R (Cth) v Petroulias (No. 16) [2007] NSWSC 506

R (Cth) v Petroulias (No. 16) [2007] NSWSC 506

Leave was granted because the inconsistency between Mr Aivaliotes' evidence-in-chief at the first trial and his evidence at the present trial engaged s.38(1)(a) and (c); the topics were confined but important; the absence of earlier notice did not weigh heavily; any unfairness to the Accused could be met by cross-examination; and the probative value of the evidence to be adduced by the Crown was not outweighed by the danger of unfair prejudice under s.137 Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
04 May 2007
Procedural Posture
Criminal Trial on Indictment Before a Jury; Crown Application for Leave Under S.38 Evidence Act 1995 / Ruling During Evidence in Chief on Crown Application to Cross Examine Its Witness Emmanuel Dimitrios Aivaliotes
Outcome
Crown application allowed; Crown granted leave under s.38(1) Evidence Act 1995 to cross-examine Emmanuel Dimitrios Aivaliotes on specified topics.
Legal Topics
['leave to Cross Examine Own Witness' 'unfavourable Evidence' 'prior Inconsistent Statement' 'discretion Under S.38 and S.192 Evidence Act 1995' 'unfair Prejudice Under S.137 Evidence Act 1995']
['criminal Law' 'evidence'] ['leave to Cross Examine Own Witness' 'unfavourable Evidence' 'prior Inconsistent Statement' 'discretion Under S.38 and S.192 Evidence Act 1995' 'unfair Prejudice Under S.137 Evidence Act 1995']

Case Brief

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Procedural Posture

Criminal Trial on Indictment Before a Jury; Crown Application for Leave Under S.38 Evidence Act 1995 / Ruling During Evidence in Chief on Crown Application to Cross Examine Its Witness Emmanuel Dimitrios Aivaliotes

Legal Issues

  1. 1 ["Whether s.38(1)(a) and s.38(1)(c) Evidence Act 1995 were engaged by inconsistency between Mr Aivaliotes' evidence at the first trial and his evidence at the present trial concerning Exhibit C95, Tabs 11, 74 and 75." 'Whether the Court should exercise discretion under s.38(6) and s.192 Evidence Act 1995 to grant the Crown leave to question Mr Aivaliotes as though cross-examining him.' 'Whether s.137 Evidence Act 1995 required refusal of the evidence because its probative value was outweighed by the danger of unfair prejudice to the Accused.']

Ratio Decidendi

Leave was granted because the inconsistency between Mr Aivaliotes' evidence-in-chief at the first trial and his evidence at the present trial engaged s.38(1)(a) and (c); the topics were confined but important; the absence of earlier notice did not weigh heavily; any unfairness to the Accused could be met by cross-examination; and the probative value of the evidence to be adduced by the Crown was not outweighed by the danger of unfair prejudice under s.137 Evidence Act 1995.

Court Disposition

Crown application allowed; Crown granted leave under s.38(1) Evidence Act 1995 to cross-examine Emmanuel Dimitrios Aivaliotes on specified topics.

Orders

  • ['The Crown is granted leave under s.38(1) Evidence Act 1995 to question Mr Aivaliotes, as though the Crown was cross-examining him, about evidence given by him at the first trial with respect to the documents contained in Exhibit C95, Tabs 11, 74 and 75.']