Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro (No 2)

[2007] NSWLEC 324

Land and Environment Court

of New South Wales

CITATION:	Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 2) [2007] NSWLEC 324
PARTIES:	PROSECUTOR Port Macquarie – Hastings Council FIRST DEFENDANT Lawlor Services Pty Limited SECOND DEFENDANT Edmund Petro
FILE NUMBER(S):	50031 of 2006, 50006 of 2007
CORAM:	Pain J
KEY ISSUES:	Evidence :- whether order should be made under s38(1) of the Evidence Act 1995 to allow prosecution to cross-examine its own witness
LEGISLATION CITED:	Evidence Act 1995 s 38, s 135, s 137, s142, s192(2)
CASES CITED:	Adam v The Queen [2001] 207 CLR 96; Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941; Klewer v Walton [2003] NSWCA 308; R v Ashton 2003 143 A Crim R 354; R v Hogan [2001] NSWCCA 292; R v Kneebone (1999) 47 NSWLR 450; R v Le [2001] NSWSC 174; R v Le (2002) 54 NSWLR 474; R v Souleyman (1996) 40 NSWLR 712.
DATES OF HEARING:	31 May 2007 1 June 2007 4 June 2007
DATE OF JUDGMENT:	5 June 2007
LEGAL REPRESENTATIVES:	PROSECUTOR Mr I Hemmings SOLICITOR Donovan Oates Hannaford FIRST DEFENDANT Mr J Maston SOLICITOR Falvey Associates SECOND DEFENDANT Mr T Hale SC SOLICITOR Falvey Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

5 June 2007

50031 of 2006, 50006 of 2007 Port Macquarie – Hastings Council v Lawlor Services Pty Limited, Port Macquarie – Hastings Council v Petro (No 2)

JUDGMENT ON SECTION 38 EVIDENCE ACT 1995

1 Her Honour: These are two proceedings in relation to charges of clearing a large number of trees in breach of a tree preservation order. Mr Lindsay the bulldozer driver who is alleged by the Prosecutor to have knocked over the trees is part of the way through giving his oral evidence. He is not one of the Defendants. This is an application by the Prosecutor under s 38(1) (a) and (c) of the Evidence Act 1995 to cross-examine Mr Lindsay about:

(i) any instructions given by Mr Petro, one of the Defendants, to Mr Lindsay for the performance of work by him on the land the subject of the charge during the charge period
(ii) the extent of removal of trees by Mr Lindsay on the land the subject of the charge during the charge period.

2 Sections 38 (1)(a) and (c) relied on by the Prosecutor provide:

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
…
(c) whether the witness has, at any time, made a prior inconsistent statement.

3 In order to determine the issues raised by the application, prior hand written statements taken of conversations with the witness Mr Lindsay were tendered and became exhibits H and Q, exhibit P, a typed statement was tendered and exhibit O, an affidavit sworn by Mr Lindsay on 24 May 2007 was also tendered. These documents were admitted only for the purpose of considering the Prosecutor’s application.

Prosecutor’s submissions

4 Two areas of prior inconsistent statements are relied on by the Prosecutor

(i) instructions by Mr Petro

5 The Prosecutor referred to the transcript of 31 May 2007 at p 51 as follows:

Q. What did you talk with him about?
A. How was he for the day like I ..(not transcribable).. he’s doing a good job, fine yeah, you know.

Q. Apart from the instructions that you received from
Mr Armitage at the very beginning of the job, did you receive any other instructions during the course of the job?
A. No, not really no.

6 The prior inconsistent statements identified by the Prosecutor were:

(i) Exhibit H
Eddie comes out each day – is happy with what I am doing.


(ii) Affidavit of Ms Davine dated 20 September 2007 at par 9 in part.

(iii) Exhibit Q

He introduced himself as Eddie Petro. He looked at what we were doing and said good job – keep going.
…
Eddie Petro came on site nearly every day and inspected the work. He always said good work.

When he came out one day a few days after I started, he told me to only got to Logans Crossing Rd and he explained that was the industrial land, the end after Logan Crossing Rd was Rural.

I said – So I’m finished when I get to Logan Crossing Rd.
H/S – the other side of the road should be ready to go then.

