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Court of Criminal Appeal 3 August 2001

REGINA v. HOGAN

[2001] NSWCCA 292

Assault & violence
CRIMINAL LAW APPEAL LEAVE TO CROSS EXAMINE UNFAVOURABLE WITNESS EXTENT OF LEAVE AMBIT OF CROSS

Citation: Regina v Hogan [2001] NSWCCA 292
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2001
Judge(s): Giles JA; Greg James J; Badgery-Parker AJ

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm on a complainant at Umina on 21 June 1998, an offence under s 35(b) of the Crimes Act 1900 carrying a maximum of seven years imprisonment. He was sentenced to five years and six months, with a non-parole period of just over four years. The conviction arose from a second trial, the first having been aborted mid-defence case.

During the Crown case at the second trial, the trial judge granted the prosecution leave to cross-examine two witnesses, Rachel Golby and Kathleen Golby, as unfavourable witnesses under s 38 of the Evidence Act 1995. That leave was granted without the judge considering the mandatory matters set out in s 192(2) of the same Act, and without any defined limit on the scope or nature of the permitted questioning.

The unrestricted questioning that followed led to the calling of four additional Crown witnesses to contradict Rachel Golby's account. The trial then shifted focus away from whether the appellant had committed the offence and towards whether Rachel Golby was lying to protect him, a proposition put to her repeatedly by the Crown.

  • Whether the trial judge erred in granting leave under s 38 of the Evidence Act 1995 to cross-examine Rachel Golby and Kathleen Golby without reference to the mandatory discretionary considerations in s 192(2)
  • Whether the trial judge erred in failing to define the permitted scope of questioning under s 38(1) and s 38(3)
  • Whether the additional evidence called to contradict Rachel Golby was properly admitted
  • Whether the trial judge's summing-up directions adequately addressed the resulting prejudice to the appellant

Decision

The Court found that the trial judge's exercise of discretion miscarried on two connected grounds. First, the judge did not turn his mind to the matters required by s 192(2) of the Evidence Act 1995 before granting leave to question the witnesses as if cross-examining. Second, and relatedly, the judge gave no attention to defining what the witnesses could actually be questioned about, including the distinct categories in s 38(1)(a), (b) and (c) and the further category of credibility questioning in s 38(3). Neither the Crown nor defence counsel drew those requirements to the judge's attention.

The Court accepted that leave would still have been granted had the proper framework been applied, but it would not have permitted the wide-ranging, unfettered questioning that followed. That questioning, particularly of Rachel Golby, extended well beyond what was justified, including an allegation put to her (and denied) that the appellant had threatened to kill the complainant and his family if he "dobbed." No other evidence supported that allegation, and it was highly prejudicial.

The practical consequence of the unrestricted leave was a fundamental shift in the trial's focus. Instead of concentrating on whether the appellant had committed the charged assault, the jury's attention was directed to whether Rachel Golby was lying to protect him, a framing that risked the jury holding her apparent dishonesty against the appellant, despite no evidence that he had instigated or encouraged her to give false evidence.

The summing-up did not remedy this. Giles JA found that the directions given actually exacerbated the problem by emphasising the lying question and including a confusing direction that appeared to invite the jury to treat Rachel Golby's prior out-of-court statements as eyewitness evidence of the incident. The Court concluded there had been a miscarriage of justice, quashed the conviction, and ordered a new trial.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Under s 38 of the Evidence Act 1995, a grant of leave to question a party's own witness as if cross-examining must be preceded by consideration of all the matters in s 192(2), including the potential prejudice to a party and the risk of undue distraction from the central issues in the trial.
  • Leave under s 38 must be defined in scope: the trial judge is required to address which categories of questioning under s 38(1) and s 38(3) are permitted, rather than treating the grant of leave as a blanket licence for unrestricted cross-examination.
  • A conviction will be set aside for miscarriage of justice where unconstrained cross-examination of an unfavourable Crown witness shifts the jury's focus from the charged conduct to a collateral question, particularly where that shift carries a risk of prejudice to the accused that is not cured by directions.
  • Directions to the jury cannot always repair the damage caused by improper questioning; in this case, the summing-up compounded rather than alleviated the problem.
  • Responsibility for invoking the correct framework rests on all parties: the Court of Criminal Appeal noted that neither prosecution nor defence counsel reminded the trial judge of the s 192(2) requirements, contributing to the course the trial took.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(b)
- Evidence Act 1995 (NSW), ss 38(1), 38(3), 192(2)

Cases:
- Stanoevski v The Queen [2001] HCA 4
- Lozano (Court of Criminal Appeal, unreported, 10 June 1997)
- GAC (Court of Criminal Appeal, unreported, 1 April 1997)
- Fowler [2000] NSWCCA 142
- Adam (1999) 47 NSWLR 267