Regina v Cakovski [2002] NSWSC 632

Regina v Cakovski [2002] NSWSC 632

Leave was granted because Ms Sekulovska's evidence that the deceased had touched her breasts and buttocks was unfavourable to the Crown and materially assisted the accused's case, and her alleged conversation with Detective Sergeant Laycock was inconsistent with her cross-examination. The considerations in s 192 favoured leave, and ss 135 and 137 did not require exclusion because the evidence had high probative value and was not unfairly prejudicial to the accused.

Jurisdiction
Australia
Judgment Date
28 June 2002
Procedural Posture
Criminal Murder Trial / Application by the Crown Under S 38(1) of the Evidence Act 1995 for Leave to Cross Examine a Crown Witness, With Leave to Re Open and Further Cross Examine
Outcome
Leave to re-open and to further cross-examine given.
Legal Topics
['unfavourable Evidence' 'prior Inconsistent Statement' 'leave to Cross Examine Own Witness' 're Opening Crown Case' 'unfair Prejudice' 'probative Value' 'evidence Act 1995 Ss 38, 135, 137 and 192']
['evidence' 'criminal Law' 'criminal Procedure'] ['unfavourable Evidence' 'prior Inconsistent Statement' 'leave to Cross Examine Own Witness' 're Opening Crown Case' 'unfair Prejudice' 'probative Value' 'evidence Act 1995 Ss 38, 135, 137 and 192']

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Procedural Posture

Criminal Murder Trial / Application by the Crown Under S 38(1) of the Evidence Act 1995 for Leave to Cross Examine a Crown Witness, With Leave to Re Open and Further Cross Examine

Legal Issues

  1. 1 ['Whether evidence given by Crown witness Sonja Sekulovska was unfavourable to the Crown within s 38(1)(a) of the Evidence Act 1995.' 'Whether an alleged conversation between Ms Sekulovska and Detective Sergeant Laycock was a prior inconsistent statement within s 38(1)(c) of the Evidence Act 1995.' 'Whether the discretions and exclusions in ss 192, 135 and 137 of the Evidence Act 1995 should prevent leave being granted or the evidence being admitted.']

Ratio Decidendi

Leave was granted because Ms Sekulovska's evidence that the deceased had touched her breasts and buttocks was unfavourable to the Crown and materially assisted the accused's case, and her alleged conversation with Detective Sergeant Laycock was inconsistent with her cross-examination. The considerations in s 192 favoured leave, and ss 135 and 137 did not require exclusion because the evidence had high probative value and was not unfairly prejudicial to the accused.

Court Disposition

Leave to re-open and to further cross-examine given.

Orders

  • ['Leave granted to re-open the Crown case.' 'Leave granted for the Crown Prosecutor to question Ms Sekulovska as though cross-examining her, including as to credibility under s 38(3).' 'Counsel for the accused was given a right to further cross-examine the witness.']