R v Al Batat & Ors (No 21) [2020] NSWSC 1350

R v Al Batat & Ors (No 21) [2020] NSWSC 1350

The s 32 application was refused because, when it was made, it was not clear whether Mr Weng could recall the events without using his statement, making the application premature; the Prosecutor later abandoned that application after Mr Weng said he was unsure whether reading the statement would help because he was very sick at the time. Leave under s 38 was granted where Mr Weng's evidence was inconsistent with important parts of his statement and unfavourable to the prosecution, and the s 192 considerations did not establish relevant unfairness sufficient to refuse leave, particularly given the importance of eyewitness evidence in an alleged homicide and the possible use of s 136 to...

Jurisdiction
Australia
Judgment Date
08 October 2020
Procedural Posture
Criminal Trial; Procedural and Evidentiary Ruling / Applications During Witness Evidence for Leave Under Ss 32 and 38 of the Evidence Act 1995 (nsw)
Outcome
Leave under s 32 refused; leave under s 38 granted in part and refused in part.
Legal Topics
['application to Cross Examine Own Witness' 'refreshing Memory From a Statement' 'unfavourable Evidence' 'prior Inconsistent Statement' 'witness Psychiatric Illness' 'discretion to Grant Leave' 'use of Evidence']
['criminal Law' 'evidence'] ['application to Cross Examine Own Witness' 'refreshing Memory From a Statement' 'unfavourable Evidence' 'prior Inconsistent Statement' 'witness Psychiatric Illness' 'discretion to Grant Leave' 'use of Evidence']

Case Brief

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Procedural Posture

Criminal Trial; Procedural and Evidentiary Ruling / Applications During Witness Evidence for Leave Under Ss 32 and 38 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether leave should be granted under s 32 of the Evidence Act 1995 (NSW) for Mr Weng to refresh his memory by using his police statement.' 'Whether the Prosecutor should have leave under s 38 of the Evidence Act 1995 (NSW) to question Mr Weng as though cross-examining him about evidence said to be unfavourable or inconsistent with his prior statement.' 'Whether Mr Weng was making a genuine attempt to give evidence in examination in chief.' "Whether unfairness arising from Mr Weng's psychiatric condition, and the operation of s 60 of the Evidence Act 1995 (NSW), should lead to refusal of leave under s 38." 'Whether leave should be granted to cross-examine Mr Weng about the statement that Mr Luo called out "give it another shot, finish him".']

Ratio Decidendi

The s 32 application was refused because, when it was made, it was not clear whether Mr Weng could recall the events without using his statement, making the application premature; the Prosecutor later abandoned that application after Mr Weng said he was unsure whether reading the statement would help because he was very sick at the time. Leave under s 38 was granted where Mr Weng's evidence was inconsistent with important parts of his statement and unfavourable to the prosecution, and the s 192 considerations did not establish relevant unfairness sufficient to refuse leave, particularly given the importance of eyewitness evidence in an alleged homicide and the possible use of s 136 to...

Court Disposition

Leave under s 32 refused; leave under s 38 granted in part and refused in part.

Orders

  • ["Leave under s 32 of the Evidence Act 1995 (NSW) to refresh witness's memory by use of statement refused." 'Leave granted to allow the Prosecutor to cross-examine the witness under s 38(1)(a) and (c) of the Evidence Act 1995 (NSW).' 'Leave for the Prosecutor to cross-examine Mr Weng on the comment by Mr Luo "to...