R v RM (No 2)

The case before the court involved a criminal proceeding against RM, who was charged with various offences. The dispute centred on an application made by the defence under section 38 of the Evidence Act 1995 (NSW) to cross-examine a Crown witness, who had provided evidence during the trial. The application was made after the witness had already been cross-examined, raising the issue of the timing and whether the evidence was "unfavourable" within the meaning of the Act. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to determine was whether the application was made within a reasonable time and whether the evidence provided by the Crown witness was "unfavourable" to the defendant. The court had to consider the factors relevant to whether leave should be granted to cross-examine the witness under section 38 of the Act. These factors included the timing of the application, the impact of the evidence on the defendant's case, and the overall fairness of the proceedings.

The court found that the application was made after the witness had already been cross-examined, which was significant. It also considered the nature of the evidence provided by the witness and whether it was "unfavourable" to the defendant. The court concluded that the application was made outside the reasonable time frame and that the evidence, while it may have been somewhat unfavourable, did not warrant a grant of leave under section 38 of the Act. The court held that the timing of the application and the other relevant factors did not support the granting of leave.

The court refused the application to cross-examine the Crown witness. It noted that the application was made after the witness had already been cross-examined and that the evidence provided, while unfavourable, did not meet the threshold for leave under section 38 of the Evidence Act 1995 (NSW). The court emphasised the importance of timely applications and the need for fairness in the proceedings. The trial proceeded without the defendant being able to cross-examine the witness further.