R v RJ (No. 2) [2023] NSWDC 156

R v RJ (No. 2) [2023] NSWDC 156

Leave was warranted because TE's anticipated evidence was unfavourable and material to one alleged incident, the accused consented to leave in principle and was not taken by surprise, the proposed cross-examination would not unduly lengthen the trial, and questioning about what TE's immediate family said to her and her perceptions of the complainant's disclosure was substantially probative of her credit and possible family loyalty. The probative value was not outweighed by unfair prejudice, particularly as the questioning would not suggest the accused influenced TE and could be controlled by limiting it to discussions with immediate family.

Jurisdiction
Australia
Judgment Date
04 May 2023
Procedural Posture
Criminal / Crown Application for Advance Ruling and Leave to Cross Examine Unfavourable Witness Under Evidence Act 1995 (nsw) S 38
Outcome
Application granted with limitation on scope of cross-examination.
Legal Topics
['unfavourable Witness' 'cross Examination by Party Calling Witness' 'special Witness' 'credit Evidence' 'discretion to Grant Leave' 'unfair Prejudice']
['criminal Law' 'evidence'] ['unfavourable Witness' 'cross Examination by Party Calling Witness' 'special Witness' 'credit Evidence' 'discretion to Grant Leave' 'unfair Prejudice']

Case Brief

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Procedural Posture

Criminal / Crown Application for Advance Ruling and Leave to Cross Examine Unfavourable Witness Under Evidence Act 1995 (nsw) S 38

Legal Issues

  1. 1 ['Whether leave should be granted to the Crown under Evidence Act 1995 (NSW) s 38(1) to cross-examine TE as an unfavourable witness.' 'Whether leave should extend under Evidence Act 1995 (NSW) s 38(3) to cross-examination on credit topics concerning family loyalty and discussions with immediate family.' 'Whether the proposed questioning satisfied Evidence Act 1995 (NSW) s 103 and should be excluded under Evidence Act 1995 (NSW) s 137.' "What limits should be imposed on the scope of the Crown's cross-examination."]

Ratio Decidendi

Leave was warranted because TE's anticipated evidence was unfavourable and material to one alleged incident, the accused consented to leave in principle and was not taken by surprise, the proposed cross-examination would not unduly lengthen the trial, and questioning about what TE's immediate family said to her and her perceptions of the complainant's disclosure was substantially probative of her credit and possible family loyalty. The probative value was not outweighed by unfair prejudice, particularly as the questioning would not suggest the accused influenced TE and could be controlled by limiting it to discussions with immediate family.

Court Disposition

Application granted with limitation on scope of cross-examination.

Orders

  • ['Pursuant to s 38(1) and, to the extent it does not coincide, s 38(3), leave is granted to the Crown to cross-examine TE on the matters referred to in paragraph 5 of MFI 9, varied so that under the subtitle "Credibility" the Crown is permitted to cross-examine TE about what her immediate family had said to her and...