R v Le - [2002] NSWCCA 186

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Le [2002] NSWCCA 186

FILE NUMBER(S):
60257/01

HEARING DATE(S): 14/03/02

JUDGMENT DATE: 29/05/2002

PARTIES:
Regina v Ian Van Le

JUDGMENT OF: Heydon JA Dunford J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/31/0551

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:
W G Dawe QC (Crown)
P R Boulten (Appellant)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (Appellant)

CATCHWORDS:
Criminal law - prohibited drug - heroin - supply - Drug Misuse and Trafficking Act 1985 NSW ss 25(1), 29
Evidence - witnesses - unfavourable witnesses - leave to cross-examine - Evidence Act 1995 (NSW) ss 38, 60, 102, 103, 135, 137, 192 - considerations relevant to exercise of discretion to grant leave - whether grant of leave vitiated by error of law - appropriate time for granting leave - scope of leave
Practice - trials - questioning - Evidence Act 1995 (NSW) ss 38, 192 - granting of leave - manner - scope - effect on nature and outcome of trial

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)

DECISION:
Appeal against conviction dismissed; application for leave to appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60257/01
  DC 97/31/0551
HEYDON JA
  DUNFORD J
  BUDDIN J
29 May 2002

REGINA v IAN VAN LE

Criminal law – prohibited drug – heroin – supply – Drug Misuse and Trafficking Act 1985 NSW ss 25(1), 29

Evidence – witnesses – unfavourable witnesses – leave to cross-examine – Evidence Act 1995 (NSW) ss 38, 60, 102, 103, 135, 137, 192 – considerations relevant to exercise of discretion to grant leave – whether grant of leave vitiated by error of law – appropriate time for granting leave – scope of leave
Practice – trials – questioning – Evidence Act 1995 (NSW) ss 38, 192 – granting of leave – manner – scope – effect on nature and outcome of trial

Evidence Act 1995 (NSW) s 38 relevantly provided:

“38(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party; or …

(c) whether the witness has, at any time, made a prior inconsistent statement.”

Section 192 relevantly provided:

“192…
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
…

(b)          the extent to which to do so would be unfair to a party or to a witness; and
(c)          the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)          the nature of the proceeding; and
(e)          the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”

The appellant was charged with supply of a prohibited drug, heroin, contrary to the Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1) and 29. Evidence given by the appellant’s girlfriend in a recorded interview was inconsistent with evidence given by her at trial. The Crown applied for and was granted leave to cross-examine the witness pursuant to Evidence Act 1995 (NSW) s 38. No reference was made by counsel or the trial judge to the matters relevant to a grant of leave under Evidence Act 1995 (NSW) s 192. The appellant appealed against conviction and sought leave to appeal against sentence, relevantly arguing that: (1) the trial judge erred in his grant of leave pursuant to s 38; (2) the trial judge erred in permitting questions to be asked beyond the scope of the leave granted; and (3) the trial miscarried because the prejudicial value of the evidence thereby adduced outweighed its probative value.

Held, (Heydon JA, Dunford and Buddin JJ agreeing), dismissing the appeal,

Because the capacity of a party to question a witness under s 38 “as though the party were cross-examining” depended on the grant of leave, there was a mandatory duty on the trial judge to consider the matters relevant to a grant of leave set out in s 192(2). This the trial judge did not do. The grant of leave was vitiated by error of law: [37], [47].
R v Adam (NSWSC, Wood CJ at CL, unreported, 3 December 1998); Adam v R (2001) 183 ALR 625; R v Hogan [2001] NSWCCA 292; Stanoevski v R (2002) 202 CLR 115, considered.
Notwithstanding the trial judge’s error, had ss 135, 137 and 192 properly been considered, a grant of leave pursuant to s 38 could have been properly made in this case. None of the factors in s 192(2)(a)-(e) pointed against the grant of leave, and it had not been demonstrated that the evidence in question had prejudicial value which outweighed its probative value: [50]-[52], [90].
Questioning of unfavourable witnesses “about” the matters in s 38(1) was not confined narrowly to those matters. Leave to question “as though the party were cross-examining” would properly be granted where questioning was not narrowly confined to one of the matters in s 38(1), but also to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects. To establish a state of affairs a questioner would be entitled to ask questions going solely to credibility on s 38(1) subjects: [55], [67], [90].
Adam v R (2001) 183 ALR 625; R v Hogan [2001] NSWCCA 292, considered.

Discussion of appropriate practice for granting leave and effect of such practices on conduct, length, complexity, and outcome of trials: [69]-[73], [90].

R v Hogan [2001] NSWCCA 292, distinguished.
O R D E R S
1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is dismissed.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60257/01
DC 97/31/0551
HEYDON JA
DUNFORD J
BUDDIN J
29 May 2002

Regina v Ian Van Van LE

Judgment

HEYDON JA: On 7 March 2001, after a five day trial at Newcastle before Coolahan DCJ and a jury, the appellant was convicted on a charge of supplying a prohibited drug, namely heroin, on 18 July 1997 at Port Macquarie. On 9 April 2001 he was sentenced to imprisonment for three and a half years to commence on 7 March 2001. A non-parole period of two years was fixed. The appeal is against conviction and the appellant also seeks leave to appeal on sentence.
Background
The trial judge said the following in his remarks on sentence.
“The facts in relation to the matter as obviously accepted by the jury disclose that on 18 July 1997, pursuant to a search warrant, police attended at the offender’s townhouse in Port Macquarie. The search warrant was obtained in the course of a major drug operation in the Port Macquarie Area. At 6.45am on that date, they entered into the offender’s unit and broke into his bedroom where the offender was standing in the middle of the room. His then girlfriend, Amber O’Brien, was in bed. The warrant was explained to him and he was allowed to dress, his clothes being checked out by police prior to him putting them on. He was then taken downstairs where the occupier’s notice was read to him.
Shortly after that he was taken back up the stairs for the purpose of the police conducting a search. The offender was in front Detective Richards was behind him and behind Detective Richards was Detective Sainsbury who had been video recording events at the flat, and in particular the search. Both Detective Richards and Detective Sainsbury gave evidence, which was obviously accepted by the jury, that when he was several steps from the top of the stairs the offender ran up the stairs and into the toilet which was just near the top of the stairs. Police then heard the toilet flush. They ran after the offender and took hold of him in the vicinity of the toilet. There was no one else upstairs at the time. The police checked the toilet bowl but could only see water and froth apparently caused by a toilet cleaner of some sort.
Some time later other police again looked at the toilet and this time, amongst the froth, saw two plastic packets floating in the bowl. One plastic packet was wound into a ball and was covered in elastic bands. The parcel was subsequently weighed and analysed and found to be thirteen point six grams of powder containing heroin of a purity of seventy-nine per cent. The other item was a plastic bag containing two resealable plastic bags which again were weighed and analysed and found to contain white powder, one containing point five of a gram and the other point six-one of a gram, both containing heroin.
At no time did the police see the offender in possession of any drugs and at no time did they see him put them in the toilet.
The police case was that, in accordance with the current practice, the drugs were kept in the toilet so that they might easily be disposed of in the event that the place was raided.
Based on the actions of the offender in flushing the toilet he was arrested and conveyed to the police station where he participated in a record of interview. During the course of that record of interview he made full admissions as to his ownership of the drug. He was then charged with this offence.
At trial, evidence was given along the lines that I have described. In addition, the Crown called Ms Amber O’Brien. She said that the drugs in question were hers and not the offender’s despite the fact that in an earlier statement to the police she had said that they had belonged to the offender. Leave was granted to cross-examine her on the basis of the prior inconsistent statement.
The offender also gave evidence at trial. He denied running to the toilet and said that he was not sure whether he had flushed the toilet or not. He denied that the heroin was his and said that he had never seen it before.
As to the record of interview, he did not dispute that the interview was accurately recorded but said that he made the admissions contained therein because of threats made to him by police in the police vehicle on his way to the police station. He said, in effect, that he was told that if he did not admit that the heroin was his both he and his girlfriend, Amber O’Brien, would be charged and they would not be granted bail. It was on this basis, he said, that he had made the admissions.
There were three police officers in the car at the relevant time and each denied that this threat was ever made.
Clearly the jury rejected the offender’s evidence and regarded the admissions made by him in the record of interview as being true.
Further, there was discovered at the unit items which might be regarded as being indicia of actual supply. These included resealable plastic bags similar to the ones found in the toilet and a sensitive set of scales. Although explanations were given as to the use that was being made of these items I have no doubt that their use, at least in part, related to the supply of heroin.”
The quantity of the drug was 14.71 grams. The conviction was based not on actual supply of the drug but on its deemed supply by reason of the quantity allegedly in the appellant’s possession. At the time of the events in issue, Amber O’Brien was aged 17. The appellant was then aged 19. She was cohabitating with the appellant, though by the time of the trial she had ceased to do so and the appellant had married another woman.
The grounds of appeal relating to conviction
Ground 1 was as follows:
“His Honour erred by granting leave pursuant to Section 38 of the Evidence Act to the Crown Prosecutor to cross examine Amber O’Brien.”
Ground 2 was as follows:
“The trial miscarried because the danger of unfair prejudice to the Appellant flowing from the Crown Prosecutor’s cross-examination of Amber O’Brien outweighed the probative value of that evidence.”
Ground 3 was as follows:
“The trial miscarried because of the admission of evidence relating to the registration of a motor vehicle in Amber O’Brien’s name.”
The s 38 application
On the third day Amber O’Brien began to give evidence in chief after having been called by the Crown. After some minutes of evidence, the Crown made an application under s 38(1)(c) of the Evidence Act 1995. It was opposed. Section 38 provides:
“(1)       A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a)evidence given by the witness that is unfavourable to the party; or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2)         Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3)         The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
(4)         Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5)          If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6)         Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a)whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7)         A party is subject to the same liability to be cross-examined under this section as any other witness if:
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b)          the party is a witness in the proceeding.”
The terms of ss 135, 137 and 192 are also relevant.
“135.      The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)          be unfairly prejudicial to a party; or
(b)          be misleading or confusing; or
(c)          cause or result in undue waste of time.
137. In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
192. (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2)          Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b)the extent to which to do so would be unfair to a party or to a witness; and
(c)the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)          the nature of the proceeding; and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”
The arguments of Crown counsel on the s 38 application
Crown counsel commenced the application by saying:
“My application is in respect of section 38(1)(c) that the witness has made a prior statement inconsistent with her in-court testimony and I would be seeking to cross-examine her in relation to matters that are contained in her evidence. Her evidence your Honour on – the ERISP I should say indicates 17 July but it was indeed Friday 18 July [1997], the same day of the search, ERISP, and the interview commenced at 11.49 and if I could hand up a copy of that interview.
EXHIBIT #A ON APPLICATION TRANSCRIPT OF INTERVIEW TENDERED, ADMITTED WITHOUT OBJECTION
Your Honour commencing at question 47 the witness in the interview was asked ‘Who made the bongs?’ and the answer was ‘Ian’. I haven’t asked her directly that question but proceeding to question 64 and following through to question 136 refers to the questions in relation to the heroin. Question 64 ‘Heroin was found in the toilet bowl?’ it says ‘Yes’. The following question 65 in relation to the search she says, ‘Can you tell me about that?’ she said ‘I’m not sure, I was downstairs’. It goes on ‘Have you seen them before?’, ‘Yes in Ian’s possession, he used it in a bong, used two or three grams’. Question 78 ‘And who would supply you with two grams?’ answer ‘Ian’. Question 79 ‘Would you buy it from him or was it given to you?’ answer ‘Given’. ‘How often has he given you it?’, ‘Every day’ is the answer. Question 83 ‘How much?’, ‘Half a gram’. Question 84 ‘How was that administered each time?’, ‘Through a bong’. Question 84 ‘You said that you have it daily, how long ago did he first start supplying it to you daily?’ answer ‘Approximately two weeks ago’.
Question 88 ‘Have you used it every day since then?’ answer ‘Yes’. Question 94 ‘What do you believe the white powder to be?’ answer ‘Heroin’. ‘Who did you ask?’ meaning question 101, ‘Who did you ask in relation to the heroin?’ answer ‘Ian’. His evidence as to – question 107 using it by means of a snow cone. Question 117, in relation to the two packets seen prior the answer is ‘Yes’. Question 118 ‘Where?’ answer ‘In the bedroom’. Question 119 ‘Whereabouts?’, ‘Ian had them’, answer. Question 127 ‘Was Ian handling them?’ answer ‘Yes’. Question 126 ‘Whereabouts in the bedroom?’, ‘Ian had them on him’. Question 127 ‘When you say on him was it in his pocket?’ answer ‘Down his undies’. Question 128 ‘Down his underpants was it?’ answer ‘Yes’. Question 130 ‘Can you tell me why you believed he would have it down his underwear?’ answer ‘Cause that’s where he had it at that time’.
Your Honour at questions commencing at 320 she’s asked in relation to the plastic bags and she proffers a story about horse samples and the use of plastic bags for the horse supplements. In relation to the scales commencing at 410 she says that she used to make up horse samples with them and the plastic bags.”
Counsel’s point was that in the record of interview of 18 July 1997, the witness had said that the appellant had sold her heroin every day for two weeks and used heroin himself. She also said that he concealed heroin in his underwear. Yet in chief she said the appellant had not used heroin for six months, that she had never obtained heroin from him, that she had never seen him with heroin in his underwear, and that she could not recall telling the police that she had.
The transcript continued:
“Your Honour in addition to the ERISP conducted on 18 July 1997 she has made a statement dated 18 November 2000. Your Honour that was mfi 4 on a voir dire. I hand up that document.
HIS HONOUR: Thank you. You’ve got no objection to me seeing this Mr McColm?
McCOLM: No, no.
HIS HONOUR: On this application?
McCOLM: No.
EXHIBIT #B ON APPLICATION STATEMENT 18 NOVEMBER 2000 TENDERED, ADMITTED WITHOUT OBJECTION
HIS HONOUR: Yes?
COLES: Your Honour in addition to that statement on 20 November at Newcastle the witness was interviewed by Detective Richards in the presence of Detective Lysaght and Mr Olsen of the DPP. I hand up a transcript of the interview of some seven pages.
EXHIIBIT #C ON APPLICATION TRANSCRIPT OF INTERVIEW TENDERED, ADMITTED WITHOUT OBJECTION
HIS HONOUR: Yes?
COLES: Thank you your Honour. That’s the statements I intend to tender on the application. Does your Honour wish to hear from me now?
HIS HONOUR: Yes?
COLES: Your Honour the Crown submits that the witness has made a number of statements that demonstrate a clear inconsistency with the evidence contained in the electronically recorded interview on 18 July 1997 and that evidence is the statement she’s made on 18 November 2000 and the record of interview she had with Detective Richards on 20 November.
Your Honour it’s the Crown’s submission that the inconsistency is clear in accordance with section 38(1)(c) of the Evidence Act and that the Crown would then seek leave to cross-examine the witness in relation to those statements.
HIS HONOUR: In relation to those inconsistencies only?
COLES: Yes your Honour, in relation to the inconsistencies, which are considerable.
HIS HONOUR: Oh yes.
COLES: Your Honour perhaps if I extend that to, if I could make this observation. The witness gave evidence in relation to proceedings at the Port Macquarie District Court in May 1999 in relation to a voir dire. Your Honour I would be asking to question her, to cross-examine her, as to the fact that she sat a number of feet from the Judge, from Crown Prosecutors, from Court Officers, and at no stage did she indicate that the wrong person was in the dock, that she was the owner of the said drugs and that there was considerable waste of time and public money pursuing a matter that she was going to admit to.”
The arguments of defence counsel on the s 38 application

