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
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
“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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Le [2002] NSWCCA 186
Case
[2002] NSWCCA 186
Decision Date
CaseChat Overview and Summary
In the case of R v Le, the appellant, Le, was convicted of drug supply offences under the Drug Misuse and Trafficking Act 1985 NSW. The dispute involved the admissibility of certain evidence and the scope of cross-examination of a key witness, Amber O'Brien, in the trial. The matter was heard in the Supreme Court of New South Wales.
The legal issues before the court were primarily centred on the interpretation and application of the Evidence Act 1995 (NSW), specifically sections 38, 60, 102, 103, 135, 137, and 192. The court had to decide whether the trial judge correctly exercised discretion in granting leave for the cross-examination of Amber O'Brien. The key points of contention included whether the leave granted was vitiated by an error of law, the appropriate time for granting such leave, and the scope of the leave given. The appellant argued that the trial judge erred in granting leave for cross-examination beyond the scope of prior inconsistent statements to the police.
The court held that the trial judge appropriately exercised his discretion under section 38 of the Evidence Act. The judge considered the unfavourable nature of the witness's evidence and her prior inconsistent statements when granting leave for cross-examination. The court found that the leave granted was not vitiated by any error of law and that it was appropriate for the trial judge to consider the evidence and its implications during the trial. The court further noted that the scope of leave granted was limited to the credibility of the witness and did not extend to unrelated matters such as statements made during a voir dire or other trials. The judge's decision to allow cross-examination was deemed to be within the bounds of his discretion and did not unfairly prejudice the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 ADJOURNMENTHIS 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