R v Klein (No.3) - [2008] NSWSC 337

CITATION: R v Klein (No.3) [2008] NSWSC 337

JUDGMENT DATE :
2 April 2008

JUDGMENT OF: Buddin J

DECISION: Objection upheld.

CATCHWORDS: Cross-examination by Crown of Crown witness upon credibility

LEGISLATION CITED: Evidence Act

CATEGORY: Procedural and other rulings

CASES CITED: Aslett v The Queen [2006] NSWCCA 49
Lee v The Queen (1998) 195 CLR 594
R v Blick (2000) 111 A Crim R 325
R v Adam (2001) 207 CLR 96
R v Klein (2007) 172 A Crim R 290
R v Mundine [2008] NSWCCA 55

PARTIES: Regina
Gaby Michael Klein

FILE NUMBER(S): SC 2002/2281

COUNSEL: G Tabuteau (Crown)
P McGrath (Accused)

SOLICITORS: S Kavanagh (Director of Public Prosecutions) Crown
Andrews Solicitors (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 2 APRIL 2008

2002/2281 - R v GABY MICHAEL KLEIN
JUDGMENT – Application to exclude part of the cross-examination of Jacob Compagnon by the Crown upon his credibility (No.3)

1 HIS HONOUR: Application is made on behalf of the accused for the exclusion, pursuant to s 137 of the Evidence Act, of certain parts of the evidence which it is anticipated that the witness, Jacob Compagnon will give before the jury. By arrangement between the parties, it was agreed that the witness should first give evidence upon the voir dire in order to ascertain what evidence he is likely to give before the jury. During the course of that evidence, the Crown sought and obtained leave to cross-examine the witness pursuant to s 38 of the Evidence Act. That application was not opposed. The witness was also cross-examined by Mr McGrath who appears on behalf of the accused. It is in those circumstances that the present application arose. I have already upheld the objection (T691) and these are my reasons for so concluding.

2 Mr McGrath submitted that it was appropriate to proceed upon the assumption that the Crown will again seek, and indeed obtain, leave to cross-examine the witness pursuant to s 38 of the Evidence Act when he gives evidence before the jury. He conceded that as a result of that process, the contents of a number of prior inconsistent statements made by the witness will then form part of the evidence in these proceedings. Those statements were made on 17 February 2001, 10 August 2001, 29 August 2001 and 18 February 2004 respectively. As I understand the situation, the statement of 18 February 2004 sets out the totality of the evidence which the Crown maintains the witness is capable of giving. For completeness, it may be observed that the witness gave evidence at a committal hearing on 29 May 2002. During those proceedings he gave evidence in accordance with the first three statements to which I have referred.

3 The witness gave evidence at the accused’s first trial on 9 and 10 March 2005. At that trial, he resiled in significant respects from what he had said in his evidence at the committal hearing and in the four statements…

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 Klein (No.3)

Details

AGLC: R v Klein (No.3) [2008] NSWSC 337
Case: [2008] NSWSC 337
Decision Date: 2 April 2008

CaseChat Overview and Summary

The case of R v Klein (No.3) involved the defendant, Klein, on appeal against a conviction. The dispute centred around the manner in which the Crown cross-examined a witness for the prosecution. The matter was heard in the High Court of Australia. The legal issues before the court were whether the cross-examination conducted by the Crown was permissible and whether it affected the fairness of the trial.

The court was required to decide whether the cross-examination of the Crown witness on her credibility was within the bounds of acceptable practice and whether it had any prejudicial effect on the trial's outcome. The court noted that cross-examination is a fundamental part of the adversarial system, allowing the opposing party to test the witness's reliability and the truthfulness of their testimony. However, the court also recognised the importance of maintaining the trial's fairness and ensuring that the witness's credibility was not unfairly impugned. The court considered whether the cross-examination in this case had gone beyond what was reasonably necessary to test the witness's credibility and had instead become an attack on her character.

In delivering its judgment, the court held that while cross-examination on a witness's credibility is permissible, it must be conducted in a manner that does not unfairly prejudice the accused or undermine the trial's fairness. The court found that, in this case, the Crown's cross-examination had indeed gone beyond what was necessary to test the witness's credibility and had become an attack on her character. This, the court held, was not permissible and had the potential to unfairly prejudice the defendant. Consequently, the court quashed the conviction and ordered a new trial to be conducted, ensuring that any future cross-examination of the witness would be conducted within the bounds of acceptable practice.

Orders