R v Officer A (No 2) [2023] NSWSC 1285

R v Officer A (No 2) [2023] NSWSC 1285

Leave was granted because the diagram attached to Mr Haron's 15 March 2019 statement, read with paragraphs 9 and 10 of that statement, was inconsistent with his evidence in court and his later statements, satisfying s 38(1)(c). The Crown had given sufficient notice, the defence would not otherwise put the prior diagram to the witness, the evidence was important in the murder trial, its admission would not unduly lengthen the hearing, and it was not unfair to the accused because the defence knew the witness's voir dire answers and could test the evidence before the jury. The reason for the inconsistency was a matter for the jury, not for determination on the leave application.

Jurisdiction
Australia
Judgment Date
30 October 2023
Procedural Posture
Murder Trial / Procedural Ruling on Crown Application for Leave Under S 38(1)(c) of the Evidence Act 1995 (nsw) to Cross Examine a Witness
Outcome
Leave granted
Legal Topics
["cross Examination of Party's Own Witness" 'prior Inconsistent Statement' 'unfavourable Witness' 'murder Trial' 'lawful Excuse' 'unfairness in Grant of Leave']
['evidence' 'criminal Law' 'criminal Procedure'] ["cross Examination of Party's Own Witness" 'prior Inconsistent Statement' 'unfavourable Witness' 'murder Trial' 'lawful Excuse' 'unfairness in Grant of Leave']

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Procedural Posture

Murder Trial / Procedural Ruling on Crown Application for Leave Under S 38(1)(c) of the Evidence Act 1995 (nsw) to Cross Examine a Witness

Legal Issues

  1. 1 ["Whether the diagram attached to Peter Haron's first statement was a prior inconsistent statement within s 38(1)(c) of the Evidence Act 1995 (NSW)." "Whether the Crown should be granted leave to cross-examine Peter Haron about his recollection of the shooter's position at the relevant time." 'Whether granting leave would be unfair to the accused under s 192(2)(b) of the Evidence Act 1995 (NSW).' 'Whether s 142 of the Evidence Act 1995 (NSW) required the judge to determine on the balance of probabilities that the first diagram was a mistake.']

Ratio Decidendi

Leave was granted because the diagram attached to Mr Haron's 15 March 2019 statement, read with paragraphs 9 and 10 of that statement, was inconsistent with his evidence in court and his later statements, satisfying s 38(1)(c). The Crown had given sufficient notice, the defence would not otherwise put the prior diagram to the witness, the evidence was important in the murder trial, its admission would not unduly lengthen the hearing, and it was not unfair to the accused because the defence knew the witness's voir dire answers and could test the evidence before the jury. The reason for the inconsistency was a matter for the jury, not for determination on the leave application.

Court Disposition

Leave granted

Orders

  • ['The Crown has leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine the witness Peter Haron as to his recollection of the position of the shooter at the relevant time.']