R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 226

R v Crowther-Wilkinson; R v Cowie [2003] NSWSC 226

Leave was granted because Mr Weincke's evidence that the chain had been cut into three lengths was unfavourable to the Crown within s38(1)(a), further evidence qualifying that assertion was important to the Crown case, leaving the evidence as it stood would have been misleading, Mr Wilkinson would not be unfairly prejudiced, the interests of justice required the cross-examination, the s192(2) considerations supported leave, and ss135 and 137 did not require exclusion.

Jurisdiction
Australia
Judgment Date
28 March 2003
Procedural Posture
Criminal Prosecution for Murder / Crown Prosecutor's Application for Leave Under S38 of the Evidence Act to Cross Examine Witness Matthew David Weincke
Outcome
Leave granted
Legal Topics
['cross Examination of Own Witness' 'unfavourable Witness' 'evidence Act S38' 'prior Statements to Police' 'witness With No Recollection at Trial']
['criminal Law' 'evidence'] ['cross Examination of Own Witness' 'unfavourable Witness' 'evidence Act S38' 'prior Statements to Police' 'witness With No Recollection at Trial']

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Procedural Posture

Criminal Prosecution for Murder / Crown Prosecutor's Application for Leave Under S38 of the Evidence Act to Cross Examine Witness Matthew David Weincke

Legal Issues

  1. 1 ['Whether evidence given by Crown witness Matthew David Weincke was "unfavourable" to the Crown within the meaning of s38(1)(a) of the Evidence Act.' 'Whether the Crown should be granted leave to cross-examine Mr Weincke about material in his police statements, including material qualifying his earlier assertion that the chain was cut into three lengths.' 'Whether admission of the proposed evidence would unfairly prejudice Mr Wilkinson or should be refused under ss135 or 137 of the Evidence Act.']

Ratio Decidendi

Leave was granted because Mr Weincke's evidence that the chain had been cut into three lengths was unfavourable to the Crown within s38(1)(a), further evidence qualifying that assertion was important to the Crown case, leaving the evidence as it stood would have been misleading, Mr Wilkinson would not be unfairly prejudiced, the interests of justice required the cross-examination, the s192(2) considerations supported leave, and ss135 and 137 did not require exclusion.

Court Disposition

Leave granted

Orders

  • ['The Crown prosecutor was granted leave pursuant to s38 of the Evidence Act to cross-examine Matthew David Weincke to a limited extent.']