(iv) Exhibit P
Later in the morning, another man turned up and he introduced himself to me as Eddie Petro – it was the first time that I had met him. He looked over what we had done so far and said, ‘good job, keep going’.
…
I continued in this manner over the next few weeks. The bobcat driver was sometimes out on the site and sometimes not. Eddie Petro came out to the site nearly every day around the middle of the day and inspected the work. He always said ‘good work’.
On Eddie’s visit a few days after I had started, he told me to only clear as far as the Logans Crossing Road intersection and he explained that the area we were clearing was Industrial land and it only extended down to Logans Crossing Road. On the other side of Logans Crossing Road, the land was zoned Rural and I was to just leave it as it is. I asked him whether I would be finished when I got to Logans Crossing Road and he said that the other side of the road (Herons Creek Road), which was a further 31 hectares should be ready to go by then.

(v) Exhibit O
Later in the morning on 18 July 2006 another man arrived and introduced himself to me with words to the following effect:
“Hi, I’m Eddie Petro.”
That was the first time that I had met Eddie Petro and I had not known him before I worked on the Property. Eddie looked around at what we had done so far that day and said to me words to the effect:
“Good job, keep going.”
…
Over the next few weeks I continued to carry out work in clearing the Property. The bobcat driver was sometimes out on the Property and at other times not. Eddie Petro came out to the Property nearly every day around the middle of the day and inspected the work. On each occasion Eddie said to me:
“Good work, keep going.”

(ii) extent of tree removal

7 The Prosecutor referred to the transcript of 31 May 2007 as identified in par 9 of exhibit S, being p 62 lines 36 – 42, p 62 line 6, p 64 lines 9 – 13, p 61, lines 45 – 50, p 62 line 4, p 62 lines 17 – 22.

8 The prior inconsistent statements relied on by the Prosecutor were also identified in exhibit S. These statements are in Ms Davine’s affidavit at par 9, exhibit H, exhibit P and exhibit O.

9 The Prosecutor relied on s 38(1)(c) because there are prior inconsistent statements made by Mr Lindsay which are material to this prosecution. Section 38(1)(a) is relied on because his oral evidence is unfavourable to the Prosecutor’s case; R v Le (2002) 54 NSWLR 474 (R v Le (CCA)) relied on. The orders sought are limited in subject but otherwise not in scope.

Defendants’ submissions

10 There are no prior inconsistent statements at all, therefore s 38(1)(c) cannot arise. Relying on Klewer v Walton [2003] NSWCA 308 at [22] per Hodgson JA there must be explicit or logical inconsistency, if not substantial inconsistency. None arises here.

11 A cautious approach to s 38 was adopted in R v Hogan [2001] NSWCCA 292 according to the Defendants. The trial judge had given unfettered leave to cross-examine a witness under s 38 and her credit was also subject to cross-examination by the prosecutor. That decision was overturned by the Court of Criminal Appeal.

12 In order to satisfy s 38(1)(a), if the application is based on prior inconsistent statements, “unfavourable” requires an issue of credibility or some other failure of the witness, such as not making a genuine effort to give evidence, to be identified by the Prosecutor on its application. This was said to be supported by Heydon J in R v Le (CCA) at [72] and Adam v The Queen [2001] 207 CLR 96 at [27] per Gleeson CJ, McHugh, Kirby and Hayne JJ. The Prosecutor has really argued that because Mr Lindsay’s evidence is contrary to the case it wants to prosecute then he should be able to be cross-examined and that is not a situation to which s 38(1) is directed.

13 Neutral evidence is not unfavourable, see Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941. The evidence of Mr Lindsay is neutral, given that there are only subtle wording differences relied on by the Prosecutor.

14 According to the Defendants this case is unique because, unlike other cases to which I was referred in argument, the alleged inconsistency is minor and cross-examination turns on use of the word “instructions” rather than referring to particular conversations, inter alia.

15 The Defendants also argued that I should take into account that the application was not made at the earliest opportunity, a factor I should consider under s 38(6)(a).

Finding

16 Under s 142(1) of the Evidence Act I must find that the facts necessary for deciding whether evidence should be admitted in the exercise of my discretion have been proved beyond reasonable doubt. The terms of s 38(1) are clear that the subsections stand alone and are in the alternative. An application under s 38(1)(a) can be separate from or overlap with an application under s 38(1)(c). One is not a precondition to the application of the other. In relation to the application of s 38(1) a particularly important decision is that in R v Le (CCA). Heydon JA (Dunford J and Buddin J concurring) considered s 38(1) and held at [66], [67] and [72] as follows:

The meaning of “about”
…
One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in
the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of
evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.

