Supreme Court New South Wales Medium Neutral Citation: R v Hart (No 3) [2016] NSWSC 957 Hearing dates: 20; 21; 22; 27 June; 4; 5 July 2016 Date of orders: 05 July 2016 Decision date: 05 July 2016 Jurisdiction: Common Law Before: Campbell J Decision: Grant leave to the Crown to cross-examine Miss Bromham under s 38 Evidence Act 1995 (NSW) Catchwords: CRIMINAL LAW – evidence – leave to cross-examine unfavourable witness – where not opposed – where would not add unduly to length of trial Legislation Cited: Evidence Act 1995 (NSW), ss 38, 192 Category: Procedural and other rulings Parties: Regina (Crown) Campbell Hart (Accused) Representation: Counsel: W Creasey SC (Crown) E Wilson SC (Accused) Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Lamond Legal (Accused) File Number(s): 2013/00327594 Ex Tempore JUDGMENT (revised) 1. Miss Olivia Bromham is giving evidence in the Crown case. In her evidence-in-chief she was asked whether she had had a phone call from a person named "Mick" about the sale of a pen gun. She was asked a question about that topic twice, I think, and on each occasion she denied having had a conversation with "Mick" on the night of the incident which led to Mr Hargrave's death. Rather, she said that it was Mr Hargrave, the deceased, who had had that conversation. 2. She also explained that she had been very traumatised by the events of 29 October 2013 and I rather inferred from that, she was accepting, as had been put to her, that her memory about the events may have been affected by that circumstance. 3. The learned Crown Prosecutor has sought leave to cross-examine Miss Broham about whether she has at any time made a statement inconsistent with the evidence she has given before me this afternoon. 4. Mr Wilson of Senior Counsel accepts that the circumstances properly engage the s 38 discretion and does not otherwise wish to be heard. 5. I am satisfied by reference to her statement dated 28 November 2013, which has been admitted as exhibit VD-D, that Miss Bromham has indeed made a prior inconsistent statement about this topic. I'm also satisfied that the topic is one relevant to the issues that the jury will have to decide in this case going, as it does, to providing a narrative of events closely associated in time with the shooting that resulted in Mr Hargrave's death and touching, as it does, upon questions which may inform the issue whether the accused had a motive for murder on the one hand, and, on the other, whether the deceased had some interest himself in acquiring a pen gun. 6. Bearing in mind the circumstances set out at s 38(6) and at s 192 of the Evidence Act, I am satisfied that the Crown has not only engaged the exercise of my discretion, but has pointed to circumstances which justify granting leave for the learned Crown Prosecutor to cross-examine Miss Bromham on at least those parts of her statement that deal with that particular matter described above. 7. Certainly the Crown gave notice at the first available opportunity to seek leave and it seems to me that although Mr Wilson will no doubt have several matters to cross-examine Miss Bromham about, that it is in the interests of justice that the Crown be given the opportunity to cross-examine her about this topic before Mr Wilson cross-examines. 8. I am also satisfied that each of the matters referred to in s 192 of the Act, so far as is relevant, favours that decision. In particular, I accept the argument that the grant of leave at this stage will not add in any material way to the length of the trial and that it would be unfair to the Crown not to be able to cross-examine Miss Bromham about her denial of that circumstance. 9. The evidence, as I have said, is of some relevance. It may not necessarily be of great importance in the overall circumstances of the case, but given the nature of these proceedings, that is to say a trial for murder, I think this matter should properly be tested, as it were, in the course of what otherwise would be the witness' evidence-in-chief. 10. Accordingly, I grant leave to the Crown to cross-examine Miss Bromham as indicated in my reasons. ********* Amendments 26 July 2016 - coversheet - publication restriction notation removed 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: 26 July 2016