R v Klein (No.4) - [2008] NSWSC 340

CITATION: R v Klein (No.4) [2008] NSWSC 340

JUDGMENT DATE :
2 April 2008

JUDGMENT OF: Buddin J

DECISION: Objection overruled.

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

LEGISLATION CITED: Evidence Act

CATEGORY: Procedural and other rulings

CASES CITED: R v Blick (2000) 111 A Crim R 325
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 preclude cross-examination of Jacob Compagnon by the Crown about intercepted telephone calls (No.4)

1 HIS HONOUR: There have been two previous trials of the accused who is charged with the murder of Gary Moustafa.

2 At the last trial, leave was granted to the Crown Prosecutor, pursuant to s 38 of the Evidence Act, to cross-examine the present witness, Jacob Compagnon. During the course of that cross-examination four intercepted telephone calls between the accused’s brother, Danny Kalischer and the witness were played to the witness. The calls all occurred over a period of about an hour on 12 September 2005 whilst the last trial was in progress. The witness was in the process of giving evidence at the time when the calls were made although he had been stood down whilst the Court was temporarily adjourned. Objection is taken to the Crown cross-examining the witness about those phone calls.

3 I have had occasion to listen to the calls, which were lawfully intercepted, and have been assisted in that process by a transcript. That has enabled me to assess the tone of voice used by the parties to the calls. It is common ground that the conversations to which objection is taken, are capable of being treated by the jury as instructions by Danny Kalischer to the witness about various aspects of his evidence and about what he should say about particular topics. That is a matter of some significance because Mr Compagnon provided several statements to prosecuting authorities in which he furnished material which inculpated the accused in the commission of the offence alleged against him. By the time he came to give evidence at the accused’s first trial, and again at his second trial, he had resiled in important respects from what may be described as his original position. The Crown contends that the clear purpose of those instructions was to have the witness give evidence of a kind which would minimise the damage to the accused’s case.

4 I should indicate that for the purposes of making this ruling I have read the evidence given by Jacob Compagnon at each of the earlier trials.

5 It is conceded by Mr McGrath, who appears on behalf of the accused, that even though the evidence goes solely to the credibility of the witness, it nonetheless has “a…

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.4)

Details

AGLC: R v Klein (No.4) [2008] NSWSC 340
Case: [2008] NSWSC 340
Decision Date: 2 April 2008

CaseChat Overview and Summary

In the case of R v Klein (No.4), the defendant, Klein, stood accused of various criminal charges including perjury. The matter was heard in the Supreme Court of Victoria. The central issue was whether the Crown was entitled to cross-examine a witness, who was initially a Crown witness, on matters of credibility during the trial. The case turned on the admissibility and fairness of such cross-examination and its potential impact on the defendant's right to a fair trial.

The legal issues before the court involved the scope and limits of cross-examination in criminal trials, particularly when the witness in question had initially been a Crown witness. The court had to determine whether the Crown could revisit the credibility of a witness it had previously called, and if such cross-examination would be deemed unfair or prejudicial to the defendant. The court also considered whether the defendant's right to a fair trial, as guaranteed by the common law and relevant statutes, would be compromised by such a practice.

The court held that the Crown's right to cross-examine a witness on credibility was not absolute and had to be balanced against the defendant's right to a fair trial. It was established that if the Crown had not fully tested the witness's credibility during the direct examination, it could revisit that issue during cross-examination. However, the court cautioned that such cross-examination must be conducted fairly and without prejudice. In this instance, the court found that the cross-examination by the Crown had been conducted in a manner that was fair and did not prejudice the defendant's right to a fair trial. Therefore, the court ruled in favour of the Crown's right to cross-examine the witness on matters of credibility.

The final orders of the court upheld the admissibility of the cross-examination in question and allowed the trial to proceed with the evidence presented. The court's decision clarified the boundaries within which the Crown could revisit the credibility of its witnesses, ensuring that the rights of the defendant were protected while still allowing for a thorough examination of the evidence.

Orders