Counsel for the appellant was then called on, and submitted:
“Well the section requires your Honour has to give leave if—
HIS HONOUR: Yes—
McCOLM: -- if it’s to be done. My friend says that he’s set out the ground for 38(1)(c). Your Honour my view is, and I might stand corrected, is that 38(1)(c) doesn’t specify the grounds that your Honour is to consider as to whether your Honour would give leave. What 38(1) specifies what areas a person may be cross-examined about, if your Honour does in fact give leave. In fact the section is not – an Act doesn’t specify when a person is to be regarded as unfavourable. It specifies, 38(1) specifies what cross-examination may be about but doesn’t otherwise give your Honour assistance. 38(6) does raise matters that your Honour may take into account but obviously that is not exhaustive. Those matters of a party giving notice at the earliest opportunity and 38(1)(b) is another matter.
Your Honour clearly in this case she has given, in respect of some particular matters, different accounts about the heroin and it’s a matter whether your Honour sees that sufficient to give leave for the Crown to cross-examine about those matters. If your Honour was so minded to do that, and I won’t say anything further than that, your Honour my submission is that it would not extend to giving leave to cross-examine about the evidence, or her failure to indicate something at a previous trial.
Your Honour what this person has come forward has come forward with information which incriminates herself. Now clearly a person is under no obligation at all to come forward and incriminate themselves. There is no evidence that she was approached by any prosecution witness, police officer or officer of a prosecution office at the committal to ask about her evidence. She was called in respect of a particular matter at that trial before his Honour Judge Luland, and that being details as to her arrest and the accused’s arrest.
If your Honour is minded to grant leave I suggest that it’s not general leave for cross-examination it should be restricted to where she has made a prior inconsistent statement. That’s all I’d wish to say your Honour.”
These submissions could not be described as vigorously opposing any grant of leave about “different accounts”, ie to the police, but they did not consent to it. The submissions much more strongly opposed any leave beyond leave in relation to prior inconsistent statements to the police, such as leave in relation to proceedings before Luland DCJ.
The trial judge’s reasons for judgment on the s 38 application
The trial judge delivered judgment acceding to the application in the following terms:
“Section 38(1) provides that a party who calls a witness may, with leave of the court, question the witness as though the party were cross-examining the witness about certain matters. The two matters which would appear to be relevant here are sub-paragraph (a) evidence given by the witness that is unfavourable to the party or (c) about whether the witness has at any time made a prior inconsistent statement.
Dealing with the latter, there is no doubt that on 18 July 1997 during the course of an electronically recorded record of interview the witness Amber O’Brien, the subject of this application to cross-examine, made statements which are diametrically opposed to the evidence that she has given in the witness box thus far in chief today. Accordingly, I would give leave to the Crown to cross-examine her about whether she has, at any time, made a prior inconsistent statement.
As to sub-paragraph (a) it seems to me that the evidence given by the witness thus far, particularly when one takes into account the interview to which I have just referred, is certainly unfavourable to the Crown and I would give leave to the Crown to cross-examine her in respect of that evidence as well. The extent to which the cross-examination is allowed relates only to the evidence that she is giving and whether she has made a prior inconsistent statement. The Crown has already outlined the basis upon which he wishes to cross-examine the witness and I grant leave on that basis.
In granting leave I have taken into account sub-paragraph 6 which requires the court to take into account whether the party, namely the Crown, gave notice at the earliest opportunity and also the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. Leave to cross-examine is therefore granted.
McCOLM: Your Honour does that include leave to cross-examine about what was said on the voir dire, or not said on the voir dire, or at a trial at Port Macquarie in May ’99? That’s one thing I think my friend himself raised your Honour—
COLES: That’s so. I’d seek that leave your Honour.
HIS HONOUR: Yes. Yes I think that falls into category (a) which seems to be a much more general provision for facility to cross-examine than paragraph (c).
LUNCHEON ADJOURNMENT
HIS HONOUR: Just in relation to that application, which I have granted. I should also say that so far as the proposed cross-examination of the witness is concerned, as to all matters raised by the learned Crown Advocate, I grant leave under subs 3 of s 38 of the Evidence Act to cross-examine as to credibility only, should that be the only issue raised.”
The appellant’s position in outline
In essence the appellant’s arguments were that the trial judge erred in granting leave under s 38 on a basis as wide as he did; that leave under s 38 must be granted in specific and narrow terms so as to avoid the risk of unfair prejudice to the accused; and that the actual questioning that followed the grant of leave extended beyond the grant of leave and was itself prejudicial, particularly because it concluded by suggesting that Amber O’Brien had changed her story at the instigation of the appellant and in return for the gift of a car.
The s 38 question complained of
The s 38 examination commenced with a series of five leading questions about what happened when the police arrived. The witness was then asked:
“Q. You didn’t tell the police at that point that it was your heroin did you?
A. No.
Q. Okay. The accused was subsequently taken away and in handcuffs by two police?
A. Yes.
Q. Did you tell any of the police that remained that the heroin belonged to you?
A. No.
Q. When you were taken to the police station you had, on your version at least, some considerable time before you were interviewed, that’s right isn’t it, you were waiting in the foyer?
A. It was probably about 15 minutes, 20 minutes.
Q. You were waiting in the foyer for your mother to arrive, that’s right?
A. Yep.
Q. You had a chance to dwell on the circumstances of the morning’s evidence at that stage didn’t you?
A. Yes.
Q. Did you speak to any police officer at the front desk and tell them ‘There’s been a terrible mistake, it’s all mine’?
A. I didn’t speak to anyone down there, no . …
Q. Now you had to wait for some hours before you yourself were interviewed that’s right isn’t it?
A. Yes.
Q. And again you had some time to dwell on what was going on and the events that transpired that morning that had brought you into the custody of the police?
A. Yes.
Q. And you understood at that stage that you had been arrested?
A. No I wasn’t sure if I had been or not, not.
Q. You certainly knew that you were going to be spoken to by the police?
A. Yes.”
The appellant submitted that these questions went solely to credibility, did not relate to any prior inconsistent statement, and extended beyond the terms of the leave granted.
The next passage complained of by the appellant followed some questions about the police interview which were not criticised. It is:
Q. In May 1999 you gave evidence at Port Macquarie Court in relation to these matters didn’t you?
A. Yes I believe I did, yes.
Q. Did you tell the accused’s solicitor or his barrister that this heroin was yours?
A. I didn’t tell him it was mine but I told him that it wasn’t Ian’s, I didn’t tell him the whole, complete story.
Q. You told the whole, complete story. Who did you tell that to?
A. I didn’t tell the whole complete story ---
Q. You didn’t. Would you please speak up a little bit?
A. Yes, sorry.
Q. In that course of that proceedings you sat about the same distance as yourself to the Judge today?
A. Yes.
Q. You didn’t tell the Judge?
A. No.
Q. Right. After you gave your evidence in those proceedings did you stay around the court to give evidence?
A. Yes I did.
Q. How long did you stay?
A. I’m not sure, the trial was called off after that lunchtime period.
Q. It was your plan to give this evidence in the court?
A. Yes.
Q. Why didn’t you tell anybody via that?
A. I did, I told his solicitor and his barrister, just not the whole story that it was mine, I just told him that it wasn’t his.”
The appellant submitted that the questions concerning what the witness told the appellant’s legal representatives at Port Macquarie were well outside the scope of the grant of leave. Though the questions about her testimony at Port Macquarie were within the scope of the grant of leave, they created unfairness and prejudice because the cross-examination insinuated that her evidence on that occasion was inconsistent with her testimony, yet that could not be decided because the terms of her testimony at the Port Macquarie hearing were not set out.
The next passage complained about was:
“Q. Now you say in your statement, and you made a statement on the 18 November 2000, that’s right?
A. Yes.
Q. You said that on the morning the police came that you couldn’t remember what you’d done with the heroin?
A. At first I couldn’t, no.
Q. Right. And you said that Ian was handcuffed to a stair, to the stair, do you remember that?
A. That was later on in the morning yes.
Q. Okay. Did you see a video at any stage during the course of the search?
A. Yes they were making a video, yes.
Q. And the video was recording the proceedings of the search?
A. Yes.
Q. Throughout the morning?
A. Yes …
Q. Did you say that you were brought into the toilet?
A. Yes I was.
Q. You were brought in when some items were recovered from the toilet bowl?
A. Yes, that’s what they told me, yes.
Q. And you say that the only thing you saw was the police officer opening a bag in the sink?
A. Correct.
Q. You said that ‘That’s only rice’?
A. Right.
Q. Who did you say that to?
A. The police officer that was opening the bag of rice, there was a balloon I believe.
Q. A balloon?
A. Yeah.
Q. And do you know who that police officer was?
A. No I don’t recall, no.
Q. Well was it Detective Richards the officer in charge of this matter?
A. I can’t recall, I believe it was a plain clothes – sorry a uniformed police officer. I can’t be sure no.
Q. The items recovered from the toilet bowl, that was the heroin that you had placed there is that right?
A. Yes.
Q. You placed them in the toilet bowl?
A. Yes.
Q. When did you put the rice in the toilet bowl?
A. I didn’t put the rice in the toilet bowl.
Q. You told us that you saw a police officer opening a balloon that contained some rice?
A. Correct.
Q. Was it your understanding that that item came from the toilet bowl?
A. I wasn’t sure at that point, no.
Q. Had you put the rice in the balloon?
A. No, no.
Q. How did you know it was rice?
A. Because he was opening it in front of me.
Q. How far away were you?
A. Half a metre.
Q. And you were in the toilet area?
A. Yes.
Q. When that was taking place?
A. Yes.
Q. Did you see a video camera operating at that point?
A. I believe it was, I’m not sure if it was right there.
Q. When you say it was right there you mean it was video taping proceedings of you being shown this rice contained in the balloon being shown to you, is that what you say?
A. Probably, yes. The video tape was going the whole time the search was conducted I believe.
Q. You see that’s a lie isn’t it?
A. No that’s not a lie.
Q. You say they pulled you back out of the toilet and you were sent back downstairs is that right?
A. Yes.
Q. That whole story is a lie isn’t it?
A. No that’s not a lie it’s complete truth.”
The appellant submitted that the questioning about her evidence about handcuffing and its consistency with a police video was:
“cross-examination about a fact in issue at the trial. It went solely to credit. It was outside the scope of the grant of leave. It unfairly prejudiced the appellant.”
The same submission was made in relation to what she saw the police do in connection with the toilet bowl. It was submitted that to question about whether the “whole story” about what happened during the search was a lie was “a very important breach of the grant of leave. It was a substantial attack on her credit generally about a fact in issue at the trial and was totally irrelevant to whether or not she had made a prior inconsistent statement.”
The next passage of which the appellant complained is:
“Q. You said in your statement that you were on the morning of the search that you were feeling a bit groggy?
A. Yes.
Q. And yet in your statement you said ‘About 20 minutes after they took Ian to the police station and about 5 minutes after that a police officer asked me to go down because Ian wished to speak to me’?
A. Right.
Q. You were able to give pretty clear details as to what happened 20 minutes after Ian left three and a half years ago?
A. That was like two hours after, I was groggy when I first woke up.
Q. So you weren’t so groggy two hours later?
A. No not as much sir, no. I had glandular fever for two weeks prior to this and a week after, I was extremely sick.
Q. The details you give there are pretty certain aren’t they, you say 20 minutes after Ian left, 20 minutes not 15 minutes or approximately half an hour, it was 20 minutes?
A. I probably would’ve said approximately, I can’t be sure how much it was – it was three hours ago – I’m sorry three years ago.
Q. Now you say it’s half an hour, right it was, it was three years and four months later you made that statement, that’s right isn’t it?
A. Right yeah.
Q. And you said that the two policemen drove you to the station, when you got there they asked you to wait for about five or ten minutes and then they put you in the dock. That never happened did it?
A. Yes it did happen.
Q. They didn’t put you in the dock did they?
A. I believe it was, yes at that time, yes.
Q. And you say that they kept you in an interview room or a room for some hours, that’s right?
A. Yes.
Q. That didn’t happen either did it?
A. Yes it did happen, all of this happened.”
The appellant then criticised the following:
“Q. All of this statement you’ve made is designed to cover up for Ian, for the accused isn’t it?
A. It’s not cover up it’s to tell the truth, I’ve been guilty about this for three bloody years.
Q. You’re feeling guilty about this. When you – on the morning of the search you were feeling guilty then?
A. Yes.
Q. And when you gave evidence at the – in May 1999 at Port Macquarie you were feeling guilty then?
A. Yeah.”
The allegation that the witness was covering up for the appellant was said to demonstrate unfair prejudice.
The appellant then complained of questioning about whether the version given by the witness to the police on 20 November 2000 was correct:
“Q. And when you told the police in your original interview that those plastic bags were for horse samples, that was a lie wasn’t it?
A. Not it wasn’t a lie, that’s what they were used for as well.
Q. The plastic bags were used for horse supplements you say?
A. Yes.
Q. And you needed a digital electronic scales to measure those supplements is that right?
A. Yes.
Q. And those supplements include vitamins and minerals that went into horse feed?
A. Yes.
Q. And that’s because you knew that those supplements were required for horses?
A. Yes.
Q. And isn’t it the case that supplements for horses are measured in scoops not grams?
A. No not in this – sorry, company, we measured it by grams, we used a whole range of vitamins from this one company which we measured in – on the scales.
Q. It’s just rubbish isn’t it?
A.. No that’s not rubbish. My mother and father will be here tomorrow to testify this, it’s all true, every bit of it and they know that, all my family, all my friends know it.”
The appellant complained that this was outside the scope of the grant of leave, related to the facts of the trial, and was aggressive and confrontational. Ensuing questioning of a similar kind was also complained of.
The appellant then directed attention to certain evidence which, with preparatory questions, was as follows:
“Q. You waited three years, over three and a half years before telling this story?
A. Yes. I was going to tell it at the first trial ---
Q. It’s really your intention to ---
OBJECTION
Q. Sorry I don’t wish to talk over you, what did you say?
A. I was going to say this at the first trial but it got called off.
Q. Of course that was some two years after the accused had been charged wasn’t it?
A. Yes, about that time yes.
Q. What you’re really trying to do is – were you trying to ambush the Court?
A. No.
Q. You were just going to blurt this out in your evidence and that was going to end the trial?
A. I was just going to tell the truth.”
The appellant complained that this was unfairly prejudicial because the questioner was contending that the witness had been attempting to pervert the course of justice in order to protect the appellant and had made another attempt to do so at Port Macquarie.
The next passage complained of was:
“Q. How long have you been letting the accused drive your car?
A. It’s not my car, it’s his dad’s car.
Q. He’s been using the car here in Newcastle?
A. Yes.
Q. You’ve been using the car here in Newcastle?
A. I drove it the first day yes.
Q. Who owns the car in the video – I’m sorry I withdraw that. The car that was parked at your residence on 18 July, who owned that one?
A. I believe that was Ian’s brother’s car.
Q. Are you still in a relationship with the accused?
A. No.
Q. Has he asked you to come and give this evidence today?
A. No you did.”
This questioning was said to be outside the scope of the grant of leave and to go solely to credibility. It was also said that there was no basis to suggest that the car had been transferred into the name of the witness for the purpose of inducing her to give false testimony on behalf of the appellant.
The appellant then complained about questions directed to the relationship between the witness and the appellant, and in particular whether he had ever stayed with the witness or the witness with him. These were said to go beyond the grant of leave.
The s 38 examination concluded:
“Q. And you’ve made up this story to cover for him, haven’t you?
A. No that’s not true.
Q. And you’ve come to this Court to tell lies for him, that’s right isn’t it?
A. No that is not true.”
The appellant also complained about the following questions asked in re-examination by the Crown prosecutor:
“Q. You said the car wasn’t yours, that’s right?
A. Yes, it’s in my name but it’s Ian’s father’s car.
Q. Oh, right, it’s in your name?
A. Yes.
Q. But it’s not yours.
A. No.
Q. And it was transferred to your name on 10 January 2001?
A. Yes.
Q. You just forgot to tell us that did you?
A. You didn’t ask me.
Q. Another one of those instances where unless you’re asked you’re not going to tell us?
OBJECTION.”
The essence of this complaint was that it was wrong to criticise the witness for not volunteering earlier that the car had been transferred on 10 January 2001.
The appellant submitted that the trial judge should have controlled “this uninhibited excess” by the use of s 38(6), s 135, s 137 and s 192(2). He submitted that by the end of the re-examination the trial had miscarried and no redirection could have cured the mischief. In any event the trial judge did not tell the jury that despite the Crown prosecutor’s questioning of the witness to suggest that she was covering up for the appellant, there was no evidence to suggest that she was lying to protect him at his instigation.
The appellant’s arguments to this Court
The supposed analogy with R v Hogan

