Division 4: Examination in chief and re-examination

Section 37: Leading questions

S
[2003] NSWCCA 122; 7.5.2003
Evidence Act 1995 (NSW) s.37 – aggravated sexual assault - trial judge rejected questions from appellant's counsel on false factual basis - rejection caused substantial miscarriage of justice
Held: appeal allowed, retrial ordered.

Section 38: Unfavourable witnesses

Dandashli
NSWSC (Studdert J) 22.2.1996
Evidence Act 1995 (NSW) s.38 - Crown application to cross-examine unfavourable witness - evidence inconsistent with prior statements at earlier trial and to police.
Held: leave granted for cross-examination as to prior inconsistent statement only.

Milat
NSWSC (Hunt CJ at CL) 23.4.1996
Evidence Act 1995 (NSW) s.38 - murder - accused requested Crown call witnesses that would give evidence unfavourable to Crown.
Held: leave granted for Crown to call witnesses then cross-examine them after cross-examination by accused - s.38 not restricted to situations where unfavourable evidence given unexpectedly - unjust not to allow Crown to test reliability of witnesses.

Souleyman
(1996) 40 NSWLR 712, NSWSC (Smart J) 9.5.1996
Evidence Act 1995 (NSW) s.38
Held: allowing cross-examination - discussion of meaning of ‘unfavourable’, ‘hostile’ and ‘adverse’ - means ‘not favourable’.

White
NSWSC (Hidden J) 13.6.1996
Evidence Act 1995 (NSW) s.38 - witness not making genuine attempt to give evidence - witness given copies of his record of interview and transcript of his evidence in committal proceedings - difficult to believe he would not have looked at them to refresh memory.
Held: leave to cross-examine granted

Pantoja (No 1)
NSWSC (Barr J) 30.10.1996
Evidence Act 1995 (NSW) s.38 - murder - unfavourable witness - prior inconsistent statement - evidence in cross-examination different to statement made shortly after death of victim.
Held: allowing application to cross examine - s.38 goes further than common law - no requirement that witness not making a genuine attempt - desirable that application for leave be made as soon as possible and ordinarily prior to commencement of cross-examination - s.38 does not preclude application after cross examination and based upon circumstances arising during that cross examination - flexible approach should be adopted.

Mansour
NSWSC (Levine J) 19.11.1996
Evidence Act 1995 (NSW) s.38 - murder - application by Crown to cross-examine own witness after unfavourable evidence elicited in cross-examination.
Held: refusing application - unfavourable evidence on cross-examination not sufficient for grant of leave.

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.38 - murder - juvenile - juvenile accomplice called to give evidence for Crown - claimed no memory of killing or statement made to police three days after killing - statement recorded on ERISP - leave granted to cross examine and ERISP tendered.
Held: dismissing appeal - no error made in granting leave to cross-examine or admitting ERISP.

Fowler
NSWSC (Dowd J) 28.4.1997
Evidence Act 1995 (NSW) s.38 - murder - evidence given by witness inconsistent with evidence given at previous trial - witness may have been vague but disparity substantial
Held: leave granted under s.38(1)(c)

Fowler
NSWSC (Dowd J) 6.5.1997
Evidence Act 1995 (NSW) s.38 - murder - Crown sought to cross-examine witness on three areas of her evidence that were unfavourable to Crown case - defence argued s.38 did not allow cross-examination to be “impossibly wide”
Held: leave granted under s.38(1)(a) - s.38 has broadened the scope allowed to a party to cross-examine its own witness - witness does not have to be hostile - evidence just has to be unfavourable

Fowler
NSWSC (Dowd J) 6.5.1997
Evidence Act 1995 (NSW) s.38 - murder - Crown sought to cross-examine witness as to three areas of her evidence - application under s.38(1)(a) and (b).
Held: allowing application for two areas - refusing application for third area because evidence ambiguous - 38(1)(a) evidence unfavourable to Crown - relates to evidence that may affect an issue in the case of the party seeking application.

