procedural. Leave granted to the Crown under s 38(1)(a) and, to the extent applicable, s 38(3) to cross-examine the witness on the topics identified by the Crown during argument; cross-examination restricted...
Key principles
Evidence is 'unfavourable' under s 38(1)(a) of the Evidence Act 1995 (NSW) where, in its ordinary meaning and context, it materially contradicts or undermines the prosecution's...
Late notice of an application under s 38 is not necessarily fatal; s 38(6)(a) does not make prompt notice a precondition to the operation of s 38, and courts must evaluate...
When determining whether to grant leave under s 38, the court must apply the statutory discretionary considerations in s 192 of the Evidence Act (including trial length,...
Leave under s 38(3) to challenge a witness's credibility may be granted provided any credibility challenge is based only on material disclosed to the accused; the prosecutor may...
Issues before the court
Whether the witness's recorded interview evidence was 'unfavourable' to the Crown for the purposes of s 38(1)(a).
Whether the lateness of notice (s 38(6)(a)) required refusal of the Crown's application.
Plain English Summary
During a judge-alone trial on historical child sexual offence charges, the Crown sought leave to cross-examine a prosecution witness because the witness's recorded police interview conflicted with the complainant's evidence on key points. The defence opposed the late-notified application. The judge held the witness's evidence was 'unfavourable' to the Crown because it materially contradicted the complainant and could affect the complainant's reliability. Although notice was late, the judge found lateness alone did not bar the application. After applying the discretionary factors in s 192 (trial length, unfairness, importance of evidence, seriousness), the judge concluded that granting leave would not cause irremediable unfairness and therefore permitted the Crown to cross-examine the witness, including to challenge credibility under s 38(3), limited to already disclosed material.
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Deep Dive
1,756 words · generated 01/07/2026
Whether granting leave would be unfair to the accused having regard to s 192 of the Evidence Act.
Whether leave under s 38(3) should be granted to allow the Crown to challenge the witness's credibility.
Cited legislation
1 cited instrument linked from this judgment.
What happened
This decision arises in the course of a judge-alone criminal trial in the District Court of New South Wales. The accused faced historical allegations of serious child sexual offences said to have occurred in 2009–2010. The complainant, then a young child, had given evidence including recorded police interviews, and had been cross-examined. The Crown called the complainant's younger brother and played his recorded interview (conducted August 2016). After that, the Crown made an application under s 38(1)(a) of the Evidence Act 1995 (NSW), and also under s 38(3), seeking leave to cross-examine the witness because parts of his recorded interview were "unfavourable" to the Crown, specifically, that the complainant had allegedly complained to him the next morning, that the witness had been in the room at the time, and differences as to the location (101 M Road v 58 M Road) (see 'Reasons for the application' and 'DETERMINATION', 'Unfavourable evidence').
Importantly, the Crown's written notice of the application was given late, the accused's counsel received it on 26 May 2020, the day before the application was formally made; the prosecutor said she had conference with the witness on 21 May 2020 and only then formed the view the witness's evidence might be unfavourable. The defence argued the Crown had been on notice since 2017 because the complainant's recorded interview of 9 February 2017 contained passages that indicated a potential conflict (ARGUMENT [2]-[4]).
The judge (Abadee DCJ) considered whether the witness's evidence was "unfavourable" within the meaning of s 38(1)(a), whether the late notice barred the application under s 38(6)(a), and whether, applying the discretionary statutory considerations under s 192, granting leave would be unfair to the accused. After analysing the statutory provisions and the facts, the judge concluded the witness's evidence was unfavourable and that, despite the lateness of notice, leave should be granted. The judge also granted leave under s 38(3) to the extent any credibility challenge was based upon material already disclosed to the accused (DETERMINATION, 'Unfavourable evidence' [1]-[3]; 'Notice' [1]-[6]; 'Section 192 of the Act' [1]-[12]).
Why the court decided this way
Three core legal determinations drive the outcome.
Definition of "unfavourable": The judge rejected a cramped interpretation of "unfavourable", favouring the ordinary meaning as informed by statutory context and the ALRC report. The witness's recorded interview materially contradicted the complainant on matters central to the Crown case (complaint to the witness, presence in the room, and location). Because those contradictions could undermine the complainant's reliability, the evidence was "unfavourable" for the purposes of s 38(1)(a) (DETERMINATION, 'Unfavourable evidence' [1]-[3]). The judge expressly rejected the idea that evidence should not be considered "unfavourable" merely because it does not fit the Crown's theory, observing that a narrow construction would undermine established authority that prosecutors may invoke s 38(3) to challenge credibility (DETERMINATION, 'Unfavourable evidence' [4]).
