R v Perish; R v Lawton; R v Perish [2011] NSWSC 1111

R v Perish; R v Lawton; R v Perish [2011] NSWSC 1111

Leave was granted because Witness E's evidence was unfavourable to the Crown, he had made prior inconsistent statements, and his antagonism, refusal to see the Crown, and contrived responses showed he was not making a genuine attempt to give evidence about matters of which he could reasonably be supposed to have knowledge. The ERISP evidence was of fundamental importance to the Crown case, the grant of leave would not unduly lengthen the hearing, and any unfairness or prejudice to the accused could be addressed by strict jury directions and limitations on use of representations.

Jurisdiction
Australia
Judgment Date
05 September 2011
Procedural Posture
Criminal Prosecution Concerning Charges of Murder and Conspiracy to Murder / Interlocutory Application by the Crown Under S 38 Evidence Act 1995 for Leave to Cross Examine Witness E on the ERISP During Trial
Outcome
Leave granted to the Crown under s 38 Evidence Act 1995 to cross-examine Witness E on the edited ERISP.
Legal Topics
['unfavourable Witness' "cross Examination of Party's Own Witness" 'prior Inconsistent Statement' 'erisp' 'hearsay' 'unfair Prejudice' 'probative Value' 'jury Directions']
['criminal Law' 'evidence'] ['unfavourable Witness' "cross Examination of Party's Own Witness" 'prior Inconsistent Statement' 'erisp' 'hearsay' 'unfair Prejudice' 'probative Value' 'jury Directions']

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Procedural Posture

Criminal Prosecution Concerning Charges of Murder and Conspiracy to Murder / Interlocutory Application by the Crown Under S 38 Evidence Act 1995 for Leave to Cross Examine Witness E on the ERISP During Trial

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 38 Evidence Act 1995 to cross-examine Witness E on the ERISP.' "Whether Witness E's evidence was unfavourable to the Crown, whether he had made prior inconsistent statements, and whether he was not making a genuine attempt to give evidence." 'Whether any unfairness or prejudice to the accused arising from use of the ERISP could be addressed by directions to the jury.']

Ratio Decidendi

Leave was granted because Witness E's evidence was unfavourable to the Crown, he had made prior inconsistent statements, and his antagonism, refusal to see the Crown, and contrived responses showed he was not making a genuine attempt to give evidence about matters of which he could reasonably be supposed to have knowledge. The ERISP evidence was of fundamental importance to the Crown case, the grant of leave would not unduly lengthen the hearing, and any unfairness or prejudice to the accused could be addressed by strict jury directions and limitations on use of representations.

Court Disposition

Leave granted to the Crown under s 38 Evidence Act 1995 to cross-examine Witness E on the edited ERISP.

Orders

  • ['Leave is granted to the Crown under s 38 Evidence Act 1995 to cross-examine Witness E on the ERISP.' "The discrete matters objected to by Ms Davenport were excluded from the ERISP except Witness E's representations that Anthony Perish had a gun in his hand and that Matthew Lawton put on a gun before he got in the...