R v Nancarrow (No 2) [2022] NSWSC 276

R v Nancarrow (No 2) [2022] NSWSC 276

The diagram was admissible because the jury had already heard the substance of the cross-examination and required the diagram to make sense of that evidence, and because it arguably related to the events in relation to which the accused was being prosecuted or at least to the moments immediately after those events. However, as the evidence had not then been identified as evidence of consciousness of guilt and appeared to have no relevance beyond the accused's credibility, further pursuit of the line of cross-examination would require leave under s 104; no formal application for leave was made. The Prosecutor was therefore limited to putting the suggestion clearly to the accused and...

Jurisdiction
Australia
Judgment Date
08 March 2022
Procedural Posture
Criminal Proceedings / Procedural Ruling During Trial on Objection to Tender of Marked Diagram and Limits on Further Cross Examination of the Accused
Outcome
Diagram admitted; further cross-examination limited.
Legal Topics
['cross Examination of Accused' 'credibility Evidence' 'evidence Act 1995 (nsw) S 104' 'admissibility of Diagram Marked by Accused' 'limits on Cross Examination' 'evidence of Flight' 'consciousness of Guilt']
['evidence' 'criminal Law' 'criminal Procedure'] ['cross Examination of Accused' 'credibility Evidence' 'evidence Act 1995 (nsw) S 104' 'admissibility of Diagram Marked by Accused' 'limits on Cross Examination' 'evidence of Flight' 'consciousness of Guilt']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Proceedings / Procedural Ruling During Trial on Objection to Tender of Marked Diagram and Limits on Further Cross Examination of the Accused

Legal Issues

  1. 1 ['Whether the diagram marked by the accused during cross-examination was admissible.' 'Whether further cross-examination about the circumstances in which the accused left the premises after the fatal wound was permitted.' "Whether the proposed cross-examination was relevant only to the accused's credibility and therefore required leave under Evidence Act 1995 (NSW) s 104." 'Whether the subject matter related to events in relation to which the accused was being prosecuted.']

Ratio Decidendi

The diagram was admissible because the jury had already heard the substance of the cross-examination and required the diagram to make sense of that evidence, and because it arguably related to the events in relation to which the accused was being prosecuted or at least to the moments immediately after those events. However, as the evidence had not then been identified as evidence of consciousness of guilt and appeared to have no relevance beyond the accused's credibility, further pursuit of the line of cross-examination would require leave under s 104; no formal application for leave was made. The Prosecutor was therefore limited to putting the suggestion clearly to the accused and...

Court Disposition

Diagram admitted; further cross-examination limited.

Orders

  • ['The diagram marked by the accused is admissible.' 'The Prosecutor may only cross-examine further on the issue to put clearly what he is suggesting to allow the accused to accept or deny the propositions or indicate he cannot remember.' 'Further and extensive cross-examination on the issue is not permitted.']