Supreme Court New South Wales Medium Neutral Citation: R v Dickson; R v Issakidis (No 5) [2014] NSWSC 1351 Hearing dates: 30 September 2014 Date of orders: 30 September 2014 Decision date: 30 September 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Leave granted to Crown concerning evidence under s 38 Evidence Act 1995 (Cth) Catchwords: EVIDENCE – unfavourable witness – no question of principle. Legislation Cited: Evidence Act 1995 (Cth); s 38, s 192 Category: Procedural and other rulings Parties: Crown (Commonwealth Prosecutor) Anthony James Dickson (Accused (12/140639)) Michael John Issakidis (Accused (12/128506)) Representation: Counsel: M. McHugh SC, S. Flood, A.P.C. McGrath (Crown) B. Gross QC, C.G. Catt (Dickson) M.J. Byrne QC (Issakidis) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Tully & Chiper (Dickson) Peter Shields (Issakidis) File Number(s): 2012/140639; 2012/128506 Publication restriction: Restriction lifted. ex tempore Judgment Application by Crown to question Mr Harper re Peggy Wong (ref T1794) 1. Briefly, the Crown seeks leave under s 38 of the Evidence Act 1995 (Cth) to ask the present witness, Mr Michael Harper, some questions about the evidence he gave at page 1702 and following of the transcript concerning the call that he stated he made to the Singapore office of Karkalla when he spoke to the person by the name of Peggy Wong. 2. The Crown has indicated that it wishes to ask, in cross-examination if leave is granted, some questions with a view to ultimately putting the proposition that the witness's recollection is mistaken. It will ultimately submit to the jury that that aspect of the witness's evidence should not be accepted. The application is opposed by Senior Counsel for both accused. 3. The application is governed by s 38 as well as by the factors set out in s 192. 4. I have no doubt that the evidence given by the witness is unfavourable to the party, that is the Crown. It should be noted that there is, so far as I am aware, no documentary evidence supporting the existence of the person named Peggy Wong other than her signature on some valuations, the veracity and integrity of which is strongly attacked by the Crown. It is true that the Crown led this evidence, but this needs to be seen in the context of the fact that the Crown has an obligation to call all the material witnesses. In my view that would extend to asking them questions on all matters of relevance. I could not see, in this case, how the Crown, having decided to call Mr Harper, it could not at least question him on this topic. 5. Accordingly, I consider that the discretion governed by s 38(1) is enlivened. 6. Further, I am satisfied that considerations of fairness, both to the Crown, both accused and to the witness, would warrant the leave being granted. 7. In relation to the Crown, I think given its obligation to call the witness and to ask questions on the topic, it should be allowed some degree of latitude to test it so at least it can make a submission to the jury that this aspect of the witness's evidence should not be accepted. 8. So far as the accused are concerned, I think this course at least allows the evidence and the limited challenge, that I will allow, to all be made in-chief, so that the relevant forensic choice can then be made as to what approach to take in cross-examination. 9. Finally, so far as the witness is concerned, not only do I think this is not unfair, I think the suggested course is fair. Even though the witness has no direct interest in the proceedings, he is entitled to at least have the opportunity to respond to a suggestion of this kind before a submission is made in open court that his evidence should not be accepted. 10. Accordingly, I will grant the application. 11. There is a question as to the scope of the leave which should be granted. In broad terms, the Crown is to be limited to cross-examining to the effect that the witness is mistaken. I think as part of that the Crown should at least make reference to the fact that the witness has previously mentioned to the police that a call of the kind in question may have occurred. 12. At this stage, those are the relevant observations that I can make concerning the scope of the leave granted under s 38. ********** Amendments 14 June 2016 - Restriction lifted. 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: 14 June 2016