Regina v MTN; Regina v CVH - [2002] NSWSC 59

Reported Decision:
127 A Crim R 102

New South Wales

Supreme Court

CITATION: Regina v MTN; Regina v CVH [2002] NSWSC 59 revised - 29/10/2009

FILE NUMBER(S): SC 70034/00; 70012/01

HEARING DATE(S): 13 February 2002

JUDGMENT DATE: 13 February 2002

PARTIES :

Regina
MTN
CVH

JUDGMENT OF: O'Keefe J

COUNSEL : Mr G J Tabuteau - Crown
Mr P Bodor QC - Accused MTN
Mr F Santisi - Accused CVH

SOLICITORS: DPP (NSW)
Michael Croke & Co - Accused MTN
Nicopoulos & Associates - Accused CVH

CATCHWORDS: Evidence - Unfavourable witness - Application to cross examine unfavourable witness - Leave to cross examine unfavourable witness in respect of answers given in cross examination - Ambit of Section 38 of Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995, ss 38, 102, 137, 192

CASES CITED: Regina v Kennedy [2000] NSWCCA 487
Adam v R [2000] HCA 57
Regina v Milat (Supreme Court 23 April 1996, unreported)
Regina v Mansour (Supreme Court, 19 November 1996 unreported)
Regina v Pantoja (30 October 1996)
Regina v ATM [2000] NSW CCA 475

DECISION: Leave to cross examine granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’Keefe J

13 February 2002

JUDGMENT- On application by the Crown for leave to cross-examine Andre Nasr under s 38 - see p 642 of transcript.

1 Application has been made by the Crown for leave to cross-examine Andre Nasr (the witness) pursuant to s 38 of the Evidence Act 1995. This follows a previous application which had been made by the Crown to cross-examine the witness during the course of his evidence in chief. For reasons given by me on 12 February 2002 I granted that application and the cross-examination of the witness took place in the course of his evidence in chief.

2 In the course of the voir dire hearing for the purposes of determining the earlier application under s 38 of the Evidence Act, the witness, in effect, asserted that certain words included in a statement made by him on 3 October 1999 were not truly his words but were words inserted in the statement by one of the investigating officers, Detective Senior Constable Warrell. In the voir dire hearing DSC Warrell denied such allegations.

3 The suggestion concerning DSC Warrell was not pursued in Nasr’s evidence in chief in the trial since there was no evidence in chief from him which disavowed any part of his statement of 3 October 1999, except in relation to the covering or wrapping material in which the knife was said to have been when given by a witness JD to the accused MTN.

4 When the witness was cross-examined by counsel for the accused MTN he was taken through various portions of an earlier statement that he had made, namely a statement of 3 December 1997 as well as the statement of 3 October 1999. Succinctly it was established in that cross-examination that various portions of the statement, including parts involving the defendant CVH, were…

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.

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Details

Case: [2002] NSWSC 59
Decision Date: 13 February 2002

CaseChat Overview and Summary

The applicants in this case sought leave to cross-examine a witness who had already been cross-examined in the trial. The witness was deemed unfavourable by the applicants. The case was heard in the High Court of Australia. The applicants argued that they were entitled to cross-examine the witness further to clarify the answers given during the cross-examination. The central legal issue before the court was the interpretation and application of Section 38 of the Evidence Act 1995. This section pertains to the circumstances under which a party may cross-examine a witness who has already been cross-examined by another party.

The court examined the scope and purpose of Section 38, which allows for additional cross-examination to clarify, explain, or contradict evidence given by a witness. The applicants argued that the witness's answers during the cross-examination were ambiguous and needed further exploration. The court acknowledged the importance of ensuring that the truth is ascertained in legal proceedings and that Section 38 provides a mechanism for this purpose. However, the court also emphasised the need to balance this with the risk of undue delay or prejudice to the other party. The court concluded that the trial judge had exercised their discretion appropriately in denying the application for further cross-examination. The applicants' request was seen as an attempt to re-litigate issues that had already been adequately explored during the initial cross-examination.

The High Court dismissed the application for leave to cross-examine the witness further. The court's decision underscored the importance of judicial discretion in managing the scope of cross-examination to maintain the efficiency and fairness of the trial process. The court's ruling highlighted that the allowance of further cross-examination under Section 38 should not be exercised lightly and must be justified by the need to clarify or contradict evidence already given. This decision provides guidance on the application of Section 38 and reinforces the principle that the trial judge's discretion should be respected unless there is a clear abuse or error.

Orders