R v White

[2003] NSWCCA 64

Reported Decision: 140 A Crim R 63

New South Wales

Court of Criminal Appeal

CITATION:	R v White [2003] NSWCCA 64
HEARING DATE(S):	7 March 2003
JUDGMENT DATE:	21 March 2003
JUDGMENT OF:	Giles JA at 1; Dunford J at 2; Smart AJ at 3
DECISION:	Appeal upheld; conviction quashed; new trial ordered
CATCHWORDS:	Fresh evidence which could have led to acquittal - approach to granting leave under s.38 of Evidence Act 1995 to examine a witness
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Mickelberg v The Queen (1989) 167 CLR 259 R v Le (2002) 54 NSWLR 474
PARTIES :	R v Michael Rodney White
FILE NUMBER(S):	CCA 60006/03
COUNSEL:	Appellant: E Fullerton SC and S M Kluss Respondent: R A Hulme SC
SOLICITORS:	Appellant: Ross Hill & Associates Respondent: S E O'Conner

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0036
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

- 33 -

60006/2003

Giles JA
Dunford J
Smart AJ
Friday 21 March 2003

REGINA v Michael Rodney WHITE

Judgment

1. GILES JA

: I agree with Smart AJ

2. DUNFORD J: I agree with Smart AJ

3. SMART AJ: Michael Rodney White appeals against his conviction by a jury that being armed with a dangerous weapon, namely a firearm and being in company with Nathan Kain and Rian Wayne Parka he did rob Leonie Kay Matthews of certain property namely a sum of money the property of St George Bank Limited. The amount taken was about $20,358. The appellant was sentenced to imprisonment for 6 years 6 months with a non parole period of 3 years 3 months.

4. The appellant seeks a new trial on the basis of that since the trial fresh evidence has become available and that with this fresh evidence there is a reasonable possibility that the appellant would have been acquitted. The fresh evidence was to the effect that he was the driver of the getaway car. Therefore he was not one of the robbers who entered the bank. There was no dispute that the evidence was fresh. The debate was whether the evidence gives rise to a reasonable possibility that the appellant would have been acquitted. The second complaint is that the judge erred in granting leave to examine Kain, the principal armed robber and a critical Crown witness, under s.38 of the Evidence Act 1995 without having first enquired into and considered the matters on which the Crown desired to cross examine Kain. In brief, the appellant complains that he did not receive the benefit of the correct exercise of the judge's discretion before the judge granted leave to the Crown to examine Kain on the second occasion. It was also contended that the Crown examination exceeded permissible limits. These were the grounds relied upon on the hearing of the appeal. They represent a refinement of the grounds initially taken.

THE CROWN CASE

5. The Crown relied on the evidence of Kain to prove directly the involvement of the appellant and also on a circumstantial case.

6. Sometime after 12:30pm on 18 July 2001 Kain stole a blue Commodore sedan from the Lismore Shopping Square carpark and drove it to near St George bank, Molesworth Street, Lismore. The appellant allegedly followed in a hired car, a silver Toyota Avalon, with Rian Parka allegedly driving.

7. Around 1:05pm that day two men, one armed with a single barrelled shotgun, entered the St George bank. The gunman was Kain. The second man was allegedly the appellant. Parka, allegedly the getaway driver, was waiting in the silver Avalon.

8. At that time there was a number of tellers working in the bank but there were no customers present. Two men ran through the front door and yelled "Get on the floor". They were both wearing black balaclavas. The gunman jumped over the counter and yelled a number of times "Open all the drawers". The gunman moved from drawer to drawer, and required the tellers to open their drawers. He took money from the drawers and yelled to the second man, "China, the blue bag, put it in the blue bag". The second man then came to the counter and held out a blue sports bag, into which the gunman put the money. The gunman said, "Let's get out of here", and jumped back over the counter. The men ran from the bank with the money.

9. Kain and allegedly, the appellant went down an arcade and got into the Commodore, with Kain getting into the driver's seat and the appellant allegedly getting into the front passenger seat. They drove a short distance. The silver Avalon allegedly driven by Parka came up behind where the Commodore had stopped and it also stopped. This was in Nesbitt Lane. Kain got into the back seat of the Avalon and the appellant allegedly got into the front passenger seat of the Avalon. The person in the front passenger seat placed a garment over the person in the back seat of the sedan to cover him.

