Unfavourable witness

Wood CJ at CL

1. The appellant was convicted on 4 June 1997, following a retrial, of the murder of his brother in law, Trevor John Climpson. He now appeals against that conviction, but not against the sentence that was imposed.

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10. Vicki Climpson, who was given a certificate under S 128 Evidence Act, said in chief that the deceased had moved out of their home about six weeks before his death, because of arguments about building a home on her parent's property. She added, however, that he had returned to the house nightly, and had stayed over on some nights, including the night before his murder, but he was not living there permanently. She had last seen him at the house alive at 10.30pm on 7 January, and had last spoken to him by telephone at about 7.00pm. on the night of his death.

11. Pursuant to the leave granted under S 38 of the Evidence Act, she was cross examined by the Crown Prosecutor as to whether the evidence she had given concerning the deceased staying over, and spending the night before his death, at her home, was untrue, in the light of the statements she had made to police and in her record of interview. In the course of this cross examination it became obvious that these prior statements were, to various extents, inconsistent with her evidence at the trial. She agreed, in the course of this cross examination, that she had asked Kevin Bell to lie to police about the movements of the deceased on the afternoon and evening of the shooting, and about the phone call said to have been made by the deceased at about 7.00pm.

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50. Bradley Walsh was called by the Crown. A certificate was given to this witness under S 128 of the Evidence Act, at the Crown's request, in anticipation of the possibility that he might give evidence incriminatory of himself in relation to a variety of offences including perjury, accessory after the fact to murder, conspiracy to pervert the course of justice, concealment of serious offences, indecent assault, and firearms offences. When asked about the matter, he claimed to have no recollection of the events at Moree, or of the events of which he had given evidence at the first trial, or even of having given evidence on that occasion.

51. Leave was sought and given to the Crown to cross examine him under S 38(1)(b) of the Evidence Act concerning that evidence. In the course of that cross examination, it was conceded that he had said at the first trial that, a week before the police search on 19 September 1990, he had seen a .22 calibre rifle under a wooden pallet in the backyard of the appellant's home in Moree; that the appellant had said that he did not have a shooter's licence, and that he had then hidden the weapon under his bed.

52. It was also conceded that he had given evidence of a "man from the pub" leaving a .357 Magnum handgun at the premises a few days before 19 September 1990, which had been accidentally discharged by him towards the floor, after which the appellant had taken it to his bedroom.

53. It was further conceded that Walsh had said that, prior to the police search, the appellant had been "running around" panicking, and had placed the handgun under the lounge chair, and that he (Walsh) had offered to cover the rifle with his own shooter's licence, and had later produced that licence to police. It was also conceded that he had said, at the first trial, that his assertion as to ownership of the rifle, to the police, had been an attempt to help the appellant.

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116. Although the reasons given for allowing cross examination in relation to specific matters did to a degree overlap, and were in some respects, but not all, confined to issues of credit, it does appear that leave was eventually given under S 38(1)(a) so far as the witness' evidence in chief was in conflict with that expected to be called from other witnesses; under S 38(1)(b) so far as his Honour assessed the witness as not making a genuine attempt to give evidence; and also under S 38(1) (c) so far as her evidence in chief was in conflict with prior statements that she had made to police.

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121. What is now clear is that it is to be given its full effect, and that it is not to be confined to the situation where a party calling a witness is confronted unexpectedly by evidence that is "unfavourable" as that expression has been explained in Souleyman (1996) 40 NSWLR 712 (Gilbert Adam [1999] NSWCCA 189; 47 NSWLR 267); or, I would add, where such a party is confronted with the situation where the witness unexpectedly gives evidence that is inconsistent with prior statements or unexpectedly appears not to be making a genuine attempt to give evidence.

Hulme J

170. I agree with the orders proposed by Wood CJ at CL and, subject to what appears below, with His Honour's Reasons.

Barr J

173. I agree with Wood CJ at CL.

Giles JA

2. It is clear that in giving the prosecution leave to question Rachel Golby as though it were cross-examining, the trial judge did not have regard to the matters which, by s.192(2) of the Evidence Act 1995, he was to take into account. Nor did his Honour give attention to what Rachel Golby should be permitted to be questioned about, either by regard to the three categories of questioning in s.38(1)(a), (b) and (c) or by regard to the further category of questioning about matters relevant only to credibility in s.38(3). It is appropriate to say that neither the prosecution nor the defence appears to have reminded his Honour of the need to take into account the matters in s.192(2) and to consider the extent and nature of the permitted questioning.

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4. It cannot realistically be doubted that, had there been regard to the s.192(2) matters, leave would have been given to question Rachel Golby as if cross-examining. But the leave would by no means have permitted the unfettered and wide-ranging questioning which was undertaken, apparently because all of the trial judge, the Crown Prosecutor and counsel for the appellant considered that there were no restrictions on what Rachel Golby could be questioned about and in particular that her credit could be attacked. The extent of questioning led or contributed in turn to the calling of evidence from Rebecca Jones, Kerry Francis, Mrs. Kim Robertson and Detective Senior Constable Robinson about what Rachel Golby had been doing on the afternoon of 21 June 1998, what she had said to them, her drug habit, and Rebecca Jones' relationship with the complainant.