Lateness of notice is not automatically fatal: The judge acknowledged the written notice was "plainly late" (DETERMINATION, 'Notice' [1]), and accepted the defence point that the Crown had been on notice since 2017. However, drawing on precedent (R v Adam), the judge held that s 38(6)(a) does not make prior notice an absolute precondition; the statute was not intended to place parties in a "procedural straitjacket." Lateness must be weighed with the object and operation of s 38 and the practical realities of litigation (DETERMINATION, 'Notice' [2]-[6]).
s 192 discretionary balancing: The judge applied the statutory considerations in s 192: likely extension of trial (s 192(2)(a)), unfairness to a party (s 192(2)(b)), importance of the evidence (s 192(2)(c)), seriousness of the offence (s 192(2)(d)), and others. The Crown's estimate of up to 20 minutes was accepted as not likely to unduly extend the trial; the defence could not point to irremediable prejudice from allowing cross-examination; the evidence was important because it contradicted the complainant on matters touching his reliability; and the seriousness of the offences was to be treated neutrally (DETERMINATION, 'Section 192 of the Act' [1]-[11]). Practical remedies (recall, adjournment) remained available should the defence need them. Balancing these factors, the judge concluded that granting leave would not be unfair and the s 192 threshold for refusal was not met (DETERMINATION, 'Section 192 of the Act' [7], [11]).
Furthermore, the Crown confirmed any credibility challenge under s 38(3) would be restricted to material already disclosed to the accused; on that basis the judge granted leave under s 38(3) (DETERMINATION final paragraph).
Before and after state of the law
Before: The statutory framework was fixed by the Evidence Act 1995 (NSW), containing s 38 (leave to cross-examine where witness evidence is 'unfavourable') and s 192 (factors to consider in granting leave). Existing authorities (for example R v Adam, R v Le, and Doyle) provided interpretive guidance: courts had considered when evidence is 'unfavourable', the role of notice under s 38(6)(a), and the prosecutor's ability to challenge credibility under s 38(3).
After: This decision reinforces a number of propositions within the NSW District Court context:
"Unfavourable" should be given its ordinary meaning and includes evidence that materially contradicts a key prosecution witness and may undermine reliability (DETERMINATION, 'Unfavourable evidence' [1]-[3]).
Late notice is a relevant factor but not decisive; s 38(6)(a) is to be applied practically, not as an absolute precondition (DETERMINATION, 'Notice' [1]-[6]).
In applying s 192 the primary concern is unfairness, understood as irremediable prejudice, and courts should consider remedies (recall, adjournment) before refusing leave (DETERMINATION, 'Section 192 of the Act' [5]-[6], [11]).
This decision thus affirms a purposive and practical approach to s 38 applications, signalling judicial willingness to permit prosecutorial cross-examination to probe contradictions even when application notice is late, provided prejudice can be managed.
Key passages with plain-English translation
"The first question is whether the witness' evidence, as it stands, is 'unfavourable' to the Crown, for the purposes of s 38(1)(a). The word 'unfavourable' is not defined in the Act." [1]
Plain English: The judge must decide if the witness's statements hurt the Crown's case. The Act does not define 'unfavourable', so the judge must interpret it sensibly.
"In my view, the evidence of the witness, in respect to the matters identified by Madam Crown, is unfavourable in the requisite sense." [2]
Plain English: The judge found the witness's recorded interview did contradict the complainant and could weaken the Crown's case, so it counts as 'unfavourable'.
"The notice is plainly late." [Notice 1]
Plain English: The Crown told the defence about its application too late.
"I am not persuaded that to accede to the Crown's application will be unfair to the accused." [Section 192, para 7]
Plain English: After weighing the factors, the judge did not think allowing the Crown to cross-examine would cause unfair, unfixable harm to the accused's trial.
"To the extent that this may involve Madam Crown challenging the witness' credibility, then leave is extended (under s 38(3)) for her to do so." [final paragraph]
Plain English: The Crown can try to show the witness is not reliable, but only using material already given to the defence.