The appellant placed considerable reliance on R v Hogan [2001] NSWCCA 292 as being a very similar case in which a conviction was overturned by reason of a misapplication of s 38.
The accused was found guilty of maliciously inflicting grievous bodily harm on Matthew Gray in the backyard of his girlfriend, Rachel Golby, late one afternoon. He gave evidence that that morning he and Rachel Golby had been lying alongside each other in her bedroom when the accused entered and had a hostile conversation with them. Rachel Golby later told her mother in Gray’s presence what had happened. Gray then left, and returned for dinner. After dinner he watched television in Rachel Golby’s bedroom and then went into the backyard. He was then detained by the accused; he was asked to go to the accused’s car; he refused and called for Rachel; the accused then struck him and hit him three or four times with a post.
At the trial Rachel Golby in chief gave a version of the morning conversation in the bedroom materially different from Gray’s, namely that the accused said to Gray only “How are you going, mate.” Her evidence in chief about the conversation between herself, her mother and the complainant was also different. She said that after dinner she fell asleep until she heard a loud scream from outside. She accompanied Gray to hospital, and said that there, and on a later occasion, he indicated a desire to make a false allegation that the accused had bashed him.
The Crown prosecutor then applied for and obtained leave to examine under s 38 along the lines of prior inconsistent statements made in a witness statement dated 23 June 1998. Rachel Golby admitted making those statements to the police, which corroborated Gray’s version, but denied their truth. The examination under s 38 was described thus by Greg James J:
“The cross-examination was general in nature. It included cross-examination about what the witness had had to drink, whether or not she had taken heroin, whether she was on drugs and what drugs, including heroin, speed and ‘pills’ such as Serapax and Valium and marijuana she had taken. It developed into a wholesale attack on credit as well as dealing with those matters in relation to issues that were at least peripherally relevant at the trial or might have been relevant to the witness’ opportunities and capacity to observe what had occurred. She was specifically cross-examined on a number of occasions by the proposition being put to her that she was lying to protect the accused. The questioning asserted the content of prior inconsistent statements whether relevant to issues or on credit. Much of the cross-examination was prejudicial to the appellant.
There was cross-examination which ranged so widely as to question her about whether the complainant and Rebecca Jones had been sleeping together which had caused a rift in her friendship with Rebecca Jones. There were questions put as to whether she had caught the two sleeping together and as to the nature of the house in which this had occurred. This was entirely collateral and far from the issue.”
There was also a successful s 38 application in relation to Rachel Golby’s mother. Its content was described thus:
“The cross-examination of Kathleen Golby raised matters as to the credit of Rachel Golby, hearsay as to the events in the backyard and assertions of her having denigrated the character and disposition of the appellant. Some of it was highly prejudicial to the appellant and of limited relevance.”
Greg James J then described evidence from other witnesses thus:
“The evidence that was led from Rebecca Jones, Kerry Francis and Mrs Robertson of prior inconsistent accounts included matters that, at best, might have been relevant only as to credit on collateral or peripheral questions. There appears to have been no separate consideration of whether that evidence or any of it should have been permitted to be led. Much, it seems to me, should have been excluded.”
The appellant in the present appeal relied on the following remarks of Greg James J:
“The important matter is not whether such cross-examination might have elicited, amongst other evidence, evidence which might properly have been used in the trial. The issue, rather, concerns whether or not the questions as to such matters as were explored should have been permitted to be asked. It is necessary, when giving consideration to the grant of leave, to have regard to the effect on the trial of the ambit of questioning and of the matters that might be raised. It is essential when considering the grant of leave to consider how far, at least initially, cross-examination might be permitted to extend, having regard to the bounds set by s 38, to the matters to which regard must be had when granting leave in s 38(6) and s 192 and to whether prejudicial matters to which ss 135 and 137 might apply might be raised.
Leave might be further extended as a consequence of a further application, but lest the cross-examination should divert the focus of the trial as, in my view, it did here, it is necessary for a trial judge to take considerable caution in considering the matters the legislation and says [sic] the High Court has held he or she must consider and to give consideration to those matters by confining, at least initially, leave to that then seen as necessary, reconsidering the ambit in accordance with the criteria, if further leave is sought.
…
I consider that the trial miscarried when his Honour granted leave, as he did, notwithstanding there was a basis on which in each case leave might have properly been granted.
Even if leave would almost certainly have been granted, it could not be successfully argued that would necessarily have permitted as wide an ambit of cross-examination as occurred. I conclude there was a miscarriage.”
The appellant also relied on what Giles JA said. In paragraph 4 he said:
“It cannot realistically be doubted that, had there been regard to the s.192(2) matters, leave would have been given to question Rachel Golby as if cross-examining. But the leave would by no means have permitted the unfettered and wide-ranging questioning which was undertaken, apparently because all of the trial judge, the Crown Prosecutor and counsel for the appellant considered that there were no restrictions on what Rachel Golby could be questioned about and in particular that her credit could be attacked. The extent of questioning led or contributed in turn to the calling of evidence from Rebecca Jones, Kerry Francis, Mrs. Kim Robertson and Detective Senior Constable Robinson about what Rachel Golby had been doing on the afternoon of 21 June 1998, what she had said to them, her drug habit, and Rebecca Jones' relationship with the complainant.”
In paragraph 5 he said:
“The result was to convert the focus of the trial from whether the appellant maliciously inflicted grievous bodily harm on the complainant to whether Rachel Golby was lying to protect the appellant - a proposition put to her on more than one occasion in the course of her questioning by the prosecution. The risk of prejudice to the appellant was high, particularly when the jury might have held Rachel Golby's lying against the appellant. There was nothing to suggest that she was lying to protect him at his instigation.”
The appellant submitted to this Court that the examination of Amber O’Brien:
“went to issues that were solely issues of credit outside of the terms of the statements and in particular the cross-examination was crafted so as to demonstrate that it was given false evidence as part of an arrangement with the appellant.
Part of that arrangement, it was submitted, was that the appellant had transferred the registration of a motor vehicle into the name of the witness so that she would give false testimony in his aid at the time of the trial. None of that was the subject properly of a grant of leave because it raised fundamental issues of fairness. It should have [been] disallowed because of the operation of s 135 and/or s [137] at the very least. Ultimately, the focus of the prosecutor’s cross-examination of the witness was not whether or not the witness could be accepted or rejected but whether the appellant had acted with her in concert to performing in the proceedings.
The trial miscarried in exactly the same way as the trial miscarried in Hogan’s case and the comment of Giles JA and Greg James J in that case are pertinent in this case . …”
Referring to the last part of the passage quoted from Giles JA’s judgment, the appellant in this appeal said:
“That is exactly what happened here. The prosecutor cross-examined a witness, pointedly, about the fact that she was lying and lying at the insistence of the appellant. There was no evidence at all to support that contention. Not even the evidence that a car had been registered in her name.”
The trial judge’s failure to consider the provisions of the Evidence Act
In relation to the decision to grant leave, the appellant’s written submissions state:
“In his ruling, His Honour did not have regard to s 192, 135, 137, 102, 103 and 60 of the Evidence Act. The terms of the judgment seem to suggest that the scope of the cross-examination for which leave was granted was limited to cross-examination on the prior inconsistent statements and the evidence that the witness gave at Port Macquarie. Despite the terms of the ruling, the cross-examination that the Crown Prosecutor embarked upon was wide ranging and extended well outside the narrow scope of the terms of the grant of leave.
In Stanoevski v The Queen (2001) 202 CLR 115, the High Court held that s 192 was a mandatory requirement for the grant of leave for cross-examination on character. In Regina v Garry Hogan [2001] NSWCCA 292 (3 August 2001), this Court held that s 192 applied to grants of leave to cross-examine pursuant to s 38. In Stanoevski, Gaudron, Kirby and Callinan JJ held:
‘Section 192 applies to this case, and in particular to the exercise by the trial judge of his or her discretion under section 112 of the Act. It should be noted that the leave required under section 112 was not leave to adduce evidence, but to cross-examine about the character of the defendant. In addition to matters which may be relevant in a particular case, in all cases the Court must take into account the matters prescribed by section 192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably have been relevant to the way in which his discretion ought to be exercised had he adverted to them.’ (Paragraph 41)
Those words apply in this case. Further, their Honours held (at paragraph 43):
‘The cross-examination on the report raised a very grave possibility of unfairness to the Appellant within the meaning of section 192(2)(b). By giving permission for that cross-examination to take place, the trial judge was allowing the undertaking of an extensive collateral enquiry by the prosecutor.’
Further, their Honours held:
‘It follows that matters of the kind which section 192(2) provides should be considered where of relevance to this case and to the trial judge’s decision to permit the prosecutor to cross-examine as he did. In not taking properly these, and matters of weight and relevance into account, and in not therefore exercising his discretion in accordance with section 192 of the Act, the trial judge fell into error.’ (Paragraph 47)
In Regina v Fowler [2000] NSWCCA 142 (23 May 2000), this Court also stressed the need to have regard to s 192 and s 135 to 137 of the Evidence Act. Wood CJ at CL stated (at paragraph 120):
‘Section 38 of the Evidence Act now permits a party, by leave, to cross-examine a witness who meets any of the criteria identified in subsection 1. Its exercise is, however, subject to a number of discretionary considerations, so as to prevent its abuse, and is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial judge must give consideration to the matters specified in sections 38(6), 135-137, and 192 of the Act.’
It is significant that s 135-137 and 192 are mandatory. In the instant case, His Honour did not advert to any of these sections whereas matters of the kind specified by those sections which should be considered were of relevance in the case. There is no doubt that leave would have been granted to cross-examine the witness if regard had been paid to s 192(2) but the leave would by no means have permitted the wide ranging questioning which was eventually undertaken by the Crown Prosecutor. The result was to convert the focus of the trial onto whether or not Amber O’Brien was lying to protect the Appellant – the proposition that was put to her on more than one occasion in the course of her questioning by the Prosecutor. As Giles JA held in Hogan, a very similar case:
‘The risk of prejudice to the appellant was high, particularly when the jury might have held Rachel Goldbys lying against the appellant. There was nothing to suggest that she was lying to protect him at his instigation.’ (Paragraph 5).
A proper exercise of s 135 and 137 would have required the Judge to deny the Prosecutor the right to adduce many of the answers that were obtained from Ms O’Brien because of the risk that the jury would unfairly and improperly attribute responsibility for her answers to the Appellant.”
The trial judge’s alleged errors in the procedure for granting leave
The appellant’s oral argument to this Court on the procedure that should have been adopted when the trial judge granted leave under s 38 was as follows:
“What should have happened was that the judge should have granted leave to cross-examine the witness on the prior inconsistent statements, then following upon such cross-examination, if the Crown sought to ask particular questions about credit only, there should have been demonstrated some basis for the grant of leave. It would have required the Crown to outline what they intended to ask at least by way of topics so that the judge could consider whether there was a need to limit the questioning either by refusing leave under Subs 3 or limiting its terms, but by granting leave at the outset under Subs 3 without specifying what could or could not be asked, that then gave the Prosecutor free rein to ask any questions on credit that occurred to them and that then led to numerous instances of questions that went solely to undermine the credit of the witness, some of them included questions that were designed to suggest to the jury that the witness was acting as an agent of the appellant when there was no proper basis for such questions.”
The appellant submitted that when the Crown called Amber O’Brien it believed she was not a witness of truth, that it had no obligation to call her and that it “could have made her available to the accused”. Section 38 permitted the Crown to call her and obtain leave to put prior inconsistent statements to her, but s 38 was a new facility in the law of evidence which had to be handled with care and not used in “demolition of a straw person that is designed not [to advance] the prosecution case but to taint the accused”. In particular, care had to be employed where the Crown “consciously and deliberately” called a witness believed by it to be untruthful. It was desirable to proceed in stages. The first stage was to permit questioning about the inconsistent statements. If the Crown wished to proceed further, it should make another application. If the Crown wanted to establish that when the prior inconsistent statements were given to the police, the witness had had time to reflect about the matter, and her mother was present to assist, as the Crown prosecutor actually did, that might be permissible, but only after a further grant of leave. If the Crown wanted to establish that the 18 November 2000 police statement, inconsistent with that given to the police on 18 July 1997 but consistent with the evidence in chief, was made much later than the 18 July 1997 interview, it might be permitted to do so, but only after the grant of further leave. The same applied to inquiries into why the witness’ version changed – whether because or some faulty recollection, or because of being under great stress at one time rather than another, or because of some disease, or because of some particular motive, or because of a sudden attack of conscience. On each application the counsel seeking leave had to be particular as to the terms of the application, and the court had to be particular as to the terms in which it was granted.
The appellant submitted that if counsel desired to suggest that a witness under s 38 examination was lying to protect the accused, either of that witness’ own volition or at the instigation of the accused, it was incumbent on the trial judge to consider whether the evidence had probative value and whether there was a risk of unfair prejudice to the accused. The risk arose from suggestions that Amber O’Brien had been brought to court by the accused to give evidence in his favour by reason of some corrupt relationship, whereas it was the Crown who had brought her to court believing she was dishonest, intent on prejudicing the appellant by tainting him with her dishonesty, and not possessed of any evidence of a corrupt relationship.
These circumstances made it necessary to consider with care the terms of s 38 leave and to grant the leave only in a confined way. Even though the witness denied what was put to her in various prejudicial and inflammatory questions, the very nature of the questioning was so inflammatory as to make the trial unfair.
In short, the appellant submitted that before s 38 was enacted, the Crown could not cross-examine its own witness. He submitted that in order to avoid a dangerous revolution in the law, s 38 should be read narrowly so as to permit leave only in precisely identified circumstances. He submitted that what the Crown might do in cross-examining the witness had she been called by the accused was no guide to what it might do in asking s 38 questions, because, if called by the accused, she was being held out by the accused as a witness of truth, and excessive s 38 questioning of a witness called by the Crown who was favourable to the accused would cause the jury to jump to the conclusion that the accused was guilty because the witness who was favourable to him was demonstrably dishonest.
The non-assistance of counsel
The trial in this case took place in March 2001, shortly after the High Court gave judgment in Stanoevski v R on 8 February 2001, but probably before that case was reported. The trial was before R v Hogan was decided on 3 August 2001. However, the necessity of taking into account ss 135, 137 and 192 in relation to s 38 applications was well known before those cases: see the lengthy analysis of Wood CJ at CL in R v Adam (unreported, 3 December 1998).
It is, of course, highly unsatisfactory that the appellant’s counsel before this Court (who did not appear at the trial) is relying on the trial judge’s failure to pay regard to ss 135, 137 and 192, when his predecessor at the trial did not remind the trial judge of them. The Crown notes that fact, but accepts that “the solicitor advocate appearing as Crown prosecutor” did not remind the trial judge of the sections either. The Crown did not formally take the point that leave is needed under rule 4 of the Criminal Appeal Rules, and the terms of what is said in the cases relied on by the appellant make that course understandable.
The Crown’s arguments to this Court
The Crown’s written submissions state:
“It is submitted, however, the mere fact that His Honour did not mention section 192, or sections 135 and 137 of the Evidence Act does not necessarily illustrate that His Honour failed to consider the matters set out therein when coming to the decision to allow cross-examination pursuant to section 38. His Honour’s ruling limited the cross-examination and His Honour did specifically grant leave under section 38(3) to enable cross-examination as to credibility only.
It is submitted the instant matter is distinguishable from that which prevailed in Regina v Gary Hogan [2001] NSWCCA 292.”