10. The Avalon was driven from Nesbitt Lane, Lismore close to a BP service station in Wollongbar where it was left. Mrs Christine Cox had taken the registration number of the Avalon in Nesbitt Lane and advised the police of it. Kain had a police radio scanner and became aware that the police were looking for the Avalon. On the journey to Wollongbar Kain and the appellant each changed into clothing already in the car, namely, black pants, white shirt and a tie.

11. At the service station Kain and the appellant called a taxi. Parka joined them. The taxi took the three men to Ballina. Around 2:40pm that day Kain and the appellant were arrested in Ballina. $4140 in bundled and loose notes was found in Kain's underpants. This was later identified as belonging to the bank.

12. Parka was arrested on 20 July 2001; he also had a substantial amount of money, about $5000, on him. He subsequently took the police to a water tower near Converys Lane which was close to the BP service station. Close to the water tower a black sports bag was located. This bag contained a pump action Browning .22 rifle with five rounds (similar ammunition to that found on Kain when arrested), a green and black long sleeved garment, a purple long-sleeved T-shirt, one grey pair and one maroon pair of trackpants, three gloves, socks, size 12 Nike sports shoes, size 12 Futa sports shoes and two woollen balaclavas, one with one eyehole and one with two eyeholes.

13. When Kain entered the bank he was wearing a tracksuit with maroon pants and what was variously described as a mauve/pink top and a burgundy sloppy joe as well as joggers. The second man was wearing a green and black long sleeved garment with white piping on the sleeves and trackpants.

14. The day before the robbery Kain, the appellant and Parka had travelled from Mermaid Beach, Queensland to attend at Lismore Local Court. Each was dressed in court clothes, namely, black pants, white shirt and a tie. They discussed robbing the St George bank in Lismore and while there had a look at the area.

15. On the day of the robbery Kain and the appellant were at a motel in Mermaid Beach. Parka arrived in the Avalon bringing with him a black sportsbag containing a gun and a blue backpack. Kain told Parka to obtain two balaclavas and a script for valium. Parka returned, and according to Kain, he and the appellant had about half a packet of valium each. Kain said that he also took some methadone and that later the three of them drove to Lismore in the Avalon, with Parka driving.

16. On 19 July 2000 a blue backpack was found in a bin behind the Sirocco Café in Ballina. It was taken to the police who, on opening it, found the log books for the Avalon, a packet of Longbeach cigarettes and a number of polyflat bank wrappers. When the Avalon was examined during the afternoon of the robbery there was a Longbeach cigarette butt in the rear ashtray.

17. The taxi driver, who collected the three men at Wollongbar and ultimately drove them to Ballina, did not remember their faces. He said that one or more of them were nodding off. He thought that they had had a long night or were on something. When reminded of his statement to the police on 18 July 2001 when his memory was better he remembered one man with red hair nodding off and another man in the back nodding off as well.

18. During the trial a considerable number of witnesses were called. From the totality of their evidence it emerged that Kain was taller and slimmer than the second man who entered the bank with Kain.

19. The Crown acknowledged that Kain's evidence had some unsatisfactory features. In addition to relying on evidence from him that the appellant went with him into the bank the Crown relied on some DNA evidence. The second robber in the bank was depicted in bank security photographs wearing a long sleeved garment with white piping on the sleeves. That was one of the items in the black bag.

20. That item was submitted for DNA analysis. Inside the left wristband a quantity of DNA material was recovered which originated from more than one person. Ms M. Franco forensic biologist gave evidence that the appellant had "the same DNA profile as the major component of this mixture and that that profile was expected to occur in fewer than one in four billion individuals in the general population”. However, she could not say whether one item with two profiles was worn by different people on different days or what bodily fluid deposited the DNA or when those fluids got onto the item analysed.

21. A palm print of the appellant was found on the boot of the Avalon (T291). Parka’s fingerprints were found on the rear windscreen and on the roof above the driver door (T292-3). All these prints were of recent origin (T294).

22. In his recorded interview with the police starting at 5:10pm on 18 July 2001 the appellant said that he did not take part in the robbery and that he had taken about 20 valium around 10:00am that morning when he left Palm Beach with Kain. He could not remember anything after that except catching a taxi from a BP service station and being arrested by police at Ballina that afternoon.

23. The police officers who came in contact with the appellant during the afternoon of the robbery did not observe any signs of the appellant being under the influence of drugs nor did he complain of this to them.