What fact patterns trigger this precedent
A prosecution witness gives recorded evidence that, when played, contains statements materially inconsistent with the key prosecution witness (for example, the complainant) on matters central to identity, location, presence during the alleged offence, or whether a complaint was made. If these contradictions could undermine the reliability or credibility of the complainant, they fall within the ordinary meaning of "unfavourable" and permit a s 38 application (DETERMINATION, 'Unfavourable evidence' [2]-[3]).
The application is made mid-trial, possibly with late notice to the defence, and the Crown asserts the evidence was only recently identified as potentially unfavourable (DETERMINATION, 'Notice' [1]-[5]).
The defence cannot demonstrate irremediable prejudice from allowing cross-examination, and practical remedies (short cross-examination, recall, or limited adjournment) are capable of addressing any prejudice (DETERMINATION, 'Section 192 of the Act' [1]-[6]).
How later courts have treated it
The judgment itself does not report or summarise subsequent treatment by later courts. This decision is a District Court ex tempore ruling applying established principles (and citing higher court authorities such as Doyle, R v Le, and R v Adam). Practitioners should watch appellate decisions for any modification of the interpretive approach to "unfavourable" or to the weight to be given to lateness under s 38(6)(a). Until appellate clarification, this decision supports a pragmatic approach that favours testing potentially reliability-affecting contradictions in the courtroom, with appropriate procedural safeguards.
Still-open questions
Degree of specificity required in notice: The judge accepted late notice might be excused in practical circumstances, but left unresolved whether s 38(6)(a)'s "earliest opportunity" requirement should be assessed subjectively or objectively in other contexts (DETERMINATION, 'Notice' [4]). Future cases may provide definitive guidance on whether the test is objective (when a reasonable prosecutor ought to have known) or subjective (when the prosecutor actually formed the view).
Remedial thresholds for recall or adjournment: The judge indicated that recall of witnesses or adjournment could be ordered if cross-examination materially altered evidence; but he did not set out a detailed test for when recall is mandated nor the exact consequences of late notice on prospects of recall (DETERMINATION, 'Section 192' [5]-[6]). Higher court guidance on balancing lateness, prejudice and recall would help practitioners.
Interaction with s 137: Defence counsel did not press a s 137 submission (undue prejudice outweighing probative value). The judge opined there was overlap between s 137 and s 192 but did not make a definitive ruling on how s 137 should bear on s 38 applications (DETERMINATION, 'Section 192' [10]). The precise interplay remains an area for clarification.
Quantifying 'importance' of unfavourable evidence: The decision treats contradictions about complaint, presence and location as important. It leaves open how minor inconsistencies might be treated, i.e., whether any contradiction that can be framed as undermining reliability suffices, or whether there is a materiality threshold.
Appellate reach and binding value: This is a District Court decision. While reasoned and useful, its precedential weight is limited; appellate courts could refine or alter the approach, especially on the interpretation of 'unfavourable' and the effect of late notice.
Practical takeaways for practitioners: when a prosecution witness's prior recorded statements differ materially from prosecution witnesses on reliability-critical points, the Crown can apply under s 38 even mid-trial; defence counsel should be prepared to articulate irremediable prejudice if notice is late, and prosecutors should give as much early disclosure as possible while recognising that late-emerging issues can legitimately arise in complex criminal trials.
Judgment (7 paragraphs)
[1]
BACKGROUND
This is day 3 of a trial in which the accused is charged with having committed serious child sexual offences in the period from 2009 to 2010 when, it is said, the complainant was 7 years old.
So far, the complainant has given evidence. His evidence in chief primarily consisted of recorded interviews given by him to the police in 2016 and early 2017, followed by cross-examination.
The Crown has now called the complainant's younger brother. A video of a recorded interview of that witness has been played. That interview occurred in August 2016.
The Crown now brings an application under s 38(1)(a) and also s 38(3) of the Evidence Act 1995 (NSW) ('the Act') for leave to cross-examine the witness on the ground that evidence within that recorded interview is 'unfavourable' to the Crown. The accused opposes the application.
The application was notified to Counsel for the accused in writing only yesterday, 26 May 2020. By its terms, no indication was supplied in that notice as to the prospective topics for cross-examination. Madam Crown supplied notice of the areas she proposed to cross-examine the witness upon at the time the application was made.
