R v Tangi (No 4)

HIS HONOUR: This is an application by the Crown for leave to cross-examine under s 38 of the Evidence Act 1995 (NSW) (hereinafter “the Act”). The only concern I have is the meaning of the word “unfavourable” in s 38 of the Act. I have always wondered as to the limits of unfavourability. I am mindful of, his Honour Hunt CJ at CL (as his Honour then was), and his Honour’s remarks in R v Milat (Supreme Court (NSW), 23 April 1996, unrep) regarding s 38, and the alteration made to the way in which trials would run, that it is now for the Crown to call all witnesses and, if necessary, cross-examine under s 38 of the Act.

Her Honour Justice Gaudron J implicitly took that up in Adam v R (2001) 207 CLR 96; [2001] HCA 57 in which the majority favoured it seems, or at least implicitly, a broad view of the term “unfavourable” under s 38 of the Act. His Honour McLellan J issued a judgment in R v Le [2001] NSWSC 174 , in which he has taken that view, and I know a number of my colleagues have allowed cross-examination by the Crown in circumstances where someone has gone at least so far as to say they cannot remember.

It seems to me that not remembering something that is of probative value or significantly is of probative value is a matter that, if it cannot be refreshed in accordance with s 32 of the Act, is unfavourable and, as a consequence, would allow leave to be granted pursuant to s 192 of the Act for cross-examination under s 38 of the Act.

In all of the circumstances, it seems to me, even if there be another witness who can testify to this general area, the issue is of some significant probative value. What the witness has said thus far, in front of the jury, is unfavourable to the Crown. Consequently, I will grant leave, first to ask if that refreshes his memory, and, secondly, if it does not refresh his memory, to allow the witness to say what it is he saw or heard, then leave to cross-examine the witness in relation to the statement made on 26 July 2017 as well as any other statement relating to that issue.