Director of Public Prosecutions v Edwin Nair

The Director of Public Prosecutions (DPP) sought leave to cross-examine a witness, Edwin Nair, pursuant to section 38 of the *Evidence Act 1995* (Cth). The DPP's application was made in the context of criminal proceedings.

The central legal issues before the court were whether the DPP was required to demonstrate more than the existence of one of the factors listed in section 38(1)(a), (b), or (c) of the *Evidence Act* before the court could consider exercising its discretion to grant leave for cross-examination, and whether the court, in determining whether to grant leave, should have regard to the matters set out in section 38(6) and section 192 of the *Evidence Act*, among other considerations.

The court held that an applicant for leave under section 38(1) is not required to show a motive or reason for the witness to give untruthful evidence beyond establishing one of the specified grounds in paragraphs (a), (b), or (c). The court affirmed that discretionary considerations relevant to the grant of leave include, but are not limited to, the matters enumerated in section 38(6) and section 192 of the *Evidence Act*.

The questions of law were answered as follows: 1. No, the Crown is not required to show more than the existence of one or other of the factors set out in paragraphs 38(1)(a), (b) and (c) before the Court can consider exercising its discretion whether to grant leave. 2. Yes, in determining whether to grant leave under subsection 38(1), the Court should have regard to the matters set out in subsection 38(6), and s 192 of the said Act, amongst other matters.