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6
Supreme Court 2 March 2001

Regina v Le

[2001] NSWSC 174

Homicide
CRIMINAL LAW MEANING OF "UNFAVOURABLE"

Citation: Regina v Le [2001] NSWSC 174
Court: Supreme Court of New South Wales (Common Law Division)
Date: 2 March 2001
Judge(s): McClellan J

Background

The accused stood trial for the stabbing death of the deceased. During the trial, defence counsel cross-examined a Crown witness, Mr Trieu, suggesting that he, rather than the accused, had committed the stabbing. Mr Trieu denied those allegations, including that he had secreted a knife on a ledge in a nearby laneway before the fatal incident.

The Crown then called two further witnesses. The first, Mr Carzo, gave evidence that he had seen a person hide a knife on a ledge and later saw that same person at the scene. When Mr Trieu was brought into court during Mr Carzo's evidence, Mr Carzo identified Mr Trieu as that person. The second anticipated witness, Mr Lombardie, was expected to give evidence of a conversation he had overheard on the relevant day, the substance of which could be understood as the speaker admitting responsibility for the stabbing.

The Crown sought a ruling from the court before calling Mr Lombardie, anticipating that defence counsel would cross-examine him and that Mr Lombardie might identify Mr Trieu as the speaker. The Crown applied for leave under section 38 of the Evidence Act 1995 to cross-examine Mr Lombardie as though he were a hostile witness, should his evidence prove unfavourable to the Crown's case.

  • Whether the evidence given by Mr Carzo, and the anticipated evidence of Mr Lombardie, qualified as "unfavourable" within the meaning of section 38 of the Evidence Act 1995.
  • Whether the court should grant leave under section 38 to allow the Crown to cross-examine Mr Lombardie after the defence had finished questioning him.
  • Whether, under section 192 of the Evidence Act 1995, any unfairness arose from granting or refusing such leave.

Decision

McClellan J reviewed the relevant authorities on the meaning of "unfavourable" under section 38, beginning with Hunt J's analysis in R v Milat and Smart J's commentary in R v Souleyman. His Honour accepted a broad reading of the term, concluding that evidence need not be directly contradictory to a party's case to qualify as unfavourable. Evidence that supports an alternative theory of how the crime was committed, and that tends to undermine the Crown's case, is capable of being "unfavourable" for the purposes of the section.

Applying that reasoning to the facts, McClellan J held that the evidence already given by Mr Carzo, and the anticipated evidence of Mr Lombardie, was relevantly unfavourable to the Crown within the meaning of section 38.

Turning to section 192, the court was required to consider whether granting leave would be unfair to any party or witness, and the importance of the evidence involved. McClellan J was satisfied that the evidence was of great significance to the accused's emerging defence theory. He further found that granting leave would cause no unfairness to the accused, but that refusing it could be unfair to the Crown.

McClellan J noted that, consistent with the approach taken by Hunt J in R v Milat, any leave granted to the Crown to cross-examine under section 38 should be accompanied by an entitlement for defence counsel to conduct further cross-examination after the Crown had concluded its questioning.

Orders Made

  • Leave under section 38 of the Evidence Act 1995 was granted (conditionally, in anticipation of the expected unfavourable evidence) permitting the Crown to cross-examine Mr Lombardie after defence counsel had completed questioning him.
  • Leave was granted on the condition that defence counsel retained the right to conduct further cross-examination following the Crown's section 38 cross-examination, if requested.

Key Takeaways

  • Under section 38 of the Evidence Act 1995, "unfavourable" is not confined to evidence that directly contradicts a calling party's case; evidence that supports an alternative version of events and undermines the calling party's theory is capable of satisfying the test.
  • McClellan J confirmed the procedural approach outlined in R v Milat: where the Crown obtains leave under section 38, the opposing party should ordinarily be entitled to conduct further cross-examination after the Crown has exercised that leave.
  • Section 192 requires the court to weigh the potential unfairness to each party before granting leave, with the importance of the evidence in question being a significant factor in that assessment.
  • Where denying leave would be unfair to the Crown, and granting it would cause no unfairness to the accused, the balance under section 192 favours granting leave.
  • A court may grant section 38 leave in anticipation of expected unfavourable evidence, before the relevant witness has actually given that evidence, provided the application proceeds on that assumption and the ruling is contingent on the evidence emerging as expected.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), sections 38, 192

Cases
- R v Milat, unreported, Supreme Court of New South Wales, 23 April 1996 (Hunt J)
- R v Souleyman (1996) 40 NSWLR 712
- R v Kneebone (1999) 47 NSWLR 450
- R v Pantoja, unreported, New South Wales Court of Criminal Appeal, 5 November 1998