New South Wales Supreme Court CITATION : Regina v Le [2001] NSWSC 174 revised - 1/06/2001 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70046/00 HEARING DATE(S) : 2 March 2001 JUDGMENT DATE : 2 March 2001 PARTIES : The Crown Anh Tuan Le (Accused) JUDGMENT OF : McClellan J COUNSEL : D Frearson (Crown) Dr M Gumbert (Accused) SOLICITORS : Director of Public Prosecutions Voros & Associates (Accused) CATCHWORDS : CRIMINAL LAW - leave to cross examine witness under s 38 Evidence Act 1995 (NSW) - meaning of "unfavourable" - grant of leave pursuant to s 192 of Evidence Act 1995 (NSW) LEGISLATION CITED : Evidence Act 1995 R v Milat, unreported, NSWSC 23 April 1996 CASES CITED : R v Souleyman (1996) 40 NSWLR 712 R v Kneebone (1999) 47 NSWLR 450 R v Pantoja, unreported, NSWCCA, 5 November 1998 DECISION : see para 25 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN J FRIDAY, 2 MARCH 2001 70046/00 - REGINA v Anh Tuan LE JUDGMENT 1 HIS HONOUR: Yesterday, during the course of the evidence of Mr Trieu, it was, for the first time in this trial, suggested that he rather than the accused stabbed the deceased. Mr Trieu denied this assertion. It was further suggested to him that before the stabbing he had secreted a knife on a ledge in a nearby laneway, which he retrieved and was then carrying during the scuffle in which the deceased died. Mr Trieu denied all of these assertions. 2 The Crown then called Mr Carzo who gave evidence that he saw a person secrete a knife on a ledge in an alleyway and later saw the same person at the scene of the alleged crime. He was cross-examined by counsel for the accused and Mr Trieu, having been brought into court for this purpose, Mr Carzo identified Mr Trieu, as the person he had seen. 3 The transcript reveals that the Crown sought leave to ask further questions pursuant to s38 of the Evidence Act. That application was opposed. 4 The transcript also reveals the discussion which occurred between the Court and counsel, where the Court identified the legitimate role of re-examination in clarifying any matter which it was appropriate for the Crown to clarify. However, the Court did not express any ruling in relation to s38. 5 Thereafter the Crown proceeded to further question Mr Carzo and, in the course of that questioning, asked questions in the form of cross-examination. Those questions were not objected to by counsel for the accused and I have no doubt that this was because he, having regard to the earlier exchange, believed that the Court had made a ruling pursuant to s38. 6 The Crown has now indicated that it proposes to call Mr Lombardie and, as I understand the position, he will give evidence of a conversation which he overheard on the day of the events, the subject of this trial. The substance of that conversation could be understood as indicating that the speaker was responsible for the stabbing which killed the deceased. 7 I understand the Crown anticipates that Mr Lombardie will be cross-examined by counsel for the accused and may identify Mr Trieu as the speaker who was overheard. This application has, of course, been dealt with upon the assumption that this is the evidence which will emerge and, of course, the ultimate position may be otherwise. However, the Crown has sought a ruling from the Court before Mr Lombardie is called. In these circumstances the Court is required to consider the proper application of s38. 8 I had the benefit today of addresses from counsel which have explored the relevant authorities in relation to that section. The authorities were not explored yesterday. There is an important discussion of the history of the section and an explanation of its purpose in the judgment of Hunt J in R v Milat, unreported, Supreme Court of New South Wales, 23 April 1996, where his Honour was dealing with preliminary matters, which included an application by the Crown for the exercise of the Court's discretion pursuant to s38. The issue appears to have been one of identity and the Crown, accepting an obligation to do so, proposed to call a witness at the request of the accused, although it anticipated that the evidence would be unfavourable to its case. His Honour said at p 5 of the judgment: "In my opinion, the situation where the Crown is obliged to call a witness at the request of the accused, notwithstanding that the evidence of that witness is unfavourable to its case, falls directly within the contemplation of s 38. In the present case, the Crown prosecutor proposed simply to call the witnesses, to obtain their name and address and to leave them for cross-examination by the accused. Then, after the unfavourable evidence had been given in the course of that cross-examination, it proposed that leave should be granted to it (pursuant to subs(1)) to question the witness about that evidence as though cross-examining that witness. (for ease of reference, I have referred to this rather awkwardly described procedure (as did the Commission itself) as cross-examining the witness). The Crown intended by such cross-examination to demonstrate that the identifications made by these witnesses were unreliable, and thus (because of the extraordinary width of the definition of 'credibility' in the Dictionary to the Act) such evidence would be relevant to the credibility of those witnesses. Such evidence would nevertheless go also to a fact in issue (whether the 'signature' pattern upon which the Crown relies existed) or to a fact relevant to that fact (whether