[2]
REASONS FOR THE APPLICATION
The application is to be viewed with appreciation of the Crown's case, the evidence of the complainant and the evidence of this witness as it emerged through the witness' record of interview.
The Crown case, relevantly, is substantially based upon acceptance of the complainant's evidence. It is that the complainant was sexually assaulted by the accused at a party that occurred one evening at 101 M Road, Budgewoi (the street name being redacted) in 2009 or 2010. The accused was said to be the partner of the complainant's (and witness') biological mother. The Crown case is that the venue of the party was a place where the accused was an occupant. It contends that the complainant and the witness were staying with their biological mother only temporarily, due to custody arrangements, at 58 M Road, Budgewoi (the street name being redacted); and that on the night in question they all walked to the accused's place at 101 M Road arriving at about 7:00pm. The complainant says that a group of adults, including his biological mother, were largely gathered at the front of the home where the accused was occupant. The complainant says that he was eating in the kitchen, which he recalled as being towards the back of the house, before being dragged away by the accused and taken into a nearby bedroom. It was then that the offending conduct allegedly occurred.
During the application, Counsel for the accused pointed out that part of the evidence in chief for the complainant was a record of interview that the complainant gave on 9 February 2017. He contended that the purpose of that interview (as disclosed in Q42-43) was to get the complainant to consider the proposition - apparently sourced from the witness' interview in August 2016 - that someone else was in the room when he was assaulted. The complainant said that there was no one else in the room. At that point, the complainant was not asked whether he complained to the witness about what had occurred. The complainant had given evidence of his complaining to others, but not this witness.
A feature of the complainant's cross-examination was when Counsel for the accused suggested, but the complainant denied, that he complained about the alleged assaults to the witness. It was also suggested, but again denied, that the complainant had met the accused once before, when he and the witness had gone to 101 M Road for a swim.
The witness' evidence, in his recorded interview has, so far, been different in material respects. The witness says that he heard report of the complaint by the complainant the next morning. The witness also says that although he did not see or hear the alleged assaults being perpetrated, he was in the room at the time that they occurred. He recalled the complainant yelling out to his mother. There are other differences as well, but for the purpose of the application, they do not need to be addressed.
[3]
ARGUMENT
The Crown accepts that no notice was given to the accused about this application until yesterday. Madam Crown disclosed, from the Bar Table, that she conferenced with the witness last Thursday (21 May 2020), at which point, the witness confirmed the correctness of the video recorded evidence. It was only between then and yesterday that Madam Crown divined that the witness' evidence may be unfavourable to the Crown.
As indicated, the written notice did not divulge the topic areas for the proposed cross-examination. But in making her application, Madam Crown explained that she wanted to cross-examine the witness on two topics. The first was the location where the assault occurred, and/or perhaps where the report of the assault was received. The second was a broader area, concerning circumstances in which the complainant made complaint of the alleged assaults to the witness.
Madam Crown estimated that her cross-examination might extend up to 20 minutes.
In relation to the mandatory statutory considerations that the Court is to take into account under s 192 of the Act, Madam Crown submitted that:
1. the cross-examination, if permitted, would not unduly extend the trial;
2. there is no unfairness to the accused since he has had the witness' record of interview, as part of the prosecution brief and might have anticipated this application being brought; and
3. the evidence is important to the Crown. Madam Crown identified that at least two parts of the witness' evidence directly contradicted the complainant's evidence: the complainant's evidence that he did not complain to the witness; and the alleged assault occurred at 58 M Road, where the complainant said it occurred at 101 M Road. The Crown added, with reference also to s 38(6)(b), that on the present state of the evidence, if Counsel for the accused chose not to cross-examine the witness, then the Court might be left with a distorted picture of what occurred.
Madam Crown made no submissions about s 192(2)(d) or (e) of the Act.
As noted, Counsel for the accused took issue with the lateness of the notice. Having regard to the multiple instances in which the complainant gave evidence, and especially the recorded interview of 9 February 2017, the Crown was on notice as to the potential conflict in evidence as between the complainant and the witness as to the circumstances in which the alleged assaults occurred; and more precisely, where they occurred and whether the witness was in the room at the time they occurred. Counsel contended that, being placed on notice, it was open to the Crown to interview the witness again to clarify any discrepancies between his evidence and that of the complainant.
