Citation: R v DLW (No. 2) [2020] NSWDC 282
Court: District Court of New South Wales
Date: 27 May 2020
Judge: Abadee DCJ
Background
The accused stood trial on charges of serious child sexual offences allegedly committed against a complainant who was approximately seven years old at the time, in 2009 or 2010. The Crown's case centred on the complainant's account that the accused had taken him from a kitchen into a nearby bedroom during a party at the accused's residence, where the offending occurred.
On the third day of the trial, the Crown called the complainant's younger brother as a witness. His evidence-in-chief was given through a recorded police interview conducted in August 2016. That evidence departed in material respects from the complainant's account, particularly as to the location of the alleged assault and whether the witness was present in the room when it occurred.
The Crown brought an urgent application under s 38 of the Evidence Act 1995 (NSW) for leave to cross-examine its own witness on the ground that his evidence was unfavourable to the Crown. The accused opposed the application, raising concerns about the lateness of notice and potential forensic prejudice.
Legal Issues
- Whether the witness's evidence was "unfavourable" to the Crown within the meaning of s 38(1)(a) of the Evidence Act 1995 (NSW)
- Whether the Crown's late notice of the application precluded or weighed against granting leave
- How the mandatory discretionary considerations under s 192 of the Evidence Act applied, including whether granting leave would be unfair to the accused or cause undue delay
- Whether leave should also be granted under s 38(3) to permit the Crown to challenge the witness's credibility
Decision
Abadee DCJ granted leave for the Crown to cross-examine the witness on two topics: the location where the alleged assault occurred, and the circumstances in which the complainant made complaint to the witness. Leave was also granted under s 38(3) to challenge the witness's credibility, subject to the Crown's undertaking that any such challenge would rely only on material already disclosed to the accused.
The court accepted that notice of the application was late, having been provided in writing only the day before and without specifying the proposed topics for cross-examination. However, the judge did not treat lateness as determinative. His Honour noted that the accused had held the witness's recorded interview as part of the prosecution brief well before trial, and that at least one significant discrepancy between the complainant's and the witness's accounts had been apparent since February 2017.
On the question of unfairness to the accused, the court found that any forensic difficulty arising from late notice was manageable. If, after the cross-examination proceeded, the accused's counsel needed to recall the complainant or seek an adjournment for instructions, the circumstances of the late application would be a relevant factor in the court's approach to those requests. The judge rejected the submission that the seriousness of the charges, by reference to maximum penalties, was a reason to refuse leave, holding that this consideration should be evaluated neutrally rather than from the perspective of the party opposing the application.
Regarding the accused's argument that evidence is not "unfavourable" simply because it does not conform to the prosecution's case theory (drawing on Doyle v R; R v Doyle [2014] NSWCCA 4), the court did not accept that the discrepancies here were so limited. The differences in the accounts were material and were not disputed by the accused's counsel. Without the cross-examination, the court noted, the finder of fact could be left with a distorted picture of the evidence.
Orders Made
- Leave granted to the Crown to cross-examine the witness under s 38(1)(a) of the Evidence Act 1995 (NSW) on the topics identified during argument
- Leave also granted under s 38(3) to challenge the witness's credibility, limited to material already disclosed to the accused
Key Takeaways
- Under s 38 of the Evidence Act 1995 (NSW), the Crown may be granted leave to cross-examine its own witness where that witness gives evidence materially different from the Crown's case, provided the court is satisfied the evidence is genuinely "unfavourable" rather than merely inconvenient to the prosecution's theory.
- Late notice of a s 38 application does not automatically preclude the grant of leave. The District Court weighed lateness as one factor within the broader s 192 discretionary analysis, rather than treating it as a threshold bar.
- Where a party has had access to material revealing a potential discrepancy well before trial, that prior knowledge can diminish the weight attributed to complaints about the lateness of a s 38 application.
- The seriousness of charges and the severity of potential penalties are relevant considerations under s 192(2)(d), but the court held these are to be assessed neutrally and do not automatically favour the party resisting the application.
- A court granting leave in circumstances of late notice may take those circumstances into account in responding to subsequent adjournment or recall applications by the opposing party.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 137, 192
Cases
- Doyle v R; R v Doyle [2014] NSWCCA 4
- R v Adam (1999) 47 NSWLR 267
- R v Le (2002) 54 NSWLR 474