R v Tarantino (No 8)

[2019] NSWSC 1246

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tarantino (No 8) [2019] NSWSC 1246
Hearing dates:	18 September 2019
Date of orders:	18 September 2019
Decision date:	18 September 2019
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	Pursuant to s 38(1) of the Evidence Act 1995, leave granted to the Crown to cross-examine its own witness
Catchwords:	EVIDENCE – witness evidence – unfavourable witness – leave granted
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina (Crown) Vinzent Tarantino (Accused)
Representation:	Counsel: P Barrett; V Garrity (Crown) B Rigg SC; P Coady (Accused)   Solicitors: Office of the Department of Public Prosecutions (Crown) Watsons Solicitors (Accused)
File Number(s):	2016/347591
Publication restriction:	Not to be published prior to the conclusion of the proceedings at first instance

EX TEMPORE Judgment

1. The Crown has applied for leave under s 38(1) of the Evidence Act1995 to cross-examine one of its own witnesses: Mr Amir Mazhari. Mr Mazhari is the brother of another Crown witness who has given evidence of alleged admissions to the substantive crime made by the accused.

2. On an earlier occasion, I ruled that senior counsel for the accused was entitled to cross-examine that Crown witness, Ms Laila Faily, about the circumstances which led to her being charged with ransacking her brother's premises and taking property. I held that on any view that material went to her credibility, and I also held that the defence was entitled to adduce evidence of those allegations under s 106 of the Evidence Act as a matter of right but failing that with a grant of leave. Ms Faily was duly cross-examined on those allegations. To some extent she denied them and otherwise she gave an explanation for her conduct.

3. Mr Mazhari is the alleged victim of that crime. Consistent with the ruling I made, during the course of cross-examination of him by senior counsel for the accused, evidence was adduced from him which contradicted Ms Faily's denials and that was potentially destructive of her credit.

4. The Crown now seeks to cross-examine Mr Mazhari solely on the basis that he is a witness that is "unfavourable" to the party, that is the Crown, in that he has given evidence that, in substance, is destructive of the evidence of what is potentially an important Crown witness (Evidence Act, s 38(1)(a)).

5. There is something distinctly odd about the application in that the Crown (in the form of the prosecuting authority) in another forum is prosecuting Ms Faily on what appears to be the assumption that Mr Mazhari's evidence of these events is both truthful and reliable.

6. Nevertheless, on the generally broad view taken of the meaning of "unfavourable", the evidence given by Mr Mazhari satisfies that criteria. Thus, s 38(1)(a) is made out.

7. Otherwise, given that this collateral issue has arisen by the defence, it would seem to me to be overall unfair if the Crown could not at least test Mr Mazhari on evidence that he has given that is destructive of the credit of its own witness. Accordingly, leave will be granted in respect of the subject matters identified by the Crown prosecutor.

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Decision last updated: 28 November 2019