Supreme Court New South Wales Medium Neutral Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1051 Hearing dates: 12 July 2011 Decision date: 12 July 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: Counsel for the Crown is entitled to ask further questions of the accused based on the evidence given by the accused in the parts of the examination-in-chief to which I have referred Category: Interlocutory applications Parties: Regina, Mark William Standen Representation: T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC. G Farmer (Accused) Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused) File Number(s): 2009/8922 JUDGMENT - (see page 4343) 1HIS HONOUR: The question has arisen whether it would be unfair for the Crown to be permitted to further cross-examine the accused on some evidence given by the accused in his evidence-in-chief. 2The evidence given by the accused in his evidence-in-chief concerned copies of three emails which appear on a page of volume 1 of Exhibit 24 (the third email continuing on to a second page). 3The order in which the copy emails appear on the page in Exhibit 24 is:- 1. A copy of an email from Jalalaty to the accused, in which reference is made by Jalalaty to there being drums (of acetone) on his premises. The copy of this email has the usual information as to the date and time of an email, showing that the email was sent on 24 September 2006 at 19.46.43. 2. A copy of an email from the accused to Jalalaty. There is no indication on the copy of the date or the time of day when the email was sent. 3. A copy of an email from Jalalaty to the accused. There is no indication on the copy of the date or the time of day when the email was sent. 4It is convenient to refer to the emails in the order in which they appear on the page of Exhibit 24, as email 1, email 2 and email 3. 5It is agreed by the parties that the order in which the emails were sent was in fact the reverse of the order in which the copies appear on the page in Exhibit 24, that is the order in which the emails were sent was email 3, then email 2 and then email 1. 6The accused was asked questions about the emails in his evidence-in-chief. At transcript page 3174 line 10 counsel for the accused referred to the relevant page in Exhibit 24 and then said "We see your reply - it would seem to be your reply but it may not be - to the earlier one commencing halfway down, but I'll start with the one at the top because it may be your reply to that one". Counsel then proceeded to ask questions about the emails. 7A little later in the evidence-in-chief the following questions and answers regarding the emails occurred at page 3175 lines 22 to 33: Q. ................Now underneath that we see an email beginning "CEO" was that an email from you? A. Yes. Q. And as best as you can recollect, did that follow the email I've just read out or did it precede the email I've just read out? A. No. It followed, but it's also a part response to the earlier message that we went through. Q. All right? A. It seems to be a response to two emails. I don't know why it appears in that particular order on the page. 8Later still in his evidence-in-chief the accused gave evidence (at transcript page 3176 lines 31 to 40) to the effect that in his email (email 2) he was calling Jalalaty's bluff (as stated in email 1) and the result was what the accused expected - he never heard from Jalalaty again on the subject of acetone. This evidence is only consistent with the accused's email being a response to both of the emails from Jalalaty, that is as being subsequent to both Jalalaty's emails. 9It was submitted by counsel for the accused that the question he began asking at transcript 3174 line 10 had been a leading question suggesting that the accused's email had been a reply to email 1 and counsel had, inadvertently, induced an assent by the accused to email 2 being a response to email 1. It was submitted that because the accused had been misled by a question asked by his own counsel, it would be unfair for the Crown to be permitted to cross-examine the accused about a matter which the accused had accepted only as a result of his own counsel's question. 10I do not consider that these submissions should be accepted. The question asked by the accused's own counsel at transcript 3174 line 10, although a leading question, was a highly qualified one, using the expression "it would seem" and leaving open that the accused's email "may not be" a response to email 1. 11At transcript 3175 lines 22 to 33 the accused, in response to non-leading questions from his counsel, asserted that email 2 had followed email 1 and was in part a response to email 1. 12At transcript 3176 lines 31 to 40 the accused asserted, in evidence that was clearly self serving, that, after he had sent email 2 he had never heard again from Jalalaty on the subject of acetone, whereas the true position was that, after sending email 2, he had received email 1 from Jalalaty in which Jalalaty had made an inquiry about the drums (of acetone). 13I consider that counsel for the Crown should be allowed to ask further questions of the accused based on the evidence given by the accused in the parts of the examination-in-chief to which I have referred. ********** 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: 08 September 2011