[4]
'Unfavourable evidence'
The first question is whether the witness' evidence, as it stands, is "unfavourable" to the Crown, for the purposes of s 38(1)(a). The word "unfavourable" is not defined in the Act. Although different views have been taken in the authorities, I interpret the word as taking its plain meaning and the context (including in the ALRC report) suggests that the word should not be interpreted in too narrow a fashion.
In my view, the evidence of the witness, in respect to the matters identified by Madam Crown, is unfavourable in the requisite sense.
The nature of the proceeding involves an allegation of serious crime committed against a complainant, then a very young child. The Crown's case depends to a large degree upon acceptance of evidence he gave many years after the alleged event when his credibility and reliability has been challenged. The difference between the complainant's evidence of not complaining to the witness, and the witness' evidence, that the complainant did complain to him, is not only significant but, if the witness' evidence was to stand, could be relied upon as undermining the reliability of the complainant's recollection. So too might the witness' evidence as to the location of the alleged assaults and the circumstances of the alleged assaults, such as the witness' presence in the room.
The circumstance that the witness' evidence does not fit the Crown's theory is, with great respect, a matter of significant weight as I consider the question of unfairness to the accused under s 192 of the Act. But with respect to those of a contrary view, it would add a gloss to the ordinary meaning of 'unfavourable evidence' under s 38(1)(a) if some implied limitation arose on the status of a proceeding as criminal or the status of the 'party' seeking to cross-examine. It is also contrary to the line of authority that a prosecutor may seek to avail itself of this provision (s 38(3)) to challenge the credibility of a witness (R v Le (2002) 54 NSWLR 474). It is difficult to see how that line of authority could stand if the narrow construction of s 38, invoked by the accused, was correct.
I am satisfied, therefore, that there is a valid basis under s 38(1)(a) for the application to proceed.
[5]
Notice
The notice is plainly late.
It is not a precondition to the operation of s 38 that a party is only unexpectedly confronted with evidence that is not favourable to it: R v Adam (1999) 47 NSWLR 267. In my view, that implicitly means that circumstances may arise where the Crown is on notice, in advance, that the evidence of a witness might be unfavourable to it. That must be so, having regard to the Crown's obligation to call material witnesses.
I accept the submission for the accused that the Crown was on notice of the potential conflict in evidence at least from 2017.
No authority was supplied to me as to illustrations in which an application under s 38 is refused on account of the circumstance in s 38(6)(a) of the Act. No authority was put to me, for example, to consider whether the notion of "earliest opportunity" is to be regarded subjectively or objectively.
I do not read the limitation as intending to have the operative effect of placing a party in a procedural straitjacket; or to punish a party for lateness in notification. That might undercut the beneficial operation of the provision. As Counsel for the accused acknowledged, circumstances can arise in criminal litigation where "bumps" can arise. In this case, I accept the Crown's explanation that, as a matter of fact, it only became apparent to the Crown that the evidence of the witness might be unfavourable only last Thursday. It still is somewhat curious that it took quite a number of days before notice was given; even as I appreciate that there are many features of the trial that the Crown prosecutor needed to prepare for.
I accept that there has been delay, but I am not prepared to reject the application on the basis of s 38(6)(a) alone.
The other matter to which I must consider under s 38(6)(b) does not tell against the application. I accept the Crown's submission that, if the witness' evidence is left as it currently stands, it would be open to the accused to not cross-examine the witness at all.
[6]
Section 192 of the Act
Though I accept that the estimate was necessarily imprecise, Madam Crown's indication as to how long the cross-examination might last does not indicate that the trial will be excessively protracted. The evidence from the witness, to date, is that he did not see or hear, the alleged acts. The Crown does not seek to rely upon the witness' evidence of the circumstance of a complaint being made because the Crown case, centred upon the complainant's evidence, is that no complaint about the events was made to this witness. With the possible exception of the prospective evidence of the complainant's real mother, I do not see how allowing this cross-examination will blow out to any substantial degree the length of evidence of other Crown witnesses.
Unfairness is, in my view, the most important consideration. I accept that if the evidence remains as it is, the accused has a forensic advantage, in the form of a conflict between the complainant's evidence and the witness' (current) evidence. But that does not mean that it is 'unfair', for the purposes of s 192, to allow the Crown to cross-examine the witness. If that was so, it would be difficult to see how s 38 could have effective operation.