24. Kain, who had been given a significant discount on his sentence for promising to give evidence for the Crown at the trial of the appellant, was a most unsatisfactory witness. His evidentiary gyrations will be recounted later. The appellant's case had two branches. First, Kain, who was a critical witness for the prosecution, was a demonstrated liar and twister who lacked any semblance of credit. Secondly, the appellant remained in the Avalon ‘bombed out’ on valium, not knowing the robbery was taking place. There was a suggestion of a possible fourth man. The appellant did not give evidence. He relied on the cross-examination of the various witnesses and what he contended was the non-conclusive nature of the circumstantial case. The cross-examination of Kain, in particular, yielded fruitful results for the appellant.

SUMMING UP

25. The judge instructed the jury at SU9:-

"The Crown relies on the evidence of Kain to prove beyond reasonable doubt that Michael White accompanied him into the bank. This is not a case where the Crown says this was what is called a joint criminal enterprise to rob the St George Bank and therefore it does not matter whether White was in the bank or was waiting in the car in the lane because they are all involved. The Crown has put its case against the accused, Michael White, on the basis that he actually went into the bank itself with Kain and if you are not satisfied of that beyond reasonable doubt the way the Crown has put its case here, and quite properly, you should find the accused not guilty".

The Crown case was not left to the jury on the basis that even if the appellant did not enter the bank and was the driver of the getaway car he was guilty of the offence charged.

FRESH EVIDENCE

26. In her evidence at the trial Mrs Christine Cox stated that she was one of the proprietors of Sistas Café which ran from Magellan Street to Nesbitt Lane. On 18 July 2001 about 1:10 to 1:15pm she was working at the café and looking out the window in front of the sink. That window overlooks Nesbitt Lane. She saw a blue Commodore pull up in front of her window beside the wall on the opposite side of the lane. There were two people sitting in that vehicle wearing beanies. She stepped up onto a bench to have a better look at that vehicle. Two men got out of that vehicle. She focussed on the driver. She said that the driver after getting out of the car stood up, took his beanie off, rummaged around on the front seat, shut the front door and appearing to be in no hurry, walked to the rear of the car (the Avalon) which had pulled up behind. The driver got into the rear seat of the Avalon and the passenger from the Commodore got into the front passenger seat of the Avalon. She said that the driver of the Commodore lay down a bit and the man in the front passenger seat covered him over.

27. Mrs Cox said that the Avalon had been parked in front of the Loft restaurant in Nesbitt Lane and had come up behind the Commodore. She explained that she had climbed further up onto the sink to have a look at the Avalon and obtain its registration number and did so.

28. She did not see as much of what the passenger of the Commodore was doing as the driver and that she did not notice what the passenger had in his hands. She described the driver of the Commodore as about 5 feet 11 inches to 6 feet in height with blondey coloured hair. She thought he had a T-shirt with a check-coloured shirt over the top. She was unable to describe the man who got out of the passenger side of the Commodore. She described the driver of the Avalon as having dark coloured hair, wearing a light coloured check shirt and she thought dark trousers. He was of Mediterranean appearance. The Avalon was driven out of Nesbitt Lane. She then telephoned the police.

29. According to an arrest photograph Kain was just short of his 30th birthday, 186cm tall and had short dark hair. The bank security photographs show the gunman wearing a dark solid coloured long-sleeved garment. There was no check coloured shirt over the top of a T-shirt.

30. As to Mrs Cox' description of the driver of the Avalon no shirt which could be described as checked was found in the black bag or the Avalon.

31. On 15 August 2001 Mrs Cox viewed a number of photographs which included one each of Kain, Parka and the appellant. She did not select any of their photographs. In a group of photographs which included one of the appellant she selected and signed the photographs of two other men who she thought were "very much like" or "very similar to" the driver of the Avalon. She said nothing about the photograph of the appellant. At the time she commented about the difficulty of identifying people from photographs.

32. Mrs Cox was troubled about what had occurred at the appellant's trial and made statements to the police on 10 August 2002. She said that when she gave evidence at the appellant's trial on 26 June 2002 she was unaware prior to giving evidence exactly who was being tried, that is whom of the three men she had seen. Mrs Cox stated that during the short pause between the prosecutor finishing his questions and the defence barrister starting her questions she (Mrs Cox) looked at the man in the dock. Mrs Cox said that her immediate reaction was that the man being tried was the driver of the silver Avalon. She recognised him as the man in the dock. She stated that the two photographs which she had signed during the identification exercise were very similar to the man sitting in the dock. That was the person she was identifying when she signed the photographs.

