Citation: R (Cth) v Petroulias (No. 16) [2007] NSWSC 506
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 4 May 2007
Judge(s): Johnson J
Background
The accused faced trial in the Supreme Court on Commonwealth criminal charges. The Crown called a witness, a former Australian Taxation Office officer, as part of its own case. During examination-in-chief, the witness gave evidence about a series of documents, described as Advance Opinions and a Private Ruling, which bore his name as contact officer but displayed anomalies: in some instances his name was misspelt and appeared in lower case rather than his usual capitalised format.
The witness offered only limited and uncertain explanations for those anomalies. He acknowledged that applications sometimes arrived with a computer disk from which the ATO could work, and that applicants would sometimes draft the ruling themselves, but he could not clearly recall the specific circumstances surrounding the documents in question.
The Crown considered the witness's evidence-in-chief to be unfavourable to its case and also identified potential inconsistency with evidence the witness had given at an earlier trial of the same matter. The Crown therefore applied, mid-examination, for leave under section 38 of the Evidence Act 1995 to cross-examine its own witness.
Legal Issues
- Whether the witness's evidence was "unfavourable" to the Crown within the meaning of section 38(1)(a) of the Evidence Act 1995, such that leave to cross-examine should be granted.
- Whether the witness had made prior inconsistent statements under section 38(1)(c), specifically by reference to evidence given at the first trial.
- How the discretionary factors in section 38(6) and section 192(2) of the Evidence Act 1995 applied to the application.
- Whether section 137 of the Evidence Act 1995, which requires exclusion of prosecution evidence where unfair prejudice to the accused outweighs probative value, operated to refuse the application.
Decision
Johnson J was satisfied that the witness's evidence qualified as "unfavourable" to the Crown under section 38(1)(a). The evidence concerning the formatting and spelling anomalies in the documents was significant to the Crown's case and the witness's answers had not advanced the Crown's position on those matters.
The court also found that the witness had made prior inconsistent statements at the first trial, enlivening section 38(1)(c). This provided an independent basis for the leave application, alongside the unfavourable evidence ground.
Turning to the discretionary factors, Johnson J applied section 38(6) and section 192(2) and considered each of the relevant considerations: the importance of the evidence to the proceeding, the nature of the proceedings (a criminal trial on indictment before a jury), and the potential for unfairness. Drawing on the Court of Criminal Appeal's reasoning in R v Parkes, Johnson J observed that the purpose of section 38 is to allow a truer picture to be presented to the jury. On balance, the discretionary factors favoured granting leave.
On section 137, the court found that the probative value of the evidence the Crown would adduce through cross-examination was not outweighed by the danger of unfair prejudice to the accused. The accused's counsel had not advanced a separate section 137 submission, relying instead on the general arguments already made. The court declined to refuse admission under that section, and the leave application was granted.
Orders Made
- The Crown was granted leave under section 38(1) of the Evidence Act 1995 to question the witness as though cross-examining him, concerning evidence given by him at the first trial in relation to the documents at Exhibit C95, Tabs 11, 74 and 75.
Key Takeaways
- Under section 38(1) of the Evidence Act 1995, a party may seek leave to cross-examine its own witness where that witness gives evidence "unfavourable" to the party or where a prior inconsistent statement exists; both grounds may operate independently or concurrently.
- When exercising the discretion under section 38(6) and section 192(2), the significance of the contested evidence to the overall case is a material consideration, and evidence central to the prosecution's case weighs in favour of granting leave.
- The Supreme Court applied R v Parkes to confirm that the underlying purpose of section 38 is to allow a truer picture of events to be presented to the jury, rather than to leave unfavourable or inconsistent evidence unchallenged before a fact-finder.
- A section 137 objection requires a finding that the danger of unfair prejudice to the accused outweighs probative value; where the accused advances no separate argument on that section, and the evidence is genuinely probative, the threshold for exclusion is not met.
- Inconsistencies between a witness's evidence at a retrial and evidence given at an earlier trial of the same matter can constitute prior inconsistent statements for the purposes of section 38(1)(c).
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), sections 38, 137, 192
- Justices Act 1902 (NSW)
- Crimes Act 1914 (Cth)
Cases:
- R v Parkes (2003) 147 A Crim R 450
- R v Ronen [2004] NSWSC 1298
- R v Le (2002) 54 NSWLR 474
- Adam v The Queen (2001) 207 CLR 96