R v Salcedo; R v Stretton - [2018] ACTSC 96

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Salcedo; R v Stretton
Citation:	[2018] ACTSC 96
Hearing Date:	16 April 2018
DecisionDate:	16 April 2018
ReasonsDate:	17 April 2018
Before:	Loukas-Karlsson J
Decision:	The application for leave for the Crown to cross-examine the unfavourable witness is allowed.
Catchwords:	EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses
Legislation Cited:	Evidence Act 2011 (ACT) ss 38, 135
Cases Cited:	R v SH, MV and KC [2011] ACTSC 198; 6 ACTLR 1 R v Souleyman (1996) 40 NSWLR 712
Parties:	The Queen (Crown) Reece Salcedo (Accused) Nathan Stretton (Accused)
Representation:	Counsel Mr A Williamson (Crown) Mr J Stewart (Accused - Salcedo) Mr R Davies (Accused - Stretton)
Solicitors ACT Director of Public Prosecutions (Crown) Gabbedy Lee Milson (Accused - Salcedo) Legal Aid ACT (Accused - Stretton)
File Numbers:	SCC 138 of 2017; SCC 228 of 2017

LOUKAS-KARLSSON J

Introduction

During a pre-trial Basha inquiry, the witness Rory Booth (‘the witness’) gave evidence on a voir dire.

The witness gave evidence that he may have been with the co-accused Mr Salcedo on 10 February 2017, the day of the commission of the offence. The transcript records the question and answer as follows:

MR WILLIAMSON: You went to see your good friend in the AMC and you didn't talk to him about why he's in there. Is that your evidence?
WITNESS: Yeah
MR WILLIAMSON: And you can't say what you were doing on 10 February 2017?
WITNESS: Would not have a clue.
MR WILLIAMSON: Would you know whether Mr Salcedo was with you at any time of the day on 10 February 2017?
WITNESS: Yeah, he probably was.
MR WILLIAMSON: Probably was?
WITNESS: Yeah, (indistinct) it's most likely.
MR WILLIAMSON: Do you have any memory of that?
WITNESS: Not really, no.

The Crown Prosecutor sought leave under s 38(1)(a) of the Evidence Act 2011 (ACT) to cross-examine the witness on the issue.

Application for Leave to Cross-Examine

The Crown Prosecutor stated that the evidence given goes part way to establishing an alibi for Mr Salcedo, which is not favourable to the Crown case. The Crown Prosecutor referred to the judgment of Refshauge J in R v SH, MV and KC [2011] ACTSC 198; 6 ACTLR 1 (‘R v SH’), where at [35] his Honour stated that:

…the Crown, having laid certain charges, should be able to test the evidence that is inconsistent with those charges….Where no other party is likely to test evidence inconsistent with the Crown’s allegation, there may well be a need for the Crown to do so in the interests of truth.

Counsel for the accused initially questioned how the evidence was unfavourable, but was not heard further on the matter once the potential to create an alibi for the accused was elaborated upon by the Crown.

Section 38 of the Evidence Act 2011 (ACT) provides as follows:

38 Unfavourable witnesses
(1) A party who called a…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read R v Salcedo; R v Stretton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] ACTSC 96
Decision Date: 16 April 2018

CaseChat Overview and Summary

The two accused, Salcedo and Stretton, appealed against a decision to refuse leave for the Crown to cross-examine an unfavourable witness. The Crown sought to cross-examine the witness in relation to a matter that was relevant to the credibility of the witness and also to the merits of the case. The trial judge considered the matter and concluded that leave should not be granted for the Crown to cross-examine the witness. The Crown appealed the decision of the trial judge. The two accused appealed against the decision of the trial judge to grant leave for the Crown to cross-examine the witness. The court examined the legal principles governing leave to cross-examine unfavourable witnesses. The court found that the test for granting leave was whether the matters to be explored by the Crown in cross-examination were relevant to the witness's credibility or to the merits of the case. The court found that the trial judge had erred in concluding that the matters to be explored by the Crown were not relevant to the witness's credibility or to the merits of the case. The court found that the matters to be explored were relevant and therefore the trial judge should have granted leave for the Crown to cross-examine the witness. The Crown's appeal was allowed and the accused's appeal was dismissed. The application for leave for the Crown to cross-examine the unfavourable witness was allowed.

Orders

Orders of the court

The application for leave for the Crown to cross-examine the unfavourable witness is allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.