Supreme Court New South Wales Medium Neutral Citation: R v Lupton (No 6) [2022] NSWSC 156 Hearing dates: 2 February 2022 Date of orders: 2 February 2022 Decision date: 02 February 2022 Jurisdiction: Common Law Before: Hamill J Decision: Pursuant to section 38 of the Evidence Act 1995 (NSW), leave is granted to the Prosecutor to cross-examine Susan O'Neill about evidence that is unfavourable to the prosecution, in relation to paragraphs [7], [9], [10], [11] – except for the words, "I thought Jay had bashed Hady" – and [13] of a prior statement. Catchwords: EVIDENCE – leave to cross-examine prosecution's own witness – evidence unfavourable to the prosecution – prior inconsistent statement – no question of principle Legislation Cited: Evidence Act 1995 (NSW) s 38 Category: Procedural rulings Parties: Regina Jay Lupton Representation: Counsel: G Harrison (Regina) A Webb (Lupton) Solicitors: Solicitor for Public Prosecutions (NSW) (Regina) Legal Aid (NSW) (Lupton) File Number(s): 2020/73934 EX TEMPORE Judgment (reVISED) 1. An application has been made under s 38 of the Evidence Act 1995 (NSW) by the Prosecutor seeking leave to examine the current witness as if he were cross‑examining her. She has been giving evidence by AVL during the course of the morning. We do not currently have a transcript and I, personally, have had some difficulty making out everything she has said. However, I accept the Prosecutor's submission that there are aspects of the evidence that she has given which are inconsistent with what she said, or what she has been recorded to have said, and signed off on, in her statement of 27 February 2020 (Ex VDH). 2. I am persuaded if one takes an extremely broad view, as some judges do, including judges of appellate courts, of the expression "unfavourable" in s 38 of the Evidence Act 1995 (NSW), that the terms of the section are engaged. I am not so sure that any of these inconsistencies are particularly unfavourable to the prosecution case, but I accept that it is arguable. However, I do accept there are relevant inconsistencies as identified by the Prosecutor. 3. I propose to grant leave to examine as if the prosecution was cross-examining in respect of paragraphs 7, 11 (except for the words, "I thought Jay had bashed Hady") and 13 of the statement dated 27 February 2020. Those particular paragraphs are not subject to any objection or at least any strenuous objection on behalf of counsel for the accused. 4. There is an objection taken in relation to cross-examination in respect of paragraphs 9 and 10, where the witness in her statement purports to describe the accused searching for something by using a light or a torch, whereas her evidence given today seems to be that she was in no position to have seen or be aware of any of that. I am satisfied that too is inconsistent, that is to say the evidence that she has given this morning is inconsistent with paragraphs 9 and 10. At least by implication I accept also, given evidence which has been given by other witnesses, that there is at least an argument that the evidence is unfavourable to the prosecution. 5. I propose to grant leave also in respect of paragraphs 9 and 10, notwithstanding the objection taken by counsel for the accused. 6. Accordingly, leave is granted on those terms, essentially limited to putting those inconsistencies to her and seeing what she says. ********** Amendments 21 February 2024 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2024