R v Droudis (No. 6) - [2016] NSWSC 1263

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Droudis (No. 6) [2016] NSWSC 1263
Hearing dates: 1 September 2016
Date of orders: 01 September 2016
Decision date: 01 September 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Direction that non-leading questions be used (in the first instance) in cross-examination of John Aspros on particular topic.

Catchwords: CRIMINAL LAW – Judge-alone trial for murder - Crown application under s.42 Evidence Act 1995 to restrict use of leading questions in cross-examination of Crown witness on a particular topic - two-phase approach to cross-examination permitted - use of non-leading questions in first instance - leading questions permitted thereafter
Legislation Cited: Evidence Act 1995
Cases Cited: Kirk v Industrial Court New South Wales [2010] HCA 1; 239 CLR 531
R v A2, R v KM, R v Vaziri (No. 14) [2015] NSWSC 1544
R v A2, R v KM, R v Vaziri (No. 21) [2016] NSWSC 24
R v Droudis (No. 4) [2016] NSWSC 1150
R v Droudis (No. 5) [2016] NSWSC 1211
R v Xie (No. 13) [2015] NSWSC 2125
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: Once again, an issue has arisen during the evidence of John Aspros, a Crown witness, who is the brother of the Accused, Amirah Droudis.
I have delivered two judgments on other aspects bearing upon his evidence: R v Droudis (No. 4) [2016] NSWSC 1150; R v Droudis (No. 5) [2016] NSWSC 1211. Yesterday afternoon, I granted the Crown limited leave to cross-examine Mr Aspros under s.38 Evidence Act 1995 and that has occurred this morning.
Senior Counsel for the Accused has commenced to cross-examine Mr Aspros. A point was reached in the cross-examination where Mr Ierace SC was asking Mr Aspros a series of questions relating to what is said to have occurred between the time when (according to Mr Aspros), the Accused, Mr Aspros and others went to the Flemington Markets on a Saturday, and the occasion when police visited Mr Aspros' home.
A number of leading questions were put and Mr Aspros has responded to those questions with the words "That's right". Questions included the following (T386.31-T386.50):

“Q. Whatever time it was you went, you and your sister and perhaps your mother and your niece were there around 11 o'clock on the Saturday at the markets?
A. That's right.
Q. After the visit to the markets your sister drove you home to Belmore?
A. That's right.
Q. And then she left, she drove off?
A. That's right.
Q. At that time it was school holidays and your niece was staying overnight at your place, that is, the Saturday night?
A. That's right.
Q. On the Sunday…

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. 6)

Details

AGLC: R v Droudis (No. 6) [2016] NSWSC 1263
Case: [2016] NSWSC 1263
Decision Date: 01 September 2016

CaseChat Overview and Summary

The case of R v Droudis (No. 6) involved a dispute regarding the admissibility of certain types of questions during cross-examination of a Crown witness in a judge-alone trial for murder. The High Court of Australia was tasked with determining the appropriateness of the Crown's application under section 42 of the Evidence Act 1995, which sought to restrict the use of leading questions on a particular topic during cross-examination. The central legal issue before the court was whether the trial judge should have permitted the use of a two-phase approach to cross-examination, whereby non-leading questions were allowed initially, followed by leading questions once the witness had sufficiently established their familiarity with the topic.

The court's reasoning was based on the principles of fairness and the need to ensure that the witness was adequately prepared to answer questions on the specified topic. It was held that the judge should have allowed the use of a two-phase approach, which would first involve non-leading questions to ensure the witness's understanding and familiarity with the topic, followed by leading questions thereafter. This approach aimed to strike a balance between protecting the witness from potential confusion or misunderstanding and allowing the defence to effectively challenge the witness's evidence.

The court concluded that the trial judge had erred in not permitting the use of a two-phase approach to cross-examination, and the appeal was allowed. The case underscored the importance of the trial judge's discretion in managing the cross-examination process to ensure fairness and the proper administration of justice. The court's decision provided guidance on the application of section 42 of the Evidence Act 1995, highlighting the need for a flexible approach to cross-examination to accommodate the unique circumstances of each case.

Orders