R v RM (No 2) [2023] NSWDC 91

R v RM (No 2) [2023] NSWDC 91

The evidence of BM, in expressing an increased degree of certainty in having overheard a conversation between the complainant and the accused soon after the alleged offence, was unfavourable to the Crown and thus the requirements of s 38(1)(a) were satisfied. The fact the application was made after cross-examination did not cause unfairness given the witness's evolving evidence and the ability to provide supplementary cross-examination, supporting the grant of leave under s 38 with fairness protected by limited further cross-examination.

Parties
Prosecution: Office of the Director of Public Prosecutions (ODPP); Accused: RM
Jurisdiction
Australia
Judgment Date
22 March 2023
Procedural Posture
Criminal Trial / Interlocutory Evidentiary Ruling
Outcome
Application granted
Legal Topics
Cross Examination of Witness, Unfavourable Evidence, Application of S 38 Evidence Act 1995 (nsw), Timing of Applications Under S 38, Fairness Considerations Under S 192 Evidence Act 1995 (nsw)
Criminal Law Evidence Cross Examination of Witness Unfavourable Evidence Application of S 38 Evidence Act 1995 (nsw) Timing of Applications Under S 38 Fairness Considerations Under S 192 Evidence Act 1995 (nsw)

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Parties

Office of the Director of Public Prosecutions (ODPP)

Prosecution

RM

Accused

Procedural Posture

Criminal Trial / Interlocutory Evidentiary Ruling

Legal Issues

  1. 1 Whether evidence given by the Crown witness BM was 'unfavourable' for the purposes of s 38(1)(a) Evidence Act 1995 (NSW)
  2. 2 Whether timing of the application to cross-examine Crown witness after cross-examination is fatal to the application
  3. 3 Whether leave should be granted to cross-examine under s 38 given the fairness considerations under s 192 Evidence Act 1995 (NSW)

Ratio Decidendi

The evidence of BM, in expressing an increased degree of certainty in having overheard a conversation between the complainant and the accused soon after the alleged offence, was unfavourable to the Crown and thus the requirements of s 38(1)(a) were satisfied. The fact the application was made after cross-examination did not cause unfairness given the witness's evolving evidence and the ability to provide supplementary cross-examination, supporting the grant of leave under s 38 with fairness protected by limited further cross-examination.

Court Disposition

Application granted

Orders

  • Leave is granted to the Crown to cross-examine witness BM pursuant to s 38(4) Evidence Act 1995 (NSW), limited to the topic raised in the application.
  • Accused's counsel is granted opportunity for further cross-examination of BM, similarly limited.