R v Glen Jeffrey McCormack (No.3) [2003] NSWSC 645

R v Glen Jeffrey McCormack (No.3) [2003] NSWSC 645

Even assuming in favour of the accused that the earlier witness's evidence was unfavourable to the Crown and that leave under s38 would have been granted, exclusion was not warranted because the issue ultimately involved a discretion directed to protecting the accused from unfair prejudice. The accused suffered no disadvantage, let alone unfair prejudice, from the Crown's failure to cross-examine the witness, since the likely cross-examination would merely have put the inconsistent suggestion to the witness and the witness could have agreed, disagreed or been unsure. The proposed evidence was therefore not disallowed on the s38 objection.

Jurisdiction
Australia
Judgment Date
22 July 2003
Procedural Posture
Criminal Proceeding / Ruling on Admissibility of Evidence During Trial
Outcome
Evidence admitted.
Legal Topics
['admissibility of Evidence' 'unfavourable Witness' 'browne V Dunn Rule' 'unfair Prejudice' 'gunshot Wound Evidence']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'unfavourable Witness' 'browne V Dunn Rule' 'unfair Prejudice' 'gunshot Wound Evidence']

Case Brief

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Procedural Posture

Criminal Proceeding / Ruling on Admissibility of Evidence During Trial

Legal Issues

  1. 1 ["Whether the Crown should be permitted to adduce evidence that the bullet wound was on the right side of the deceased's chest without first seeking leave under s38 of the Evidence Act 1995 to cross-examine an earlier Crown witness whose evidence was inconsistent with that evidence." 'Whether any failure to put the matter to the earlier Crown witness caused unfair prejudice to the accused sufficient to justify exclusion of the proposed evidence.']

Ratio Decidendi

Even assuming in favour of the accused that the earlier witness's evidence was unfavourable to the Crown and that leave under s38 would have been granted, exclusion was not warranted because the issue ultimately involved a discretion directed to protecting the accused from unfair prejudice. The accused suffered no disadvantage, let alone unfair prejudice, from the Crown's failure to cross-examine the witness, since the likely cross-examination would merely have put the inconsistent suggestion to the witness and the witness could have agreed, disagreed or been unsure. The proposed evidence was therefore not disallowed on the s38 objection.

Court Disposition

Evidence admitted.

Orders

  • ['The proposed evidence was not rejected by reason of the Crown not having sought leave to cross-examine the witness pursuant to s38 of the Evidence Act 1995.']