R v Songcuan (No 2) [2022] NSWSC 1797

R v Songcuan (No 2) [2022] NSWSC 1797

The police statement admitted as exhibit VD-1 was a prior inconsistent statement, so leave was granted to cross-examine Father Creta about that matter. Although the knife evidence was unfavourable to the Crown, the Court was not satisfied at this stage that there was a basis to attack Father Creta's credit, because important evidence not picked up by police investigators may emerge at trial through cross-examination. Any Crown cross-examination under s 38 would be subject to the accused being allowed further cross-examination.

Jurisdiction
Australia
Judgment Date
08 November 2022
Procedural Posture
Criminal Procedural Ruling / Application During Prosecution Case for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine a Crown Witness
Outcome
Crown application under s 38 granted in part and declined in part at this stage.
Legal Topics
['unfavourable Witnesses' 'prior Inconsistent Statement' 'cross Examination Under S 38' 'cross Examination as to Credit']
['evidence' 'criminal Law'] ['unfavourable Witnesses' 'prior Inconsistent Statement' 'cross Examination Under S 38' 'cross Examination as to Credit']

Case Brief

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Procedural Posture

Criminal Procedural Ruling / Application During Prosecution Case for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine a Crown Witness

Legal Issues

  1. 1 ["Whether Father Creta's police statement was a prior inconsistent statement for the purpose of s 38(1)(c) of the Evidence Act 1995 (NSW)." "Whether Father Creta's evidence about seeing and removing a large knife was unfavourable evidence for the purpose of s 38(1)(a) of the Evidence Act 1995 (NSW)." 'Whether the Crown should be granted leave under s 38(4) to cross-examine Father Creta as to credit about the knife evidence.' 'Whether the accused should have an opportunity for further cross-examination after any Crown cross-examination under s 38.']

Ratio Decidendi

The police statement admitted as exhibit VD-1 was a prior inconsistent statement, so leave was granted to cross-examine Father Creta about that matter. Although the knife evidence was unfavourable to the Crown, the Court was not satisfied at this stage that there was a basis to attack Father Creta's credit, because important evidence not picked up by police investigators may emerge at trial through cross-examination. Any Crown cross-examination under s 38 would be subject to the accused being allowed further cross-examination.

Court Disposition

Crown application under s 38 granted in part and declined in part at this stage.

Orders

  • ['Leave granted for the witness to be cross-examined about the prior inconsistent statement concerning the card and underwear.' 'Leave under s 38(4) to cross-examine Father Creta as to credit about the knife declined at this stage, with the Crown reserving its position.' 'Counsel for the accused to be allowed...