(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party …"
190 In the first appeal, the Court dealt extensively with the law relating to the application of s 38. We rely upon the Court's review of the law with which we agree and do not propose to set out the authorities referred to by the Court on that occasion. It is sufficient to refer in brief terms to the principles to be derived from the authorities. The permission provided by s 38 for the cross-examination of a party's own witness is more liberal that than provided by the common law (the first appeal at [232]); notwithstanding the flexibility provided by the section, the trial judge's discretion to permit cross-examination of a party's own witness must be exercised so as to ensure that the trial remains fair (the first appeal at [233]-[234], citing R v Kneebone [1999] NSWCCA 279 at [104]; (1999) 47 NSWLR 450 at 471); and s 38 should be used with care in criminal cases: R v Fowler [2000] NSWCCA 142 at [120].
191 Before granting leave the court is required to consider s 38(6), s 135 and s 137 dealing with prejudicial evidence, and s 192 which provides that where a court may give leave under the Act, the court is to take into account, relevantly, "the extent to which [the grant of leave] would be unfair to a party or to a witness": s 192(2)(b).
192 Cross-examination under s 38 should usually occur before any other party cross-examines (s 38(4)); however, leave may be granted under s 38 after an opposing party has cross-examined (R v Milat (Supreme Court of New South Wales, 23 April 1996, unreported); R v Parkes [2003] NSWCCA 12; 147 A Crim R 450). In that circumstance, fairness may require that the opposing party be given a further opportunity to cross-examine: Milat at 6-7. In R v Kingswell (Court of Criminal Appeal, 2 September 1998, unreported) Studdert J held that the trial judge had erred in granting leave to cross-examine after the opposing party had cross-examined in circumstances where the Crown anticipated the unfavourable evidence. His Honour considered that the matter should have been dealt with before cross-examination by the defence. Smart J disagreed, stating that fairness could be achieved by affording the defence a further opportunity to cross-examine.
193 In Mr Elliot's evidence in chief was that on 6 May, he said he had entered the Parkroyal Hotel through the main revolving door in the front lobby to use the toilets that were close by. He said that as he walked across the front of the hotel towards the entrance, he looked to his right and saw a woman, whom he thought was Mrs Whelan, and a man, coming from the carpark ramp. Mr Elliot recalled the man moving from the right to the left in front of the woman as they were walking up the ramp and identified him as being a white Caucasian. In his evidence in chief, Mr Elliot had marked on a plan, with dotted lines, the route by which he entered the hotel. The dotted lines led to the revolving front door. However, Mr Elliot was not seen on the CCTV footage that covered the front entrance of the hotel (camera 6). The period between images on the camera was approximately four seconds and on that basis, it was the Crown case that Mr Elliot could not possibly have entered the hotel at that time. Nor could he be seen on the CCTV footage that covered the entrance to the toilet where he said he went (camera 5). The Crown, who had leave to question Mr Elliot pursuant to s 38, showed him the CCTV footage from both cameras 5 and 6.
194 In cross-examination, Mr Elliot agreed it was possible he could have entered the hotel through an entrance that was to the east of the main revolving door in the front lobby. If that was so, that would explain why he did not appear on the CCTV footage. It is relevant at this stage to note that the Crown was asserting that Mr Elliot could not possibly have sighted Mrs Whelan, whereas the appellant was seeking to use Mr Elliot's evidence to undermine that part of the Crown case that relied upon the Pajero evidence.
195 The appellant's counsel at trial submitted that the Crown at all times knew that the appellant was seeking to support Mr Elliot's evidence and thus would cross-examine him seeking to reinstate his evidence that he saw Mrs Whelan between 9:38 and 9:40 am. The appellant's counsel submitted, therefore, that as the Crown had already been given leave to question Mr Elliot pursuant to s 38, no further opportunity should be given.
196 The Crown submitted that it should be given further leave pursuant to s 38 so as to show Mr Elliot the footage from CCTV camera 7, which covered the entrance to the east, and to question him on the basis that he did not appear on that footage either. The appellant submitted to the trial judge, however, that that question had been raised with Mr Elliot at the first trial, so that the Crown was on notice that this evidence would be called. It was integral to the submission that if the Crown was proposing to contend that Mr Elliot was not shown on any CCTV footage, any relevant footage should have been shown to him prior to cross-examination.
