Regina v Patsalis & Spathis [No 10] [1999] NSWSC 990

Regina v Patsalis & Spathis [No 10] [1999] NSWSC 990

Leave was granted because Mrs Spathis' evidence, taken as a whole, was inconsistent with her 12 April 1996 police statement in the respects identified by the Crown, and those inconsistencies were open to the construction that she may have coloured her evidence to assist her husband. Although there were misgivings about relying on s38(1)(a), the matter was determined by reference to s38(1)(c). Fairness and the unresolved issues left by cross-examination for the co-accused justified allowing limited Crown cross-examination.

Jurisdiction
Australia
Judgment Date
10 August 1999
Procedural Posture
Criminal Practice and Procedure; Application Under S38 Evidence Act 1995 for Leave to Cross Examine a Crown Witness / Ruling on Second Crown Application Under S38 Evidence Act 1995 During Trial
Outcome
Crown granted leave to cross-examine Mrs Spathis, confined to specified issues.
Legal Topics
['leave to Cross Examine Own Witness' 'unfavourable Witness' 'prior Inconsistent Statement' 'discretion to Grant Leave' 'fairness and Prejudice']
['criminal Law' 'evidence' 'criminal Practice and Procedure'] ['leave to Cross Examine Own Witness' 'unfavourable Witness' 'prior Inconsistent Statement' 'discretion to Grant Leave' 'fairness and Prejudice']

Case Brief

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Procedural Posture

Criminal Practice and Procedure; Application Under S38 Evidence Act 1995 for Leave to Cross Examine a Crown Witness / Ruling on Second Crown Application Under S38 Evidence Act 1995 During Trial

Legal Issues

  1. 1 ['Whether evidence given by Crown witness Mrs Spathis was unfavourable to the Crown within s38(1)(a) of the Evidence Act 1995.' 'Whether Mrs Spathis had made prior inconsistent statements within s38(1)(c) of the Evidence Act 1995.' 'Whether the Court should exercise discretion to grant the Crown leave to cross-examine Mrs Spathis, and if so on what issues.']

Ratio Decidendi

Leave was granted because Mrs Spathis' evidence, taken as a whole, was inconsistent with her 12 April 1996 police statement in the respects identified by the Crown, and those inconsistencies were open to the construction that she may have coloured her evidence to assist her husband. Although there were misgivings about relying on s38(1)(a), the matter was determined by reference to s38(1)(c). Fairness and the unresolved issues left by cross-examination for the co-accused justified allowing limited Crown cross-examination.

Court Disposition

Crown granted leave to cross-examine Mrs Spathis, confined to specified issues.

Orders

  • ['Leave was given to cross-examine about the suggestion in conversations at 8.44 and 8.46pm and later that there was a need for Mrs Spathis and members of her family to stay indoors, and a concern on the part of Mr Spathis for their safety.' 'Leave was given to cross-examine about the issue raised by paragraph 11...