Greg James J

10. At a trial in the District Court of New South Wales at which he had pleaded not guilty, the appellant was found guilty of a charge of having, on 21 June 1998 at Umina, maliciously inflicted grievous bodily harm upon Matthew Gray. That offence, under s.35(b) of the Crimes Act 1900, is punishable by a maximum penalty of seven years imprisonment.

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15. Certain of the grounds of appeal challenge some of such rulings, particularly those by which his Honour granted leave to the Crown Prosecutor to cross-examine certain witnesses called in the Crown case and permitted the calling of evidence in the Crown case of statements asserted to be inconsistent with aspects of those witness' accounts. Those grounds were:-

"(1)        His Honour erred in granting leave to the Crown Prosecutor to cross-examine Rachel Golby.

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(10)       His Honour erred by granting leave to the Crown Prosecutor to cross-examine Kathleen Golby."

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24. Rachel Golby's evidence in chief plainly diverged substantially and in many respects from an original statement she had given to police. It was clearly open to the trial judge to consider that her evidence was, in a number of those respects, at least, to be unfavourable as well as inconsistent with her prior accounts.

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31. At this point of the trial, the Crown Prosecutor made what is referred to as "an application under s.38 of the Evidence Act 1995 to cross-examine the witness". Defence counsel is recorded as opposing the application. The following appears in the transcript:-

"As I held last week, I consider that s.38 is applicable and I propose to let the Crown Prosecutor cross-examine this witness as I did last week. Mr. Cruickshank you might be right about one thing, about us getting another story next week if there was another trial, but that doesn't mean s.38 doesn't apply."

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54. It was submitted that the trial judge had erred in permitting the cross-examinations I have referred to in failing to have regard to various sections of the Evidence Act 1995, including s.192 (matters to be considered on the question of leave), ss.135 and 137 (rejection in discretion of prejudicial evidence), ss.102 and 103 (inadmissibility of credit evidence) and s.60 (hearsay evidence). Further, that his Honour failed to have regard to s.38(6) and to restrict cross-examination to those areas to which s.38 refers.

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73. It can be accepted that the account Rachel Golby gave at trial was "unfavourable" to the Crown case in a number of respects. It can be accepted that that account contained important inconsistencies with the initial prior account she gave to the police. The account given by her mother was also, but to a lesser extent, unfavourable. But the course taken by the trial judge in granting leave does not seem to have included examination of those matters required to be considered by s.38(6) and those under s.192 the High Court held should be considered, nor did his Honour have regard to the discretions referred to in Regina v. Lozano (CCA, unreported 10 June 1997) per Hunt, CJ. at CL., Sperling and Barr, JJ. at 7 or those adverted to in Regina v. GAC (CCA, unreported 1 April 1997) at 15-16. In each of those decisions both s.192 and the provisions of the Evidence Act 1995 relating to discretionary rejection were referred to as appropriate to be examined on the consideration of the grant of leave.

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84. Even if leave would almost certainly have been granted, it could not be successfully argued that would necessarily have permitted as wide an ambit of cross-examination as occurred. I conclude there was a miscarriage.

Badgery-Parker AJ

101. I agree with the judgments and the orders proposed.

Heydon JA

1. On 7 March 2001, after a five day trial at Newcastle before Coolahan DCJ and a jury, the appellant was convicted on a charge of supplying a prohibited drug, namely heroin, on 18 July 1997 at Port Macquarie. On 9 April 2001 he was sentenced to imprisonment for three and a half years to commence on 7 March 2001. A non-parole period of two years was fixed. The appeal is against conviction and the appellant also seeks leave to appeal on sentence.

Background

2. The trial judge said the following in his remarks on sentence.

"The facts in relation to the matter as obviously accepted by the jury disclose that on 18 July 1997, pursuant to a search warrant, police attended at the offender's townhouse in Port Macquarie. The search warrant was obtained in the course of a major drug operation in the Port Macquarie Area. At 6.45am on that date, they entered into the offender's unit and broke into his bedroom where the offender was standing in the middle of the room. His then girlfriend, Amber O'Brien, was in bed…

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4. Ground 1 was as follows:

"His Honour erred by granting leave pursuant to Section 38 of the Evidence Act to the Crown Prosecutor to cross examine Amber O'Brien."

Ground 2 was as follows:

"The trial miscarried because the danger of unfair prejudice to the Appellant flowing from the Crown Prosecutor's cross-examination of Amber O'Brien outweighed the probative value of that evidence."

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13. In essence the appellant's arguments were that the trial judge erred in granting leave under s 38 on a basis as wide as he did; that leave under s 38 must be granted in specific and narrow terms so as to avoid the risk of unfair prejudice to the accused; and that the actual questioning that followed the grant of leave extended beyond the grant of leave and was itself prejudicial, particularly because it concluded by suggesting that Amber O'Brien had changed her story at the instigation of the appellant and in return for the gift of a car.

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43. The trial in this case took place in March 2001, shortly after the High Court gave judgment in Stanoevski v R on 8 February 2001, but probably before that case was reported. The trial was before R v Hogan was decided on 3 August 2001. However, the necessity of taking into account ss 135, 137 and 192 in relation to s 38 applications was well known before those cases: see the lengthy analysis of Wood CJ at CL in R v Adam (unreported, 3 December 1998).

