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District Court 27 June 2008

R v Hufnagl, Ernst No.2

[2008] NSWDC 140

Theft & property
CRIMINAL LAW INTERLOCUTORY JUDGMENT APPLICATION TO CROSS EXAMINE WITNESS IN RE EXAMINATION ISSUE NOT RAISED IN CROSS

Citation: R v Hufnagl, Ernst No.2 [2008] NSWDC 140
Court: District Court of New South Wales
Date: 27 June 2008
Judge(s): Nicholson SC DCJ

Background

The accused faced charges of conspiring to steal a shipping container from the Port Botany terminal. A key Crown witness, an alleged co-conspirator who had already pleaded guilty to a related offence, was called to give evidence during the Crown's case. In earlier sentencing proceedings before a different judge, this witness had stated that he "worked out" the accused was the man who had entered his truck during the incident.

During evidence-in-chief at trial, the witness gave evidence suggesting he could not recognise the person who had entered the truck. Notably, the Crown itself had led this evidence of non-recognition in its own questioning. The accused's counsel then built a cross-examination around that concession, exploring the witnesses' two prior encounters with the accused at court proceedings.

At the close of the Crown's case, the Crown applied for a second round of leave under s 38 of the Evidence Act 1995 to cross-examine its own witness. The Crown sought to challenge the witness's denial that the accused was the person who had entered the truck, and to suggest the witness had a motive to lie to assist the accused avoid conviction.

  • Whether leave should be granted under s 38 of the Evidence Act 1995 to cross-examine a Crown witness for a second time, where unfavourable evidence emerged during cross-examination on a matter not previously pressed by the Crown.
  • Whether s 38(3) limits the scope of any such cross-examination to questions of credit only, rather than permitting the Crown to elicit substantive evidence of identification.
  • How the court should balance fairness to the witness, fairness to the defence, and the Crown's legitimate interest in challenging witness credibility, in circumstances where the Crown had an earlier opportunity to raise the same issue.

Decision

Nicholson SC DCJ granted leave under s 38(1)(a) and (c), but confined it strictly to two credit issues: whether the witness was lying when he denied that the accused was the man who entered the truck, and whether his motive for lying was to help the accused avoid conviction.

The court drew a clear distinction between the Crown's stated objective of impugning the witness's credibility and its underlying desire to obtain substantive identification evidence. His Honour held that s 38(3) limits cross-examination under that section to matters relevant to credit only. The Crown could not use a leave application to re-litigate the factual question of who entered the truck, particularly having declined to press that issue when leave was first granted.

His Honour also found that allowing broader cross-examination would be unfair to both the witness and the defence. The defence had crafted its cross-examination in direct response to the Crown's own evidence of non-recognition, and the accused's counsel had built a coherent case around that concession. To permit the Crown to now ventilate the identification issue more fully, at this late stage, would undermine the fairness of the trial.

In reaching this conclusion, the court acknowledged that s 38 applications are not confined to situations where unfavourable evidence was unexpected, and that such applications may be granted even where unfavourable evidence emerges during cross-examination. However, the circumstances here, including the Crown's earlier missed opportunity, limited the scope of the leave that was appropriate to grant.

Orders Made

  • The s 38 application was granted.
  • Leave to cross-examine was limited to questions challenging the witness's earlier denial that the accused was the relevant person, and questions relating to the witness's motive to lie.

Key Takeaways

  • The District Court confirmed that s 38(3) of the Evidence Act 1995 confines leave to cross-examine one's own witness to matters relevant to credit, and does not permit the Crown to use such cross-examination to elicit substantive evidence of fact, including identification evidence.
  • A s 38 application may be granted where unfavourable evidence emerges during cross-examination, even if that outcome was not unexpected: R v Parkes [2003] NSWCCA 12 confirms that s 38 is not limited to cases of surprise.
  • Where the Crown had a prior opportunity to press an issue during an earlier grant of leave but declined to do so, that history weighs against granting broader leave in a subsequent application.
  • Fairness to the witness and to the defence are both relevant considerations when a court exercises its discretion under s 38, particularly at an advanced stage of a criminal trial.
  • The distinction between a credit issue (was the witness lying?) and a factual issue (who entered the truck?) may be fine in practice, but the court treated it as decisive in defining the permissible scope of cross-examination.

Legislation and Cases Referenced

Legislation
- s 38(1)(a), (c), (3), (4), Evidence Act 1995 (NSW)
- s 131.1, Criminal Code Act 1995 (Cth) (dishonest appropriation of property)

Cases
- R v Parkes [2003] NSWCCA 12 (per Ipp JA at [70], confirming that s 38 applications may arise from unfavourable evidence elicited in cross-examination, and that the section is not limited to unexpected evidence)