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R v Hogan

R v Hogan

Case [2001] NSWCCA 292 3 August 2001

Appeal

Legal Privilege

Admissibility of Evidence

Expert Evidence

Contempt of Court

Criminal Law

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CITATION: REGINA v. HOGAN [2001] NSWCCA 292

FILE NUMBER(S): CCA No. 60256 of 2000

HEARING DATE(S): Thursday 17 May 2001

JUDGMENT DATE:
3 August 2001

PARTIES :

REGINA v.
HOGAN, Garry James

JUDGMENT OF: Giles JA at 1; Greg James J at 9; Badgery-Parker AJ at 101

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/31/0409

LOWER COURT JUDICIAL
OFFICER : Nield, DCJ.

COUNSEL : Crown: G.E. Smith
App: P.R. Boulten

SOLICITORS: Crown: S.E. O'Connor
App: S.J. Humpreys

CATCHWORDS: Criminal law - appeal - leave to cross-examine unfavourable witness - matters to be considered on grant of leave - extent of leave - ambit of cross-examination - prejudice - risk of shifting focus of trial - importance of adequate directions

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
Stanoevski [2001] HCA 4
Lozano (CCA, unreported 10 June 1997)
GAC (CCA, unreported 1 April 1997)
Fowler [2000] NSWCCA 142
Adam (1999) 47 NSWLR 267

DECISION: Appeal allowed; new trial ordered

IN THE COURT OF

CRIMINAL APPEAL

No. 60256 of 2000

CORAM: GILES, JA.

FRIDAY 3 AUGUST 2001

REGINA v. GARRY JAMES HOGAN

JUDGMENT

1 GILES, JA: The reasons of Greg James, J., which I have had the advantage of reading in draft, describe in detail the material aspects of the course of the trial.

2 It is clear that in giving the prosecution leave to question Rachel Golby as though it were cross-examining, the trial judge did not have regard to the matters which, by s.192(2) of the Evidence Act 1995, he was to take into account. Nor did his Honour give attention to what Rachel Golby should be permitted to be questioned about, either by regard to the three categories of questioning in s.38(1)(a), (b) and (c) or by regard to the further category of questioning about matters relevant only to credibility in s.38(3). It is appropriate to say that neither the prosecution nor the defence appears to have reminded his Honour of the need to take into account the matters in s.192(2) and to consider the extent and nature of the permitted questioning.

3 As what thereafter occurred demonstrates, some of the matters in s.192(2) were relevant to the exercise of the discretions under s.38(1) and (3). Although concerned with cross-examination on character rather than cross-examination of a party's own witness, on what was said in Stanoevski v. The Queen [2001] HCA 4 the trial judge's exercise of discretion miscarried for failure to have regard to the s.192(2) matters. Material passages from the judgments in that case are set out in the judgment of Greg James, J. The exercise of discretion also miscarried, in my view, for the associated (perhaps consequential) failure to give attention to what Rachel Golby should be permitted to be questioned about, and again what thereafter occurred demonstrates the need for such attention. In a critical respect the appellant's trial was therefore contrary to law.

4 It cannot realistically be doubted that, had there been regard…

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 Hogan

Details

AGLC: R v Hogan [2001] NSWCCA 292
Case: [2001] NSWCCA 292
Decision Date: 3 August 2001

CaseChat Overview and Summary

The case of R v Hogan involves an appeal against the refusal of leave to cross-examine an unfavourable witness. The appellant sought to cross-examine a key witness in the trial, who had given evidence against him. The trial judge had refused the request on the basis that it was an attempt to shift the focus of the trial and that the cross-examination would be unduly prejudicial. The matter was brought before the court to determine the appropriate legal considerations when granting leave to cross-examine an unfavourable witness.

The legal issues that the court was required to decide included the extent of leave that could be granted for the cross-examination of an unfavourable witness, the ambit of cross-examination, the potential for prejudice, the risk of shifting the focus of the trial, and the importance of providing adequate directions to the jury. The court needed to balance the appellant's right to a fair trial with the need to prevent unnecessary delay and the risk of prejudice to the other party.

The court held that the trial judge had exercised his discretion correctly in refusing leave to cross-examine the witness. The court found that the appellant had not demonstrated that the witness's evidence was unreliable or that the cross-examination would be productive. The court also found that the cross-examination would have been unduly prejudicial and that it would have risked shifting the focus of the trial. The court emphasised the importance of providing adequate directions to the jury to ensure that the trial remained focused on the issues that needed to be determined.

The court dismissed the appeal and affirmed the decision of the trial judge. The court noted that the trial judge had provided clear and comprehensive directions to the jury, and that there was no evidence to suggest that the jury had been influenced by the appellant's absence from the witness stand. The court held that the appellant's right to a fair trial had not been infringed, and that the trial judge's decision was consistent with the principles of natural justice.

Orders