R v Al Batat & Ors (No 17) [2020] NSWSC 1246

R v Al Batat & Ors (No 17) [2020] NSWSC 1246

Leave under s 38 was granted because Ms Li's evidence in cross-examination about Mr Jia handing a bag to James was unfavourable to the prosecution, departed from paragraph 67 of her prior statement, and, after observing her evidence, it was open to conclude that she appeared to be agreeing with propositions favourable to Mr Luo rather than making a genuine attempt to give evidence. The prosecution was therefore entitled to explore the unfavourable evidence, the inconsistencies, and whether she was deliberately giving evidence to assist Mr Luo.

Jurisdiction
Australia
Judgment Date
11 September 2020
Procedural Posture
Criminal Law Evidence Ruling / Prosecution Application During Trial for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine an Unfavourable Witness
Outcome
Application granted.
Legal Topics
['unfavourable Witness' 'prior Inconsistent Statement' 'leave to Cross Examine Own Witness' 'witness Credit' 'fairness in Criminal Trial']
['criminal Law' 'evidence'] ['unfavourable Witness' 'prior Inconsistent Statement' 'leave to Cross Examine Own Witness' 'witness Credit' 'fairness in Criminal Trial']

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Procedural Posture

Criminal Law Evidence Ruling / Prosecution Application During Trial for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine an Unfavourable Witness

Legal Issues

  1. 1 ['Whether leave should be granted under s 38 of the Evidence Act 1995 (NSW) for the Prosecutor to question Ms Wai Li as though cross-examining her about evidence unfavourable to the prosecution.' "Whether Ms Li's evidence in cross-examination about Mr Jia handing a bag to James was inconsistent with paragraph 67 of her statement dated 1 May 2019." 'Whether the Prosecutor should be permitted to put to Ms Li that she was deliberately giving evidence favourable to Mr Luo and not telling the truth.']

Ratio Decidendi

Leave under s 38 was granted because Ms Li's evidence in cross-examination about Mr Jia handing a bag to James was unfavourable to the prosecution, departed from paragraph 67 of her prior statement, and, after observing her evidence, it was open to conclude that she appeared to be agreeing with propositions favourable to Mr Luo rather than making a genuine attempt to give evidence. The prosecution was therefore entitled to explore the unfavourable evidence, the inconsistencies, and whether she was deliberately giving evidence to assist Mr Luo.

Court Disposition

Application granted.

Orders

  • ['The Prosecutor may question the witness Wai Li as though he were cross-examining her about evidence unfavourable to the prosecution, namely evidence of a transaction in which Mr Jia provided a bag full of cash to James and the general circumstances of that meeting.' 'The Prosecutor may question the witness about...