Ku-ring-gai Council v John David Chia (No 9) [2018] NSWLEC 171

Ku-ring-gai Council v John David Chia (No 9) [2018] NSWLEC 171

Leave was granted because, for the narrow purpose sought, the witness's evidence was unfavourable to the prosecutor's case and the s 192 factors favoured leave: the questioning would not unduly lengthen the hearing, would not be unfair to a party or witness, and had the possibility of eliciting evidence of some importance. Because Exhibit B was already in evidence, it was fair for its existence to be brought to the witness's attention.

Jurisdiction
Australia
Judgment Date
01 November 2018
Procedural Posture
Class 5 Criminal Trial / Prosecutor's Application for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine a Prosecution Witness During Examination in Chief
Outcome
Leave granted.
Legal Topics
['unfavourable Witness' 'leave to Cross Examine Own Witness' 'evidence Act 1995 (nsw) S 38' 'evidence Act 1995 (nsw) S 192']
['practice and Procedure' 'criminal Law' 'evidence'] ['unfavourable Witness' 'leave to Cross Examine Own Witness' 'evidence Act 1995 (nsw) S 38' 'evidence Act 1995 (nsw) S 192']

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Procedural Posture

Class 5 Criminal Trial / Prosecutor's Application for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine a Prosecution Witness During Examination in Chief

Legal Issues

  1. 1 ['Whether the prosecution witness had given evidence unfavourable to the prosecutor within s 38 of the Evidence Act 1995 (NSW).' 'Whether leave should be granted under s 38, having regard to the factors in s 192 of the Evidence Act 1995 (NSW).' 'Whether leave should be confined to questioning the witness about Exhibit B and whether it changed his previous evidence about how trees were cut down.']

Ratio Decidendi

Leave was granted because, for the narrow purpose sought, the witness's evidence was unfavourable to the prosecutor's case and the s 192 factors favoured leave: the questioning would not unduly lengthen the hearing, would not be unfair to a party or witness, and had the possibility of eliciting evidence of some importance. Because Exhibit B was already in evidence, it was fair for its existence to be brought to the witness's attention.

Court Disposition

Leave granted.

Orders

  • ['The prosecutor was granted leave to question Mr Draeger as though being cross-examined for the limited purpose of being shown Exhibit B and being asked whether that changed the evidence he had previously given.']