Fowler
NSWSC (Dowd J) 7.5.1997
Evidence Act 1995 (NSW) s.38 - murder - application by Crown to cross-examine witness after completion of defence cross-examination - evidence contradicted evidence of other crown witnesses
Held: leave granted - evidence unfavourable to crown - evidence goes to a fact in issue - evidence could not be dealt with in examination in chief

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.38 – murder - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence
Held: leave granted to Crown to cross-examine witness for inconsistent evidence.

Lozano
NSW CCA 10.6.1997
Evidence Act 1995 (NSW) s.38 - dispose of stolen goods - Crown granted leave to cross-examine witness accomplice - witness claimed no memory of events although made statement to police and gave evidence at committal.
Held: (dismissing appeal) ‘unfavourable’ does not necessarily equate with hostile or adverse - means ‘not favourable’ - leave should be granted where evidence of witness unfavourable or where attitude of witness to party calling them unfavourable.

Velevski (No.2)
(1997) 93 A Crim R 420
Evidence Act 1995 (NSW) s.38 - father of accused gave evidence inconsistent with statement to police - evidence at trial and in statement made through interpreter - issue whether language may account for inconsistencies
Held: leave to cross-examine granted - evidence at trial inconsistent with that given in statement.

Yi
NSW CCA 27.2.1998
Evidence Act 1995 (NSW) s.38 - sexual offences on wife - complainant reluctant to give evidence - Crown given leave to cross examine on statement made to police through mandarin speaking nurse - when nurse called could not recall acting as interpreter so could not testify as to accuracy of statement.
Held: (allowing appeal) leave granted on basis that Crown would be able to prove accuracy of statement - failure to do this meant statement inadmissible and leave should not have been granted.

Kingswell
NSW CCA 2.9.1998
Evidence Act 1995 (NSW) s.38 - drug offences - crown permitted to cross-examine unfavourable witness twice during examination in chief and once after cross-examination.
Held: Cross-examination should be done during examination in chief in all but exceptional circumstances

Lee v The Queen
(1998) 195 CLR 594; 72 ALJR 1484, HCA 30.9.1998
Evidence Act 1995 (NSW) s.38 - assault with intent to rob whilst armed - witness made statement to police that appellant had confessed crime to him shortly after it was committed - at trial witness denied admission and the making of statement - witness declared hostile and statement to police admitted as evidence of prior inconsistent statement - treated as evidence of the truth of confession.
Held: allowing appeal - in prior statement witness only asserted what he saw and heard - not evidence that appellant had actually committed offence - s.60 only applied to the assertion that statement was made to police - only purpose of evidence of statement was to show that credibility of witness affected.

Pantoja
NSW CCA 5.11.1998
Evidence Act 1995 (NSW) s.38 - murder of wife - application by Crown to cross-examine witness arose only during cross-examination.
Held: leave can be granted where unfavourable evidence arises during cross-examination.

Esposito
(1998) 105 A Crim R 27, NSW CCA 20.11.1998
Evidence Act 1995 (NSW) s.38 - murder - companion to accused and witness to murder gave statement to police and independent witness
Held: s.38 not available to allow Crown to introduce potentially unreliable evidence (prior statement) to bolster credibility of a witness

BDF
NSW CCA [98] 6.5.1999
Evidence Act 1995 (NSW) s.38 - sexual offences - Crown granted leave after unfavourable evidence emerged during cross-examination by appellant
Held: leave can be granted where unfavourable evidence arises during cross-examination.

Adam
NSW CCA [197] 23.7.1999, (1999) 47 NSWLR 267
Evidence Act 1995 - s.38 - murder - Crown witness made statement to police that he saw “accused punching V and had something in his hand” - evidence of S in court was that he was only reciting what he had been told by others.
Held: s.38 not restricted to where witness gives unexpected evidence - principle in Blewitt v The Queen (1988) 62 ALJR 503 that it is improper to call a witness known to be hostile for sole purpose of getting before jury a prior inconsistent statement must be applied in light of Evidence Act - under the Act prior inconsistent statements may be admissible as proof of facts asserted - rule in Blewitt confined to conduct that aims to place before the jury evidence that is inadmissible.