197 The trial judge resolved the application to further question Mr Elliot under s 38 by accepting that the Crown was entitled to approach Mr Elliot's evidence on the basis that in his evidence in chief, he had identified his entry into the hotel as being through the revolving doors and that he went to the toilets near those doors and not elsewhere. When the appellant's counsel obtained the concession from Mr Elliot that he may have entered through the eastern door, his Honour considered it was reasonable to permit the Crown to then show him the footage from CCTV camera 7.
198 The second trial presented a number of difficulties, many of them emanating from the evidence given and rulings made at the first trial. This was one example. Whilst it is correct that the evidence given on the previous occasion, including in cross-examination, placed both the Crown and the appellant in the position where they would have been able to anticipate not only the course of evidence, but also the course of cross-examination, nonetheless, the trial had to run in a coherent fashion before the jury. Accordingly, the Crown, as his Honour found, was entitled to rely upon answers Mr Elliot gave, without seeking to question him pursuant to the initial leave, on every possible combination of facts on the chance that the appellant would pursue the exact same line of cross-examination as had been pursued at the first trial. The coherent presentation of the case entitled the Crown to rely upon the evidence that Mr Elliot gave in chief, especially as that evidence indicated positively that he had entered through the revolving doors at the front of the hotel. It would have been different had his evidence in chief been that he was unsure through which door he had entered. If that had been the evidence, then it might have been arguable that the Crown should have been refused a second opportunity to suggest to Mr Elliot that he had not entered through any door. That was not the case and his Honour's grant of further leave to cross-examine was not an erroneous exercise of discretion.
199 The second aspect of Mr Elliot's evidence about which the Crown sought further leave under s 38 was in respect of his evidence about the man whom he saw walking up the carpark ramp at the same time as Mrs Whelan. The CCTV footage positively established that the person who walked up the ramp at the same time as Mrs Whelan was Mr Shah, who was of "Indian-type origin". Mr Shah was present at court during the first trial and Mr Elliot gave evidence that the man whom he saw on the carpark ramp was different from the man in court. At the second trial, he confirmed that he had given this evidence. However, in his cross-examination, Mr Elliot said that his evidence about the man's complexion may have been wrong. The appellant's counsel at trial submitted that he had cross-examined Mr Elliot at the first trial and obtained his agreement to the proposition that he may have been wrong in his recollection of the appearance of the man walking up the ramp. However, the trial judge considered there had been a substantial change in the evidence and his Honour thus granted further leave under s 38 on the basis that the appellant's counsel would also have a further opportunity to cross-examine Mr Elliot. For the same reasons as we have given in respect of the evidence relating to Mr Elliot's entry into the hotel, we consider there was no error in the trial judge's grant of leave in respect of this evidence.
200 The Crown's application in respect of Mrs Carter and the trial judge's consideration of it is to be found at Tr 1255-1259. As we have indicated, the Crown had already been granted leave to question Mrs Carter under s 38, in circumstances where she had previously made statements to the police and had given evidence at the first trial. There were differences in her various accounts as to the certainty with which she identified Mrs Whelan on 6 May. The purport of the Crown case was that she was not certain that the woman she saw was Mrs Whelan. Mrs Carter had made a statement to the police on 3 June. In her evidence in chief, Mrs Carter said that the woman she had seen was "possibly" Mrs Whelan. It was this evidence that the Crown was seeking to rely upon.
201 Mrs Carter had had also spoken to police prior to making her statement on 3 June. She had also spoken to the police on two earlier occasions. These were recorded on a police running sheet. Relevantly, on the running sheet for 3 June, she is recorded as saying that she was in no doubt that the person she saw was Mrs Whelan. The Crown had not asked Mrs Carter any questions about what was recorded in the running sheet for 3 June. In cross-examination by the appellant's counsel, Mrs Carter said that she was certain that the woman she saw was Mrs Whelan. The running sheet for 3 June was tendered. This was the evidence in respect of which the Crown sought further leave under s 38.
202 The appellant's counsel submitted that because the Crown knew that Mrs Carter had said different things at different times, it should have anticipated what she was likely to say in cross-examination and, accordingly, any questions that the Crown had on this matter should have been asked by the Crown pursuant to the leave already granted under s 38 prior to the defence commencing its cross-examination. The Crown's response was in these terms:
"My response to that is that I had got to the point where [Mrs Carter] admitted telling the police on 3 [June] that the woman was only similar. It is quite unrealistic for me to then say, 'Look, did you also tell them that it was the same woman, and why did you say that?'"
203 His Honour responded "Yes, I think that is the answer to it". His Honour indicated to the appellant's counsel that he would permit further cross-examination.
