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19
Court of Criminal Appeal 29 May 2002

R v Le

[2002] NSWCCA 186

Also reported as (2002) 54 NSWLR 474 (2002) 130 A Crim R 44
Drugs
CRIMINAL LAW PROHIBITED DRUG HEROIN SUPPLY EVIDENCE WITNESSES

Citation: R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474; (2002) 130 A Crim R 44
Court: New South Wales Court of Criminal Appeal
Date: 29 May 2002
Judges: Heydon JA, Dunford J, Buddin J

Background

The appellant was convicted after a five-day District Court trial of supplying heroin contrary to the Drug Misuse and Trafficking Act 1985 (NSW). Police executing a search warrant at his townhouse observed him run to a toilet, flush it, and subsequently found two packages of heroin with a combined weight of around 14 grams floating in the bowl. He was sentenced to three and a half years imprisonment with a two-year non-parole period.

A central evidentiary issue at trial concerned the appellant's girlfriend, who had been present at the unit. Her evidence at trial was inconsistent with a recorded interview she had given to police. The Crown applied for and was granted leave under s 38 of the Evidence Act 1995 (NSW) to question her as though cross-examining her. Neither counsel nor the trial judge referred to the s 192(2) factors that bear on whether such leave should be granted.

The appellant appealed against conviction, arguing the trial judge erred in granting leave under s 38, erred in permitting questioning beyond the scope of that leave, and that the trial miscarried because the prejudicial effect of the resulting evidence outweighed its probative value. He also sought leave to appeal against sentence.

  • Whether the trial judge erred by granting leave to cross-examine under s 38 of the Evidence Act without expressly considering the mandatory factors in s 192(2)
  • Whether questioning of the witness exceeded the proper scope of that leave
  • Whether the admission of the evidence produced a miscarriage of justice because its prejudicial effect outweighed its probative value
  • Whether the sentence was excessive

Decision

The Court held that where a party seeks leave under s 38 to question a witness as though cross-examining, the trial judge carries a mandatory duty to consider the factors listed in s 192(2). Those factors include the fairness to parties and witnesses, the importance of the evidence, the nature of the proceeding, and the court's power to adjourn or make other orders. The trial judge had not done so, and accordingly the grant of leave was vitiated by error of law.

Despite that error, the Court concluded the appeal could not succeed on this ground. Had the s 192(2) factors been properly considered, a valid grant of leave could and should have been made on the facts of this case. None of the statutory factors pointed against granting leave, and the appellant had not demonstrated that the evidence's prejudicial value outweighed its probative value.

On the scope of leave, the Court clarified that questioning "about" the matters in s 38(1) is not narrowly confined to those subjects alone. Leave granted to question as though cross-examining properly extends to questioning that establishes the probability of the factual matters in dispute, or undermines the probability of the witness's account on those subjects. This includes questions directed solely to credibility in relation to the s 38(1) subjects. The Court also offered guidance on appropriate practice for granting leave, noting that the manner in which leave is framed and managed can significantly affect the conduct, length, and complexity of trials.

On sentence, the Court found no error of principle, no material error of fact, and no failure to consider any relevant circumstance. The sentence fell within the sentencing judge's legitimate discretion, despite the appellant's submission that it was very harsh.

Orders Made

  • The appeal against conviction is dismissed.
  • The application for leave to appeal against sentence is dismissed.

Key Takeaways

  • Under s 38 of the Evidence Act 1995 (NSW), the trial judge carries a mandatory duty to consider the s 192(2) factors before granting leave to cross-examine a party's own witness; failure to do so constitutes an error of law that vitiates the grant of leave.
  • A vitiated grant of leave does not automatically result in a successful appeal: the Court of Criminal Appeal confirmed that the conviction was safe where proper application of the statutory factors would have produced the same result.
  • Questioning under s 38 leave is not confined strictly to the specific matters listed in s 38(1). It extends to questions establishing the probability or improbability of the factual state of affairs related to those subjects, including questions that go solely to credibility on those subjects.
  • The Court discussed appropriate trial practice for granting and framing leave under ss 38 and 192, noting the significant impact that the scope and management of leave can have on trial conduct, length, and outcome.
  • On sentence appeals, Judicial Commission statistics have limited utility because statistical averages obscure the variations in individual circumstances, and the legislative maximum remains the true upper limit of available sentences.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 29
- Evidence Act 1995 (NSW) ss 38, 60, 102, 103, 135, 137, 192
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Adam (NSWSC, Wood CJ at CL, unreported, 3 December 1998)
- Adam v R (2001) 183 ALR 625
- Glennon v R (1994) 119 ALR 706
- R v Hayes [2001] NSWCCA 410
- R v Hofer [2001] NSWCCA 554
- R v Hogan [2001] NSWCCA 292
- R v Novac (1976) 65 Cr App R 109
- Palmer v R (1998) 193 CLR 1
- Stanoevski v R (2002) 202 CLR 115