Patsalis & Spathis [No.10]
NSWSC (SperlingJ) [990] 10.8.1999
Evidence Act 1995 s.38 - murder - application for leave to cross-examine Mrs S -made statement to police - evidence at trial elaborated upon statement
Held: elaboration of statement does not necessarily mean evidence unfavourable even if elaboration favourable to accused - becomes unfavourable where elaboration may be untruthful and motivated by desire to help accused - in this case leave granted because of prior inconsistent statement - cross examination limited - Crown entitled to put to witness she is colouring evidence to assist accused.

Park
NSWSC (Greg James J) [953] 17.9.1999
Evidence Act 1995 - s 38 - murder - in cross examination Accused’s sister gave opinion Accused would not have killed wife and children - Crown sought to put to sister prior statements that she believed brother was involved in their disappearance.
Held: Crown entitled to put to witness that she did believe at one time that brother involved in disappearance - not entitled to put speculative scenarios that witness had previously suggested explaining brother’s involvement.

Kneebone
(1999) 47 NSWLR 450
Evidence Act 1995 (NSW) s.38
Held: “unfavourable” not necessarily satisfied simply because witness’ potential testimony does not accord with some prosecution case theory which does not accord with all otherwise reliable evidence - consideration of authorities (per Greg James J) - scope remains to be settled.

Fowler
NSW CCA [142] 23.5.2000
Evidence Act 1995 (NSW) s.38 - murder - leave granted to Crown to cross-examine two crown witnesses - crown called witnesses knowing they would be hostile - defence would not have called witness, stated would not seek Jones v Dunkel direction, did not request witnesses called and were prepared to make certain admissions as to ownership of guns.
Held: s.38 not restricted to situations where witnesses unexpectedly become hostile - no error in granting leave although crown called witnesses in expectation they would be hostile - in circumstances better if crown had not called witnesses.

Rees
NSWSC (Bell J) [643] 19.6.2000
Evidence Act 1995 (NSW) s.38(1) - murder - co-accused pleaded guilty to robbery - participated in ERISP with police incriminating accused in killing - claimed on voir dire could not remember offence - forensic purpose of crown in calling co-offender was to obtain leave to cross-examine him and tender ERISP.
Held: leave granted - Judge did not believe failure of memory.

Le
NSWSC (McClellan J) [174] 2.3.2001
Evidence Act 1995 (NSW) s.38 - accused raised assertion in cross examination that another person did stabbing - Crown to call two more witnesses to deal with this assertion - expect accused to continue to assert through cross examination that another person did killing - whether Crown entitled to cross examine witnesses to be called.
Held: should adopt broad meaning of “unfavourable” to ensure all relevant evidence before court - Crown entitled to test evidence raised by cross examination - evidence unfavourable pursuant to s 38 - accused will be permitted to apply for further cross examination after the crown.

Hogan
NSW CCA [292] 3.8.2001
Evidence Act 1995 (NSW) s.38 - maliciously inflict gbh - crown granted leave to cross-examine female crown witness and her mother - subsequent cross-examination wide ranging and unfettered.
Held: appeal allowed - Judge failed to consider s.192 and s.38(6) issues - did not consider whether witness may be committing offence by attempting to mislead police and therefore relevance of s.132 and s.128 warnings - failed to consider whether cross-examination should have been restricted - leave may have been granted but should have been restricted after considering all relevant discretionary issues.

