross-examination, had the capacity to diminish Mr Hughes’ credibility as counsel for Mr Garland in the eyes of the jury. This was because he had cross-examined extensively on the note but had failed to put this part of the note to the witness.

4. [5]

   I ruled that the Prosecutor would be permitted to put the substance of the note to the witness with the following caveats:

   1. (1)

      The matter must not be put in such a way that the author of the conference note may become a witness in the trial;

   2. (2)

      Mr Hughes would have the right to seek to ask further questions in cross-examination after the re-examination; and

   3. (3)

      The matter was to not be put in such a way that might suggest Mr Hughes had breached any ethical obligations in failing to raise the matter when he cross-examined the witness on the conference note.

Relevant considerations and reasons

1. [6]

   The application fell to be considered in the light of rulings that had been made during the witness’s evidence-in-chief. She had made a statement to police on 20 January 2022. [3] During her evidence-in-chief, the witness failed to give evidence in accordance with parts of that statement. This included material within paragraphs [24], [25] and [33].

2. [7]

   The Prosecutor made an application under s 38(1) of the Evidence Act 1995 (NSW) to cross-examine the witness on those parts of her statement. [4] I was not satisfied, at that stage, that any of the criterion in subparagraphs (a), (b) or (c) of s 38(1) was satisfied and concluded that the first step should be to grant leave under s 32 to allow the witness to attempt to revive her memory by reference to the police statement.

3. [8]

   Once she was shown her statement, the witness gave diverse evidence concerning the different paragraphs of her statement:

4. [9]

   At that stage, the Prosecutor renewed his application under s 38. Mr Hughes opposed the application in certain respects. I concluded that the witness was not making a genuine attempt to give evidence in relation to certain parts of the evidence, had made a prior inconsistent statement in relation to another part of her evidence, and was “unfavourable” in the sense that her evidence was inconsistent with other evidence in the case and the inferences the Prosecutor sought to draw from that other evidence.

5. [10]

   I granted leave to cross-examine under s 38(1) [5] but indicated “I’m not granting leave at this stage to cross-examine on her credibility under subs 6”. [6] The reference, on my part, to s 38(6) was a mistake. I meant to say, and should have said, that I was not granting leave under s 38(3) which provides:

6. [11]

   The separate considerations arising in relation to grants of leave under ss 38(1) and 38(3) were considered in Odisho v The Queen (2018) 271 A Crim R 325; [2018] NSWCCA 19.

7. [12]

   Following some further cross-examination pursuant to the grant of leave pursuant to s 38(1), the Prosecutor (in the absence of the jury) sought further leave to cross-examine on matters which went only to the witness’s credibility. It is relevant to set out that portion of the transcript:

8. [13]

   The Prosecutor then asked a few brief questions in which he put to the witness that, contrary to her repeated assertion, she was not on drugs at the time she made her statement. He did not embark on a lengthy cross-examination on matters going exclusively to the witness’s credibility.

9. [14]

   Mr Hughes cross-examined the witness at a little (quite appropriate) length. It was a forensic minefield skilfully negotiated. He used the conference notes (MFI 31) to some effect but did not, for obvious tactical reasons, take the witness to the part of the note set out above at [2].

10. [15]

    Mr Hughes’ first submission was that it would be unfair to allow the Prosecutor to put the statement to the witness after he had completed his cross-examination. He submitted “they had the opportunity cross-examine her, and it [was] a matter that they did not take up”, even though the note was, clearly enough, “available to the Crown”. [8] This submission receives some support in s 38(4):

11. [16]

    As I have said, the Prosecutor did have leave to cross-examine under subs (3), and that cross-examination took place before Mr Hughes cross-examined the witness. However, the particular subject of the witness’s “bias” and the reasons for that possible bias – as expressed in the conference note – was not explored. In the circumstances, there was force in Mr Hughes’ objection. The question became whether I should make a direction permitting this aspect of the proposed additional cross-examination, to occur after Mr Hughes had finished his cross-examination.

12. [17]

    There is no doubt the proposed cross-examination is, subject to s 38, permissible as an exception to the credibility rule in ss 101A and 102 of the Evidence Act. It constitutes evidence adduced in cross-examination that “could substantially affect the assessment of the credibility of the witness”. [9] Even if the witness was a defendant, who receives additional protection under s 104, leave would not be required because it is evidence that shows the witness “is biased or has a motive to be untruthful”. [10]

13. [18]

    Again, the real issue is whether permission should be granted to cross-examine on the subject after the accused had concluded his cross-examination.