there is a reasonable possibility that some of the victims were not picked up as hitchhikers on the Hume Highway near Liverpool). Accordingly, further leave to cross-examine upon credit was not required pursuant to subs(3), as the Crown was not concerned with the truthfulness of these witnesses. In my view, as the reliability of the evidence of such witnesses would certainly not be tested by the accused, and as the Crown was obliged to call the witnesses only out of fairness to the accused, it would be unjust to the Crown (which prosecutes on behalf of the community) to refuse leave to cross-examine in relation to the unfavourable evidence given. It was very fairly - and correctly - accepted by the accused that no argument could be mounted to the contrary. As the unfavourable evidence was not to be given until the witnesses were cross-examined by the accused, the Crown could not cross-examine them about the unfavourable evidence until that cross-examination by the accused had taken place. In those circumstances, the situation was to be very different to that where the Crown has led evidence from the witness which is favourable to its case but has then also obtained evidence upon some other issue which was unfavourable. The Law Reform Commission expressed different views at different times concerning the stage at which the party calling such a witness should be entitled to cross-examine upon the unfavourable evidence in that different situation. Originally, it proposed that it should be after the other party or parties had had the opportunity to cross-examine the witness. 26 ALRC Vol 1, par 625. In its Final Report, the Commission said that this should not be an inflexible requirement, and that provision should be made to enable the other party or parties to question the witness further after the cross-examination by the party who called the witness. 38 ALRC par 114. Although perhaps not readily apparent from their terms, this appears to have been the intention behind subsections (4) and (5) of s 38. In order to reflect the intention (or to comply with the spirit) of the section, therefore, I held that, in the event that these witnesses called at the request of the accused gave the unfavourable evidence as expected, it would be appropriate to grant leave to the Crown pursuant to subs(1) to cross-examine them in relation to that evidence, and to do so after they had been cross-examined by the accused. I also said that the accused would then be permitted to cross-examine the witness further after the Crown had conducted its cross-examination, such cross-examination to be unlimited in nature and not restricted as if it were a re-examination with the Crown having the right finally to re-examine the witnesses. 9 In the present matter the application made by the Crown today appears to me to fall relevantly within the principles set forth by Hunt CJ at CL in those passages. However, it has been submitted by counsel for the accused that a more narrow view of the word "unfavourable" should be accepted by this Court and that that word could never extend to encompass evidence coming from a witness which may be contrary to the Crown theory as to how a crime may have been committed. In any case it is submitted that the word "unfavourable" must mean more than evidence which is inconsistent with the Crown's theory. 10 Justice Smart commented on the meaning of the word "unfavourable" in R v Souleyman (1996) 40 NSWLR 712. Having reviewed the history of s38 in Australia and its equivalent in the United Kingdom, his Honour said: "When the word "unfavourable" was used in s38 the draftsman probably had as a background the history of the English legislation and selected the alternate word "unfavourable" used by Williams J in Greenough v Eccles ." 11 His Honour had already referred to other words than "unfavourable" which were available to the draftsperson being adverse or hostile which he, in my opinion, appropriately identified as having been consciously rejected by the adoption of the word "unfavourable." He went on to say: "The word "unfavourable" in section 38(1)(a) does not mean adverse. It means "not favourable". That construction could have wide ranging ramifications but the Court is given a discretion and will carefully examine the circumstances to see how the discretion should be exercised." 12 Justice Greg James referred to this issue in R v Kneebone (1999) 47 NSWLR 450 where, at page 461, he collected the decisions which had by then, considered the meaning of unfavourable in s38 of the Evidence Act. He draws attention to the necessity to exercise care in the application of the section, indicating that at that point there was much about the section which was still to be resolved. 13 The issue was also addressed by Adams J in R v Pantoja, unreported, Court of Criminal Appeal, 5 November 1998, where his Honour raised the question of whether truthful evidence could ever be unfavourable from the Crown's point of view. His Honour said: "It seems to me that some attention will need to be given in due course to the meaning of 'unfavourable' so far as the Crown case is concerned. The Crown case is, in essence, the truth, wherever that might lead and even if it leads to reasonable doubt about guilt, I am far from persuaded that merely because a witness declines to give evidence supporting the theory of the facts for which the prosecution contends or, indeed, gives evidence that contradicts that theory or contention, his or her evidence may thereby be regarded as' unfavourable'." 