Adam v The Queen
(2001) 207 CLR 96; HCA [57] 11.10.2001
Evidence Act 1995 (NSW) s.38 – murder – killing of off-duty police officer during scuffle outside hotel - Crown witness TS made statements to police supporting crown case - became clear at trial TS would give evidence unfavourable to Crown - after voir dire hearing judge gave leave under s.38 for Crown to cross examine TS on prior inconsistent statements - judge also ruled statements could be used as proof of facts asserted.
Held: (Gleeson CJ, McHugh, Kirby and Hayne JJ) - dismissing the appeal - in Blewitt (1988) 62 ALJR 503 court disapproved of practice of calling hostile witness for sole purpose of getting into evidence a prior inconsistent statement - this, however, refers to common law where prior inconsistent statement cannot be used to prove facts asserted in statement - under Evidence Act prior inconsistent statement may be proof of facts asserted - provided statement is admissible as proof of such there is no problem with calling hostile witness with sole purpose of having statement admitted into evidence.
Held: no error in grant of leave pursuant to s.38 - judge properly concluded there was no unfairness to appellant - evidence was not excluded by credibility rule pursuant to s.102 because evidence relevant not just to credibility but also directly relevant to facts in issue - evidence admissible as proof of truth of facts asserted in statement because evidence also relevant to credibility and s.60 exception to hearsay rule applies
Dissent (Gaudron J) - Because judge did not consider TS’s prior inconsistent statements were potentially unreliable he erred in exercise of power to grant leave under s.38 - leave should not have been granted because it resulted in admission of potentially unreliable evidence that could not have been effectively tested.

Esho & Sako
NSW CCA [415] 23.10.2001
Evidence Act 1995 (NSW) s.38 - malicious wounding - involved in attack on off duty police officer outside hotel - Crown given leave to cross-examine unfavourable witness
Held: - Judge erred in deciding that once witness found unfavourable pursuant to s.38 there is no basis for refusing leave - Judge failed to consider s.192(2) - no miscarriage in circumstances of case

Stevens
NSW CCA [330] 16.11.2001
Evidence Act 1995 (NSW) s.38 - malicious inflict gbh - failure of judge to consider s.192
Held: Stanoevski does not mean that failure to mention s.192 means automatic error - must consider whether consideration of s.192 would make any difference - no miscarriage if no effect

Spathis; Patsalis
NSW CCA [476] 29.11.2001
Evidence Act 1995 (NSW) s.38 - murder - Whether TJ erred in permitting cross-examination under s.38
Held: no error - Crown did not attempt to exploit provisions in order to rectify damage done in cross-examination - Mansour (NSWSC 19.11.96) and Adam [2001] HCA 57, referred to.

Nguyen & Hoang
(2002) 127 A Crim R 102; NSWSC [59] (O’Keefe J) 13.2.2002
Evidence Act 1995 (NSW) s.38 - murder - second application by Crown to cross examine witness after cross examination by defence counsel
Held: - granting leave - no limitation on the granting of leave after cross-examination by defence counsel

Le
(2002) 54 NSWLR 474; (2002) 130 A Crim R 44; NSW CCA [186] 29.5.2002
Evidence Act 1995 (NSW) s.38 - drug offences - Crown granted leave to cross-examine accused’s girlfriend - at trial claimed drugs belonged to her - conflicted with statement to police - failure to consider s.137 and s.192 provisions - challenge as to width of cross-examination allowed -
Held: consideration of s.137 and s.192 provisions mandatory - nothing in reasons to suggest judge did consider them - no miscarriage because leave would still have been granted - Crown permitted to cross-examine witness on credit that goes to the jury accepting prior statement and rejecting recent evidence - leave does not allow unlimited cross-examination but must relate to s.38 purpose

Reardon; Michaels; Taylor
NSW CCA [203] 4.6.2002
Evidence Act 1995 (NSW) s.38 - conspiracy to import commercial quantity of cocaine - leave granted to cross-examine under s.38
Held: failure to refer to s.192 not of itself an error of law - do not need to expressly refer to s.192 in every case - should be assumed judge has considered s.192 unless shown otherwise

Cakovski
(2002) 149 A Crim R 21; NSWSC [632] O’Keefe J 28.6.2002
Evidence Act 1995 s.38 - murder - offence committed while in presence of female companion - female called as Crown witness - on recall witness gave evidence inconsistent with police statement and earlier evidence in court
Held: flexible approach should be adopted - application to cross-examine allowed

Parkes
(2003) 147 A Crim R 450; NSW CCA [12] 17.2.2003
Evidence Act 1995 (NSW) s.38 - fraud - Crown called defence witness and deliberately refrained from raising certain topics - application to cross-examine after topics raised in cross examination
Held: discussion about inappropriateness of using s.38 as forensic tool - question is whether unfair and improper - in this case no abuse

