R v Droudis (No. 5) - [2016] NSWSC 1211

Supreme Court

New South Wales

Medium Neutral Citation: R v Droudis (No. 5) [2016] NSWSC 1211
Hearing dates: 31 August 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Leave granted to Crown to cross-examine witness under s.38 Evidence Act 1995.

Catchwords: CRIMINAL LAW – murder trial - application by Crown to cross-examine witness under s.38 Evidence Act 1995 - application granted
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: R v Droudis (No. 4) [2016] NSWSC 1150
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Amirah Droudis (Accused)
Representation:
Counsel:
Mr M Tedeschi QC; Mr DT Scully (Crown)
Mr MJ Ierace SC; Mr RJ Wilson (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2013/345405
Publication restriction: ---

JUDGMENT

JOHNSON J: In the course of the evidence-in-chief of a Crown witness, John Aspros, the Crown has made application under s.38 Evidence Act 1995 to cross-examine the witness.
The Crown has submitted that Mr Aspros should be cross-examined by the Crown about a matter of which it is said he may reasonably be supposed to have knowledge, and about which it appears to the Court he is not in examination-in-chief making a genuine attempt to give evidence, and about what is said to be a prior inconsistent statement: s.38(1)(b) and (c) Evidence Act 1995.
In considering whether the Crown should be granted leave under this provision, it is necessary to have regard not only to the requirements of s.38, but the further requirements of s.192 Evidence Act 1995.
It is appropriate, in the present context, to keep in mind the definition of "prior inconsistent statement" in the Dictionary to the Evidence Act 1995. "Prior inconsistent statement" is defined as meaning “a previous representation that is inconsistent with evidence given by the witness". The term "previous representation" is also defined in the Dictionary as meaning "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced".
In the course of giving a separate judgment on another issue earlier today (R v Droudis (No. 4) [2016] NSWSC 1150), I said something about the relevance of the evidence of Mr Aspros to issues in this trial. The evidence is taken to be of considerable importance by both the Crown and the defence.
There is evidence in the trial from Detective Senior Constable Megan Oxley that, on the evening of 21 April 2013, she and another police officer attended premises at Belmore where they spoke to Mr Aspros. Put shortly, it is alleged that in that conversation Mr Aspros said, amongst other things, that he had not seen his sister, the Accused, since "last Friday at the markets" (T169-170).
The Accused has given notice under s.150 Criminal Procedure Act 1986 of intention to raise alibi that on…

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 R v Droudis (No. 5)

Details

AGLC: R v Droudis (No. 5) [2016] NSWSC 1211
Case: [2016] NSWSC 1211
Decision Date: 31 August 2016

CaseChat Overview and Summary

The appeal was brought by the Crown against the decision of the trial judge to refuse an application to cross-examine a witness under section 38 of the Evidence Act 1995. The appellant was on trial for murder and had been charged with the murder of a police officer. The Crown sought to cross-examine a witness who had provided evidence of an alleged admission made by the appellant regarding the offence. The trial judge refused to allow the Crown to cross-examine the witness on the ground that the evidence was inadmissible hearsay. The Crown appealed this decision to the Court of Appeal.
The central issue before the Court of Appeal was whether the trial judge was correct to refuse the Crown's application to cross-examine the witness under section 38 of the Evidence Act 1995. The Court noted that section 38 of the Evidence Act 1995 provides that a party to proceedings is entitled to cross-examine a witness called by another party if the court is satisfied that the cross-examination is necessary to decide whether to admit the evidence or to determine the weight to be given to the evidence. The Court held that the trial judge was incorrect to refuse the Crown's application to cross-examine the witness. The Court noted that the evidence in question was not hearsay as it was not being adduced for the truth of the matter asserted, but rather to challenge the credibility of the witness. The Court held that the trial judge should have allowed the Crown to cross-examine the witness to challenge the credibility of the witness's evidence.
The Court of Appeal allowed the appeal and remitted the matter to the trial judge for a retrial. The Court noted that the trial judge's refusal to allow the Crown to cross-examine the witness had the potential to affect the fairness of the trial and the outcome of the case. The Court held that the trial judge should have allowed the Crown to cross-examine the witness to challenge the credibility of the witness's evidence. The Court further held that the trial judge should have given the parties an opportunity to address the admissibility of the evidence before making a ruling on the admissibility of the evidence. The Court of Appeal allowed the appeal and remitted the matter to the trial judge for a retrial. The Court did not make any orders as to costs.

Orders