Regina v Le [2001] NSWSC 174

Regina v Le [2001] NSWSC 174

The word 'unfavourable' in s 38 should be given a broad meaning so that the court is not denied relevant evidence and the opportunity for that evidence to be tested. Evidence elicited or anticipated from Crown witnesses that supported the accused's alternative theory that Mr Trieu inflicted the fatal wound was unfavourable to the Crown in the relevant sense. Having regard to s 192, the evidence was of great significance, granting leave would not be unfair to the accused, and denying leave could be unfair to the Crown; therefore, if Mr Lombardie gave the anticipated unfavourable evidence, it would be appropriate to grant the Crown leave to cross-examine him after cross-examination by the...

Jurisdiction
Australia
Judgment Date
02 March 2001
Procedural Posture
Criminal Trial / Application for Leave by the Crown to Cross Examine a Witness Under S 38 of the Evidence Act 1995 (nsw)
Outcome
The Court indicated that leave under s 38 would be granted to the Crown if Mr Lombardie gave the anticipated unfavourable evidence, subject to the accused being entitled to further cross-examine if requested.
Legal Topics
['leave to Cross Examine Own Witness' 'unfavourable Evidence' 'evidence Act 1995 (nsw) S 38' 'evidence Act 1995 (nsw) S 192']
['criminal Law' 'evidence'] ['leave to Cross Examine Own Witness' 'unfavourable Evidence' 'evidence Act 1995 (nsw) S 38' 'evidence Act 1995 (nsw) S 192']

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Procedural Posture

Criminal Trial / Application for Leave by the Crown to Cross Examine a Witness Under S 38 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether evidence elicited or anticipated in cross-examination suggesting that Mr Trieu, rather than the accused, stabbed the deceased was unfavourable to the Crown for the purposes of s 38 of the Evidence Act 1995 (NSW).' 'Whether leave should be granted under s 38, having regard to s 192 of the Evidence Act 1995 (NSW), to permit the Crown to cross-examine Mr Lombardie if he gave the anticipated unfavourable evidence.' 'Whether the operation of s 38 should be confined to circumstances where the Crown calls a witness at the request of the accused.']

Ratio Decidendi

The word 'unfavourable' in s 38 should be given a broad meaning so that the court is not denied relevant evidence and the opportunity for that evidence to be tested. Evidence elicited or anticipated from Crown witnesses that supported the accused's alternative theory that Mr Trieu inflicted the fatal wound was unfavourable to the Crown in the relevant sense. Having regard to s 192, the evidence was of great significance, granting leave would not be unfair to the accused, and denying leave could be unfair to the Crown; therefore, if Mr Lombardie gave the anticipated unfavourable evidence, it would be appropriate to grant the Crown leave to cross-examine him after cross-examination by the...

Court Disposition

The Court indicated that leave under s 38 would be granted to the Crown if Mr Lombardie gave the anticipated unfavourable evidence, subject to the accused being entitled to further cross-examine if requested.

Orders

  • ['If Mr Lombardie gives the unfavourable evidence as expected, it would be appropriate to grant leave to the Crown pursuant to s 38 to cross-examine in relation to that evidence after Mr Lombardie has been cross-examined by counsel for the accused.' 'If leave is requested and granted, it would be granted only on...