Leichhardt Council v Geitonia Pty Ltd (No 4)

[2015] NSWLEC 32

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leichhardt Council v Geitonia Pty Ltd (No 4) [2015] NSWLEC 32

Hearing dates:

4 March 2015

Date of orders:

04 March 2015

Decision date:

04 March 2015

Jurisdiction:

Class 5

Before:

Biscoe J

Decision:

Prosecutor’s application under Evidence Act 1995 s 38(1)(a) for leave to cross-examine his own witness dismissed.

Catchwords:

EVIDENCE – before reading affidavit evidence in chief from his own witness, prosecutor applies for leave to cross-examine the witness under s 38(1)(a) Evidence Act 1995 and for directions under s 38(4) and (5) that any cross-examination by the defendants occur first, followed by cross-examination by the prosecutor, followed by any cross-examination by the defendants arising from prosecutor’s cross-examination – application made in respect of anticipated unfavourable evidence that would be given if defendants cross-examined the witness – no power in Court under s 38(1)(a) to grant leave to cross-examine until unfavourable evidence given – therefore application premature.

Legislation Cited:

Evidence Act 1995 s 38

Category:

Procedural and other rulings

Parties:

50795 of 2013
Leichhardt Council (Prosecutor)
Geitonia Pty Limited (Defendant)

50796 of 2013
Leichhardt Council (Prosecutor)
GRC Projects Pty Ltd 135 672 294 (in liq) (Defendant)

50798 of 2013
Leichhardt Council (Prosecutor)
Bill Gertos (Defendant)

Representation:

COUNSEL:
50795 and 50798 of 2013
D A Buchanan SC and A C Hemmings (Prosecutor)
G Thomas (Defendant)
50796 of 2013
D A Buchanan SC and A C Hemmings (Prosecutor)
N/A(Defendant)

SOLICITORS:
50795 and 50798 of 2013
Pikes & Verekers (Prosecutor)
Jordan Djundja (Defendant)
50796 of 2013
Pikes & Verekers (Prosecutor)
N/A (Defendant)

File Number(s):

50795/13, 50796/13, 50798/13

EX TEMPORE Judgment

1. The defendants are charged with an offence of demolishing the front façade of a building contrary to the terms of a development consent for the redevelopment of the building. Before reading the affidavit evidence in chief of a prosecution witness, the prosecutor orally applies under s 38(1)(a) of the Evidence Act 1995 for leave to cross-examine the witness, Mr Andro Cutuk, who was the defendant Geitonia Pty Ltd’s engineer in relation to the development project, on the basis of anticipated unfavourable evidence that he would give if cross-examined by the defendants; and for directions under s 38(4) and (5) that any cross-examination by the defendants occur first, followed by the prosecutor’s cross-examination, followed by any further cross-examination that the defendants wish to conduct arising from the prosecutor’s cross-examination.

2. The s 38(4) and (5) directions are sought on the basis that it is incongruous for the prosecutor, in anticipation of unfavourable evidence that might otherwise be adduced by the defendants in cross-examination, to cross-examine the witness to adduce such unfavourable evidence. The prosecutor has specified in written submissions 14 areas in which he seeks leave to cross-examine relating to, or apparently excited by, documents of the witness which are not in evidence except for the purpose of this application, comprising a site direction and diary.

3. Section 38 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. Section 38(1)(a) empowers the court to grant leave to a party to cross-examine the party’s own witness where evidence given by the witness is unfavourable to that party, regardless of whether the unfavourable evidence is given in chief, in cross-examination or in reply. A typical case where s 38 is invoked is where a witness does not come up to proof in evidence in chief.

5. Mr Cutuk’s affidavit evidence in chief, which the prosecutor has yet to read, does not include any evidence unfavourable to the prosecutor on which the prosecutor relies for present purposes. The prosecutor has indicated that he will not read part of it that might excite cross-examination leading to unfavourable evidence to the prosecutor.

6. In my opinion, on the proper construction of s 38(1)(a), it does not empower the Court to give a party who calls a witness leave to cross-examine the witness until evidence is given by the witness that is unfavourable to the party. The only trigger for the application of that provision is if the witness has “given” unfavourable evidence. It is insufficient that the witness might later give unfavourable evidence. Therefore, the s 38 application before me is premature. When I raised that proposition in argument, the prosecutor told me that he had nothing to say in opposition to it, and the defendants said nothing in opposition to it.

7. The defendants may elect not to cross-examine Mr Cutuk. If they were to cross-examine him and if evidence were to be given by him in cross-examination unfavourable to the prosecutor, then the power to grant leave under s 38(1)(a) would be enlivened. If leave to cross-examine were then to be granted, in fairness to the defendants it might be coupled with directions under s 38(4) and (5) that the prosecutor cross-examine in relation to the unfavourable evidence at the end of the defendants’ cross-examination, and that the defendants thereafter may cross-examine again in relation to matters arising from the prosecutor’s cross-examination.

8. However, at the moment the prosecutor’s application under s 38(1)(a) is premature. Accordingly, I dismiss the application.

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Decision last updated: 09 March 2015