44. It is, of course, highly unsatisfactory that the appellant's counsel before this Court (who did not appear at the trial) is relying on the trial judge's failure to pay regard to ss 135, 137 and 192, when his predecessor at the trial did not remind the trial judge of them. The Crown notes that fact, but accepts that "the solicitor advocate appearing as Crown prosecutor" did not remind the trial judge of the sections either. The Crown did not formally take the point that leave is needed under rule 4 of the Criminal Appeal Rules, and the terms of what is said in the cases relied on by the appellant make that course understandable.

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47. The contention by the Crown that the failure to mention ss 135, 137 or 192 does not mean that the trial judge did not consider the relevant questions may be correct in the abstract, but there is nothing positive in the reasons for judgment to suggest that the trial judge did in fact consider the questions. An inference that a judge took particular matters into account can sometimes be drawn from the fact that they were mentioned in argument. The sections in terms were not mentioned in argument. Nor were the substantive elements of them. The entire argument, quoted above, proceeded on the basis that the only relevant enactment was s 38. Yet the terms of s 137 and s 192 are mandatory. They must be complied with whether or not a party who might gain from their invocation actually invokes them. It is notable that Part 3.11 (in which s 137 appears) and Chapter 5 (in which s 192 appears) are not listed as among the provisions which the court may, with the parties' consent, dispense with: s 190. It is unnecessary to discuss the extent to which s 135 is mandatory or the extent to which a court should apply it even though no party requests this. The conclusion that the trial judge did not pay regard to s 137 and s 192 is beyond rational argument.

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49. It follows that the s 38 order which the trial judge made was under an error of law. However, the conviction could still stand if the Crown could establish that the trial judge could not reasonably have refused to grant the prosecution's application under s 38 even if all relevant provisions had been taken into account: Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 at [56] per McHugh J.

50. Had the trial judge considered s 192, it is likely that he would have reasoned, and reasoned legitimately, as follows. In relation to s 192(2)(a), though a s 38 order would obviously lengthen the hearing, it would not do so unduly: the s 38 examination in fact only took up eleven pages of transcript. In relation to s 192(2)(b), leave to cross-examine at least on the differences between the evidence in chief and the record of interview would not have been unfair to either the witness or the appellant. As to s 192(2)(c), the evidence was very important. As to s 192(2)(d), the nature of the proceeding was a neutral fact. There was no relevantly useful power of the type referred to in s 192(2)(e). Turning to s 137, the probative value of concessions by the witness about what she had said to the police (in an electronically recorded interview) was potentially very high; that value might be reduced by any explanation given by the witness, but that was a matter for jury evaluation. The potential probative value wholly outweighed the danger of unfair prejudice to the appellant; and if the evidence turned out to be of low probative value, there would be no unfair prejudice to the appellant. The application of s 135 could not lead to any different outcome.

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66. 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.

67. 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.

Dunford J

124. I agree.

Buddin J

125. I agree with Heydon JA.

Ipp JA

1. This is an appeal against convictions on seven counts of committing offences under s 596(b) of the Corporations Law as it existed prior to 15 July 2001. The criminal conduct alleged in each count was that the appellant, as an officer of a nominated company, with the intent to defraud the company, caused property belonging to it to be transferred to another. Each count was based on allegations that the appellant caused a cheque, in a particular amount, to be drawn by the nominated company and the proceeds to be paid to the payee (a third party). In counts 1, 2 and 3 the nominated company was Lawnkin Pty Limited and in counts 4, 5, 6 and 7 the nominated company was Nambucca Investments Pty Limited. The payee in each case differed. The aggregate amount so transferred was $162,500.

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6. There was no dispute at trial that the specified amounts in each count were in fact paid pursuant to directions given by the appellant. The Crown, however, had to establish that the payments, or transfer of property, in each case, occurred with an intention on the part of the appellant to defraud the company from which the payment was made.

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60. The second ground of appeal is that his Honour erred in permitting the crown prosecutor to cross-examine the witness Ian Harris under s 38 of the Evidence Act.

61. Harris was an employee of Austwide. Apparently, he was also a long-standing friend of the appellant and was perceived by the Crown "to be fairly solidly in the defence camp". Nevertheless, the Crown decided that he should be called as part of its case. In making this decision, the crown prosecutor believed that Harris might give evidence capable of being unfavourable to the Crown in three areas. The first concerned the existence of a management agreement. Harris had stated previously that he had seen a management agreement being executed. Secondly, at the committal proceedings the appellant had produced a copy of a minute dated 25 October 1994 purporting to authorise the entering into by Nambucca of a management agreement with Austwide. The Crown contended that that minute was a forgery. On an earlier occasion, Harris (contrary to the Crown case) had testified that he had seen Hall sign that minute in front of him. The third area concerned the number of invoices sent by Austwide or the appellant to Nambucca. Harrris had testified previously that more than 20 invoices had been sent by Austwide or the appellant to Nambucca, although, according to the prosecutor Harris had given various accounts as to the precise number of invoices that had been sent.

