KH v R - [2014] NSWCCA 294

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: KH v R [2014] NSWCCA 294
Hearing dates: 1 December 2014
Decision date: 01 December 2014
Before: Leeming JA at [1] and [43];
McCallum J at [41];
R A Hulme J at [42]
Decision:
1. Leave to appeal be granted.
2. The appeal be dismissed.

Catchwords: EVIDENCE - application by Crown to cross-examine unfavourable witnesses - advance ruling - Evidence Act 1995 (NSW), ss 38 and 192A - witnesses included persons named on indictment but not charged - whether appellable error in grant of leave to cross-examine - whether appellable error in judge inquiring, in presence of jury, whether witness aware of right to object to giving self-incriminating evidence
Legislation Cited: Crimes Act 1900 (NSW), s 61J
Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 38, 128, 132, 135, 137, 192A
Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4
Lee v R [2009] NSWCCA 259
R v Le [2002] NSWCCA 186; 54 NSWLR 474
Category: Principal judgment
Parties: KH (Applicant)
Regina (Respondent)
Representation: Counsel:
G D Wendler (Applicant)
V Lydiard (Crown)
Solicitors:
Van Houten Law Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/49416
Publication restriction: Prohibition on publication of any matter identifying or likely to lead to identification of complainant pursuant to s 578A Crimes Act 1900 (NSW).
Decision under appeal

Date of Decision:

2013-06-19 00:00:00

Before:

Haesler DCJ

File Number(s):

2012/49416

Judgment

LEEMING JA: The appellant was found guilty of one count of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW), following a trial over some 6 days before a judge and jury of 12. The circumstance of aggravation was that the appellant was in the company of other persons. One of those other persons, Mr Luke Gallagher, was named on the indictment and is prominent in this appeal. At the time of the trial, he had not been charged; in circumstances explained below, he was called as part of the Crown case and cross-examined by the prosecutor, pursuant to leave granted under s 38 of the Evidence Act 1995 (NSW), as an unfavourable witness. The Crown also called the appellant's younger sister SH, and cross-examined her, pursuant to the same grant of leave.

The cross-examination by the Crown of both of these witnesses was relatively brief (occupying seven and eight pages of transcript respectively) and was principally directed to putting to them what they had told police the day after the alleged assault. Each was then cross-examined by the defence.

There were two other witnesses called by the Crown, who were also cross-examined as unfavourable witnesses, pursuant to the same grant of leave, and of which no complaint is made.

The appellant appeals against his conviction, relying on the following two grounds:

"GROUND 1

That the trial judge erred in law by granting the prosecution leave to cross-examine at large the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KH v R

Details

AGLC: KH v The Queen [2014] NSWCCA 294
Case: [2014] NSWCCA 294
Decision Date: 01 December 2014

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of KH v R involved a Crown application for an advance ruling regarding the cross-examination of witnesses who were included on the indictment but had not been charged. The application was made under sections 38 and 192A of the Evidence Act 1995 (NSW). The case required the court to address whether there was an appellable error in the grant of leave for the cross-examination of these witnesses and whether it was an error for the judge to inquire, in the presence of the jury, whether the witnesses were aware of their right to object to giving self-incriminating evidence.

The legal issues centred on the interpretation and application of sections 38 and 192A of the Evidence Act 1995 (NSW), specifically concerning the scope of the court's discretion in allowing the cross-examination of uncharged witnesses named on the indictment. The court also needed to consider whether the judge's inquiry into the witnesses' awareness of their rights was procedurally correct and whether it constituted an error that could be subject to appeal.

The court held that there was no appellable error in the grant of leave to cross-examine the witnesses. The judge's inquiry regarding the witnesses' awareness of their rights, although not ideal, did not constitute a procedural error that would warrant an appeal. The court reasoned that the judge's actions, while not the preferred approach, did not result in a miscarriage of justice or prejudice to the defendant. The inquiry was seen as a minor procedural irregularity that did not undermine the fairness of the trial.

In conclusion, the court dismissed the appeal and upheld the trial judge's decision. The appeal was found to be without merit, and the trial judge's actions, while not perfect, did not amount to a substantive error. The trial judge's approach was considered acceptable within the context of the proceedings, and the outcome of the trial was not adversely affected.

Orders