Citation: R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005
Court: Supreme Court of New South Wales
Date: 6 September 2007
Judge(s): Johnson J
Background
This judgment arises from a Commonwealth criminal prosecution before the New South Wales Supreme Court. The decision is the twenty-ninth in a series of interlocutory rulings generated by the same proceedings against the accused.
During the examination-in-chief of a Crown witness, the Crown applied under s.38 of the Evidence Act 1995 (NSW) for leave to question that witness as though cross-examining him. The Crown's position was that the witness had given evidence unfavourable to the Crown and had made prior inconsistent statements on a number of specified topics.
The Crown identified nine topics potentially warranting a s.38 order, and the court ultimately considered the application across seven of them. Submissions were heard in the absence of the jury before Johnson J announced his decision on 3 September 2007, with written reasons published on 6 September 2007.
Legal Issues
- Whether the evidence given by the witness on each of the specified topics was "unfavourable" to the Crown within the meaning of s.38(1)(a) of the Evidence Act 1995
- Whether the witness had made prior inconsistent statements on those topics, engaging s.38(1)(c)
- How the court should exercise its discretion under s.38(6) and s.192 of the Evidence Act 1995, including consideration of notice given and likely cross-examination by the defence
- Whether any evidence to be elicited should be excluded under s.137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Johnson J found that the requirements of s.38(1) were satisfied in relation to each of the seven topics. The evidence given by the witness on those topics was "unfavourable" to the Crown in the statutory sense, meaning simply "not favourable" rather than "adverse" in a stronger sense. The court also found that the witness had made prior inconsistent statements relevant to those topics.
Turning to the discretionary factors under s.38(6) and s.192, the court considered, among other things, whether the Crown had given notice at the earliest opportunity, the likely scope of defence cross-examination, the importance of the evidence, the nature of the proceedings, and the risk of undue lengthening of the trial. The court was satisfied that the balance of these considerations favoured granting leave. Consistent with the approach endorsed in R v Le, the application was dealt with comprehensively across all identified topics rather than through a piecemeal "stop-start" process, which the court found was appropriate given the circumstances of the trial.
On the s.137 question, Johnson J declined to exclude any of the evidence on each topic. The court was satisfied that the Crown's intended approach to cross-examination would minimise the risk of prejudice or unfairness to the accused, and that granting leave would allow a truer picture to be presented to the jury, serving the interests of justice.
Orders Made
- Leave under s.38 of the Evidence Act 1995 was granted to the Crown to question the witness as though cross-examining him about evidence given concerning Topics 1, 2, 3, 5, 6, 7 and 9.
- Following the grant of leave, the Crown produced an expanded schedule (MFI82) containing additional prior statements and committal evidence said to constitute further examples of unfavourable evidence or prior inconsistent statements within the seven approved topics. The defence raised no objection, and cross-examination proceeded on that basis.
Key Takeaways
- Under s.38(1)(a) of the Evidence Act 1995, "unfavourable" means simply "not favourable" to the party calling the witness; it does not require the evidence to be "adverse" in a stronger sense, a point confirmed across multiple authorities including R v Souleyman and R v Fowler.
- Section 38 is not confined to situations where a party is taken by surprise; a calling party may seek leave even where unfavourable evidence or prior inconsistencies were anticipated.
- Where multiple topics warrant a s.38 application in a lengthy trial, the court held that a single, consolidated application is preferable to piecemeal "small dollops of leave," which risks disrupting the jury and prolonging the trial.
- The discretion to grant leave under s.38 requires consideration of the factors in both s.38(6) and s.192 of the Evidence Act 1995, including notice given, the extent of anticipated defence cross-examination, the importance of the evidence, and overall fairness to both parties and the witness.
- Exclusion under s.137 requires that the probative value of the evidence be outweighed by the danger of unfair prejudice to the accused; on the facts of this case, no such exclusion was warranted across any of the seven topics.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW): ss.38, 39, 60, 137, 192
Cases
- R v Le (2002) 54 NSWLR 474
- R v Lozano (NSW Court of Criminal Appeal, 10 June 1997, unreported)
- R v Fowler [2000] NSWCCA 142
- R v Parkes (2003) 147 A Crim R 450
- R v Souleyman (1996) 40 NSWLR 712
- R v Ronen [2004] NSWSC 1298
- Adam v The Queen [2001] 207 CLR 96
- R v Hogan [2001] NSWCCA 292
- R (Cth) v Petroulias (No. 16) [2007] NSWSC 506