R v Ian DACEY; R v Lee DACEY (No 2) [2013] NSWSC 1876

Supreme Court New South Wales

Medium Neutral Citation: R v Ian DACEY; R v Lee DACEY (No 2) [2013] NSWSC 1876 Hearing dates: 22 November 2013 Decision date: 25 November 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: Reasons published 29 November 2013 Catchwords: EVIDENCE LAW - application to cross-examine witness pursuant to s 38 Evidence Act 1995 - witness made prior inconsistent statement - whether probative value of evidence outweighs danger of unfair prejudice - whether recounting of conversation exact - credibility finding of witness on voir dire - Crown Prosecutor permitted to cross-examine - evidence not excluded Legislation Cited: Evidence Act 1995 Cases Cited: Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Category: Procedural and other rulings Parties: Regina Ian Dacey Lee Dacey Representation: Counsel W Creasey (Regina) T Hoyle SC (Ian Dacey) D Yehia SC (Lee Dacey) Solicitors: Solicitor for Public Prosecutions (Regina) Armstrong Solicitors Pty Ltd (Ian Dacey) Mandy Hull & Associates (Lee Dacey) File Number(s): 201/333188; 2011/356716 Publication restriction: Not to be published until after verdicts

Judgment 1On 22 November 2013 I gave a ruling with regard to an application by the Crown Prosecutor to question a witness about whether she had made a prior inconsistent statement. At the time, due to the exigencies of the situation, and in order to permit the smooth running of the trial, I indicated to the parties that I would provide my ruling on that day, but give my reasons as soon as possible thereafter. The following are those reasons. 2An application has been made by the Crown Prosecutor to cross-examine a witness, Ms Rachael Ella Caldwell, who had been called in the prosecution case. The application is founded on s 38 of the Evidence Act 1995 ("the Act"). The relevant portions of the section are as follows: "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: ... (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). ..." 3The application for leave also gives rise to consideration of s 192 of the Act, which is as follows: "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."