Land and Environment Court of New South Wales CITATION : Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 4) [2009] NSWLEC 231 PROSECUTOR: Director-General, Department of Environment and Climate Change PARTIES : DEFENDANT: Jack & Bill Issa Pty Ltd FILE NUMBER(S) : 50030 of 2009 CORAM: Biscoe J PROSECUTION :- application by prosecutor under s 38 Evidence Act to question a prosecution witness as though the prosecutor were cross-examining the witness. KEY ISSUES: EVIDENCE:- application by prosecutor under s 38 Evidence Act to question a prosecution witness as though the prosecutor were cross-examining the witness. LEGISLATION CITED: Evidence Act, ss 38, 192 Native Vegetation Act 2003, s 12 CASES CITED: Burrell v R [2007] NSWCCA 65 R v Parkes [2003] NSWCCA 12, (2003) 147 A Crim R 450 DATES OF HEARING: 16 December 2009 EX TEMPORE JUDGMENT DATE : 16 December 2009 PROSECUTOR: Mr T Howard SOLICITORS Department of Environment, Climate Change and Water LEGAL REPRESENTATIVES: DEFENDANT: Mr B Vasic SOLICITORS Agostino & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 16 December 2009 50030 of 2009 DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE v JACK & BILL ISSA PTY LTD EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a second contested application by the prosecutor under s 38 of the Evidence Act for leave to question a prosecution witness, Mr Mura, as though the prosecutor were cross-examining the witness about evidence given by the witness that is unfavourable to the prosecutor and whether the witness has at any time made a prior inconsistent statement. 2 This application is made at the conclusion of Mr Mura's cross-examination, in contrast to the first application relating to a different subject which was made during his examination in chief. In cross examination, Mr Mura gave evidence to the effect that he had no discussion with Mr Jack Issa, his co-director of the corporate defendant, about lending money to the company which is represented by three cheques of another company which Mr Mura drew in favour of a contractor for the clearing of land the subject of the charge against the corporate defendant under s 12 of the Native Vegetation Act 2003. 3 There is no question that that evidence is unfavourable to the prosecutor and the prosecutor says that it is contrary to answers that Mr Mura gave in a record of interview on 17 July 2008 in answer to questions 550 to 559. 4 The application under s 38 extends to seeking leave to question Mr Mura as though the prosecutor were cross-examining him about whether he had at any time made a prior inconsistent statement. This concerns evidence which Mr Mura gave in cross-examination that the money he paid the contractor was not a loan and that, if he thought it was a loan, he would have treated certain financial or accounting records differently. The prosecutor says that he made inconsistent statements in the record of interview to which I have referred, in answer to questions 560-566. 5 Section 38 provides: " 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. " 6 The Court of Criminal Appeal has upheld the grant of leave where the Crown deferred an application under s 38 until after cross examination by the defence: R v Parkes [2003] NSWCCA 12, 147 A Crim R 450. That is the situation in the present case. In Parkes the Court of Criminal Appeal held that there was no unfairness in the Crown deferring an application under s 38 until after cross-examination by the defence. The Crown Prosecutor knew that a witness called by the Crown was likely to give unfavourable evidence on a particular issue and deliberately refrained from asking about the unfavourable evidence. When that unfavourable evidence emerged in cross examination, the prosecutor made an application under s 38. It was argued that had the defendant known that a s 38 application was to be made after the witness cross-examination, the defendant would have conducted his case differently. However, counsel for the defendant did not suggest how the case could have been differently run and the Court of Criminal Appeal could not think of anything that counsel for the defendant might have done differently in any material way. Ipp JA (Hulme and Bell JJ agreeing) said at [81] - [85]: "81 It may be argued that some unfairness lay in the fact that the Crown, by the procedure it adopted, obtained the best of both worlds, a result far removed from the situation that would have obtained under traditional adversarial processes. But s 38 does have the potential for transforming the traditional procedure; this lies at the very heart of the section. Accordingly, it seems to me, the mere fact that this actually occurred and the Crown was allowed to cross-examine on evidence brought out in cross-examination by the defendant, startling as it may seem to those brought up on more old-fashioned ways, is not enough to constitute unfair manipulation. 82 Then, it must be asked whether that there was abuse of the section, and resulting impropriety or unfairness to the appellant, because the Crown made a deliberate decision not to question Harris about the three issues (and the number of invoices, in particular) and made a deliberate decision to take its chances in applying under s 38 after Harris had been cross-examined. 83 Unfairness to the appellant, as I have previously indicated, has to be judged in the context of the legislation. I see nothing in the section that prohibits, expressly or impliedly, the course that the Crown adopted. What in fact occurred was that the Crown was allowed to cross-examine Harris and water down the effect of the evidence he had given. There was nothing unfair in the cross-examination. The result was that a truer picture of the situation was presented to the jury than would have been the case had the Crown been refused leave to cross-examine. This is the very purpose underlying s 38. It was not contended for the appellant that any kind of unfairness resulted from the procedure adopted, other than that referred to in paragraph 81 above, 84 The decisions taken by the Crown were based on reasonable grounds; that is to say, the situation that the Crown faced in regard to Harris was such that it was reasonable, forensically, for it to wait to see whether Harris would give unfavourable evidence in cross-examination and then to apply under s 38. The point being that it was completely uncertain, as far as the Crown was concerned, whether or not Harris would be asked about the three issues and what replies he would give (although the Crown knew that there was a potential for some or all of the replies to be unfavourable). I see nothing improper in the Crown adopting the procedure that it did. 85 Accordingly, I have come to the conclusion that, although the deliberate decisions taken by the Crown have to be classified as falling into the basket of forensic tactics, they did not lead to the Crown's application under s 38 being an abuse of the section." 7 That approach was endorsed by the Court of Criminal Appeal in Burrell v R [2007] NSWCCA 65 at [246]. 8 Section 38(4) appears to suggests that an application such as this should ordinarily be made during the course of the evidence-in-chief of the witness for it provides that questioning under that section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. Uninstructed by authority, I would have thought that exceptional circumstances would be required before the Court would give a s 38(4) direction. However, the authorities seem to encourage a liberal approach even where the application is made after cross-examination is concluded. They suggest that s 38 brings about a change to the pre-existing law to an extent which, as Ipp JA said in Parkes, may seem startling to some. 9 One point of difference between Parkes and the present case may be mentioned. In Parkes the prosecutor knew that a witness called by the Crown was likely to give unfavourable evidence on a particular issue and deliberately refrained from asking about it in chief. In the present case the prosecutor was armed with prior statements of the witness and did not adduce evidence in chief from the witness on the matters the subject of the present application, but did not anticipate that the witness would give inconsistent and unfavourable evidence on those issues if asked about them. However, the present case seems to me to be no less strong a case for the favourable exercise of the discretion than Parkes. 10 I take into account the matters referred to in s 192(2) of the Evidence Act 1995. Section 192 provides: " 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 11 It seems to me that the grant of the leave would not add unduly to the length of the hearing; in light of Parkes, it would not be unfair to the defendant or the witness particularly as it has not been suggested that the defendant would have conducted its case differently; the evidence in relation to which the leave is sought is of some importance; the proceedings are criminal in nature; and it has not been suggested that another order or direction might be made in relation to the evidence. 12 Overall, having regard to Parkes, I am inclined to grant the leave that has been sought. Under s 38(1) I direct that this questioning can take place despite the fact that it occurred after cross-examination by the defendant: s 38(4), (5). I will allow further cross-examination by the defence after the prosecutor has questioned the witness pursuant to the leave granted. 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.