I have noted that, when asked, Counsel for the accused was unable to point to irremediable prejudice to the accused if the application was allowed, in the sense of the way that he conducted his cross-examination of the complainant. I note that Counsel suggested to the complainant that he had made complaint to the witness and the complainant denied that. If, say, there is some material alteration in the witness' evidence in the light of cross-examination, it is not easy to foresee any occasion for the recall of the complainant.
In relation to the witness himself, I would anticipate that, if the witness does alter his evidence if cross-examination was permitted, then opportunity will present itself to the accused to challenge the witness' credibility and reliability.
Further, as I indicated during argument, if with the benefit of some reflection, there is cause for Counsel for the accused to seek the complainant's recall, then the nature and circumstances of this application (including the lateness with which it is brought) would be factors which might incline the Court to require that recall.
The same thing might be said about the prospect of any adjournment application to enable Counsel to seek instructions from the accused or his solicitor.
[7]
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Decision last updated: 10 June 2020
Leave granted to the Crown under s 38(1)(a) and, to the extent applicable, s 38(3) to cross-examine the witness on the topics identified by the Crown during argument; cross-examination restricted to material already disclosed to the accused and subject to ordinary trial management (DETERMINATION final paragraphs).
Counsel for the accused did not cavil with Madam Crown's disclosure, or explanation, of the circumstances as to how and when this application was brought; though he did say that she did not provide notes of that conference to him (thereby waiving privilege over them).
Counsel for the accused did not dispute that there were material differences in the accounts given by the complainant and the witness. But with reference to what Bathurst CJ said in Doyle v R; R v Doyle [2014] NSWCCA 4 at [292], evidence should not be regarded as "unfavourable", for the purposes of s 38, simply because the evidence does not fit the prosecution's case theory.
Counsel accepted that litigation, even that of a criminal proceeding, is not static, and acknowledged that parties and their Counsel have to be responsive to 'bumps in the road', but he emphasised that the Crown was on notice of at least one significant discrepancy between the evidence of the complainant and the witness since February 2017. To accede to this application, he submitted, would lead to a loss of forensic advantage to the accused.
When invited to make submissions as to the application of the considerations in s 192(2) of the Act, Counsel for the accused indicated that he could not accurately say how long the trial may be delayed if the cross-examination proceeded, even if Madam Crown's estimate was to be accepted for this purpose. All he could say is that it may affect how he might cross-examine other witnesses, and presumably this witness.
I asked Counsel whether, if the application was granted, this may prejudice the accused's position on account of irrevocable forensic tactics taken by him in cross-examining the complainant. He could not discount that possibility and foreshadowed the prospect that the complainant might need to be recalled. For that purpose he might need some time for the proceeding to be adjourned so that he could take instructions from the accused and his instructing solicitor.
Counsel did, however, remind me of the highly serious nature of the offences for which the accused has been charged by reference to the maximum penalties as a factor pointing against the grant of leave.
It follows that I am not persuaded that to accede to the Crown's application will be unfair to the accused.
It was not suggested that the differences which the Crown identified as supporting the application were unimportant.
I am certainly cognisant of the extremely serious nature of the offences the subject of this proceeding; and the very significant liability which the accused is exposed. But I do not read the consideration in s 192(2)(d) as requiring the Court to view it through the prism of the perspective of the party opposing the grant of leave. A strong countervailing view is that the application is made by the Crown, as representative of the state. In the circumstances, I consider this particular criteria is to be neutrally evaluated.
I note that no submission was made on behalf of the accused that the provision in s 137 of the Act is enlivened. In any event, even if it was, I consider that the considerations under s 192 overlap with that provision.
In conclusion, I accept that notice of the application is late, but when considering the application as a whole, including the matters in ss 38(6)(b) and 192, I consider that it is appropriate that leave be extended to the Crown to cross-examine the witness on the subject matters identified by Madam Crown during argument.
Prior to delivery of these reasons, I inquired of Madam Crown whether she also applied under s 38(3). She indicated out of an abundance of caution that she did. Counsel for the accused indicated his concern as to whether any challenge to the witness' credibility might be based on material not served on the accused. Madam Crown said in response that to the extent that challenge was made to the witness' credibility, it would not be based on material other than that which has been disclosed to the accused. On that basis, to the extent that this may involve Madam Crown challenging the witness' credibility, then leave is extended (under s 38(3)) for her to do so.