White
(2003) 140 A Crim R 63; NSW CCA [64] 21.3.2003
Evidence Act 1995 (NSW) s.38 – armed robbery – Crown granted permission to cross-examine co-offender
Held: accepted limitations placed upon cross-examination set out in Le – leave does not allow unlimited cross-examination but must relate to s.38 purpose – in this case no error in granting leave to cross examine as to credit

Fowler
NSW CCA [321] 11.11.2003
Evidence Act 1995 (NSW) s.38, 192 – murder – failure to consider s.192
Held: error does not establish miscarriage of justice where show judge could not have reasonably refused leave

Taylor
NSW CCA [194] 7.11.2003
Evidence Act 1995 (NSW) s.38 - murder - whether leave should be granted pursuant to s 38 where witness does not recall circumstances of making statement to police – whether “unfairness” with which s 192(2)(b) is concerned is inability to test out of court assertions made witness
Held: leave properly granted - no unfairness to accused pursuant to s192(2)(b).

Division 5: Cross-examination

Section 41: Improper questions

Beattie
(1996) 89 A Crim R 393
Evidence Act 1995 (NSW) s.41
Held: asking police witness about allegations made at Royal Commission not unduly annoying, offensive or repetitive.

Soto-Sanchez
(2002) 129 A Crim R 279; NSW CCA [160] 10.5.2002
Evidence Act 1995 (NSW) s.41 - put to accused in cross-examination he was a ‘liar’
Held: leave to appeal refused under r.4 - appellant had admitted to untruths in police interview and no objections made by defence counsel at trial.

TA
(2003) 57 NSWLR 444; 139 A Crim R 30; NSW CCA [191] 25.7.2003
Evidence Act 1995 (NSW) s.41(1)(b) - medical practitioner injected complainant with stupefying drug representing it to be a vaccination - videotaped his sexual conduct with complainant, who had no recollection of what occurred whilst drugged - whether trial judge's ruling precluding cross examination of complainant as to her perceptions of her behaviour on the videotape was correct.
Held: trial judge entitled to preclude cross-examination on basis it was unduly harassing, offensive and oppressive – conviction appeal dismissed

Section 43: Prior Inconsistent Statements of Witnesses

Lee
(1998) 195 CLR 594; 72 ALJR 1484, HCA 30.9.1998
Evidence Act 1995 (NSW) s.43 – assault with intent to rob - out of court statement made by witness that appellant had confessed offence to witness was not admissible as truth of alleged confession.
Held: “Even if the trial judge was right to conclude, as he did, that Mr Calin could be cross-examined about his prior inconsistent statements and was right to conclude that evidence could be given of those prior statements, it was necessary to identify how those prior statements might be properly used by the jury.” [para 25] - “Because those prior statements of what the appellant had said went only to Mr Calin’s credit, the trial judge could either have rejected those parts of the statement (s.137) or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put.” [para 41]

Gee
[2000] 113 A Crim R 376; NSW CCA [198] 26.5.2000
Evidence Act 1995 (NSW) s.43 - armed robbery - Crown called appellant’s de facto and his daughter’s de facto to give evidence they recognized appellant in security camera photos - witnesses claimed unsure in evidence - Crown permitted to lead evidence from police that each witness had previously positively recognized appellant.
Held: having been given leave to cross-examine under s.38 Crown entitled by s.43(1) to put to witnesses earlier positive recognition and subsequently entitled under s.43(2) to call evidence from police officers that they had - evidence from police would become evidence that person in photos was appellant under s.60.

Section 44: Previous representations of other persons

RPS
NSW CCA 13.8.1997
Evidence Act 1995 (NSW) s.44 - attempt by Crown to justify admission of letter from doctor showing complainant had changed her name by certain date.
Held: “The section expressly does not permit cross-examiner to put directly into evidence contents of someone else’s document unless fact asserted in it is itself admissible. Counsel had not satisfied the provisions of s.106 in order to make it admissible pursuant to s.44(2).” [p. 32 per Hunt CJ at CL]

Gilbert
NSW CCA 10.12.1998 pp. 6-11
Evidence Act 1995 (NSW) s.44.
Held: section breached because accused cross-examined on statement of witness not called.