62. The Crown decided to call Harris to testify about other matters and, in the light of his prior evidence in regard to the first two areas I have mentioned, not to question him in chief about them. In regard to the invoices, the Crown decided to ask Harris only about certain specific invoices that had been found and which were tendered in evidence. His evidence in chief proceeded in this way.

63. In cross-examination, Counsel for the appellant asked Harris about the management agreement but he did not testify that he had seen it being executed. Harris said that he had a belief that he had seen such an agreement but could not say when. He was not asked about the minute of 25 October 1994. Thus, the Crown's decision not to ask Harris any questions in his evidence in chief about these topics was forensically successful.

64. Counsel for the appellant referred to the invoices about which Harris had testified in chief. He asked Harris whether, between the end of September to the end of December 1994, any other invoices were raised by Austwide at the appellant's direction. Harris replied that somewhere between 20 and 30 invoices were so raised. Later, in his cross-examination, he said that the 20 to 30 invoices had been raised in relation to Nambucca.

65. In the course of re-examination, the crown prosecutor applied to cross-examine Harris under s 38 of the Evidence Act in regard to his evidence about the 20 to 30 invoices. In making the application the prosecutor informed the Court that "the assertion that invoices were raised in greater number is certainly something that he has sworn to previously, although the number of varieties seem to vary". The prosecutor submitted that the evidence about the invoices was unfavourable to the Crown. He accepted that he had not been taken by surprise by the evidence that Harris had given.

66. Counsel for the appellant, in opposing the application, informed Dodd DCJ that:

"The Crown has been on notice that this was the gentleman's evidence, that there were 20 to 30 invoices raised in relation to Nambucca".

67. Dodd DCJ granted leave to the Crown and said:

"I make that ruling notwithstanding the terms of sub-section 4 of s 48. But questioning under this section is to take place before the other parties cross-examine a witness, unless the Court otherwise directs. So I for that purpose am otherwise directing".

68. The prosecutor proceeded to question Harris and his questions on the issue of the 20 to 30 invoices occupy some eight pages of the transcript. Harris was asked about evidence he had given earlier in the year in the Supreme Court. Harris agreed that he had said that he could not accurately state the number of invoices sent by Austwide to Nambucca from the end of September 1994 to the end of December 1994. He agreed that he had said that he would have sent more than ten and probably more than 20, but he accepted that he had "no real recall".

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70. There is ample authority that an application to question a witness under s 38 may be allowed where unfavourable evidence is led in cross-examination: it is sufficient to refer to R v Milat (unreported, NSWSC, Hunt CJ at CL, 23 April 1996); R v Pantoja (unreported, NSWCCA, 5 November 1998); R v Mansour (unreported, NSWSC, 19 November 1996). There is also ample authority to the effect that s 38 is not limited to circumstances where the unfavourable evidence is unexpected: it is sufficient to refer to R v Esho [2001] NSWCCA 415; R v Fowler [2000] NSWCCA 142.

71. Special considerations, however, may arise in regard to s 38 in circumstances where the applicant well knows that the witness is likely to give unfavourable evidence on a particular issue (but wishes to elicit evidence from the witness on other issues), deliberately refrains from asking about the unfavourable evidence, and when it emerges in cross-examination, makes the application.

72. Judges have disapproved of the use of s 38 as a tactical or forensic device: See R v Mansour (per Levine J), R v Nguyen [2002] NSWSC 59 (per O'Keefe J), R v Kingswell unreported, NSWCCA, 2 September 1998 (per Studdert J, with whom Hidden J agreed); R v Pantoja (per Adams J).

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75. The antipathy that courts have expressed to allowing s 38 to be used as a forensic device stems from the potential of unfairness to a party or a witness. It is necessary to focus in this regard on what is meant by a forensic device. In this context, in my opinion, it means the deliberate use of s 38 for the purposes of manipulating trial procedure so as to gain an unfair or improper forensic advantage that, but for s 38, would not arise. The qualities of unfairness or impropriety are critical in determining whether an application under s 38 should be refused on this ground.

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82. Then, it must be asked whether that there was abuse of the section, and resulting impropriety or unfairness to the appellant, because the Crown made a deliberate decision not to question Harris about the three issues (and the number of invoices, in particular) and made a deliberate decision to take its chances in applying under s 38 after Harris had been cross-examined.

83. Unfairness to the appellant, as I have previously indicated, has to be judged in the context of the legislation. I see nothing in the section that prohibits, expressly or impliedly, the course that the Crown adopted. What in fact occurred was that the Crown was allowed to cross-examine Harris and water down the effect of the evidence he had given. There was nothing unfair in the cross-examination. The result was that a truer picture of the situation was presented to the jury than would have been the case had the Crown been refused leave to cross-examine. This is the very purpose underlying s 38. It was not contended for the appellant that any kind of unfairness resulted from the procedure adopted, other than that referred to in paragraph 81 above,

84. The decisions taken by the Crown were based on reasonable grounds; that is to say, the situation that the Crown faced in regard to Harris was such that it was reasonable, forensically, for it to wait to see whether Harris would give unfavourable evidence in cross-examination and then to apply under s 38. The point being that it was completely uncertain, as far as the Crown was concerned, whether or not Harris would be asked about the three issues and what replies he would give (although the Crown knew that there was a potential for some or all of the replies to be unfavourable). I see nothing improper in the Crown adopting the procedure that it did.

