R v Le - [2001] NSWSC 174

CITATION: Regina v Le [2001] NSWSC 174 revised - 1/06/2001

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 70046/00

HEARING DATE(S): 2 March 2001

JUDGMENT DATE:
2 March 2001

PARTIES :

The Crown
Anh Tuan Le (Accused)

JUDGMENT OF: McClellan J

COUNSEL : D Frearson (Crown)
Dr M Gumbert (Accused)

SOLICITORS: Director of Public Prosecutions
Voros & Associates (Accused)

CATCHWORDS: CRIMINAL LAW - leave to cross examine witness under s 38 Evidence Act 1995 (NSW) - meaning of "unfavourable" - grant of leave pursuant to s 192 of Evidence Act 1995 (NSW)

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Milat, unreported, NSWSC 23 April 1996
R v Souleyman (1996) 40 NSWLR 712
R v Kneebone (1999) 47 NSWLR 450
R v Pantoja, unreported, NSWCCA, 5 November 1998

DECISION: see para 25

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

FRIDAY, 2 MARCH 2001

70046/00 - REGINA v Anh Tuan LE

JUDGMENT

1 HIS HONOUR: Yesterday, during the course of the evidence of Mr Trieu, it was, for the first time in this trial, suggested that he rather than the accused stabbed the deceased. Mr Trieu denied this assertion. It was further suggested to him that before the stabbing he had secreted a knife on a ledge in a nearby laneway, which he retrieved and was then carrying during the scuffle in which the deceased died. Mr Trieu denied all of these assertions.

2 The Crown then called Mr Carzo who gave evidence that he saw a person secrete a knife on a ledge in an alleyway and later saw the same person at the scene of the alleged crime. He was cross-examined by counsel for the accused and Mr Trieu, having been brought into court for this purpose, Mr Carzo identified Mr Trieu, as the person he had seen.

3 The transcript reveals that the Crown sought leave to ask further questions pursuant to s38 of the Evidence Act. That application was opposed.

4 The transcript also reveals the discussion which occurred between the Court and counsel, where the Court identified the legitimate role of re-examination in clarifying any matter which it was appropriate for the Crown to clarify. However, the Court did not express any ruling in relation to s38.

5 Thereafter the Crown proceeded to further question Mr Carzo and, in the course of that questioning, asked questions in the form of cross-examination. Those questions were not objected to by counsel for the accused and I have no doubt that this was because he, having regard to the earlier exchange, believed that the Court had made a ruling pursuant to s38.

6 The Crown has now indicated that it proposes to call Mr Lombardie and, as I understand the position, he will give evidence of a conversation which he overheard on the day of the events, the subject of this trial. The substance of that conversation could be understood as indicating that the speaker was responsible for the stabbing which killed the deceased.

7…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Le

Details

AGLC: R v Le [2001] NSWSC 174
Case: [2001] NSWSC 174
Decision Date: 2 March 2001

CaseChat Overview and Summary

In the case of R v Le, the defendant was charged with a serious criminal offence. The central issue before the court was whether the defendant was granted appropriate leave to cross-examine a key witness under section 38 of the Evidence Act 1995 (NSW). The defendant argued that the witness's evidence was not unfavourable as required by the legislation, thereby justifying the denial of leave. The prosecution countered that the evidence was indeed unfavourable and that the defendant had not demonstrated good cause for the leave to be granted.

The court examined the statutory requirements and the meaning of "unfavourable" evidence as interpreted in previous cases. It considered the discretion available under section 192 of the Evidence Act 1995 (NSW), which allows the court to grant leave to cross-examine if it is satisfied that there are exceptional circumstances justifying such leave. The court found that the evidence provided by the witness was indeed unfavourable to the defendant's case, and that the defendant had failed to establish any exceptional circumstances warranting leave to cross-examine. Consequently, the court upheld the decision to deny leave to cross-examine the witness.

The final outcome was that the court dismissed the defendant's application for leave to cross-examine the witness. The ruling reinforced the stringent criteria for granting leave to cross-examine under the Evidence Act 1995 (NSW) and underscored the importance of demonstrating unfavourable evidence and exceptional circumstances to satisfy the court's discretion.

Orders