R v Spiteri-Ahern; R v Barber; R v Zraika (No 6) [2017] NSWSC 1280

R v Spiteri-Ahern; R v Barber; R v Zraika (No 6) [2017] NSWSC 1280

Leave under ss 32 and 38 was refused because the evidence should have been adduced in-chief, the witness' evidence overall was not unfavourable to the Crown, it was not legitimate to characterise the witness as failing to make a genuine attempt to recall the evidence, the existence of a prior inconsistent statement was doubtful, and fairness to the accused would otherwise require further cross-examination. To the extent necessary, leave under s 39 was granted to question the witness about the totality of the conversation because the conversation and some of its content had been the subject of cross-examination.

Jurisdiction
Australia
Judgment Date
11 September 2017
Procedural Posture
Criminal Trial; Procedural Ruling on Evidence / Crown Application In, or at the Time Of, Re Examination to Adduce Evidence From a Crown Witness by Way of Cross Examination Under Ss 39 And/or 38 of the Evidence Act 1995
Outcome
Leave under s 32 and/or s 38 of the Evidence Act 1995 refused; to the extent necessary, leave under s 39(b) of the Evidence Act 1995 granted.
Legal Topics
['cross Examination by Party Calling Witness' 're Examination' 'refreshing Memory' 'leave to Question Witness' 'procedural Fairness']
['evidence' 'criminal Law'] ['cross Examination by Party Calling Witness' 're Examination' 'refreshing Memory' 'leave to Question Witness' 'procedural Fairness']

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Procedural Posture

Criminal Trial; Procedural Ruling on Evidence / Crown Application In, or at the Time Of, Re Examination to Adduce Evidence From a Crown Witness by Way of Cross Examination Under Ss 39 And/or 38 of the Evidence Act 1995

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 to cross-examine its own witness in re-examination.' 'Whether leave under s 39(b) of the Evidence Act 1995 should be granted to question the witness about the totality of the conversation.' "Whether leave under s 32 of the Evidence Act 1995 should be granted to refresh the witness' memory." 'Whether allowing the proposed questioning after cross-examination would be fair to the accused.']

Ratio Decidendi

Leave under ss 32 and 38 was refused because the evidence should have been adduced in-chief, the witness' evidence overall was not unfavourable to the Crown, it was not legitimate to characterise the witness as failing to make a genuine attempt to recall the evidence, the existence of a prior inconsistent statement was doubtful, and fairness to the accused would otherwise require further cross-examination. To the extent necessary, leave under s 39 was granted to question the witness about the totality of the conversation because the conversation and some of its content had been the subject of cross-examination.

Court Disposition

Leave under s 32 and/or s 38 of the Evidence Act 1995 refused; to the extent necessary, leave under s 39(b) of the Evidence Act 1995 granted.

Orders

  • ['Leave under s 32 and/or s 38 of the Evidence Act 1995 refused.' 'To the extent necessary, leave under s 39(b) of the Evidence Act 1995 granted.']