85. Accordingly, I have come to the conclusion that, although the deliberate decisions taken by the Crown have to be classified as falling into the basket of forensic tactics, they did not lead to the Crown's application under s 38 being an abuse of the section.

Hulme J

133. I agree with the orders proposed by Ipp JA and, subject to the following remarks, with His Honour's Reasons.

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138. So far as the second ground of appeal is concerned, I would add this. Any practice of requiring a party calling a witness who may wish to cross examine that witness doing so during the witness' examination in chief has significant disadvantages. It is calculated to require the party calling the witness to adduce, or at least seek to adduce, during the course of evidence in chief all of the witness' evidence which that party may wish to challenge in cross examination. Experience shows that at least some of this evidence is liable to be utterly worthless, for example, when it is contrary to statements previously signed by the witness. It is calculated to inspire the adducing of evidence which would not otherwise be given - evidence which, as occurred in this case, would not be sought by the opponent and which, if neither party wished it, would only raise an additional and unnecessary issue in the trial. Any such practice is thus also calculated to add unnecessarily to the length of a trial.

Bell J

141. I agree with Ipp JA.

Giles JA

1. I agree with Smart AJ.

Dunford J

2. I agree with Smart AJ

Smart AJ

3. 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.

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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.

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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.

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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.

1. The appellant was convicted upon two counts, being:

1.           On 6 May 1997 at a place unknown in the State of New South Wales he did detain Kerry Patricia Whelan with intent to hold her for advantage to the said Bruce Allen Burrell (contrary to s 90A of the Crimes Act 1900);

2.           On or about 6 May 1997 at a place unknown in the State of New South Wales he did murder Kerry Patricia Whelan (contrary to s 18(1)(a) of the Crimes Act 1900.

2. The trial was conducted before Barr J and a jury commencing on 16 March 2006 and continuing until 6 June 2006. The jury retired to consider its verdicts at 12.58 pm on Wednesday, 24 May 2006. After deliberating for eight days, at 10.00 am on Monday, 5 June 2006 a juror sent a note to the trial judge which, in general terms, indicated that, at that stage of their deliberations, they could not agree and stated that further deliberations would serve no useful purpose. The juror requested that the jury be discharged. Barr J did not take this course and directed the jury in accordance with Black v The Queen [1993] HCA 71; (1993) 179 CLR 44. The jury returned the following day at 2.50 pm with verdicts of guilty upon both counts.

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Ground 8: His Honour erred in permitting further cross-examination by the Crown, pursuant to s 38 of the Evidence Act, after cross-examination by the defence had concluded, of Norman Elliott, Frances Carter and Alan Burrell.

217. This ground relates to his Honour’s decision to grant leave to the Crown pursuant to s 38 of the Evidence Act to cross-examine three witnesses, which it called: Norman Elliott, Frances Carter and Alan Burrell. Each witness gave evidence when cross-examined by the defence which was unfavourable to the Crown case.

Norman Elliott

218 Mr Elliott was one of the witnesses who gave allegedly "false sighting" evidence, as I have described elsewhere in my summary of the Crown case. When examined in chief, Mr Elliott said that on the morning of 6 May 1997 he entered the Parkroyal Hotel via the main revolving door entrance in the front lobby to use the toilets close by. He said that as he walked across the frontage of the hotel towards the main revolving door entrance, he looked towards the right and saw a lady, who he thought was Mrs Whelan, and a man coming out of the carpark ramp. Mr Elliott recalled that as the man walked out of the carpark ramp he saw him move from the right to the left in front of the lady. He said that the man was a white Caucasian.

221. In light of this evidence, the trial judge granted leave to the Crown, under s 38, to cross-examine Mr Elliott after he had been cross-examined by the defence in relation to his movements that morning and his concession that his recollection in relation to Mr Shah was not correct.

220. When cross-examined by the defence, Mr Elliott agreed that it was possible that he could have entered the hotel via the entrance east of the main revolving door entrance in the front lobby. This may explain why he was not seen on the security camera footage of the front lobby. He also accepted that his recollection of Mr Shah’s position relative to Mrs Whelan as they both exited the carpark ramp and his recollection of Mr Shah’s build and complexion were not correct.

221. In light of this evidence, the trial judge granted leave to the Crown, under s 38, to cross-examine Mr Elliott after he had been cross-examined by the defence in relation to his movements that morning and his concession that his recollection in relation to Mr Shah was not correct.

Frances Carter

222 Mrs Carter was another witness who gave allegedly "false sighting" evidence.

223. During her evidence in chief, Mrs Carter confirmed her first written statement of 3 June 1997 to the police where she said that the woman she saw on 6 May 1997 was "possibly" Mrs Whelan. When cross-examined by the defence, she stated that the woman was "definitely" Mrs Whelan. The Crown was granted leave to cross-examine her about this evidence.

Alan Burrell

224. Mr Alan Burrell is the appellant’s father. He gave important evidence in relation to the appellant’s movements in April 1997.

