R v Le [2002] NSWCCA 186

R v Le [2002] NSWCCA 186

The trial judge erred in law by granting leave under Evidence Act 1995 (NSW) s 38 without considering the mandatory matters in s 192 and the requirements of s 137. However, if those provisions and s 135 had been considered, leave could properly have been granted, including questioning directed to the reliability of Amber O'Brien's inconsistent versions, her credit on the relevant subjects, and possible motives for changing her account. The questioning did not cause unfair prejudice or a miscarriage, the vehicle-registration evidence was relevant to motive and not inadmissible under ss 135 or 137, and in any event no substantial miscarriage of justice occurred. The sentence disclosed no...

Jurisdiction
Australia
Judgment Date
29 May 2002
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal against conviction dismissed; application for leave to appeal against sentence dismissed.
Legal Topics
['supply of Prohibited Drug' 'heroin' 'deemed Supply' 'unfavourable Witnesses' 'leave to Cross Examine Own Witness' 'prior Inconsistent Statements' 'credibility Evidence' 'unfair Prejudice' 'proviso' 'sentence Appeal']
['criminal Law' 'evidence' 'criminal Procedure' 'sentencing'] ['supply of Prohibited Drug' 'heroin' 'deemed Supply' 'unfavourable Witnesses' 'leave to Cross Examine Own Witness' 'prior Inconsistent Statements' 'credibility Evidence' 'unfair Prejudice' 'proviso' 'sentence Appeal']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in granting the Crown leave under Evidence Act 1995 (NSW) s 38 to question Amber O'Brien as though cross-examining her." 'Whether the trial judge was required to consider Evidence Act 1995 (NSW) ss 137 and 192 when granting leave under s 38.' "Whether the Crown's questioning exceeded the scope of the leave granted or the permissible scope of s 38 questioning." 'Whether the evidence or questioning caused unfair prejudice to the appellant such that the conviction miscarried.' "Whether evidence concerning registration of a motor vehicle in Amber O'Brien's name was wrongly admitted or unfairly prejudicial." 'Whether leave to appeal against sentence should be granted.']

Ratio Decidendi

The trial judge erred in law by granting leave under Evidence Act 1995 (NSW) s 38 without considering the mandatory matters in s 192 and the requirements of s 137. However, if those provisions and s 135 had been considered, leave could properly have been granted, including questioning directed to the reliability of Amber O'Brien's inconsistent versions, her credit on the relevant subjects, and possible motives for changing her account. The questioning did not cause unfair prejudice or a miscarriage, the vehicle-registration evidence was relevant to motive and not inadmissible under ss 135 or 137, and in any event no substantial miscarriage of justice occurred. The sentence disclosed no...

Court Disposition

Appeal against conviction dismissed; application for leave to appeal against sentence dismissed.

Orders

  • ['The appeal against conviction is dismissed.' 'The application for leave to appeal against sentence is dismissed.']