R v Terkmani [2017] NSWSC 1154

R v Terkmani [2017] NSWSC 1154

Leave under s 38 was granted because each witness gave evidence that was unfavourable to the Crown or inconsistent with prior statements on matters important to the Crown case or the accused's alibi. For Mahmoud Terkmani, the unfavourable evidence about the toaster and scissors emerged only in defence cross-examination, so the Crown could not have sought leave earlier and any unfairness could be met by permitting further defence cross-examination and limiting the Crown's questioning. For Mohammed Abdul-Rahman, leave was appropriate only to the extent needed to test unfavourable or inconsistent evidence, with constraints where fairness required leading questions rather than adversarial...

Jurisdiction
Australia
Judgment Date
30 August 2017
Procedural Posture
Criminal Trial for Murder and Aggravated Sexual Intercourse Without Consent / Procedural Ruling on Crown Applications for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine Crown Witnesses
Outcome
Leave granted to the Crown pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Crown witnesses Mahmoud Terkmani, Mohammed Abdul-Rahman and Mohamad Terkmani, subject to the limitations identified in the reasons.
Legal Topics
['unfavourable Witnesses' 'crown Cross Examination of Crown Witnesses' 'prior Inconsistent Statements' 'alibi Evidence' 'circumstantial Evidence' 'fair Trial' 'leave Under Evidence Act 1995 (nsw)']
['criminal Law' 'evidence'] ['unfavourable Witnesses' 'crown Cross Examination of Crown Witnesses' 'prior Inconsistent Statements' 'alibi Evidence' 'circumstantial Evidence' 'fair Trial' 'leave Under Evidence Act 1995 (nsw)']

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Procedural Posture

Criminal Trial for Murder and Aggravated Sexual Intercourse Without Consent / Procedural Ruling on Crown Applications for Leave Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine Crown Witnesses

Legal Issues

  1. 1 ['Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to question Mahmoud Terkmani as though cross-examining him after evidence emerged in cross-examination about the accused using a toaster and searching for scissors in the abandoned house.' 'Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to question Mohammed Abdul-Rahman about evidence inconsistent with prior statements or other material concerning bicycles, a service station, use of the abandoned house and a telephone call.' "Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to question Mohamad Terkmani, the accused's father and alibi witness, about prior inconsistent statements and embellishments relevant to the alibi." "How the Court should balance the Crown's entitlement to test unfavourable evidence against unfair prejudice to the accused and fairness to witnesses, including by constraining the manner and extent of questioning."]

Ratio Decidendi

Leave under s 38 was granted because each witness gave evidence that was unfavourable to the Crown or inconsistent with prior statements on matters important to the Crown case or the accused's alibi. For Mahmoud Terkmani, the unfavourable evidence about the toaster and scissors emerged only in defence cross-examination, so the Crown could not have sought leave earlier and any unfairness could be met by permitting further defence cross-examination and limiting the Crown's questioning. For Mohammed Abdul-Rahman, leave was appropriate only to the extent needed to test unfavourable or inconsistent evidence, with constraints where fairness required leading questions rather than adversarial...

Court Disposition

Leave granted to the Crown pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Crown witnesses Mahmoud Terkmani, Mohammed Abdul-Rahman and Mohamad Terkmani, subject to the limitations identified in the reasons.

Orders

  • ['Leave granted to the Crown pursuant to s 38 of the Evidence Act to cross-examine Crown witnesses Mahmoud Terkmani, Mohammed Abdul-Rahman and Mohamad Terkmani.']