Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 2) [2007] NSWLEC 324

Port Macquarie – Hastings Council v Lawlor Services Pty Limited; Port Macquarie – Hastings Council v Petro (No 2) [2007] NSWLEC 324

There exist logical or explicit inconsistencies between Mr Lindsay’s oral evidence and his prior written statements regarding the instructions from Mr Petro and the extent of tree removal. These inconsistencies meet the threshold for leave under s 38(1)(c), and Mr Lindsay’s oral evidence is unfavourable within the meaning of s 38(1)(a). There is no evidence of unfairness or undue prejudice to the defendants. Consequently, the prosecutor’s application for leave to cross-examine Mr Lindsay about the two specific subjects is granted, limited to those identified topics.

Parties
Prosecutor: Port Macquarie – Hastings Council; First Defendant: Lawlor Services Pty Limited; Second Defendant: Edmund Petro
Jurisdiction
Australia
Judgment Date
05 June 2007
Procedural Posture
Criminal Prosecution / Interlocutory Application Regarding Cross Examination of Witness Under S 38 Evidence Act 1995
Outcome
Application granted
Legal Topics
Leave to Cross Examine Own Witness, Prior Inconsistent Statements, Unfavourable Witness, Tree Preservation Order Breach
Evidence Law Criminal Law Leave to Cross Examine Own Witness Prior Inconsistent Statements Unfavourable Witness Tree Preservation Order Breach

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Parties

Port Macquarie – Hastings Council

Prosecutor

Lawlor Services Pty Limited

First Defendant

Edmund Petro

Second Defendant

Procedural Posture

Criminal Prosecution / Interlocutory Application Regarding Cross Examination of Witness Under S 38 Evidence Act 1995

Legal Issues

  1. 1 Whether leave should be granted under s 38(1) of the Evidence Act 1995 for the prosecution to cross-examine its own witness (Mr Lindsay)
  2. 2 Whether prior inconsistent statements exist between Mr Lindsay's oral evidence and his previous written statements
  3. 3 Whether Mr Lindsay's evidence is 'unfavourable' within the meaning of s 38(1)(a) Evidence Act 1995

Ratio Decidendi

There exist logical or explicit inconsistencies between Mr Lindsay’s oral evidence and his prior written statements regarding the instructions from Mr Petro and the extent of tree removal. These inconsistencies meet the threshold for leave under s 38(1)(c), and Mr Lindsay’s oral evidence is unfavourable within the meaning of s 38(1)(a). There is no evidence of unfairness or undue prejudice to the defendants. Consequently, the prosecutor’s application for leave to cross-examine Mr Lindsay about the two specific subjects is granted, limited to those identified topics.

Court Disposition

Application granted

Orders

  • Leave granted under s 38(1) Evidence Act 1995 for the prosecution to cross-examine Mr Lindsay in relation to the instructions from Mr Petro and the extent of tree removal.