33. Mrs Cox was not asked by either side to identify or refer to the man in the dock.

34. Mrs Cox said that when she left the court during the luncheon adjournment she commented to both Det Smith and Ms L. McKinnon, (who also worked in the café) "They're trying the driver of the getaway car! He's the guy that drove the getaway car". Det Smith replied, "you can't discuss what's going on in the court room. Linda has got to give evidence yet". At 2pm Mrs Cox returned to the witness box and her re-examination continued.

35. Mrs Cox was not required for cross examination on her statements to the police, it being accepted that she was an honest and responsible witness.

36. The test to be applied was stated by Mason CJ in Mickelberg v The Queen (1989) 167 CLR 259 at 273 thus

“….whether….there is a significant possibility that the jury acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial”.

37. The test was stated at greater length (but not to different effect) by Toohey and Gaudron JJ at 301-302 (citations omitted):

“In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher, per Brennan J) or, if there be a practical difference, that there is a “significant possibility that the jury, acting reasonably, would have acquitted the [accused]” (Gallagher, per Gibbs CJ and per Mason and Deane JJ). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless, per Mason J, and Gallagher per Brennan J but cf. Barwick CJ in Ratten”.

38. The parties were content to proceed on the basis of the statement of principle by Toohey and Gaudron JJ. So am I. Accordingly, the question is whether the intended evidence of Mrs Cox when taken with the evidence given at the trial would be likely to have resulted in the jury entertaining a reasonable doubt about the guilt of the appellant. ‘Likely’ is used in the sense of significant possibility.

39. The Crown contended that the fresh evidence of Mrs Cox lacked the cogency necessary to meet the test just quoted for the following reasons:

· She had a very limited opportunity to make observations of the men in the lane outside her café.

· The men were all previously unknown to her.

· The person she is claiming now to identify was a person she only saw sitting in the driver's seat of a motor vehicle.

· When shown photographs 1 month after the robbery, she did not recognise the photograph of the appellant, but identified two innocent men as being "very much like" or "very similar to" the person she now claims was the appellant.

· When she attended to give evidence at the trial, she had an expectation that the accused would be one of the men she had seen on the occasion of the robbery.

· The trial was 12 months after the robbery

· She identified (to herself) the appellant when he was seated in the dock.

· Based upon the arrest photographs (Exhibit KK), the appellant is not dissimilar in appearance to Parka in that they are of similar height, hair colour, hair length, head shape and both have, for different reasons, distinctive looking noses. There is a high prospect of mistaken identification one year after the event when shown only one of the two men.

40. Notwithstanding the cogency of those reasons in combination I do not consider that the Crown contention should prevail.

41. Mrs Cox was correctly regarded at the trial as a witness of some importance. The Crown Prosecutor, in his closing speech, said as to the evidence of Mrs Cox:

"She actually purports to identify who the driver of the Avalon was. She had the opportunity to look at the 13 photographs. She's in fact written on the back of one photograph "this is it". In those 13 photographs there's also a photograph of Michael White. The photograph that she has purported to identify as being the driver isn't Michael White, it's someone else. Well have a look at the photo that she purports to say is the driver of the getaway car, have a look at the three arrest photos, and ask yourself if what's she's really saying is "look, the person who was driving the car really resembles Rian Parka", because in my submission the photograph of the person she picks out looks much more like Rian Parka than either of the others, including the accused. And in fact, given the fact that she didn't identify the accused from that selection of photographs as being the driver, you may well come to the conclusion that what's she's really doing is excluding the accused as being the driver".

42. That is contrary to what Mrs Cox says is the true position.

43. The Crown Prosecutor continued:

"Now there's a number of ways that you can come to a conclusion that Rian Parker is the driver of the silver Avalon at the time when it drives out of Nesbitt Lane.

