Ku-ring-gai Council v John David Chia (No 6) [2018] NSWLEC 168

Land and Environment Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v John David Chia (No 6) [2018] NSWLEC 168 Hearing dates: 22 October 2018 Date of orders: 22 October 2018 Decision date: 26 October 2018 Jurisdiction: Class 5 Before: Robson J Decision: See [4] to [6] Catchwords: PRACTICE AND PROCEDURE – criminal law –objection by defendant to leading questions pursuant to s 37 of the Evidence Act 1995 (NSW) – whether questions leading Legislation Cited: Evidence Act 1995 (NSW) ss 37, 192 Category: Procedural and other rulings Parties: Ku-ring-gai Council (Prosecutor) John David Chia (Defendant) Representation: Counsel: T Howard SC with N Hammond (Prosecutor) C Steirn SC with D Beaufils (Defendant)

Solicitors: HWL Ebsworth Lawyers (Prosecutor) Dentons Australia Pty Ltd (Defendant) File Number(s): 2016/00293131

Judgment 1. On 22 October 2018, Mr Howard, senior counsel for the prosecutor, asked the following questions of a prosecution witness, Mr James McKenzie, during his examination-in-chief (Tcpt, 22 October 2018, p 321(13-22)): Q. Just dealing with the time when you were present with Mr Chia on the site, up near the clothesline, in the presence of Mr Edgar. Did Mr Chia ever say anything to the effect of, to either of you, you've cut down trees that I didn't want you to cut down? A… Q. When you were present with Mr Chia on the veranda, did he ever on that occasion say anything to you to the effect that trees have been cut down that he did not want cut down? A... 1. Mr Steirn, senior counsel for the defendant, objected to these questions on the basis that they were leading questions pursuant to s 37 of the Evidence Act 1995 (NSW) ('Evidence Act'). I allowed the questions and deferred the giving of reasons. My short reasons are as follows. 2. The term "leading question" is defined in the Definitions section of the Evidence Act in the following terms: leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question, or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked. 1. I am not persuaded that the questions asked by Mr Howard, whilst closed questions, directly or indirectly suggested that a particular answer ought to be given. The witness could equally have chosen to answer the questions in the affirmative or negative. 2. Nor am I persuaded that the questions assumed the existence of a fact in dispute in the proceedings in relation to which the witness had not already given evidence. Whilst the questions assumed the taking place of a meeting between the defendant, the witness, and Mr Craig Edgar, the questions followed on from evidence the witness had already given about such a meeting taking place. In those circumstances, I do not consider the questions were leading and therefore did not reject them under s 37 of the Evidence Act. 3. In any event, had I been of the view that the questions were leading, I would have exercised the Court's power to grant leave to ask leading questions in examination-in-chief pursuant to s 37(1)(a) and s 192 of the Evidence Act. I would have done so having regard to the fact that the grant of leave would not have unduly lengthened the trial, that it would not have been unfair to a particular party or witness, and that the questions may have elicited important evidence in relation to the ongoing trial.