In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to
establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the
probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38(1) subjects.
…

Evaluation of the appellant’s suggested procedure

…
Further, the position of counsel must be considered. Though counsel conducting questioning under s 38 are not strictly cross-examining, the witness being questioned is ex hypothesi a witness over whose credibility there is a
cloud and who may give quite unpredictable answers. It is not easy for counsel to be sure, at the time when any s 38 application is made, whether the terms of the leave requested will be adequate to cover all circumstances. Section 38 questioning, like cross-examination, must be permitted to have a measure of freedom. Truth will often out when counsel who is asking the questions turns
out to be a little more quick-witted than the witness. The legitimate exploitation by counsel of any advantages they have in this respect is wrongly impeded if their questioning is artificially interrupted, whether by events external to the trial, or non-responsive answers from the witness, or captious
objections, or the need to seek further grants of leave under s 38 at short intervals. Counsel questioning pursuant to s 38 must be able to adjust to meet new circumstances quickly, without the witness being able to take advantage of
intervals in which new s 38 applications are made as opportunities to have a rest or reconsider the posture to be adopted in manoeuvring to meet the different challenges made by the questioner.

17 Are there prior inconsistent statements in Mr Lindsay’s oral evidence compared to exhibits H, O, P, Q and Ms Davine’s affidavit sworn 20 September 2006 at par 9? The detail of the prior statements is identified above in the Prosecutor’s submissions.

(i) in relation to the giving of instructions by Mr Petro, I consider the answer is yes. It is necessary that there be a logical or explicit inconsistency identified, and the Prosecutor has done so. I do not consider this must be a significant inconsistency as the Defendants argued. Even if that is the case there are important differences in the context of this prosecution between the numerous written statements provided by Mr Lindsay and in the conversation recorded in Ms Davine’s affidavit compared to what he stated in oral evidence on 31 May 2007. The prior statements when read together suggest that the case anticipated by the Prosecutor to be presented in the evidence was that Mr Petro gave regular instructions to Mr Lindsay and directed him as to the extent of the work.
(ii) in relation to the removal of trees, I consider the same applies. The prior written statements and the conversation recorded in the affidavit of Ms Davine suggest that the Prosecutor anticipated evidence from Mr Lindsay which is not what he has given orally. There are logical or explicit inconsistencies between the oral and prior statements. These are more than subtle differences in language as the Defendants argued, suggesting that the application under s 38(1)(c) should be successful.

18 In relation to the application of s 38(1)(a), I do not agree with the Defendants’ counsel that R v Le (CCA) per Heydon JA at [72] is imposing a requirement that s 38(1)(a) only arises if the issue of credibility of a witness also arises. The context in which he is discussing credibility is related to the scope of orders to allow cross-examination including their limitation under s 38. He points out that too narrow an order results in multiple applications for orders under s 38(1) which can have adverse impacts on the conduct of the trial.

19 Nor do I agree with the Defendants’ counsel that the majority judgment in obiter at [27] in Adam v The Queen that:

[t]here appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without “making a genuine attempt to give evidence” is to give evidence “unfavourable” to that party

also requires that I must make a similar finding before I can conclude that the evidence is unfavourable. As with all the cases relied on by the Defendants’ counsel, who have sought to rely heavily in submissions on the particular facts of those cases, the findings made are inevitably in the context of the particular circumstances of the case before them. That applies to Adam v The Queen as to other cases relied on. It is fair to say that all the factual circumstances of the cases referred to in submissions were far removed from the facts of this case simply because of the different laws being prosecuted. The Defendants’ submission also ignores s 38(1)(b) which refers particularly to the situation where a witness is not in examination in chief making a genuine attempt to give evidence.

20 In R v Ashton 2003 143 A Crim R 354 Underwood J provides at [18] – [25] a useful summary of numerous cases I have been referred to where his Honour concludes that “unfavourable” in s 38(1)(a) has been given a wide interpretation.

21 The witness Mr Lindsay is unfavourable as defined in R v Le [2001] NSWSC 174 (unrelated to R v Le (2002) 54 NSWLR 474 above) at [15] per McLellan J:

[t]he word "unfavourable" should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested.

Smart J in R v Souleyman (1996) 40 NSWLR 712 at 715 at D held that “unfavourable” means “not favourable” rather than adverse.