Now why have I spent so much time on this, and why is it important? Well it becomes important because you have to go back to what Christine Cox says. She says that the two people who pulled up in the blue Commodore got out and went into the silver Toyota. You know those two people who got out of the blue Commodore are the bank robbers. Where did the bank robbers go when they got out of the blue Commodore and went into the Toyota Avalon? Cox says the driver of the Commodore got into the back seat of the Toyota. Kain has said he's the driver of the Commodore. So the driver of the Commodore gets into the back seat of the Toyota. The passenger from the blue car got into the passenger seat of the Toyota. That is, neither person from the blue Commodore, who must be the robbers, got into the driver's seat of the Toyota and drove it away. Rian Parka can't both be a bank robber and a getaway driver, and that's the point. If he's the getaway driver he's not the bank robber. What Kain says about what White was doing in the Toyota Avalon can't be true. It means that what he's told Detective Smith is true: White was in the bank with him. The other person who describes seeing two people get out of the blue Commodore and go into the Toyota is Linda McKinnon. She doesn't purport to say where people went, that is which seat they sat in. She just says they got out of the Commodore and into the Toyota.

Remember something else about Christine Cox's evidence. She was focussing on the driver of the Toyota Avalon, and focussing on the driver of the Commodore. She says she didn't get a good look at the passenger of the Commodore. Perhaps you may think that explains why she didn't identify the accused, who was the passenger in the Commodore getting into the passenger side of the Toyota".

44. That passage also runs counter to what Mrs Cox believes to be correct. A reading of the Crown Prosecutor's address shows that the Crown regarded Mrs Cox' evidence as important. It was used to bolster the evidence of Kain when he followed his statement to the police of 30 May 2002 that the appellant was with him in the bank and to discount suggestions that the appellant was the getaway driver. Mrs Cox' evidence was used for a purpose contrary to what she has explained was the correct position.

45. The evidence of Mrs Cox at the trial and her post trial statements do have their limitations and a question does arise as to the reliability of her observations made in difficult circumstances and in a brief period of time. However, it is readily understandable that when she saw the appellant in person she was able to specify the role which he played. Seeing a person in a photograph is a poor substitute for seeing him in the flesh.

46. While in the first part of his evidence in chief and following his recorded police interview of 30 May 2002 Kain stated that the appellant entered the bank with him, Kain then started to assist the appellant. The judge in granting leave to cross examine Kain on a limited number of subjects remarked

“…what Mr Kain was in fact doing was giving the, in colloquial terms, minimum amount of evidence possible that he thought he could get away with, to assist Mr White without being in obvious flagrant breach of his undertaking”.

47. After the Crown had cross examined Kain, counsel for the accused did so. She elicited that Kain had told the police that the appellant was “that bombed out of it that he couldn’t really stand up…. he was gone to Gowings”. Kain said that while he was ‘bombed’ the appellant was more affected by valium. Kain said that Parka had blond hair and that it came down to about collar length. He did not recall seeing anyone in a chequered shirt. Kain said that Parka had stated that he was under financial pressure from his debts. Kain said that he had drug debts.

48. In February 2001 Kain wrote out a five page statement for his solicitor and gave it to him with instructions to forward copies to the legal representatives of Parka and the appellant. Kain agreed that in February 2002 he told his solicitor that it was Parka that went into the bank with him and not the appellant. Kain also told his solicitor that the robbery had been planned between him and Parka and “I did rob the bank with Rian and I remember getting into the Avalon with Michael asleep in the seat”.

49. Kain said that he had known Parka for 9 months before the robbery and the appellant a few days. Kain agreed that he and Parka had shared the proceeds of the robbery.

50. Kain said that the police told him prior to undergoing his recorded interview that they believed that the appellant was in the bank with him. He co-operated with the police and undertook to give evidence to obtain a reduced sentence. On account of the co-operation, the plea of guilty and his undertaking to give evidence, his sentence was reduced from eight years to five years.

51. What Kain said to his solicitor and confirmed in evidence was destructive of the Crown case. At the very least it posed a major problem for the Crown as to his evidence and his credibility. The Crown was granted leave to further cross examine Kain and sought to repair some of the damage.

52. It was in these circumstances that the Crown placed so much reliance on Mrs Cox’ evidence. The Crown used her evidence to prop up the evidence of Kain that the appellant was in the bank with him. But it is now known that Mrs Cox believed that the appellant was the driver of the Avalon. If so, it was most unlikely that he entered the bank. Upon completion of the evidence of Kain, support for the critical aspect of his evidence was important.

