R v Qaumi & Ors (No 37) [2016] NSWSC 740

R v Qaumi & Ors (No 37) [2016] NSWSC 740

Leave and a s 38(4) direction were refused because the Crown was on notice during evidence in chief that Witness M's evidence was unfavourable on the identification of Mr Zarshoy, but the application was made only after Mr Zarshoy's counsel had completed a brief, targeted cross-examination. Section 38(4) ordinarily requires a party to cross-examine its own witness before other parties cross-examine, and there was no basis to depart from that order. Granting leave at that stage would unduly lengthen the proceedings and would be unfair to the accused, while the Crown could still rely on other evidence and submit that other witnesses should be preferred on the issue.

Jurisdiction
Australia
Judgment Date
06 June 2016
Procedural Posture
Criminal Proceeding / Crown Application for Leave to Cross Examine Its Own Witness Under S 38(1)(a) of the Evidence Act 1995 (nsw)
Outcome
Application for leave to cross-examine Crown's own witness refused.
Legal Topics
['leave to Cross Examine Own Witness' 'unfavourable Evidence' 'order of Cross Examination' 'fair Trial' 'obligation to Put Matters to Witness']
['criminal Law' 'evidence'] ['leave to Cross Examine Own Witness' 'unfavourable Evidence' 'order of Cross Examination' 'fair Trial' 'obligation to Put Matters to Witness']

Case Brief

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Procedural Posture

Criminal Proceeding / Crown Application for Leave to Cross Examine Its Own Witness Under S 38(1)(a) of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 38(1)(a) of the Evidence Act 1995 (NSW) to cross-examine Witness M about evidence unfavourable to the Crown case that Mr Zarshoy was the third armed man.' "Whether the Court should direct under s 38(4) of the Evidence Act 1995 (NSW) that the Crown's cross-examination take place after cross-examination by counsel for Mr Zarshoy." "Whether refusing leave would prevent the Crown from submitting to the jury that other evidence should be preferred to Witness M's evidence on the identity of the third man."]

Ratio Decidendi

Leave and a s 38(4) direction were refused because the Crown was on notice during evidence in chief that Witness M's evidence was unfavourable on the identification of Mr Zarshoy, but the application was made only after Mr Zarshoy's counsel had completed a brief, targeted cross-examination. Section 38(4) ordinarily requires a party to cross-examine its own witness before other parties cross-examine, and there was no basis to depart from that order. Granting leave at that stage would unduly lengthen the proceedings and would be unfair to the accused, while the Crown could still rely on other evidence and submit that other witnesses should be preferred on the issue.

Court Disposition

Application for leave to cross-examine Crown's own witness refused.

Orders

  • ["The Crown's application for leave to cross-examine Witness M under s 38(1)(a) of the Evidence Act 1995 (NSW) was refused." 'The Court refused to make a direction under s 38(4) of the Evidence Act 1995 (NSW) that the cross-examination take place after the cross-examination of the accused.' 'The Crown was left open...