Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 3)

[2009] NSWLEC 230

Land and Environment Court

of New South Wales

CITATION:

Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 3) [2009] NSWLEC 230

PARTIES:

PROSECUTOR:
Director-Geneal, Department of Environment and Climate Change

DEFENDANT:
Jack & Bill Issa Pty Ltd

FILE NUMBER(S):

50030 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PROSECUTION :- application by prosecutor under s 38 of Evidence Act to question a prosecution witness as though the prosecutor were cross-examinining the witness.

EVIDENCE:- application by prosecutor under s 38 of Evidence Act to question a prosecution witness as though the prosecutor were cross-examinining the witness.

LEGISLATION CITED:

Evidence Act 1995, ss 38, 192
Native Vegetation Act 2003, s 12

DATES OF HEARING:

16 December 2009

EX TEMPORE JUDGMENT DATE:

16 December 2009

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T Howard
SOLICITORS
Department of Environment, Climate Change and Water

DEFENDANT:
Mr B Vasic
SOLICITORS
Agostino & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

16 December 2009

50030 of 2009

DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v JACK & BILL ISSA PTY LTD

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application by the prosecutor under s 38 of the Evidence Act 1995 to question a prosecution witness, Mr Mario Mura, as though the prosecutor were cross-examining the witness. The application is made in the course of Mr Mura’s examination in chief. The defendant has pleaded not guilty to an offence against s 12 of the Native Vegetation Act 2003 of clearing native vegetation.

2 Section 38(1) provides as follows:

“A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination-in-chief, making a genuine attempt to give evidence; or
(c) whether the witness has, at any time, made a prior inconsistent statement.”

3 The application is made under s 38(1)(a) on the basis that Mr Muro has given evidence that is unfavourable to the prosecutor concerning certain cheques that Mr Muro drew to pay a contractor for land clearing, the subject of the charge. By s 192 of the Evidence Act 1995 if the Court gives any leave, the leave may be given on such terms as the Court thinks fit and the Court is to take into account the matters referred to therein.

4 Mr Mura has given evidence-in-chief that he paid for land clearing by the three cheques but not on behalf of the defendant company. He indicated that it was his clearing job and that he cleared it for himself. At the time of payment he was a director of the defendant.

5 The prosecutor says, and for the purposes of this application it is accepted by the defendant, that the prosecutor has a document in which Mr Mura made a prior inconsistent statement to the effect that the payments made by those cheques were on behalf of the defendant company.

6 In those circumstances, I consider that the power in s 38(1) is enlivened. That is accepted by the defence. Taking into consideration the matters referred to in s 192(2). I grant leave to the prosecutor under s 38(1) to question Mr Mura, as though the prosecutor were cross-examining him, about the topic of on whose behalf the cheques were paid.