R v DLW (No. 2) [2020] NSWDC 282

District Court New South Wales

Medium Neutral Citation: R v DLW (No. 2) [2020] NSWDC 282 Hearing dates: 25-27 May 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 45-46 Catchwords: CRIMINAL LAW – trial by judge alone – alleged child sexual offences – application by Crown for leave to cross-examine a witness – whether evidence is unfavourable to the Crown – whether late notice precludes the application – consideration of discretionary considerations as to whether leave should be granted Legislation Cited: Evidence Act 1995 (NSW), ss 38, 137, 192 Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4 R v Adam (1999) 47 NSWLR 267 R v Le (2002) 54 NSWLR 474 Category: Procedural and other rulings Parties: Director of Public Prosecutions Mr DLW Representation: Counsel: Ms K Tennant for the Director of Public Prosecutions Mr S Schaudin for the accused

Solicitors: Solicitor for the Director of Public Prosecutions David Kelly Lawyers for the accused File Number(s): 2017/134016 Publication restriction: Non Publication Order on the names of the complainant, any members of the complainant's family, and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused.

EX TEMPORE Judgment

BACKGROUND 1. This is day 3 of a trial in which the accused is charged with having committed serious child sexual offences in the period from 2009 to 2010 when, it is said, the complainant was 7 years old. 2. So far, the complainant has given evidence. His evidence in chief primarily consisted of recorded interviews given by him to the police in 2016 and early 2017, followed by cross-examination. 3. The Crown has now called the complainant's younger brother. A video of a recorded interview of that witness has been played. That interview occurred in August 2016. 4. The Crown now brings an application under s 38(1)(a) and also s 38(3) of the Evidence Act 1995 (NSW) ('the Act') for leave to cross-examine the witness on the ground that evidence within that recorded interview is 'unfavourable' to the Crown. The accused opposes the application. 5. The application was notified to Counsel for the accused in writing only yesterday, 26 May 2020. By its terms, no indication was supplied in that notice as to the prospective topics for cross-examination. Madam Crown supplied notice of the areas she proposed to cross-examine the witness upon at the time the application was made.