NSW Supreme Court Grants Crown Permission to Restore Witness Credibility

The court granted the Crown leave to adduce evidence relevant to restoring the credibility of a witness under s 106 of the Evidence Act 1995, after the witness's credibility was attacked during cross-examination.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2022] NSWSC 757 Hearing dates: 07 June 2022 Date of orders: 07 June 2022 Decision date: 07 June 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Grant leave to the Crown pursuant to s 106 of the Evidence Act 1995 to adduce from [NAME] evidence relevant to the credibility of [NAME]. Catchwords: CRIMINAL LAW – murder trial – exception to the credibility rule – whether leave should be granted to adduce evidence to restore the credibility of a witness Legislation Cited: Evidence Act 1995 (NSW), s 106 Category: Procedural rulings Parties: Regina (Crown) [NAME] (Accused) Representation: Counsel: [redacted] [NAME] (Accused)

Solicitors: [redacted] [NAME] (Accused) File Number(s): 2018/372527 Publication restriction: Nil

EX TEMPORE Judgment 1. HIS HONOUR: [NAME] is currently waiting to be called as a witness in these proceedings. [NAME] gave a statement to the police at Southport Police Station on 15 June 2019. Part of what she told the police at that time is as follows: "I remembered XXX telling me Chris had manipulated the school programming so that XXX was in Chris' class". The reference to "XXX" is a reference to [NAME], and the reference to "Chris" is a reference to the accused in these proceedings.

2. On 19 May 2022, [NAME] gave evidence and was cross-examined by [NAME] on behalf of [NAME]. At line 37 on page 348 of the transcript, [NAME] was asked the following question by [NAME]: "Q. And that at no stage did he ever say to you that he had organised it so to ensure that you would be one of his students?"

1. The reference to "he" in that question is a reference to [NAME]. To that question [NAME] responded: "A. That's not true".

1. The Crown now seeks to call [NAME] against the contingency that an attack upon [NAME]'s credit will be made and, as it were, to restore her credibility at least on this point. Section 106 of the Evidence Act 1995 is headed "Exception: rebutting denials by other evidence". The reference in the chapeau to that section to "exception" is a reference to the credibility rule which precludes the calling of evidence about the credibility of a witness. Section 106(1) is as follows: 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if-- (a) in cross-examination of the witness-- (i) the substance of the evidence was put to the witness, and (ii) the witness denied, or did not admit or agree to, the substance of the evidence, and (b) the court gives leave to adduce the evidence. (2) … 1. In these proceedings, the Crown seeks to support the credibility of [NAME] following her cross-examination by [NAME] on the issue about whether or not [NAME] had ever told [NAME] that he had arranged his schedule at Cromer High School in such a way that [NAME] would become one of his students. [NAME] gave evidence that [NAME] had done so.

2. The anticipated evidence from [NAME] is to the effect that at some time in her dealings with [NAME] told her the same thing: that is to say, that [NAME] had "manipulated the school programming" so that [NAME] would be in his class.

3. In my view, the terms of s 106 have been satisfied by the cross-examination of [NAME] and by the substance of the evidence that the Crown now wishes to call. Leave to adduce this evidence is necessary and the Crown has sought that leave. Having regard to the relationship between the evidence given by [NAME], which was challenged by [NAME], and the evidence anticipated to be given by [NAME], which arguably supports [NAME]'s response to [NAME]'s challenge, it seems to me in the circumstances that it is proper to grant leave to the Crown to adduce the evidence from [NAME].

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