Morgan
NSW CCA [7] 25.2.2000
Evidence Act 1995 (NSW) s.44 - bank robbery - Crown relied on photographs taken by bank security camera - accused called photogrammetry expert - Crown permitted to cross examine expert on report prepared by another expert in different case - report identified and described in front of jury
Held: allowing appeal - cross-examination breached s44 - Crown gained substantial advantage from breach.

Bevan
NSW CCA [224] 16.4.2002
Evidence Act 1995 (NSW) s.44 - ongoing/deemed supply drugs – suggestion in cross-examination that accused had accumulated assets from illicit dealings well prior to events of subject offences – suggestion left to jury that appellant had accumulated property from past illicit drug dealings, and endeavoured to cover tracks by using money on poker machines - whether temporal link between information re poker machines and subject offences - whether breach of s.44– whether miscarriage of justice.
Held: breach of s.44 - appeal allowed

S
NSW CCA [122] 5.5.2003
Evidence Act 1995 (NSW) s.44(2)(b) - sexual assault - whether evidence of motive to fabricate false allegation of sexual assault excluded – counsel cross-examined witness on complainant’s statement - what is requisite to enable court to be satisfied that the document being used to cross-examine witness will be admitted - whether judge entitled to be informed that document is not that of witness being cross-examined before witness is confronted with it - whether unfair criticism of counsel before jury caused trial to miscarry.
Held: no breach of s.44

Section 46: Leave to recall witness

Nye v State of NSW
(2003) 58 NSWLR 152; NSWSC [610] (O’Keefe J) 3.7.2003
Evidence Act 1995 (NSW) s.46 – application by plaintiff to recall witness during addresses – statement of witness tendered earlier in trial as witness too ill to attend
Held: power to recall witness does not extend to person not originally called at trial

Part 2.2: Documents

Section 47: Definitions

Giovannone
(2002) 140 A Crim R 1; NSW CCA [323] 14.8.2002
Evidence Act 1995 (NSW) s.47 - pervert the course of justice - Crown tendered copy of recording made by micro cassette - recording enhanced
Held: enhancement does render copy inadmissible

Section 48: Proof of contents of documents

Eastman v The Queen
Fed Ct Canberra 25.6.1997
Evidence Act 1995 (NSW) s.48(1)(c) - murder - Judge allowed transcripts of listening tapes to jury prior to them hearing tapes - tapes very difficult to understand
Held: s.48(1)(c) allows transcripts to go to jury - should make clear to jury that transcript to be used as aid only

Cassar & Sleiman (Judgment No.17)
NSWSC (Sperling J) [436] 10.5.1999
Evidence Act 1995 (NSW) s.48(1)(c) - conversation with co-accused recorded by listening device - parts of tape hard to hear and not transcribable - Crown sought to tender transcript of recording.
Held: evidence admissible - prior to Evidence Act transcripts not admissible because recording distinct - no such limitations under Evidence Act.

Cassar; Sleiman [No. 28]
NSWSC (Sperling J) [651] 9.7.1999
Evidence Act 1995 (NSW) s.48(4) - Crown sought to tender police running sheet as summary of, or extract of, business records, where original record lost and notes of summary made by police officer from original record lost.
Held: evidence admissible.

Part 2.3: Other Evidence

Section 53: Views

Milat
NSWSC (Hunt CJ at CL) 12.4.1996
Evidence Act 1995 (NSW) s.53 - murder - Crown sought view of forest area where bodies found - accused did not oppose application - accused chose not to attend view.
Held: (granting view) judge satisfied accused given reasonable opportunity to be present - voluntary absence of accused from view did not render evidence inadmissible - jury made sufficiently aware of changes to forest area through evidence -no suggestion view unfairly prejudicial, misleading, confusing or a waste of time.

Section 54: Views to be evidence