22 R v Hogan clearly involved different circumstances to those in R v Le, and is distinguished at [88] by Heydon JA in R v Le. R v Hogan is of no assistance in the circumstances here. In R v Kneebone (1999) 47 NSWLR 450 the consideration of s 38 is obiter by Greg James J because there was no application under s 38 in the trial. The passage relied on by the Defendants was made in that context. His Honour held at [55]:

However, the full width of any entitlement under s 38 and the
criteria for the proper exercise of discretion to permit cross-examination remain to be settled. Other questions remain as to the appropriateness of calling witnesses known or expected to give unfavourable evidence and the eliciting or
refraining from eliciting particular testimony against the interest of or not to the advantage of the party calling the witness. There is much about the application of the section still to be resolved. Interestingly, as a matter of history, the
notion of unfavourability was considered by Willes J in Greenough v Eccles (1859) 5 CB NS 786 at 805; 141 ER 315 at 323 in the context of the then newly enacted s 22 of the Common Law Procedure Act 1854 (UK), the ancestor
of s 53. That decision became the seminal authority on similar statutory provisions throughout the common law world concerning the rights of a party who had called a witness that proved "adverse". Willes J rejected the concept of "adverse" under the section as merely amounting to "giving unfavourable evidence" and considered that "unfavourable" could be equated with giving "evidence opposed to the interests of the party who calls him". Such a test
would not extend to failing to give evidence which might have been expected and which would have assisted the calling party's case and is narrower than those applied in some of the decisions to which I have referred.

Part of the settlement of the scope of s 38 as referred to in R v Kneebone is found in R v Le (CCA).

23 In relation to s 38(6)(a), notice was given by the Prosecutor at the earliest opportunity contrary to the Defendants’ counsels’ submissions in my view. I do not consider the matters referred to in the oral evidence of Mr Lindsay were matters which the Prosecutor could be aware of until Mr Lindsay gave his oral evidence. A prompt application under s 38(1) was then made by the Prosecutor. There is no basis for arguing that the application under s 38(1) should have been raised at the outset of the trial. I do not consider the Prosecutor has sought to gain tactical advantage by calling Mr Lindsay knowing him to be adverse to the Prosecutor’s case and then seeking to cross-examine him.

24 In relation to s 38(6)(b), the Defendants’ counsel has argued that these are matters which either or both Defendants will question Mr Lindsay about and that any or all relevant information will emerge. Given the significance of Mr Lindsay’s evidence to the Prosecutor I do not accept that submission.

25 In considering whether to exercise discretion to make an order under s 38(1) I must also consider matters referred to in s 192(2) and s 135 and 137. These sections state:

192 Leave, permission or direction may be given on terms

(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.

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

26 In relation to s 135 and s 137, I do not consider that the evidence is unfairly prejudicial to the Defendants given that it may have high probative value in the Prosecutor’s case. It is clearly highly relevant evidence, contrary to the Defendants’ submissions.

27 In relation to s 192(2), I consider that

(a) While the application regarding whether a s 38 order should be made has been lengthy, there is no likelihood that the evidence will unduly lengthen the hearing as the scope of matters to be the subject of cross-examination is confined.

(b) There is no unfairness to Mr Lindsay as he has a certificate under s 128 of the Evidence Act from the Court and is being asked about statements he made previously in any event. Nor do I consider there is unfairness to the Defendants given that the evidence which is in issue is contained in documents which were provided to them before the hearing commenced. They will also be able to cross-examine Mr Lindsay in due course.

(c) The evidence is clearly important in the context of the Prosecutor’s case.

(d) These are criminal proceedings and an order under s 38(1) should not be lightly made. The prior inconsistent statements are more than technical and for the reasons identified already are important in my view.

(e) Does not arise.

28 I consider that I should grant the application made by the Prosecutor under s 38(1) for leave to cross-examine Mr Lindsay and that applies to both Defendants. While the Prosecutor has sought leave to cross-examine generally in relation to two specified topics, I consider I should limit that leave at this stage to cross-examination in relation to the two subjects identified by the Prosecutor in the context of the prior inconsistent statements. I anticipate that questioning could nevertheless be on a broad basis as stated at by Heydon JA [67] in R v Le (CCA). I note that no application is being made under s 38(3) to cross-examine as to credit.