Ku-ring-gai Council v John David Chia (No 9)

[2018] NSWLEC 171

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v John David Chia (No 9) [2018] NSWLEC 171
Hearing dates:	29 October 2018
Date of orders:	29 October 2018
Decision date:	01 November 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See [11]
Catchwords:	PRACTICE AND PROCEDURE – criminal law –application by prosecutor to cross-examine prosecution witness pursuant to s 38 of the Evidence Act 1995 (NSW) – leave granted
Legislation Cited:	Evidence Act 1995 (NSW) ss 38, 192
Category:	Procedural and other rulings
Parties:	Ku-ring-gai Council (Prosecutor) John David Chia (Defendant)
Representation:	Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant)   Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant)
File Number(s):	2016/00293131

Judgment

1. On 29 October 2018, during the examination-in-chief of prosecution witness Jesse Draeger (at Tcpt, 29 October 2018, p 695(15-20)), Mr Howard, senior counsel for the prosecutor, made an application for leave pursuant to s 38 of the Evidence Act 1995 (NSW) (‘Evidence Act’) to cross-examine the witness in relation to a particular piece of evidence he gave.

2. Having heard submissions from Mr Howard and Mr Steirn, senior counsel for the defendant, I granted leave for the witness to be cross-examined on that point during his examination-in-chief and deferred the giving of reasons (at Tcpt, 29 October 2018, p 697(16-17) and Tcpt, 29 October 2018, p 698(20-35)). My brief reasons follow.

3. Section 38 of the Evidence Act provides:

38   Unfavourable witnesses

(1)   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.

(2)   Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3)   The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.

Note.   The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4)   Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5)   If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6)   Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a)   whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b)   the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7)   A party is subject to the same liability to be cross-examined under this section as any other witness if:

(a)   a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

(b)   the party is a witness in the proceeding.

4. When the Court is asked to grant leave, s 192 of the Evidence Act must also be considered. It provides:

192   Leave, permission or direction may be given on terms

(1)   If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)   Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)   the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b)   the extent to which to do so would be unfair to a party or to a witness, and

(c)   the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d)   the nature of the proceeding, and

(e)   the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

5. The evidence given by the witness in respect of which Mr Howard sought leave was Mr Draeger’s answer to a question where he said, in effect, that whilst carrying out work at the site at 53 Carnarvon Road, Roseville, and to the best of his recollection, he only saw trees being cut down at the base close to the ground. Mr Howard submitted that this evidence was unfavourable to an aspect of the prosecutor’s case in the sense provided by s 38 (at Tcpt, 29 October 2018, p 696(20-26)).

6. Exhibit B in the proceedings is a series of four photographs showing a tree climber cutting down a tree and a person holding a rope connected to the top of a tree. There is evidence before the Court that the person holding a rope in three of the photographs appears to be the witness. Mr Howard sought to elicit from the witness that he saw at least one tree being cut down by a tree climber a long way from the ground by reference to Exhibit B. Specifically, he sought leave to question Mr Draeger as to the evidence he gave about the manner in which various trees were cut down and whether there were any tree climbers involved (at Tcpt, 29 October 2018, p 698(13-15)).

7. In relation to the s 192(2) factors, Mr Howard submitted that the granting of leave would not unduly lengthen the hearing, would not be unfair to a party or to a witness, would elicit evidence of some importance and that the nature of the proceedings is a criminal trial.

8. Mr Steirn, senior counsel for the defendant, harboured concern that the material was being adduced for the purpose of eliciting from the witness a statement that the defendant was present at the site at the time the tree shown in Exhibit B was being felled. Mr Howard clarified that he did not seek to use the leave to cross-examine on this point.

9. Having regard to the narrow purpose noted above for which leave was sought, I determined to grant it essentially for the reasons submitted by the prosecutor. I found that the granting of leave did not unduly lengthen the hearing, was not unfair to a party or to a witness, and had the possibility of eliciting evidence of some importance.

10. In relation to fairness, I note that given Exhibit B is already in evidence, it is fair to both parties and the witness for Mr Draeger to have its existence brought to his attention.

11. Therefore, I granted leave for the witness to be questioned as though being cross-examined for the limited purpose of being shown Exhibit B and being asked whether that changed the evidence he had previously given.

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Decision last updated: 19 November 2018