R v Garland (No 3) [2023] NSWSC 1382

R v Garland (No 3) [2023] NSWSC 1382

Leave to cross-examine the witness was granted because the statements attributed to her by police officers were on the judge’s assessment inconsistent with her evidence in court, thus meeting the requirements for leave under s 38(1)(c) of the Evidence Act 1995 (NSW).

Parties
Prosecutor: Rex; Defendant: Stephen Garland
Jurisdiction
Australia
Judgment Date
27 October 2023
Procedural Posture
Criminal / Procedural Ruling on Application for Leave to Cross Examine Under S 38(1) Evidence Act 1995 (nsw)
Outcome
Leave granted to prosecutor pursuant to s 38(1) of Evidence Act 1995 (NSW).
Legal Topics
Leave to Cross Examine Own Witness, Prior Inconsistent Statement, Witness Recollection, Procedural Discretion
Criminal Law Evidence Leave to Cross Examine Own Witness Prior Inconsistent Statement Witness Recollection Procedural Discretion

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Parties

Rex

Prosecutor

Stephen Garland

Defendant

Procedural Posture

Criminal / Procedural Ruling on Application for Leave to Cross Examine Under S 38(1) Evidence Act 1995 (nsw)

Legal Issues

  1. 1 Whether leave should be granted under s 38(1) Evidence Act 1995 (NSW) for the prosecutor to cross-examine their own witness who cannot remember certain matters
  2. 2 Whether statements attributed to the witness by police officers constitute prior inconsistent statements

Ratio Decidendi

Leave to cross-examine the witness was granted because the statements attributed to her by police officers were on the judge’s assessment inconsistent with her evidence in court, thus meeting the requirements for leave under s 38(1)(c) of the Evidence Act 1995 (NSW).

Court Disposition

Leave granted to prosecutor pursuant to s 38(1) of Evidence Act 1995 (NSW).

Orders

  • Leave is granted under s 38 of the Evidence Act 1995 (NSW) for the prosecutor to cross-examine the witness, limited to matters of prior inconsistent statements and memory.