53. If instead of the evidence of Mrs Cox being used to support the Crown case the jury had known that she believed that the appellant was the driver of the Avalon, the jury could have taken the view that the Crown had not proved its case beyond reasonable doubt. There were other indications in the evidence, albeit far from conclusive, which could have been used to provide some support for the appellant, for example, the preparations made by Parka, the indebtedness of Parka and the appellant and their sharing of the proceeds of the robbery.

54. The further evidence of Mrs Cox meets the test earlier propounded. There is a significant possibility that a jury acting reasonably could, if it had had that evidence, have acquitted the appellant. This ground has been made good and the appellant is entitled to a new trial.

FURTHER LEAVE TO CROWN TO CROSS EXAMINE KAIN

55. As earlier indicated the judge having formed the view earlier quoted gave the Crown leave to cross examine Kain on various aspects of some of the answers in his record of interview of 30 May 2002. Those on which cross examination was permitted are set out at pages 220-222 of the trial transcript.

56. After the subsequent cross examination of Kain on behalf of the appellant had occurred, some of which is earlier summarised, the Crown applied for leave under s.38(1)(a) and (c) of the Evidence Act 1995 to question Kain as though it were cross examining him– Kain’s evidence was unfavourable and he had made a prior inconsistent statement. The Crown sought leave to examine Kain at large both as to the issues and as to matters of credit. The Crown stated that if leave were granted it proposed to play a tape recording of an interview between Snr Cons Fredericks and Kain and one between Kain and Det Smith so the jury could form an assessment of the state of Kain’s drug intoxication or otherwise. The Crown also stated that it proposed to call Det Smith as to the conversations that took place prior to the interview of 30 May 2002.

57. Counsel for the appellant opposed the application under s.38, objected to any cross examination on credit and contended that the Crown should be limited to the material on which it had already relied. When pressed by the judge to enlarge upon her submissions counsel said that she did not wish to be heard further. The judge described her opposition as nominal and received no assistance from her.

58. In his reasons for granting the leave sought the judge traced the history of the evidence given by Kain, noting that he had given evidence at his sentence hearing before Judge Ducker to the effect that what he (Kain) had said in his interview with Det Smith on 30 May 2002 was correct and that he proposed to give evidence against White and Parka at their trial.

59. The judge said, “Kain appears either to have perjured himself in this court or perjured himself before Judge Ducker”. The judge said that he had taken into account all relevant matters under ss.38 and 192 of the Evidence Act 1995. He held that it would make a mockery of the criminal law not to grant the Crown’s application and added, “to permit the existing situation without cross examination of Kain would put the court into a position of being deliberately duped or at least an attempt at deliberate duping by Kain”. The judge further held that there was nothing unfair to the accused in permitting the “cross examination”.

60. The appellant submitted that the Crown erred in not specifying in its application the matters upon which it wished to cross examine and that the judge erred in not requiring it to do so. Counsel for the appellant at the trial did not ask for such specification. In broad terms the evidence which she had elicited put almost everything of importance Kain had said in examination in chief in issue, that is, in substance Kain denied in cross examination the truth of what he had previously said on major matters. I leave aside peripheral matters, matters of detail and matters on which there was no dispute.

61. Section 38(1) –(3) of the Evidence Act 1995 provides:

“(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
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility”.

62. In R v Le [2002] 54 NSWLR 474 Heydon JA, with whom Dunford and Buddin JJ agreed, examined the history, purpose and terms of s.38 of the Evidence Act, 1995. He acknowledged at 481 “the ‘incontrovertible proposition’ that leave under s38 does not justify general cross examination, using the leading questions (s42) and aggression characteristic of cross examination, on any subject relevant to an issue or to credit”.

63. Heydon JA continued at 481:

“Section 38 permits the party who obtains the leave to question “as though the party were cross examining a witness” but only “about” the three subjects described in pars (a)-(c)”

He added at 481-2:

“…so far as s.38 examination elicits evidence of prior inconsistent statements containing hearsay, though they can be admitted merely on credit, they can also be admitted to prove the facts asserted by reason of s60….”

64. Based on the dictionary meanings of the word ‘about’ Heydon JA was inclined to think that the word ‘about’ in the early lines of s.38(1) meant asking a question touching or concerning a matter.

65. After considering the terms of various ALRC reports Heydon JA wrote at 486:

“In short the Commission was concerned to limit the topics on which the examination of unfavourable witnesses could take place, but wished to permit cross-examination relating to those topics even though it went only to the credibility of the witness’s evidence about those topics.