225. During his evidence in chief, Mr Burrell initially said that the appellant had stayed over at his home for 3 days and 2 nights. He said that the appellant arrived at his place on Tuesday 15 April 1997, stayed Tuesday night and Wednesday night and left on the Thursday. He said that he believed that the appellant was going to see Mr Whelan on the Wednesday, which, he agreed, was the second day of the appellant’s stay with him.

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227. When cross-examined, Mr Burrell agreed with a suggestion put to him that he was correct about Wednesday being the day the appellant visited the Whelans’ residence but was mistaken about it being the third day.

228. With leave of the court under s 38, the Crown was allowed to cross-examine Mr Burrell. The prosecutor emphasised that Mr Burrell had signed a statement on 19 June 1997, in which he indicated that the appellant had stayed at his home on Monday night and Tuesday night and visited the Whelans on the Wednesday, being the third day.

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235. In the application of s 38 the courts have been careful to emphasise that the flexibility which the section provides should be implemented in a manner which ensures that the trial remains fair. In R v Fowler [2000] NSWCCA 142 at [120], Wood CJ at CL said:

"Section 38 of the Evidence Act now permits a party, by leave, to cross-examine a witness who meets any of the criteria identified in sub-section (1). Its exercise is, however, subject to a number of discretionary considerations, so as to prevent its abuse, and is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial judge must give consideration to the matters specified in s 38(6), s 135 to s 137, and s 192 of the Act."

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243. It is important that trial judges be alert to ensure that s 38 is not used as a tactical weapon, which may result in unfairness. No doubt there will be occasions when an opportunity to cross-examine a party’s own witness after they have been cross-examined by the other side will bring a forensic advantage. A significant means by which the fairness of the trial can be protected is the capacity to allow the opposing party an opportunity to further cross-examine the witness after the s 38 examination is complete.

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246. In the present case the appellant contended that by adopting the procedure that he did, the trial judge gave the imprimatur of his office to the Crown’s line of questioning resulting in unfairness. It was submitted that the defence was prejudiced because the jury would have seen it as significant that the judge allowed the Crown to attack evidence that was favourable to the defence and that had emerged from the defence’s cross-examination. The argument is adequately dealt with by the remarks of Ipp JA in Parkes. In any event, I doubt whether a jury would attach the significance to this sequence of events which may be given to it by a lawyer. I doubt that a jury would have the same detailed knowledge of the traditional trial procedure. A member of a jury would in my view be more likely to believe that the judge was ensuring a fair trial where the parties had an adequate opportunity to test unfavourable evidence and would be unlikely to place undue significance in the order in which events occurred, if they placed significance in it at all.

Price J (finds that a grant of leave was not required under s38(3))

1. I have read the draft judgments of Bellew and Hamill JJ. I find myself in disagreement with Hamill J in respect of grounds 1 and 2. I agree with the orders that Bellew J proposes and his Honour’s reasons for dismissing grounds 2 and 3, and refusing leave in ground 4 of the appeal. However, in ground 1, the path by which I reach the conclusion that this ground of appeal should be dismissed is different in one aspect to the approach taken by his Honour.

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4. Bellew J considers that the Crown’s cross-examination of the victim; that he was angry at the police for charging him with additional offences, that he was angry because he had been refused bail, and that he was annoyed because Witness X had received an indemnity, were "impermissibly wide ranging" and "went solely to [the victim’s] credibility." It is with this analysis that I disagree.

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8. It is well recognised that the line between evidence going only to credit as opposed to addressing a fact-in-issue in the trial is not always easy to draw. However, in the circumstances of the trial, I am satisfied that the Crown’s cross-examination of the victim which was directed at establishing the truth of the written statements previously made to police and to his motive to lie in his testimony before the jury was not relevant only to the witness’s credibility.

9. The principal issue in the trial was whether the appellant was in the victim’s car at the time the victim was shot. The victim gave evidence that the references in his statements to the appellant’s presence when Witness X shot him had been inserted by police, were not true, and that he had not seen the appellant that evening. The victim’s credibility was crucial to the determination of this contested factual issue of which the Crown bore the burden of establishing beyond reasonable doubt.

10. That being so, questions by the Crown of the victim about his possible motives to change his position were necessarily indirectly relevant to the facts-in-issue, particularly as he was the victim of the shooting…

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11. The Crown’s inquiry into the victim’s possible motives to depart from his prior statements to police included that he was angry at police for charging him with additional offences, that he was angry because he had been refused bail, and that he was annoyed because Witness X had received an indemnity.

12. In my view, the trial judge did not err in concluding that leave under s 38(3) was not required as these questions were not relevant only to the victim’s credibility.

13. Bellew J expresses the concern that if the questioning was allowed to proceed on the basis that it was covered by the grant of leave under s 38(1), "s 38(3) would have little or no work to do." I do not agree. For instance, a credit attack on the witness relating to fabrications or lies on other occasions unrelated to the facts-in-issue in the trial, to show that the witness was not the truthful person that he presented himself to be, would be relevant only to the witness’s credibility and would require leave under s 38(3).

