Crown application under s 38(1) of the Evidence Act 2008 to cross
examine its witness
Unfavourable evidence and prior inconsistent statement
Quick Take
1Under s 38(1)(a) of the Evidence Act 2008 (Vic), evidence is 'unfavourable' where a witness fails to give evidence of a fact that the calling party contends the witness should be able to give, even if the proposed evidence does not actually detract from that party's case — applying DPP v Garrett [2016] VSCA 31 at [69].
2The discretion to grant leave under s 38 must be exercised with care to avoid the trial becoming sidetracked by collateral issues carrying a real possibility of prejudice to the accused; cross-examination on a topic supported only by an inadmissible hearsay statement, or which would put before the jury otherwise inadmissible material, may be refused as unfair under s 192(2)(b).
3Where no admissible evidence yet establishes that a prior inconsistent statement was made, leave to cross-examine on whether it was made may be refused in the exercise of discretion to prevent a collateral dispute causing unfairness, with the position potentially revisited if other permitted cross-examination establishes an evidentiary foundation.
