Odisho v R [2018] NSWCCA 19

Odisho v R [2018] NSWCCA 19 · Read the judgment on AustLII

Catchwords: Evidence – Cross examination of own witnesses – questioning on credibility only

The Court of Criminal Appeal (‘CCA’) has examined applications for leave to cross examine one’s own witnesses under s38. The core principle seems to be that grants of leave will be strictly interpreted, and if there is any possibility that cross examination will stray into territory which is only about credibility (however hard it may be to define what that means), then leave must be separately sought.

The appellant was convicted by a jury of wounding with intent to cause grievous bodily harm, and with using a pistol without a permit. The victim presented himself to a hospital early one morning, having been shot twice below the knee and once in the buttock, so police were called. The appellant and another man (eventually given an indemnity) were initially charged with the shooting.

The victim gave two statements which were partly the basis of the Crown case: The co-offender had left some cocaine with the victim for safekeeping, who instead used some of it himself; being shot three times was his punishment for that transgression. To that end, the victim had been taken for a drive with the two offenders, the appellant had handed the co-offender a loaded gun, and the co-offender (under threat that he himself would be shot if he didn’t punish the victim) turned around and shot the victim three times. But when he came to give evidence at trial, the victim instead said that the appellant hadn’t been there at all.

The Crown made an application for leave to cross examine the victim, pursuant to s38 of the Evidence Act 1995. The application by the Crown Prosecutor included an application to cross examine the victim only as to credibility, on the basis that the line between what is only relevant to credibility is hard to draw. The general application (under s38(1)) to cross examine was granted by the trial judge, and the (relatively wide-ranging) cross examination was evidently effective, since the jury must have accepted that the appellant was present after all. But when the judge had ruled on the application to cross examine, he had declined to rule on the additional application for leave to cross examine on credibility only (under s38(3)), saying that he didn’t think it was necessary but would rule on it if the issue arose.

Amongst the various grounds of appeal, it arose to be determined whether the cross examination had been in accordance with the leave granted, and by extension whether some of the cross examination had been only on credibility.

The CCA split more or less three ways (a summary-writer’s nightmare). Bellew J found that the questioning was impermissible because it included cross examination on issues going only to credit (at [59]-[60]). But he also found it would have been inevitable, if a further application for leave had been made (remembering that it had actually been made but not ruled on), it must have been granted (at [72]). Hamill J agreed with Bellew J that there had been error in the way that the trial judge responded to the Crown’s application to cross examine, and that the cross examination went beyond the limited grant of leave (at [156]), but would have found that there was in fact a manifest injustice (at [172]). Price J, finally, found that the cross examination was not only on the topic of credibility (at [8]), and that therefore there was no error on the part of the trial judge (at [12]). It followed that Bellew and Price JJ made up the majority and this ground of appeal was dismissed.

What they had in common was that each of the three judges variously acknowledged that it is difficult to draw the line between that which is relevant only to credibility, and that which is also relevant to a fact in issue. Bellew J (at [58]-[59]) and Hamill J (at [162]-[170]) both gave examples which, in this case, went beyond the grant of leave under s38(1) (being the grant of leave to cross examine on facts in issue).

Apart from being a useful example of the ‘slippery’ distinctions inherent in this area, the case serves as an important example for practitioners. It is clearly vital to make clear the distinctions between the areas in issue, and that which is relevant only to credibility – as Hamill J notes, merely because the issue is difficult does not mean it can be sidestepped (at [158]). Moreover, given the strict interpretation placed on the provision’s terms, it will be necessary for the applicant to have a clear idea of the areas of cross examination when the application is made, and to identify if, during any cross examination, the questions have gone beyond the grant of leave.