Bellew J (finds that a grant of leave under s38(3) was required, but that no a miscarriage of justice resulted)

17. The appellant was tried before his Honour Judge Arnott SC and a jury in the District Court on an indictment containing the following counts:

(1) on or about 9 February 2013 at Bass Hill in the State of New South Wales did wound the victim with intent to cause grievous bodily harm (count 1);

(2) in the alternative to count 1, on or about 9 February 2013 at Bass Hill in the State of New South Wales, whilst in company with Witness X, did wound the victim and was reckless as to causing actual bodily harm to him (count 2);

(3) on or about 9 February 2013 at Bass Hill in the State of New South Wales did use a pistol without being authorised to do so by licence or permit (count 3).

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22. At approximately 3:00am on 9 February 2013 the victim attended Bankstown Hospital with three gunshot wounds to the lower part of his body. Two were below the knee and one was in the region of the right lateral buttock. Police were called to the hospital and spoke to the victim. The appellant and Witness X were later arrested and charged in respect of their alleged involvement in the victim’s shooting. Ultimately, Witness X’s charges were withdrawn and he received an indemnity in return for giving evidence against the appellant (as well as others).

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GROUND 1 – A miscarriage of justice was occasioned by the Crown being permitted to cross-examine the victim on matters relevant only to his credibility without having been given leave to do so pursuant to s 38(3) of the Evidence Act

The evidence given by the victim at the trial

30. The victim made two statements to the police, one on 13 February 2013 and the other on 28 March 2013, in which (inter alia) he placed the appellant in his (i.e. the victim’s) car at the time of the shooting. He departed from that account when giving evidence at the trial.

The application by the Crown pursuant to s 38 of the Evidence Act

It became apparent to the Crown prior to the commencement of the appellant’s trial that the victim would not give evidence in accordance with his statements. Accordingly, at that time the Crown put the appellant’s representatives on notice that it was proposed to make an application pursuant to s 38 of the Evidence Act 1995 (NSW) ("the Act") to cross-examine the victim. After the victim was called by the Crown, and having departed from the account he gave to the police, the Crown made that application to the trial judge in the following terms…

…

35. The Crown proceeded to cross-examine the victim extensively without making any application for leave under s 38(3).

The application by counsel for the appellant to cross-examine the victim

At the conclusion of the Crown’s cross-examination of the victim, counsel for the appellant foreshadowed an application to cross-examine in respect of a series of particular issues. Counsel said:

Can I indicate just to sort of set wheels in motion, if that needs to be done, I will be seeking leave to cross-examine this witness as to how long he was [redacted]. I will be seeking leave to cross-examine as to how long he was at the hotel, that the Crown adduced evidence from the witness yesterday that he was at a hotel, at least as I understood his evidence on 13 February 2013 and I will be seeking leave to cross-examine the witness as to how long he has lived in the Pritchard area.

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The judgment of the trial judge on the appellant’s application

43. The judgment of the trial judge is the subject of a non-publication order. For present purposes, it is sufficient to note that the application was refused on the basis that no legitimate forensic purpose for asking the foreshadowed questions had been established. His Honour also concluded that even if such a purpose had been established, the claim for public interest immunity would have been upheld in the conduct of the relevant balancing exercise.

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57. In the present case, the Crown properly recognised when making the application for leave under s 38(1) that the proposed cross-examination of the victim would inevitably lead to questions going to his credibility. Accordingly the Crown, in my view quite properly, sought leave under s 38(3) as well as under s 38(1). The trial judge did not agree that leave under the former provision was necessary, and concluded that the foreshadowed questions were relevant to one or more issues in the case. In my view, that was an error.

58. The "factual state of affairs" (to use the phrase adopted by Heydon JA in Le) the Crown sought to establish by cross-examining the victim concerned the appellant’s presence in the vehicle at the time of the shooting. In the course of attempting to establish that fact, the Crown obviously questioned the victim about the fact that he had departed from his previous accounts to police, and the reasons for that departure. For example, it was put to the victim that he was lying to protect the accused and that he was lying in order to protect his own safety. Such lines of questioning were obviously followed (using the phrase adopted by Heydon JA in Le) for the purposes of "shaking (the victim’s) credibility on the s 38(1) subjects". To that extent the questioning was permissible. Had the questioning been limited to that, no error would be established.

59. However, the questions put by the Crown to the victim extended beyond that. For example, it was put to the victim that he was angry at the police for charging him with additional offences. It was also put to him that he was angry because he had been refused bail. It was also put to him that he was annoyed because Witness X had received an indemnity. Those aspects of the cross-examination were, in my view, impermissibly wide ranging. Even when the observations of Heydon JA in Le are afforded their most liberal interpretation, it remains the case that those questions went solely to the victim’s credibility. If such wide ranging questioning was allowed to proceed on the basis that it was covered by a grant of leave under s 38(1), s 38(3) would have little or no work to do. In my view it follows that at least part of the Crown’s cross-examination of the victim was impermissible.

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72. In my view, these factors overwhelmingly supported a grant of leave under s 38(3), to the point where the trial judge could not reasonably have refused it. It follows that no miscarriage of justice arose from the trial judge’s erroneous conclusion that no grant of leave under s 38(3) was necessary, and that the entirety of the cross-examination was permissible pursuant to a grant of leave under s 38(1).