One purpose of a s.38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s.38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s.60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s.60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s.38 examinations otherwise and no point in the existence of s.38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity.

In my opinion, on the true construction of s.38, leave may be granted under s.38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s.38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness’s credibility on the s.38(1) subjects’.

66. The remarks of Heydon JA point up both the restrictions on examinations under s.38 and their width. There may be cases where, in practical terms, because of what a witness has said and the matters he has raised and their width it will be permissible to grant leave to examine at large without departing from the true purpose of s.38. It would be pointless to have a lengthy list of matters about which a witness could be examined if that list covered virtually all the matters (or all the major matters) about which the witness had given evidence. When leave is given to question a witness about matters only relevant to his or her credibility that may permit a fairly wide ranging examination.

67. In the light of what Kain had said in his evidence up to the conclusion of his first cross examination by counsel for the appellant, the judge was correct in granting the Crown leave to question the witness under s.38(3) of the Act as to his credibility. It is true that the phrase “cross examination” was used but nothing turns on that. Counsel and the judge understood that they were dealing with an application under s.38 of the Act.

68. The judge was also correct in thinking that this was a case in which leave should be granted to the Crown under s.38 to further examine Kain. Indeed that was not arguable. Usually, the Crown should specify the matters on which it is sought to further examine the witness and the judge should require the Crown to do so. Specifications of the omnibus variety will usually not be acceptable. Examinations pursuant to leave under s.38 are not the occasions for “open slather” type cross examinations.

69. In the present case the effect of the answers given by Kain in response to the first cross examination by counsel for the appellant was to cast doubt upon or contradict most of the important matters about which he had given evidence in chief. There was a marked departure from what he had said in his record of interview.

70. In the circumstances of the present case the course taken by the judge was practical and caused no miscarriage of justice in what was a plain case and so treated by those at the trial.

71. When regard is had to the s.38 examination embarked upon by the Crown it appears that there has been no miscarriage of justice. The Crown put to Kain that he was exaggerating the extent to which he and the appellant were affected or influenced or stupefied by drugs. Kain did not accept that proposition. He insisted that he had told the police from the beginning that he was affected by valium and that the police had remarked that the appellant was ‘bombed’. The Crown confirmed with Kain that he believed that the appellant was with him in the bank. A little later he said that at first he believed Parka was in the bank with him but as time went on he believed the appellant was.

72. Kain agreed that the reason he told his solicitor that Parka was in the bank with him and that the appellant was asleep in the Avalon was to create a situation where Parka would be in trouble and the appellant would not be in trouble.

73. The Crown then put to Kain that the reason he wanted to keep the appellant out of the bank was because he (Kain) was having a relationship with him. Mr Kain responded that that was wrong. This series of questions and answers appears (T266-7):

Q. But you are happy to admit that you are a homosexual man?
A. That’s correct.

Q. And in the months prior to the robbery you were having a relationship with Mr Parka, weren’t you?
A. No, that’s not correct.

Q. It is Mr Kain, isn’t it?
A. No it isn’t

Q. And see what happened is that prior to the robbery you changed your affections from Mr Parka to Mr White?

Q. And when all three of you were arrested in relation to this robbery you did your best to keep your new friend out of trouble by telling a false story to Mr Trembath?
A. No. No, that’s not correct. I don’t know where you’re getting this from.

and

Q. You were worried about the length of the imprisonment you were going to get for the robbery?
A. Correct.

Q. You wanted to do as little time as possible?
A. Well doesn’t – correct.

Q. And your legal advisers told you that the story you had given about Rian Parka being involved in the bank was just rubbish?
A. No, they just said tell the truth to the best of your knowledge.

Q. That’s right, and that’s why, that’s why you abandoned that version that you told your solicitors and offered the truth to Mr Smith?
A. As I said to my solicitors all along, I says “I can’t even remember the day myself”.

Q. Well can I tell you--
A. I said “I’m piecing it together as I go along myself” and I’ve always maintained that. I even told Detective Smith when he interviewed me, I said “I was bombed myself”.

and at T266-8:

Q. Mr Kain, before this trial started did you enter into an agreement with the accused that if he pleaded guilty you would come and give evidence on his sentence to say that you held a gun at his head and forced him into the bank?
A. No.

………….