The Crown submitted simply that the leave granted was justifiable because of the witness’ prior inconsistent statements to the police and at Port Macquarie, and that no efficient examination about the prior inconsistent statements could be carried out without questioning about credit. There was no need to explore the Port Macquarie evidence with greater particularity. Questioning directed to why the witness had changed her story and whether it was part of an attempt to assist the accused was common and permissible; indeed a jury inference that that was the reason was both possible and likely.
Was the trial judge’s grant of leave vitiated by error of law?
The contention by the Crown that the failure to mention ss 135, 137 or 192 does not mean that the trial judge did not consider the relevant questions may be correct in the abstract, but there is nothing positive in the reasons for judgment to suggest that the trial judge did in fact consider the questions. An inference that a judge took particular matters into account can sometimes be drawn from the fact that they were mentioned in argument. The sections in terms were not mentioned in argument. Nor were the substantive elements of them. The entire argument, quoted above, proceeded on the basis that the only relevant enactment was s 38. Yet the terms of s 137 and s 192 are mandatory. They must be complied with whether or not a party who might gain from their invocation actually invokes them. It is notable that Part 3.11 (in which s 137 appears) and Chapter 5 (in which s 192 appears) are not listed as among the provisions which the court may, with the parties’ consent, dispense with: s 190. It is unnecessary to discuss the extent to which s 135 is mandatory or the extent to which a court should apply it even though no party requests this. The conclusion that the trial judge did not pay regard to s 137 and s 192 is beyond rational argument.
The Crown’s submission that R v Hogan is distinguishable in this respect from the present case was unsupported by any reasoning in either the written or the oral submissions. How it could be distinguished is unclear; in any event the conclusion of that case that at least s 137 and s 192 apply in all s 38 cases makes it very hard to imagine how it could be distinguished. That conclusion is also supported by Adam v R (2001) 183 ALR 625. In that case the trial judge, Wood CJ at CL, took into account ss 135-137 and 192: R v Adam (unreported, 3 December 1998). The High Court mentioned the fact that the trial judge “referred expressly to the various considerations mentioned in s 192(2)” and also referred, implicitly with approval, to the fact that he took s 137 into account: [28]. Perusal of Wood CJ at CL’s reasons for judgment, incidentally, reveals the type of argument called for on the part of counsel where questions arising under s 38 applications are to be explored, though it is not suggested that the complexity of the issues at the trial in the present case approached those in Adam v R.
It follows that the s 38 order which the trial judge made was under an error of law. However, the conviction could still stand if the Crown could establish that the trial judge could not reasonably have refused to grant the prosecution’s application under s 38 even if all relevant provisions had been taken into account: Stanoevski v R (2001) 202 CLR 115 at [56] per McHugh J.
Would the trial judge, directing himself properly, have made a s 38 order?
Had the trial judge considered s 192, it is likely that he would have reasoned, and reasoned legitimately, as follows. In relation to s 192(2)(a), though a s 38 order would obviously lengthen the hearing, it would not do so unduly: the s 38 examination in fact only took up eleven pages of transcript. In relation to s 192(2)(b), leave to cross-examine at least on the differences between the evidence in chief and the record of interview would not have been unfair to either the witness or the appellant. As to s 192(2)(c), the evidence was very important. As to s 192(2)(d), the nature of the proceeding was a neutral fact. There was no relevantly useful power of the type referred to in s 192(2)(e). Turning to s 137, the probative value of concessions by the witness about what she had said to the police (in an electronically recorded interview) was potentially very high; that value might be reduced by any explanation given by the witness, but that was a matter for jury evaluation. The potential probative value wholly outweighed the danger of unfair prejudice to the appellant; and if the evidence turned out to be of low probative value, there would be no unfair prejudice to the appellant. The application of s 135 could not lead to any different outcome.
The appellant’s written submissions do not in terms deny that the trial judge, had he had all relevant provisions in mind, would have granted leave to cross-examine the witness about her evidence at Port Macquarie in May 1999. In so far as that evidence did not disclose that she was the owner of the drugs, and questions addressed to her would, if truthfully answered, have revealed that she was not, it could be described as being inconsistent with her evidence in chief. In so far as her evidence at Port Macquarie asserted that the appellant was the owner of the drugs, it would have been explicitly inconsistent with her evidence in chief. Accordingly, subject to its precise terms, the Port Macquarie evidence did not fall into a different category from the record of interview of 18 July 1997. Its terms were not tendered to the trial judge in the s 38 application, but counsel for the appellant then appearing took no point about that.
52 The appellant’s written submissions conceded that there “is no doubt that leave would have been granted to cross-examine the witness if regard had been paid to s 192(2)”. But they go on to contend that the leave should not have permitted questioning about whether the witness was lying to protect the appellant, or lying to protect the appellant at his instigation. In oral argument the appellant also submitted that leave to examine on credit should not have been given; and also that leave in relation to Port Macquarie should not have been given without more precision being introduced.