14 It must be accepted, as Adams J identified that the relevant provisions of the Evidence Act should be construed to ensure that the ultimate purpose of the trial is facilitated. With respect to s 38 that purpose, as identified in the earlier authorities, is to ensure that the Court is not denied evidence which might be relevant to enable the truth to be ascertained. As Hunt CJ at CL pointed out, one of the concerns which, no doubt, led to s38 being enacted, was that because the Crown may be unable to contradict evidence which it is required to call, in some cases the Court may be denied evidence which could be relevant to ascertain the truth. 15 Adopting this approach to the section, in my opinion, the word "unfavourable" should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested. Only this approach will allow the jury to have the opportunity of coming to an informed view about whether or not the evidence called by the Crown should be accepted. 16 The judgment of James J in Pantoja addresses the further issue advanced by counsel for the accused in this case. In Pantoja it would appear that the difficulties which gave rise to the application by the Crown under s38 arose, at least in part, during cross-examination of a witness by counsel for the accused. James J makes plain that whether the difficulty arises in evidence-in-chief or cross-examination is not relevant to the potential exercise of the discretion under s38. 17 In my opinion, it would be inappropriate to confine the discretion to the circumstance where the Crown has merely called a witness at the request of the accused. Accordingly, I reject the submission that the section should be confined to the circumstances considered by Hunt J in Milat. 18 As I have indicated, in the present matter the allegation that Mr Trieu was responsible for inflicting the fatal wound upon the deceased has been raised during the course of the trial. It has been sought by the accused's counsel, and I make no criticism of him in so doing, to support that assertion by obtaining evidence in cross-examination from Mr Carzo and, it is apprehended, by the prospective cross-examination of Mr Lombardie. In this way counsel for the accused seeks to construct an alternate theory of the killing to that which is fundamental to the Crown's case against the accused. 19 In these circumstances it seems to me that the evidence which was adduced in cross-examination from Mr Carzo, and which is proposed to be adduced in cross-examination of Mr Lombardie, is evidence which is unfavourable in the relevant sense to the Crown. Furthermore, in my opinion, if that evidence was allowed to be adduced without an opportunity to test its reliability, it is possible that the outcome would be unjust to the Crown in the sense that expression was used by Hunt J in Milat. 20 Accordingly, I am of the view that in relation to the evidence of Mr Carzo and that proposed from Mr Lombardie, the Court should conclude that the evidence already given by Mr Carzo, and which may come from Mr Lombardie, is evidence which is relevantly unfavourable. 21 Before granting leave under s38, the Court is required to have regard to the provisions of s192 of the Evidence Act. Section 192, without limiting the matters which the Court is required to consider, requires the Court to take into account, in particular, in deciding whether to give leave, the extent to which to do so would be unfair to a party or to a witness (s 192(2)(b)) and, furthermore, the importance of the evidence in relation to which the leave, permission or direction is sought. (s 192(2)(c)). 22 The evidence which the accused counsel seeks to adduce from the two witnesses is evidence of great significance to the case which he has now advanced through his cross-examination of Mr Trieu. Accordingly, the evidence in respect of which leave is sought under s38 by the Crown is of great importance in this matter. 23 I am also satisfied that by granting leave there would be no unfairness to the accused, but that if leave was denied this could be unfair to the Crown. 24 When taking the evidence of Mr Carzo yesterday, I invited counsel for the accused to make an application to further cross-examine Mr Carzo after the Crown had concluded questioning.. Counsel indicated that he did not wish to ask any further questions. This course was the course taken by Hunt J in Milat and, in my opinion, it is an appropriate course to take in the circumstance where leave has been granted to the Crown under s38. Any possible unfairness or other difficulty which may have arisen from the Crown exercising its right pursuant to that leave may be dealt with and effectively removed. 25 Accordingly, in relation to the application made in anticipation of the evidence to be given by Mr Lombardie, I hold that in the event that Mr Lombardie gives the unfavourable evidence as expected, it would be appropriate to grant leave to the Crown, pursuant to s 38, to cross-examine in relation to that evidence and to do so after Mr Lombardie has been cross-examined by counsel for the accused. I also indicate that in my opinion, if a request is made and leave is granted, I would only grant it on condition that counsel for the accused was entitled to further cross-examine if he wished. ********** Last Modified: 06/01/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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