Q. You did and you told your father you had that agreement didn’t you?
A. Excuse me, I haven’t finished talking yet. I said to Michael that I believed that he’d get found guilty on the evidence.

…………

Q. Let me put it to you like this, Mr Kain. Whilst you have been waiting for this trial to start you have made a phone call to your father?
A. Correct.

Q. And through the course of that phone call to your father you told him of an agreement that you and the accused had reached, didn’t you?

A. Yes, sir.

Q. And the agreement was that the accused would plead guilty on Monday and you would give evidence on his sentence, correct?
A. Yeah, that’s correct. I advised him to plead guilty, I said---

Q. And you told him--
A. I believe that--

KLUSS: Well perhaps the witness could finish?
WITNESS: I advised him to plead guilty, I thought that he’d get found guilty and I said “You can call me as a defence witness because I was the main person”.

CROWN PROSECUTOR: Q. And you said that you would say on his behalf that you put a gun to his head before you both went into the bank, correct?
A. That’s correct.

Q. Now there’s two things about that, Mr Kain. One is in that agreement you were trying to help out Michael White, correct?
A. I believed that he’d get found guilty.

Q. Listen to the question. In that agreement you were going to do your best to help Michael White get out of trouble, correct?
A. No.

Q. The point of that agreement was to minimise Mr White’s involvement in the robbery, wasn’t it?
A. Not when you put it like that, no, because his involvement in the robbery was minimal anyway as I said to Detective Smith over there, I said “his involvement in the robbery was minimal, it was me and Parka” and he said, he said, “Well Michael went into the bank with you, so”.

74. The appellant contended that the questioning of Kain by the Crown as to his alleged relationship with the appellant was impermissible. It was unduly prejudicial. While Kain was happy to admit that he was a homosexual man he denied that he was having a relationship with the appellant and that he had had one with Parka. Kain denied that he had switched his affections from Parka to the appellant. No objection was taken to this line of examination.

75. Earlier in cross examination by counsel for the appellant Kain agreed that Parka had a crush on Kain and was jealous because no guys paid attention to him (Parka) (T247). Kain also agreed in that cross examination that he had told his solicitor this and that Parka disliked the appellant as Parka thought that the appellant was a threat and that Kain would spend more time with the appellant than with Parka.

76. In the light of that cross examination by counsel for the appellant his complaint about the questions asked by the Crown lacks substance.

77. As to the question that Kain’s legal advisers had told him that the story about Parka being involved in the bank was rubbish, the appellant submitted that the Crown should have had a sound basis to put this question. I accept that there had to be a sound basis to put this question but this court does not know that there was not. No objection was raised at the time and the matter was not debated at the time and the basis exposed. This was but a single question and the proposition suggested was rejected. No miscarriage of justice occurred.

78. As to the questioning about the contents of the telephone call the appellant complained that he was given no advance notice of the material in question and supplied with no transcript. The material may have been illicitly obtained and the appellant had been given no opportunity to check its provenance.

79. However, at T100 the Crown was granted leave to serve a subpoena for the production of two compact discs recording telephone calls from Grafton Prison. T144 records that the discs had been produced in response to the subpoena. Access was granted to counsel for the appellant and the Crown.

80. The material on which the Crown question was based was known to those appearing at the trial.

81. Kain agreed that he had said that he would say on the appellant’s behalf that he (Kain) put a gun to the appellant’s head before they both went into the bank. There was no objection to the question eliciting that evidence. This complaint lacks substance.

82. Kain agreed in his further examination under s38 that he had previously told Judge Ducker that what he had said in his police interview of 30 May 2002 was correct. Kain said that he was telling the truth when he said that. Kain also agreed that it could not be true both that Parka was in the bank and the appellant was in the bank with him. It had to be one or the other. He believed that it was the appellant.

83. This brief summary helps to illustrate that the further questioning by the Crown Prosecutor was permissible and unarguably should have been permitted by the judge in the sound exercise of his discretion in granting leave under s.38 including exercising his discretions under ss.137 and 192 of the Evidence Act 1995. The examination which was permitted and took place resulted in no miscarriage of justice.

84. The second ground of appeal should not be upheld.

85. However, as the fresh evidence ground should be upheld the appellant is entitled to a new trial. I propose the following orders:

Appeal upheld; conviction quashed; new trial ordered.

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Last Modified: 04/03/2003