R v RA (No 1) [2019] NSWDC 375

R v RA (No 1) [2019] NSWDC 375

Leave was granted because the complainant's evidence in-chief created confusion about when the alleged incidents occurred, which was unfavourable to the Crown: it left open the possibility that the first incident occurred when the Accused was under 14 and that the second occurred when the complainant was over 10. The evidence was important to elements and potential issues in the trial, and under s192(2)(c) it was appropriate in the interests of justice to allow questioning so the jury would not be denied relevant evidence capable of being tested. Although the application was made after cross-examination had commenced, counsel for the Accused had ample opportunity to address the topics and...

Jurisdiction
Australia
Judgment Date
26 March 2019
Procedural Posture
Criminal / Crown Application Under S38 of the Evidence Act 1995 for Leave to Question the Complainant as Though Cross Examining Her During Trial
Outcome
Leave granted for the Crown to cross-examine the complainant.
Legal Topics
['unfavourable Witnesses' 'section 38 Application' 'leave to Cross Examine Own Witness' 'doli Incapax' 'prior Inconsistent Statement' 'revival of Memory']
['criminal Law' 'evidence'] ['unfavourable Witnesses' 'section 38 Application' 'leave to Cross Examine Own Witness' 'doli Incapax' 'prior Inconsistent Statement' 'revival of Memory']

Case Brief

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Procedural Posture

Criminal / Crown Application Under S38 of the Evidence Act 1995 for Leave to Question the Complainant as Though Cross Examining Her During Trial

Legal Issues

  1. 1 ['Whether evidence given by the complainant in examination-in-chief was unfavourable to the Crown within s38(1)(a) of the Evidence Act 1995.' 'Whether leave should be granted to the Crown to question the complainant as though cross-examining her despite the application being made after cross-examination by the accused had commenced.' 'Whether the importance of clarifying the timing of the alleged incidents justified the grant of leave under s38, having regard to s192 of the Evidence Act 1995.']

Ratio Decidendi

Leave was granted because the complainant's evidence in-chief created confusion about when the alleged incidents occurred, which was unfavourable to the Crown: it left open the possibility that the first incident occurred when the Accused was under 14 and that the second occurred when the complainant was over 10. The evidence was important to elements and potential issues in the trial, and under s192(2)(c) it was appropriate in the interests of justice to allow questioning so the jury would not be denied relevant evidence capable of being tested. Although the application was made after cross-examination had commenced, counsel for the Accused had ample opportunity to address the topics and...

Court Disposition

Leave granted for the Crown to cross-examine the complainant.

Orders

  • ['Leave to the Crown to question the complainant as though the Crown was cross-examining her is granted, limited to whether she was in Kindergarten, Year 1 or Year 2 at the time of the first offence and the school she was attending at the time of the second offence.']