73. An additional issue which arises in this context is whether the decision of the trial judge to refuse the application by counsel for the appellant to cross-examine the victim on specific subjects was itself unfair, and led to a miscarriage of justice. Unfairness is, of course, a relevant factor under s 192(2)(b) of the Act. However in the present case, the application made by counsel for the appellant to cross-examine the victim as to specific issues came after the trial judge had granted leave to the Crown under s 38(1), and after the Crown had cross-examined. In those circumstances, the decision of the trial judge to preclude the proposed cross-examination by the appellant’s counsel can only be the subject of appellate review on the basis that it constitutes a miscarriage of justice. For the reasons which follow I have concluded that there was no unfairness to the appellant as a result of the decision of the trial judge not to permit that cross-examination, and that no miscarriage of justice arose.

Hamill J (finds that a grant of leave under s38(3) was required, and that a miscarriage of justice resulted)

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155. I have had the advantage of reading the judgment of Bellew J in draft. I adopt his Honour’s summary of the facts and evidence and the helpful analysis of the issues and arguments that arose in this appeal. I have come to a different conclusion as to the orders that should be made. I agree with Bellew J that error is established under ground 1; that is, a failure to apply the provisions of the Evidence Act 1995 properly or at all to the prosecutor’s application to cross-examine its own witness (the victim) as to the matters relevant only to his credibility. However, I have come to a different conclusion as to the consequence of that error and whether it constituted a miscarriage of justice "in the sense of a departure from trial according to law."[82] I have also come to a different conclusion in relation to ground 2 (imbalance in the summing up) and consider that this ground of appeal should also be upheld. I agree with Bellew J that grounds 3 and 4 cannot be sustained. In light of the defects in the trial established under grounds 1 and 2, I do not consider that no substantial miscarriage of justice actually occurred. Accordingly, the appeal should be allowed and there should be a new trial.[83] These are my reasons for those conclusions.

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157. In Adam v The Queen, the High Court rejected the proposition that s 102 (the credibility rule) should not be read literally. The same must apply to s 38. Accordingly, and in conformity of the words of the statute, the question is: "Is it [the evidence in question] relevant only to a witness’s credibility?" Adam was a case where the witness in question made a recorded interview implicating the accused but resiled from that evidence when called as a witness. A similar situation arose in the appellant’s case. It is clear enough, particularly in view of sections 38(1), 60 and 66 of the Evidence Act 1995 (NSW), that questioning the witness in relation to such a prior statement is not a matter "relevant only to the witness’s credibility." Accordingly, the trial judge was correct to conclude that the lengthy and effective cross-examination on that subject did not require a grant of leave under s 38(3).

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162. I agree with Bellew J that the cross-examination extended beyond matters covered by the grant of leave under s 38(1). I agree that the examples given by Bellew J at [59] are examples of cross-examination that went beyond – I would say well beyond – any possible grant of leave under s 38(1). Those examples are the witness being angry with police because (i) he was charged with a criminal offence, (ii) he was refused bail, and (iii) the witness, Witness X, (who actually shot the victim) was given an indemnity. However, contrary to the conclusion of Bellew J at [58], in my judgment a number of other matters upon which the victim was questioned amounted to cross-examination that could only be undertaken pursuant to a grant of leave under s 38(3).

163. For example, the extensive cross-examination undertaken by the Crown Prosecutor about the witness receiving a threat or threats was evidence that was (given the limited nature of its proposed use) relevant only to his credibility. Similarly, the somewhat contradictory proposition that the witness was motivated to assist the appellant because of their friendship only went to the victim’s credibility. If those kinds of matters are interpreted as being "about" the witness’s unfavourable evidence, or a matter about which he might reasonably be supposed to have knowledge, or about his prior inconsistent statement, it is difficult to see what work is left for sub-s 38(3) to do. It is more difficult still to understand where the line is to be drawn. Those matters are certainly far removed from the kinds of matters referred to by Heydon JA in the final sentences of paragraph [66] of his Honour’s judgment in R v Le.

164. In relation to the cross-examination concerning threats allegedly directed towards the witness, the respondent relies on the failure of the appellant’s trial counsel to object to this line of questioning. Counsel initially raised an objection but, in the course of argument, withdrew that objection. The context in which this occurred is important to understand because it is a matter of some significance when considering how the matter developed after the trial judge (erroneously) decided that he did not need to consider or determine a grant of leave under s 38(3) on the basis that all of the matters sought to be ventilated by the prosecutor were covered by the grant of leave under s 38(1).

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171. It will be seen from the foregoing that I agree with the conclusion of Bellew J that the cross-examination exceeded the bounds of what might have been permissible pursuant to a grant of leave under s 38(1). Like Bellew J, I should make it clear that this is no criticism of the Crown Prosecutor who appeared at the trial. Her position was that leave under s 38(3) was required and that it was "inescapable" that she would be "questioning [the victim] on issues of credit".[99] However, I take a somewhat different approach to Bellew J as to the extent to which the cross-examination ventured into areas that were "relevant only to the witness’s credibility".

172. The other matter upon which I am unable to agree with Bellew J concerns the impact of the error on the outcome of the appeal. His Honour concludes that no miscarriage of justice resulted from the error and that, accordingly, the appeal must be dismissed. I have come to the contrary conclusion.