204 No error has been demonstrated in the trial judge's exercise of discretion. His Honour accepted it had been reasonable for the Crown not to raise this matter in the initial questioning of Mrs Carter, whether in chief, or pursuant to the leave that had already been granted. This was a reasonable approach to the case by the Crown for the reasons we have explained above in relation to Mr Elliott, at [198]. His Honour was satisfied that the evidence given in cross-examination was unfavourable to the Crown and that, in the circumstances, leave should be given to enable the Crown to question Mrs Carter in respect of the statement to the police. Once it is accepted that the initial approach of the Crown was reasonable, there is no basis for finding error in the grant of leave to further question the witness.
205 The next application related to Allan Burrell. Allan Burrell had given evidence that the appellant had stayed at his home for three days and two nights in April 1997. Initially, in his evidence in chief, Allan Burrell said that the appellant had arrived on Tuesday 15 April, stayed Tuesday and Wednesday night and left on the Thursday. He said he believed that the appellant was going to see Mr Whelan on the Wednesday, that is, 16 April. Allan Burrell's phone had been the subject of telephone intercepts and a telephone call he had with one of his two daughters on 11 July had been recorded. In that conversation, Allan Burrell had told his daughters that the appellant had stayed with him on Monday 14 April, through to Wednesday 16 April and that he said as he left on the Wednesday, the appellant had said he was going to the Whelans' residence. In another intercepted telephone conversation with one of his daughters, on 19 June, Allan Burrell said that on the third day when the appellant had left his place, he had said he was going to the Whelans' to pick up some work.
206 In cross-examination, Allan Burrell agreed with the suggestion that it was the Wednesday the appellant had visited the Whelans, but that he was mistaken about it being the third day of the appellant's visit. The Crown sought leave under s 38 to question Allan Burrell on the basis of a statement he had made to police dated 19 June 1997, in which he said that the appellant stayed at his home on the Monday and Tuesday nights and visited the Whelans on the Wednesday, being the third day.
207 The Crown's case was that Allan Burrell was correct when he said the appellant was going to see Mr Whelan on the third day of his stay, but was incorrect about that being the Wednesday. The appellant's case was that Allan Burrell was correct about the Wednesday, but was mistaken about it being the third day of the appellant's stay with him.
208 If the appellant was able to rely upon Allan Burrell's evidence that it was the Wednesday, that is, 16 April, that the appellant went to the Whelans' property, then this was, on the appellant's submission, powerful evidence in its case negating the Crown's speculation that he was planning to abduct Mrs Whelan at that time.
209 The resolution of this dispute in their respective favour was important for both parties. On the Crown's version of events, the appellant had falsely told his father of his intention to go to the Whelans' property on the Thursday, 17 April, whereas in fact, he had already been there the day before, in his failed attempt to kidnap Mrs Whelan. The Crown thereby sought to refute the appellant's case that when he went to the Whelans' property on 16 April, he could not have been intending to kidnap Mrs Whelan, because, had that been the case, he would not have told his father he was going to the Whelans' property.
210 The appellant submitted that any further opportunity to question Allan Burrell would give the Crown an unfair opportunity to undermine Allan Burrell's evidence as given in cross-examination. It was submitted that this was particularly so, given that the Crown was on notice of the factual dispute between the parties from the first trial.
211 There was some force in the position taken by the appellant's counsel at trial that this statement made to the police should have been put to Allan Burrell prior to cross-examination. It appears to have fallen into the same category of evidence as the telephone calls to his daughters, where Allan Burrell had given different versions of the appellant's visit. The Crown appears to have recognised this, as counsel for the Crown submitted to the trial judge that if his Honour had a concern that this should not be a matter for leave pursuant to s 38, then the Crown would seek leave to reopen in chief, so that the appellant's counsel would have a further opportunity to cross-examine.
212 The trial judge's ultimate discretion had to be exercised in a manner so as to ensure that there was a fair trial. Having regard to the importance of this evidence and the need to ensure that all relevant evidence was available to the jury, we see no error in permitting this evidence to be adduced pursuant to s 38. His Honour gave leave to the appellant's counsel to further cross-examine Allan Burrell if it was thought appropriate. His Honour could have exercised his discretion to permitted the Crown to adduce this evidence by way of further evidence. We see no error in the approach taken by his Honour. Accordingly, in conformity with the reasons of the Court in Burrell v R [2007] NSWCCA 65, we would also reject ground 8.