R v Rogers (No 5) [2019] NSWSC 687

R v Rogers (No 5) [2019] NSWSC 687

Paragraph 20 of Olivia Hoare's police statement, read in context, concerned specific child care arrangements immediately before the death and was not a prior inconsistent statement about the accused generally no longer babysitting. However, her evidence about the accused's impairment was unfavourable to the Crown, the modified proposed questioning about the gaol call and her alleged exaggeration was permissible, and the s 192 factors did not make the limited cross-examination unfair or unduly lengthy, particularly as an adjournment was offered and declined.

Jurisdiction
Australia
Judgment Date
08 May 2019
Procedural Posture
Criminal Proceeding; Murder Trial Evidentiary Ruling / Crown Application for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine Olivia Hoare as an Unfavourable Witness During Trial
Outcome
Crown granted limited leave to cross-examine Olivia Hoare as an unfavourable witness; leave refused insofar as based on the asserted prior inconsistency between her police statement and earlier trial evidence.
Legal Topics
['cross Examination of Unfavourable Witness' 'prior Inconsistent Statement' 'leave Under S 38' 'section 192 Fairness Factors' 'substantial Impairment Defence' 'murder Trial']
['evidence' 'criminal Law' 'criminal Procedure'] ['cross Examination of Unfavourable Witness' 'prior Inconsistent Statement' 'leave Under S 38' 'section 192 Fairness Factors' 'substantial Impairment Defence' 'murder Trial']

Case Brief

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Procedural Posture

Criminal Proceeding; Murder Trial Evidentiary Ruling / Crown Application for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine Olivia Hoare as an Unfavourable Witness During Trial

Legal Issues

  1. 1 ["Whether Olivia Hoare's police statement of 13 September 2016 was inconsistent with her evidence at the 2018 trial about why the accused was no longer babysitting." "Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Olivia Hoare about evidence unfavourable to the Crown regarding the accused's impairment." 'Whether the Crown should be permitted to cross-examine Olivia Hoare about a gaol call on 14 October 2016 and the proposition that she assisted the accused in his meeting with Dr Allnutt.' 'Whether leave to cross-examine should be refused or limited under the s 192 factors, including lateness of notice and unfairness to the accused or witness.']

Ratio Decidendi

Paragraph 20 of Olivia Hoare's police statement, read in context, concerned specific child care arrangements immediately before the death and was not a prior inconsistent statement about the accused generally no longer babysitting. However, her evidence about the accused's impairment was unfavourable to the Crown, the modified proposed questioning about the gaol call and her alleged exaggeration was permissible, and the s 192 factors did not make the limited cross-examination unfair or unduly lengthy, particularly as an adjournment was offered and declined.

Court Disposition

Crown granted limited leave to cross-examine Olivia Hoare as an unfavourable witness; leave refused insofar as based on the asserted prior inconsistency between her police statement and earlier trial evidence.

Orders

  • ['The Crown is permitted to cross-examine Olivia Hoare in respect of her evidence that is unfavourable to the Crown case regarding her observations relevant to the issue of the accused being impaired.' 'The Crown is permitted to cross-examine Olivia Hoare regarding the contents of the gaol call on 14 October 2016 to...