14. [19]

    As I have said, Mr Hughes cross-examined on the conference notes extensively and to some effect. This included (with my emphasis):

15. [20]

    Two things should be observed about this cross-examination. First, the conference with the witness on 23 October 2023 occurred following Mr Garland’s lawyers conveying a message to the Prosecutors that the witness wished to speak to them. [12] Secondly, while Mr Hughes was aware of the “tenor of the conference” at some earlier time, the conference notes were not served on Mr Garland’s lawyers until the morning of 25 October 2023, that is after the cross-examination commenced (on 24 October 2023) and not long before Mr Hughes continued his cross-examination. [13]

16. [21]

    As I have said, Mr Hughes’ second, or “augmented”, argument raised a concern that permitting the examination, after he had used the conferences notes to some effect, had the capacity to diminish his credibility in the eyes of the jury. As it was put colourfully in argument:

17. [22]

    Because the ruling involved the granting of leave or permission, the matters in s 192(2) of the Evidence Act had to be taken into account (without limiting the consideration of other relevant considerations).

18. [23]

    I was of the view that the proposed cross-examination would not add unduly to the length of the hearing: s 192(2)(a).

19. [24]

    As to the issue of fairness raised under s 192(2)(b), I considered the unfairness to the accused in allowing the cross-examination after he had completed his examination of the witness. On the other hand, there would be potential unfairness to the prosecution if the evidence was not placed before the jury. It is significant evidence that might impact on the jury’s assessment of the witness’s credibility, and I accept the Prosecutor may not have appreciated the scope of the ruling allowing him to cross-examine under s 38(3). The way the matter unfolded may have led him to believe that he was limited to cross-examine the witness in relation to whether she was intoxicated at the time her statement was taken.

20. [25]

    As to the importance of the evidence, [15] I was of the view that the evidence and the issue of the witness’s credibility had, perhaps, in the heat of the battle, taken on a greater significance to the parties than was warranted. It is but one piece of evidence in a case where the prosecution can rely on several other items of evidence – some of which are not in dispute – to establish that Mr Garland’s post-offence conduct betrayed a consciousness of guilt (in relation to his involvement and knowledge). However, the evidence is very important to the assessment of the witness’s credibility. Having said that, the examination-in-chief commenced with the Prosecutor establishing the close friendship between the witness and the accused and her performance in the witness box is likely to have already demonstrated to the jury that the witness is disinclined to assist in the prosecution of Mr Garland.

21. [26]

    As to the nature of the proceedings, [16] it is a murder trial, and it is important that the prosecution can properly and fully present its case. Equally, given the potential consequences to Mr Garland, it is important that his trial be fair.

22. [27]

    There is no utility in adjourning the proceedings. However, directions as to the way the evidence is adduced and allowing Mr Hughes the opportunity for further cross-examination after the Prosecutor has again interrogated the witness, has a capacity to reduce any potential unfairness to Mr Garland.

Disposition

1. [28]

   Balancing those various factors and considerations, I came to the view that the Prosecutor should be permitted to put the matter to the witness provided the caveats referred above at [5] were imposed on the grant of permission and were complied with strictly.

2. [29]

   It was not a straightforward decision, but the evidence was to be – and was, in fact – brief and there seemed significant unfairness to the Prosecutor in not permitting the cross-examination when:

   1. (1)

      It seemed clear enough the extent of the earlier permission to cross-examine on the witness’s credibility may have been misunderstood to encompass only the limited matters upon which submissions were made;

   2. (2)

      The evidence went to the heart of the credibility of the witness (namely, her possible bias);

   3. (3)

      Any unfairness to the accused by the disruption of the order of the examination could be cured, or reduced substantially, (a) by permitting further cross-examination, (b) preventing the Prosecutor from putting the conference note in the witness’s hand (which he did not seek to do) and (c) ensuring there was no suggestion that Mr Hughes’ selective use of the conference note was other than proper; and

   4. (4)

      I was of the view if the evidence was introduced with sensitivity and without direct reference to the conference note, there was little likelihood that Mr Hughes’ credibility in the eyes of the jury would be diminished, let alone that any member of the jury would feel counsel was a “sleazebag” by using the note selectively. The jury will, in due course, be directed that both counsel are bound by ethical standards and that they have fulfilled all their obligations in that regard. [17]