DPP v Garrett (a Pseudonym)

(2016) 257 A Crim R 509; [2016] VSCA 31

Victorian Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Witnesses
3. › Cross-examination of party's own witness
4. › Leave to cross-examine under s 38(1)(a)
5. › Meaning of 'unfavourable'
6. › Whether evidence not favourable to party's case
7. › Whether trial judge required to assess preponderance of evidence
8. › Evidence Act 2008 (Vic), s 38(1)(a)
1. Evidence
2. › Witnesses
3. › Cross-examination of party's own witness
4. › Advance ruling
5. › Discretion to grant leave
6. › Matters relevant to exercise of discretion
7. › Evidence Act 2008 (Vic), ss 38, 192, 192A
1. Criminal Law
2. › Practice and procedure
3. › Interlocutory appeal
4. › Evidentiary question other than admissibility
5. › Certification by trial judge
6. › Whether decision of sufficient importance to trial
7. › Criminal Procedure Act 2009 (Vic), s 295(3)(b)
1. Criminal Law
2. › Practice and procedure
3. › Prosecution obligations
4. › Obligation to call witnesses
5. › Crown's duty of fairness
6. › Whether Crown entitled to cross-examine obligatory witness whose evidence contradicts Crown case

Quick Take

'Unfavourable' in s 38(1)(a) of the Evidence Act 2008 (Vic) means simply 'not favourable' to the case the party is seeking to advance, as discerned from its opening, pleadings and evidence. A trial judge is not required to assess the preponderance of all evidence or determine where the truth lies when ruling on a s 38(1)(a) application. The observations in R v Kneebone concerning 'case theory' do not establish a rule of exclusion and do not apply where the party's case is clearly identifiable from its opening and evidence.