The appellant’s arguments as a whole considered
The significance of the appellant’s non-objection
The arguments of the appellant in support of these grounds had a double aspect, though it did not always sharply emerge. One element was that the s 38 examination extended beyond the scope of the actual leave granted. Another was that the s 38 examination extended beyond any permissible leave which might have been granted. The distinction could be important, because over the eleven pages of impugned s 38 examination, counsel for the appellant interrupted only four times: once to say he could not hear one answer (an experience shared by the Crown prosecutor), once to object after seven pages and twice to object near the end. An examination which was not objected to which, while it went outside the scope of the leave granted, remained within the scope of the leave which the court had power to grant, might be less likely to cause an appeal to be allowed than an examination which was not objected to but which went wholly outside the scope of the court’s power under s 38. The latter type of examination would be an examination beyond what parliament contemplated as being compatible with an appropriately conducted trial.
There may be some significance in the fact that counsel for the appellant at the trial had been in practice for thirteen years – that is, he was experienced. It is a common perception of experienced counsel that frequent interruptions of cross-examination often irritate judges and juries because they can often have the effect, and sometimes, regrettably, have the purpose, of putting the cross-examiner off, giving the witness an opportunity to think of a convenient answer, or simply giving the witness a rest. They also have the effect, and, even more regrettably, on occasion the purpose, of feeding to the witness an answer which objecting counsel desires the witness to give. Section 38 examinations are much rarer than true cross-examination, but to the extent that they are a limited kind of cross-examination, counsel at a trial might well wish to be prudent and selective in the extent to which a s 38 examination should be interrupted, lest judge and jury react adversely. Judgments of this kind have to be made question by question in trials conducted orally, and the soundness of those judgments is not readily to be impugned by minute textual analysis conducted at leisure with hindsight.
The meaning of “about”
There is an assumption underlying the appellant’s submissions which, though not clearly articulated, is important. The submissions start with the incontrovertible proposition that leave under s 38 does not justify general cross-examination, using the leading questions (s 42) and aggression characteristic of cross-examination, on any subject relevant to an issue or to credit. Section 38 permits the party who obtains the leave to question “as though the party were cross-examining a witness”, but only “about” the three subjects described in paragraphs (a)-(c). The assumption on which the appellant’s submissions proceeded is that those three subjects are narrow and that the word “about” is not a word denoting an extensive connection between a question and each of the subjects.
Though in terms the application to him was only based on s 38(1)(c), the trial judge made it plain that the leave he granted was based on s 38(1)(a) (in relation both to the record of interview and the Port Macquarie trial) but apparently also on s 38(1)(c) at least so far as the record of interview as concerned. Though there were arguably signs in the examination in chief before the s 38 application was made that s 38(1)(b) might apply, the application was not advanced on that basis and the trial judge did not mention it.
It is important to bear in mind that so far as s 38 examination elicits evidence of prior inconsistent statements containing hearsay, though they can be admitted merely on credit, they can also be admitted to prove the facts asserted by reason of s 60, which provides:
“The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”
Section 102 provides:
“Evidence that is relevant only to a witness’s credibility is not admissible.”
That is described as “the credibility rule”: Dictionary, Part 1. Further, s 103 provides:
“(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a)whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b)the period that has elapsed since the acts or events to which the evidence relates were done or occurred.”
If the court gives leave under s 38(3), the questioning must be in accordance with Part 3.7, and in this case in particular ss 102 and 103: Adam v R (2001) 183 ALR 625 at [24] per Gleeson CJ, McHugh, Kirby and Hayne JJ.
The relevant Macquarie Dictionary definitions of “about” suggest that to ask a question about a subject is to ask a question concerning it, or in regard to it, or connected with it, or concerned with it. The relevant definitions in the Oxford English Dictionary (2nd ed) of “about” suggest that to ask a question about a subject is to ask a question touching it, concerning it, in the matter of it, in reference to it, or in regard to it. The word “about” is the “regular proposition employed to define the subject-matter of verbal activity …”. At times the appellant’s submissions implied that a party questioning under s 38 could do no more than put a version which was to the contrary of the unfavourable evidence, or put the party’s version of the matter which the witness was not genuinely attempting to testify about, or put the terms of the prior inconsistent statements. Those dictionary definitions suggest that the party conducting s 38 questioning could range more widely than that.
In the Interim Report of the Australian Law Reform Commission (ALRC 26) on Evidence, the following clause appeared in the draft Bill proposed:
“34. (1) Where a witness gives evidence that is unfavourable to the party who called the witness, that party may, with the leave of the court, question the witness about that evidence as though the party were cross-examining the witness.
(2)         Where, in examination in chief, a witness appears to the court not to be making a genuine attempt to give evidence about a matter of which the witness may reasonably be supposed to have knowledge, the party who called the witness may, with the leave of the court, question the witness about that matter as though the party were cross-examining the witness.
(3)   The questioning shall not take place until after the other parties have had an opportunity to cross-examine the witness.
(4)          The matters that the court shall take into account in determining whether to give leave under this section include -
(a)the matters on which and the extent to which the witness has been questioned by some other party; and
(b)whether the party gave notice at the earliest opportunity of his or her intention to seek leave.”
In the Interim Report, para 625, which appears after a discussion of the narrowness of the test for hostile witnesses under the then law, the Commission said:
“Hostile Witness – Proposal. It is proposed that the law relating to ‘hostile’ witness be abrogated. The criticisms of the law, and the absence of any satisfactory rationale justifies this course. Further the need for accurate fact finding and considerations of fairness justify allowing a party to test by cross-examination that part of a witness’ testimony that is unfavourable to the case of the party whether the witness was called by the party or not. If the party does not test such evidence it is likely that no one will. The proposals may also encourage parties to call witnesses, often the most credible available. The major danger with such an approach is that it may add to the time and cost of litigation. Several factors will minimise this danger:

Decision to call Witness. Parties will generally know what evidence a witness wishes to give. If they can avoid it, they will not call a witness whose evidence is unfavourable on important points. While the proposal would make it less dangerous for a party to call such a witness, a party will still be reluctant to do so. It is unlikely that it will call such a witness unless the evidence he can give supporting the case is important and that which does not is unimportant, or can be successfully challenged.
The Inconsistent Statement. The most likely situation will be one where the witness fails to swear up to his proof of evidence. The law presently permits cross-questioning in this situation with the leave of the court.
Advantages of Discrepancies. Discrepancies between the evidence of witnesses called by a party can enhance the value of their evidence. This provides another reason for not cross-questioning the witness where the conflict is on non-essential issues.
Tactical. A party will be reluctant to attack the credibility of a witness where it wishes to rely on the test of that witness’ evidence. Thus, it is likely that the witness will be challenged only where there is a significant conflict of evidence and any challenge would be restricted to the evidence given and would not extend to the general issue of the character or credibility of the witness. To so extend the attack would damage the credibility of the testimony as a whole.
Against the risk of adding to time and costs of litigation should be balanced the saving of time that may occur when a key witness favourable to each party is called, because of the changes made by the proposals. A distinction needs to be drawn between the following procedures:
Cross-questioning the witness on the unfavourable evidence;
Cross-questioning the witness to attack the credibility of the witness;
Leading evidence through other witnesses that relates only to the credibility of the witness.
It is suggested that the advantages of allowing the cross-questioning on the unfavourable evidence clearly prevail. Leave should be required – so that the cross-questioning can be controlled by the judge. It is provided, however, that it should only occur after all other parties have had an opportunity to question the witness. As to the remaining two categories, the advantages are more debateable and the risk of wasting time and cost greater. There will be occasions – for example where the witness fails to swear up to his proofs because of bias – where clearly such questioning and evidence should be allowed. On the other hand, there will be cases where the unfavourable evidence is not of major importance and the attack on credibility of little weight. The proposals advanced on character and conduct evidence will limit the cross-examination and the calling of other evidence. Nonetheless, control in this situation is desirable. It is proposed that leave be required.”

It appears to follow from the last sentence that the Commission favoured what it called “Cross-questioning the witness to attack the credibility of the witness”, but took the view that the need to obtain the court’s leave would be a sufficient safeguard against abuse in cases where the unfavourable evidence was not of major significance and the attack on credibility of little weight. That view is supported by the third and fourth sentences, in their reference to “allowing a party to test by cross-examination that part of a witness’s testimony that is unfavourable to the case of the party”, on the ground that if that party did not test the evidence, it is likely that no-one would.

In its Report on Evidence (ALRC 38), para 114(a), the Commission said:
“(a)Cross-examination of the unfavourable witness. It was proposed that the party who called the witness could, with leave of the court, question the witness about the unfavourable evidence as though the party were cross-examining the witness. This imported the rules proposed for the manner of cross-examination and was intended to enable the rules on the admissibility of evidence relevant to the credibility of the witness to be applied. The intention was that these rules, together with the leave requirement, would provide the machinery needed. As pointed out in the Interim Report, circumstances will vary – on the one hand a witness may fail to swear up to a proof of evidence because of bias and a full attack on credibility would be warranted; on the other hand the unfavourable evidence may not be of major importance and the proposed attack on credibility may be insignificant. Commentators, however, pointed out that the draft could be construed as not allowing cross-examination going solely to credibility.15”
Note 15 was:
“The difficulty lay in the expressions ‘a party … may question the witness about that evidence as through … cross-examining the witness’ and ‘a party … may question the witness about that matter … .”
The text continued:
“It should be made clear that cross-examination on matters relevant to the credibility of the witness is also permissible but only with leave of the court. An alternative would be to remove the reference to the evidence given by the witness so that cross-examination cannot be said to be limited to it. This, however, would remove all limits other than the leave requirement.16”
Note 16 was:
“Consideration was given to distinguishing between two situations: on the one hand, the witness who gives some favourable evidence and, on the other hand, the witness who gives totally unfavourable evidence or suffers a total loss of memory. In the former, consideration could be given to not allowing any cross-examination as to credibility. In the latter, however, it could be allowed. The above distinctions can be described and are cases that will arise. But they are not the only cases and there can be considerable variation. Any proposal advanced should be available to control all situations. Hence this alternative has not been adopted.”

The questioning about the witness’s habit of weighing drugs for a dealer in return for being given drugs, and her use of plastic bags and scales to weigh horse food supplements, was legitimate testing of the substance of the difference between her versions, namely that on one version it was she who cut and possessed the heroin, while on the other she had no role.
So far as the appellant complained about the tone of the questioning, nothing in s 38 prevents questioning pursuant to leave granted under that section from being aggressive and confrontational. If there was any vice in particular questions, and in particular if particular questions contravened s 41, that was a matter for particular objection, and by itself no offending question could have caused any risk of a miscarriage of justice. The same is true of the questions in re-examination.
So far as the appellant complained about the absence of any basis for suggesting a motive for the changed story, there was evidence capable of supporting the motive suggested. The witness made a prior written statement in November 2000, and gave a record of interview on 20 November 2000, departing from what she had told the police on 18 July 1997. Her evidence in chief conformed to the November statements. The car was transferred into her name in January 2001. There was documentary evidence that that was the fact. At one stage the witness said that the car was not her car, but the accused’s father’s car. Then she changed her evidence and said that it was in her name, but was the accused’s father’s car. The question to which she gave the earlier answer was one which permitted her to reveal the whole truth on the point if she had then desired to do so: indeed it compelled her to. This coincidence of events, coupled with the unsatisfactory manner in which the witness gave her evidence about car ownership, supported a circumstantial inference. Whether the witness’s denial that the coincidence was significant was acceptable and whether her assertion that she only wanted to tell the truth at the trial was to be accepted were matters for the jury. The circumstances must have caused the jury to inquire why the witness had changed stories. The appellant does not now complain of the putting before the jury of the inconsistent versions. What the Crown prosecutor did was no more than to explore possible reasons why the version may have changed. Further, the fact that the appellant and Amber O’Brien changed their versions in a manner paralleling each other must have given rise to a suspicion of collusion. The Crown was entitled to rely on that. The Crown submitted to the jury that there was collusion, aided by the gift of the car. If the Crown was to make that unsurprising submission of the obvious, namely that there was collusion, and give it concreteness by reference to the car evidence, it was obliged to put that line to Amber O’Brien as a matter of fairness, as it also did in relation to the accused. In short, the whole history of the matter left it open to the jury to ask: Why have both stories changed so radically? The Crown tactics in the s 38 examination and in address were fair, rather than unfair, because they brought out into the open, for consideration by Amber O’Brien and the appellant, and exposed for the jury one possible explanation of a specific kind.
Were the questions intrinsically prejudicial?
To some extent the appellant’s argument concentrated on the form of the questions asked, without regard to the answers. The appellant submitted that where there was a witness like Amber O’Brien who was “demonstrably unreliable”, who had given “wildly inconsistent versions” of the facts in issue, and who had “some relationship” with the appellant, there was a risk of the jury being unfairly prejudiced by such questions as “you are here lying to protect him and he has given you a car to do it …”. The risk of prejudice lay in the fact of the questions because the jury might ignore a denial given in answer in view of the witness’s unreliability and friendliness to the appellant.
Section 135 and s 137 deal with prejudice. They do not control questions as such, only the evidence which may be given in answer to questions. If a question is likely to elicit an answer which is prejudicial, it may be objected to. If a question is likely to elicit an answer which is not prejudicial, it is not objectionable merely because a different answer would be prejudicial. In the s 38 examination Amber O’Brien generally gave answers which were favourable to the appellant. It is therefore hard to see that they were prejudicial, for if the jury accepted the answers the appellant’s position would be strengthened, not prejudiced. To assume, as the appellant’s argument does, that the jury would ignore answers favourable to the appellant is simply baseless speculation. It was open to the jury to reject the answers and form a correspondingly diminished opinion of her credibility. Contrary to the appellant’s submissions, that would not have been unfairly prejudicial to the appellant. It would have weakened evidence otherwise favouring him, but it would have cast light on where the truth, so far as Amber O’Brien could report it, lay. Not only was the actual evidence not unfairly prejudicial, but the questions were not either. Further, if there was any prejudice which was curable it could have been cured in the summing up; if it was incurable, the jury could have been discharged. In [103] the merits of the summing up are pointed out, together with the inferences which flow from the fact that experienced defence counsel did not seek either a redirection or a jury discharge.
The relevance of R v Hogan
R v Hogan is not a case giving any strong guidance to the answer in the present case. It is true that in that case, like this, the trial judge erred in not taking into account s 192 in deciding whether to grant leave under s 38. But the case was radically different. The consequence of leave being granted in R v Hogan apparently was that numerous additional witnesses were called and several complex side issues arose about the criminal and other misconduct of members of the Golby family. The present case, in contrast, raised quite confined issues. Amber O’Brien and the appellant agreed in their interviews with the police on 18 July 1997 that the drugs were his not hers; in her later statement, her evidence in chief, and his evidence in chief, they reversed positions and said they were hers, not his. There was no difficulty in proving the inconsistent statements which were made to the police and recorded, whereas in R v Hogan some were made to third parties. There was significant evidence against the appellant by reason of what the police observed at the flat occupied by him and Amber O’Brien. The controversy was a confined one. An investigation of why Amber O’Brien might change her story was neither irrelevant nor excessively prejudicial. In short, as discussed in [75] above, this was a case where the credibility of Amber O’Brien and the issue of whether it was she or the accused who was guilty were closely entwined.
The aspect of R v Hogan on which the appellant relies is the allowing of the appeal on the ground that the application of s 38 caused the focus of the trial to shift from the issue whether the appellant was guilty of maliciously inflicting grievous bodily harm to the issue of whether Rachel Golby was lying to protect the appellant. Here the issue of the appellant’s guilt and the witness’s allegedly lying evidence in chief were much more closely linked. If she was telling the truth on oath, he was innocent. If she was lying on oath but telling the truth on 18 July 1997, he was not innocent. Whether she was lying was an issue partly turning on whether she had a motive to.
Conclusion
Had the trial judge approached the questions properly, even if objections had been taken by counsel for the appellant appearing at the trial conforming with those which counsel appearing for him on the appeal said should have been taken, he would have ended up permitting questioning substantially to the effect of that which in fact took place (omitting a handful of excessively offensive or vague questions of no significance). In particular, he could legitimately, and would, have reached the following conclusions. Section 38 permits the testing of the evidence in chief with a view to establishing the probability of the truth of the matters asserted in the prior inconsistent statement. Hence it permits examination of the witness on matters of credit with a view to the jury accepting the prior inconsistent statement and rejecting the later sworn evidence. It also permits an examination of the background at the time with which the statements are dealing, the background at the time when the prior inconsistent statement is made, and the background at the time when the witness moves to a version different from the prior inconsistent statement. It permits an inquiry into the possible reasons for the change, including the motives for the change. Judicial rulings which prevented these techniques being employed where application is made for leave to question under s 38 would not be giving full effect to the section. Hence the failure of the trial judge to take account of s 192 or s 135 or s 137 is immaterial. So is the fact that the trial judge did not grant the leave in small, precisely defined segments. So is the possible extent to which the questions asked went beyond the leave actually given, for they were within the leave which could have been given. Independently of whether the parties raise the question, account must always be taken of s 192 and, in criminal cases, of s 137. In practice account will usually also be taken of s 135, though in criminal cases its operation overlaps very significantly with that of s 137. If leave is granted under s 38, the recipient should not go beyond it without a further application for leave. In these last-mentioned respects the trial did not proceed satisfactorily, doubtless because the trial judge received no assistance from the parties in these respects. The different proposition advanced by the appellant that trial judges should grant leave in small precisely defined segments may apply validly in some cases. Indeed some support for a limited version of the appellant’s approach appears in R v Hogan [2001] NSWCCA 292 at [80]-[81]. But it has not been demonstrated that that approach is a sound criticism of the trial judge in the present case. However, whether the trial judge was technically open to criticism or not for the way in which the s 38 questioning was allowed and prosecuted, in my opinion no unfairness arose as a result of what happened.
Accordingly Grounds 1 and 2 fail.
The issues underlying Grounds 1 and 2 overlap with those underlying Ground 3. The actual evidence about the registration of the vehicle in Amber O’Brien’s name comprises her admission that it was transferred to her on 10 January 2001 (in contrast to her denial during the s 38 examination that the car was hers); and a RTA transfer document evidencing the transfer of the vehicle into her name on that day. Neither item of evidence was objected to. The first item of evidence was objectionable on grounds of form (it was in answer to a question in re-examination which was leading and which did not arise from cross-examination). It was not, however, irrelevant, because Amber O’Brien’s motives to lie were relevant. Nor was it vulnerable to exclusion under s 135 or inadmissible under s 137, because its probative value, in demonstrating a material reason to change her story, exceeded its prejudicial effect.
93 Accordingly Ground 3 fails as well.

