R v Garland (No 2) [2023] NSWSC 1381

R v Garland (No 2) [2023] NSWSC 1381

Leave was granted to the Prosecutor under s 38(1) of the Evidence Act 1995 (NSW) to cross-examine the witness about her statement expressing strong favourable bias toward the accused, as the evidence was central to assessing credibility and any unfairness to the accused or his counsel could be addressed by directions and procedural safeguards imposed by the court.

Parties
Prosecution: Rex; Accused: Stephen Garland
Jurisdiction
Australia
Judgment Date
25 October 2023
Procedural Posture
Criminal / Procedural Ruling During Trial
Outcome
Leave granted to the Prosecutor to cross-examine, with caveats.
Legal Topics
Leave to Cross Examine, Unfavourable Witness, Conference Notes, Witness Credibility, Order of Cross Examination, Bias of Witness
Criminal Law Evidence Leave to Cross Examine Unfavourable Witness Conference Notes Witness Credibility Order of Cross Examination Bias of Witness

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Parties

Rex

Prosecution

Stephen Garland

Accused

Procedural Posture

Criminal / Procedural Ruling During Trial

Legal Issues

  1. 1 Whether leave should be granted under s 38(1) of the Evidence Act 1995 (NSW) to allow the Prosecutor to cross-examine the witness on statements suggesting bias
  2. 2 Whether the order of cross-examination and disclosure of conference notes created unfairness
  3. 3 Whether further directions or limitations could alleviate any resulting unfairness

Ratio Decidendi

Leave was granted to the Prosecutor under s 38(1) of the Evidence Act 1995 (NSW) to cross-examine the witness about her statement expressing strong favourable bias toward the accused, as the evidence was central to assessing credibility and any unfairness to the accused or his counsel could be addressed by directions and procedural safeguards imposed by the court.

Court Disposition

Leave granted to the Prosecutor to cross-examine, with caveats.

Orders

  • Leave granted under s 38(1) of the Evidence Act 1995 (NSW), subject to caveats at [5] relating to how evidence may be put to the witness, and the rights of defence counsel to further cross-examine.