Proviso
Section 6(1) of the Criminal Appeal Act 1912 provides that even if the trial judge erred, the appeal may be dismissed on the ground that “no substantial miscarriage of justice has actually occurred”. According to authorities conveniently collected in Glennon v R (1994) 119 ALR 706 at 710-712, the proviso cannot be applied in two circumstances. One is where the error is so fundamental that it caused the trial to miscarry so far as hardly to be a trial at all. That is not the case here. The other is if the conviction is not “inevitable” in the sense that the appellant can be said to have lost a chance of acquittal which was fairly open.
The appellant submitted:
“If the jury disbelieved him because at least partially they thought he might have transferred a vehicle in the witness’s name, or otherwise told a lie on his behalf, that was such a substantial inroad into his credit that he lost a reasonable opportunity to be acquitted. People often make confessions to police and get acquitted.
Without the confession all the evidence showed was that there was a quantity of drugs in the house occupied by four people, two of whom seemed to be the likely suspects, one was the accused and the other was the witness. The Crown had to prove beyond reasonable doubt it was in his possession or jointly in his possession with the witness. They had to exclude beyond reasonable doubt that it was in the witness’s possession exclusively. Anything which substantially undermined his credit, and improperly so, contrary to law, meant that he lost a reasonable chance of acquittal.”
The appellant’s case on the appeal was not put in any uniform way. The submissions to the effect that there was an error of law in the way the trial judge approached the exercise of discretion under s 38 were sound, but in applying the proviso the question is what error the trial judge made in the substance of his conclusions, not what error was made en route to them. Some of the appellant’s submissions about the substance of the trial judge’s conclusions were radical. Moving from the most radical position to the least, they were:
(a)Amber O’Brien should never have been called.
(b)Section 38 questioning of Amber O’Brien should never have been permitted.
(c)Section 38 questioning of Amber O’Brien should never have been permitted as to credit.
(d)Section 38 questioning of Amber O’Brien should never have been permitted except by degrees after limited applications were made in succession: first as to precisely identified inconsistent statements, then as to the particular circumstances of each statement, and then as to motives for the differences in her statements.
(e)Questioning of Amber O’Brien on the basis that she had a motive to cover up the appellant’s role in the crime, and that that motive was gaining the vehicle, should never have been permitted.
The decision whether the proviso to s 6(1) applies must turn on identifying the error allegedly made by the trial judge.
If the error related to permitting her to be called or permitting her to be examined under s 38, then conviction was not inevitable. But the appellant did not advance any ground of appeal in relation to the trial judge’s having permitted her to be called, and the appellant conceded that some form of leave in the first instance was not erroneous.
If the error lay in permitting her to be cross-examined as to credit, it cannot be said that the conviction was inevitable. But the submission by the appellant that that was an error was far from powerful.
If the error lay in not requiring that there be a series of s 38 applications, each precisely defined and subject to specific conditions, it is likely that the Crown would eventually have got leave having the same extent which it actually achieved after one application. Subject to the remaining points, a conviction obtained after that piecemeal process would have been inevitable.
If the error lay in granting leave for s 38 questioning, or permitting questioning beyond the bounds of s 38 leave, directed to a motive of protecting the accused, and a motive centred on a bargain by which the witness was to get a vehicle for changing her story, the question is whether without that type of examination a conviction would have been inevitable.
There are several matters relevant to that question.
First, the trial judge said the following about Amber O’Brien’s evidence:
“Now, members of the jury, so far as her evidence is concerned, she was called by the prosecution but she gave evidence which was unfavourable to the prosecution case. The prosecution was therefore allowed to cross-examine her to show that she had earlier made a statement which was inconsistent with the evidence that she gave here in this Court.
That earlier statement, in the form of a record of interview made on 18 July 1997, is not before you but you have heard evidence from Ms O’Brien confirming that passages of that statement read out to her by the learned Crown Advocate were true in the sense that that is what she told the police at the time.
Of course, in nearly all respects, what she admitted in evidence saying to the police on 18 July 1997 about the ownership of these drugs was diametrically opposed to what she said in the witness box in this trial. You must decide in this case, in view of those conflicts, whether you accept the evidence given in the trial or you accept what Ms O’Brien conceded that she had earlier told the police on 18 July 1997. On the other hand, in view of those conflicts you have to decide whether you accept the evidence of Ms O’Brien altogether.
In respect to both the earlier statement made by her and the evidence that she gave in this Court, I should warn you that the earlier statement may be unreliable and so might the evidence that she gave in this Court. The reasons for that are that when she made the earlier statement she was a suspect in the proceedings; she was a juvenile – I think the evidence is that she was sixteen – who had no criminal record; and she said that she had been told by police that the accused had admitted that the drug was his and that she should back him up. She also gave evidence that she was scared.
They are matters, if you accept them, that may lead to her earlier statement being unreliable. Whether you find that it is unreliable or not is totally a matter for you, and the weight you attach to those matters, or the importance you attach to them, is also a matter for you.
Likewise, the evidence that she gave in this trial may be unreliable because of the previous inconsistent statement that she had made to the police on 18 July 1997. Again, whether you find that her evidence in this trial is unreliable or not is a matter for you.
The Crown, of course, says, look, you would have no doubt but that what Ms O’Brien told the police in her recorded interview on 18 July 1997 was the truth and that what she is telling you in the witness box now is not the truth and it is part of an elaborate scheme to ensure that the accused is acquitted. The Crown points to the fact that, whilst she says that the relationship with the accused ended some two months after their arrest, it is clear that there is still a relationship of some sort going on. She gave evidence about her brother being looked after by her and she said that the accused came and visited, as did the accused say that, and there was the question of the car which she said belonged to the accused’s father being registered in her name late last year. The Crown points to those matters as being evidence, if you accept if, of the fact that she could not be said to be an impartial witness.
On the other hand, Mr McColm says, well, you have got to bear in mind that back in July 1997, Amber O’Brien was only sixteen years of age. But, more importantly, she has made a statement in November last year and participated in an interview in which she inculpates herself in relation to serious drug offences, and she received legal advice and she knows by doing that that she could receive a custodial sentence – be charged and receive a custodial sentence. And Mr McColm says, well, how likely is that, unless it was true?
Again, members of the jury, they are matters for you to take into account when you come to assess Ms O’Brien’s evidence. The Crown, of course, points to the fact that it was only in November of last year that this allegation by Ms O’Brien that the drug was hers first came to light. Mr McColm says, well, you have got to take into account her age at the time; her evidence that it was on her mind, in the sense that she felt guilty about it, until it got to the stage where she knew she could not go on experiencing that guilt, and confessed that the drug was hers.
He also points to the fact that she was under no obligation at any stage to inform anyone, or to inculpate herself, I should say, in relation to what she says was her possession of this drug.
Members of the jury, they are the matters that, in brief, relate to the evidence of Amber O’Brien. Can I just say this to you, and I express no view one way or the other, that if you were to reject the evidence of Amber O’Brien, then that does not, of course, mean that the accused is automatically guilty. You still have to take into account all the other evidence in the case. …”
That is, the trial judge was warning the jury that a finding that Amber O’Brien’s sworn evidence was unacceptable, even dishonest, did not mean that its converse was true. It did not follow from a rejection of her evidence that the drugs were the appellant’s. No further direction was sought with a view to overcoming any inadequacy perceived at the time by defence counsel. It may safely be inferred that in the atmosphere of the trial after that direction had been given defence counsel saw no prejudice flowing to his client from the handling of Amber O’Brien by the Crown. The appellant complained that the jury were not told that there was no evidence that the appellant had instigated Amber O’Brien to give false evidence in his favour: but it would not have been true for the trial judge to have said that, because there was circumstantial evidence capable of supporting that conclusion, and whether it did was a matter of what inferences the jury felt it should draw. The appellant submitted that all the damage had been done by the time of the summing up and was incapable of correction by it; in that case one would have expected defence counsel to have perceived this and to have asked for the jury to be discharged. This did not happen, and it is obvious why it did not happen.

Secondly, Amber O’Brien gave sworn evidence which was potentially very damaging to the appellant. Near the end of the s 38 examination, the following evidence was given:
“Q. The heroin that was found that you say is yours, that was a very pure substance wasn’t it?
A. Yeah it was pretty good, yes.
Q. And the purpose of the purity was that it was to be cut down to a street weight, that’s right isn’t it?
A. No we never used to cut it no.”
It was open to the jury to treat that as evidence that the very heroin which had been found on 18 July 1997 and which she claimed ownership of in her evidence in chief was heroin which she and the appellant had been habitually having access to, not for cutting to the street weight, but for their own purposes. The answers were capable of permitting the jury to infer joint possession of the heroin, which would have sufficed to render the appellant guilty as charged. Counsel for the appellant submitted that the word “it” did not refer to the drug seized, but to other drugs used in the more remote past. That submission collides with the identification of what the heroin was in the first question.
Thirdly, the Crown case was strong from several points of view.
The heroin was found in premises occupied by the appellant. Resealable bags and precision scales were found in the appellant’s bedroom. There was no suggestion that the drugs were possessed by anyone other than either the appellant or Amber O’Brien or both. No suggestion was made that the police officers had planted the drugs, least of all to the police officers.
There were admissions by conduct, or items of circumstantial evidence, strongly adverse to the appellant: he broke away from the police officers, including Detective Richards, soon after their arrival, ran to the toilet and flushed it; he then lied to Detective Richards about whether he had been with Detective Richards when the toilet had been flushed; and though the appellant was “relaxed …, very cocky and … quite assured” while his bedroom was being searched, when he was brought to have a look at the ball with rubber bands around it which was found in the toilet and which contained heroin, his demeanour changed: “He became quite depressed, he was calling out to Amber requesting her to come to him. He was very emotional”.
If the effect of the appellant’s admissions in the course of the record of interview were to be overcome, the jury had to disbelieve numerous police officers, or at least not accept their evidence. There was no particular reason to disbelieve or not accept the evidence of any of them. So far as events at the appellant’s townhouse were concerned, one issue was whether the appellant ran up the stairs to the toilet (as Detective Richards and Sergeant Sainsbury said they saw him do, and as Detective Senior Constable Johnston said he heard), or merely took a step or two to the toilet on reaching the top of the stairs (as the appellant said); and whether the appellant flushed the toilet (as Detective Richards and Sergeant Sainsbury said they saw, and as Detective Senior Constable Johnston and Sergeant Loughland said they heard) or not. The appellant’s version did not explain how it was that the police came to find the drugs in the toilet. So far as events in the police car as it took the appellant on the short journey from his townhouse to the police station were concerned, the issue was whether the police were silent or whether they told the appellant that if he did not confess, both he and Amber O’Brien would be charged and gaoled. The appellant’s evidence in chief twice specifically located this threat as having taken place in the car on the way from his house to the police station: he said there were three officers present. In cross-examination Detective Richards denied saying anything like this “before the interview”: he was not asked about where he was supposed to have said it. Detective Lysaght, who was in the car as the driver, was not asked in cross-examination about it; yet if the threat had been made, he would have heard it. It was not put to Detective Sergeant Johnston that the threat was made during the car journey by Detective Richards, only that Detective Richards made it “before” the interview. He denied that. Though it was open to the jury to think that these disparities arose from some fault on the part of counsel, it was also open to them to conclude that the failure of counsel for the appellant to cross-examine Detective Lysaght at all and the disparity between the version put to Detectives Richards and Johnston in cross-examination and the version given by the appellant in chief strengthened Detective Richards’ and Detective Johnston’s denials and weakened the appellant’s credibility. (In his remarks on sentence the trial judge said: “There were three police officers in the car at the relevant time and each denied that this threat was ever made”: as indicated, two denied it was ever made, and were not asked about the car: the other was not asked at all.) The appellant’s position was further weakened by his admission that at Port Macquarie he said that Detective Richards’ alleged threat was at the police station just before the interview, not in the police car. He also admitted giving false evidence at Port Macquarie about whether Amber O’Brien was still his girlfriend.
Fourthly, Amber O’Brien’s evidence in chief and her overall position in the witness box were unconvincing. The drugs were worth $7,000. She did not explain convincingly why she, a girl of 17, would be given drugs of that value. She said she got them from her father’s best friend, sold heroin and gave the money to the friend. She also said she put the heroin in the toilet on the night of 17 July 1997. She attributed to police officers statements purporting to explain her allegedly false claim of innocence on 18 July 1997 for which there is no evidentiary support. Indeed it is significant that the instructions of the appellant’s counsel in cross-examining the police appeared to differ from her evidence, despite the fact that the terms of his leading questions to her in cross-examination appeared to reveal a familiarity with, and an expectation of, what she was going to say. She said that among the reasons why she did not tell the police the truth on 18 July 1997 was the fact that “they” told her that the appellant had already confessed. Her interview on 18 July 1997 was conducted by a Detective Acting Sergeant Bryant and Sergeant Loughland. Detective Acting Sergeant Bryant was asked:
“Q. Before you interviewed Miss O’Brien did you say, or did you hear another officer say, to her that the accused had admitted the heroin to being his?
A. I don’t recall.
Q. See did either you say, or hear another officer say to Miss O’Brien, that the accused had said it was for his personal use, both for him and herself?
A. I don’t recall that either.
Q. Did either you say or hear another officer say that the accused had said this because at least one had to be charged and the accused didn’t want it to be her?
A. That I would definitely remember and no.
Q. And did either you or another officer say to Miss O’Brien that she had to do an interview?
A. No.
Q. And if she didn’t she’d be charged anyway?
A No not at all.
Q. And was there any suggestion made that she should back up Ian’s story?
A. No.
Q. Was it suggested to her that if she backed up Ian’s story she would be home that night?
A. No.
Q. See I suggest that all occurred before the interview was commenced with Miss O’Brien.
A. No that’s not correct.
Q. But of course you weren’t with Miss O’Brien, as you fairly said, the whole time she was at the police station?
A. That’s right.
Q. And indeed you weren’t present when she was arrested?
A. Correct.”
Sergeant Loughland said:
“Q. Before you conducted, or before the interview was conducted with Ms O’Brien, she was told that the accused had admitted that the heroin was his?
A. Not that I recall, no.
Q. Had she been told what the accused had said at all?
A. Not that I recall, no.
Q. I mean, you had information that the accused said it was his, hadn’t you?
A. I don’t know what the exact conversation was, but yeah, that’s my understanding, yes.
Q. And it was of concern to find out what Ms O’Brien might say about that?
A. About that and other matters as well, yes.
Q. Did you say this to Ms O’Brien, or did Detective Bryant say this to Ms O’Brien in your presence, that the accused had admitted the heroin being his and that he had had it for personal use?
A. No, I don’t recall that, no.
Q. Did you or Detective Bryant say to Ms O’Brien that the accused had said – had told the police he smokes five grams a day and that she, Amber, smoked three?
A. Sorry, could you repeat that?
Q. Did you or Detective Bryant say something to this effect to Ms O’Brien, that the accused had said he smoked five grams a day and that she smoked three?
A. No, that’s not correct.
Q. Did either of you, I mean Bryant or yourself, say to Ms O’Brien that the accused had said this because at least one had to be charged and Ian, the accused, didn’t want it to be her?
A. That’s not correct.
Q. Did either of you say to Ms O’Brien that she had to do an interview and if she didn’t, they would charge her anyway?
A. That’s definitely not correct.
Q. Was she told, either by yourself or Bryant, that if she didn’t want to get charged and go straight to gaol, she should back up Ian’s story?
A. That’s definitely not correct.
Q. Did either of you say to Ms O’Brien that she and the accused would be – both would be at home that night if she made a statement?
A. No.”
There was much material put in those leading questions of which Amber O’Brien said nothing in her evidence. While it was open to the jury to consider that these disparities arose from a mistake by counsel or some momentary loss of memory by Amber O’Brien, it was also open to the jury to infer that while she may have given instructions to support the questions, she was not prepared to adhere to those instructions on oath.
Thus the appellant’s submission that without the appellant’s confession the evidence showed only that there were drugs in a house occupied by four people is quite invalid. There was Amber O’Brien’s sworn statement pointing to the habitual joint use of drugs. There was suspicious behaviour on the part of the appellant in running away from the police, flushing the toilet and then lying about it. There was a significant change in the appellant’s demeanour when the drugs were found in the toilet. There was questioning by the appellant’s counsel of the police officers in relation to Detective Richards’ alleged threat indicative of uncertain instructions from the appellant in which the appellant’s counsel had no confidence. There was a change of story by the appellant in relation to that threat. There was the appellant’s false evidence at Port Macquarie about Amber O’Brien’s status. And, if Amber O’Brien’s evidence in chief is held out as a prop for the appellant’s case, there was much in her evidence to raise grave doubts about it.
Each individual item of evidence against the appellant is capable of innocent explanation in some way. When they are taken together, the possibility of them bearing an innocent explanation dissolves to the point of invisibility.
In all the circumstances there were very substantial materials which the jury could employ to criticise the credibility of the appellant’s testimony and accept the credibility of his interview on 18 July 1997, and also to reject the credibility of Amber O’Brien’s testimony.
Even if it is concluded that questioning about motives, and about the car, for some reason should not have been permitted, there were very grave doubts about the credibility of both Amber O’Brien and the appellant. Even without any questioning about motives, the jury would reasonably have asked themselves why such radical reversals of position had taken place. There must have been some motive for Amber O’Brien’s change of tack. It would have been likely that the jury attended to the facts that she had escaped being prosecuted while the appellant had not; that he had much to gain by changing his story at the trial while she may have thought she had nothing to lose; and that she had only changed her story at a late stage, November 2000. The precise nature of her motive would not have altered the inevitability of the appellant’s conviction.
Accordingly, even if any of the grounds of appeal were made out, in my opinion the proviso ought to be applied.
The application for leave to appeal against sentence
Counsel for the appellant advanced the following points.
First, three factual errors were pointed to. The appellant was 19 when the offence was committed; yet the trial judge said he was 21. This mistake was said to be significant because a 19 year old, unlike a 21 year old, was not necessarily to be regarded as having reached adult standards of responsibility. Secondly, the trial judge said that the offence took place on 18 July 2000, when in fact it took place on 18 July 1997. This, it was said, led the trial judge to underestimate the length of the appellant’s period free of crime by three years, and hence erroneously discounted a significant matter in mitigation. A third factual error was that the trial judge said the quantity was 34.7 grams. Though the Crown had this error corrected, the sentence was pronounced immediately after the correction.
Dealing with these points in turn, the first is unconvincing because 19 year olds are expected to conform to the standards of responsibility imposed by the criminal law on older persons. There is no reason to suppose that the second error is anything other than an inconsequential typographical error. That is suggested by the fact that the trial judge stated the correct date a little later on that page. The same is true of the third error: the trial judge stated the correct weight while describing what the police found in the toilet seat. Hence it is not the case that he was operating under a complete misapprehension until the Crown intervened at the end of his reasons. And even if, which has not been demonstrated, the error as to the weight was operative on the trial judge’s decision to select the sentence he did, it does not follow that he was wrong. The actual weight was not trivial, and as counsel for the appellant conceded, weight is not the only relevant factor.
Counsel for the appellant also relied on the fact that the appellant had no prior convictions of the kind of crime charged, on the fact that the conviction was for deemed supply rather than actual trafficking, on the fact that there was no evidence that the appellant intended to make a profit, on the fact that the sentence placed the appellant in the top 20% or 30% of offenders, and on the fact that home detention, an available option given the appellant’s age and the 3½ years since the crime, was a reasonable option, but it was not considered. The appellant submitted that, given the trial judge’s finding of special circumstances, both head sentence and non-parole period should be reduced.
The failure to consider home detention is evidently not regarded by the appellant as a decisive matter, since the application is not that a sentence of home detention should be substituted. That perception on the appellant’s part is understandable, since there is no suggestion that the sentencing judge was asked to consider home detention. The good record of the appellant in relation to serious drug offences is not matched by a good record in other respects, including as it does offences in three States for crimes against property, crimes against the person, drug crimes and attempted escaping from lawful custody. The sentencing judge did find that the indicia of actual supply (resealable plastic bags and a sensitive set of scales) pointed to the supply of heroin in fact. The amount of the drug seized was significant, being worth about $7,000. So far as the appellant relies on Judicial Commission statistics, they are of limited utility. Statistical averaging glosses over the inevitable variations in circumstances, objective and subjective: R v Hofer [2001] NSWCCA 554 at [23]. Further, as Grove J said with Howie J’s concurrence in R v Hayes [2001] NSWCCA 410 at [14]-[15]:
“there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. Such statistics were apparently available to the applicant and indeed have been attached to Crown submissions.
The upper limit of sentence is in fact the maximum set by parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offenders then persistent selection of sentences for others within that range will inevitably reduce the upper figure. This is not a matter of jurisprudence but a matter of arithmetic.”
In my opinion there is no error of principle, no material error of fact, no failure to consider any relevant circumstance, and no taking into account of any irrelevant circumstance in the sentencing judge’s reasoning. Counsel for the appellant described the sentence as being in all the circumstances “very harsh”. It was not so harsh as to go beyond the legitimate bounds of the sentencing judge’s discretion.
Orders
The following orders are proposed.
(1) The appeal against conviction is dismissed.
(2) The application for leave to appeal against sentence is dismissed.
DUNFORD J: I agree.
BUDDIN J: I agree with Heydon JA.
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LAST UPDATED: 29/05/2002