REGINA v. HOGAN [2001] NSWCCA 292

COUNSEL : Crown: G.E. Smith App: P.R. Boulten SOLICITORS : Crown: S.E. O'Connor App: S.J. Humpreys CATCHWORDS : Criminal law - appeal - leave to cross-examine unfavourable witness - matters to be considered on grant of leave - extent of leave - ambit of cross-examination - prejudice - risk of shifting focus of trial - importance of adequate directions LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Stanoevski [2001] HCA 4 Lozano (CCA, unreported 10 June 1997) CASES CITED: GAC (CCA, unreported 1 April 1997) Fowler [2000] NSWCCA 142 Adam (1999) 47 NSWLR 267 DECISION : Appeal allowed; new trial ordered

No. 60256 of 2000 CORAM: GILES, JA. GREG JAMES, J. BADGERY-PARKER, AJ.

1 GILES, JA: The reasons of Greg James, J., which I have had the advantage of reading in draft, describe in detail the material aspects of the course of the trial. 2 It is clear that in giving the prosecution leave to question Rachel Golby as though it were cross-examining, the trial judge did not have regard to the matters which, by s.192(2) of the Evidence Act 1995, he was to take into account. Nor did his Honour give attention to what Rachel Golby should be permitted to be questioned about, either by regard to the three categories of questioning in s.38(1)(a), (b) and (c) or by regard to the further category of questioning about matters relevant only to credibility in s.38(3). It is appropriate to say that neither the prosecution nor the defence appears to have reminded his Honour of the need to take into account the matters in s.192(2) and to consider the extent and nature of the permitted questioning. 3 As what thereafter occurred demonstrates, some of the matters in s.192(2) were relevant to the exercise of the discretions under s.38(1) and (3). Although concerned with cross-examination on character rather than cross-examination of a party's own witness, on what was said in Stanoevski v. The Queen [2001] HCA 4 the trial judge's exercise of discretion miscarried for failure to have regard to the s.192(2) matters. Material passages from the judgments in that case are set out in the judgment of Greg James, J. The exercise of discretion also miscarried, in my view, for the associated (perhaps consequential) failure to give attention to what Rachel Golby should be permitted to be questioned about, and again what thereafter occurred demonstrates the need for such attention. In a critical respect the appellant's trial was therefore contrary to law. 4 It cannot realistically be doubted that, had there been regard to the s.192(2) matters, leave would have been given to question Rachel Golby as if cross-examining. But the leave would by no means have permitted the unfettered and wide-ranging questioning which was undertaken, apparently because all of the trial judge, the Crown Prosecutor and counsel for the appellant considered that there were no restrictions on what Rachel Golby could be questioned about and in particular that her credit could be attacked. The extent of questioning led or contributed in turn to the calling of evidence from Rebecca Jones, Kerry Francis, Mrs. Kim Robertson and Detective Senior Constable Robinson about what Rachel Golby had been doing on the afternoon of 21 June 1998, what she had said to them, her drug habit, and Rebecca Jones' relationship with the complainant. 5 The result was to convert the focus of the trial from whether the appellant maliciously inflicted grievous bodily harm on the complainant to whether Rachel Golby was lying to protect the appellant - a proposition put to her on more than one occasion in the course of her questioning by the prosecution. The risk of prejudice to the appellant was high, particularly when the jury might have held Rachel Golby's lying against the appellant. There was nothing to suggest that she was lying to protect him at his instigation. 6 Proper exercise of the discretions should have controlled this uninhibited excess. A stark example of the excess is the question put to Rachel Golby, that she had said that the appellant had threatened to kill the complainant, his mother and his sister if the complainant "dobs on me". She denied saying this, and there was no other evidence of it. It was highly prejudicial to the appellant. 7 It is not easy to see how directions to the jury could overcome the risk of prejudice to the appellant. The directions given, however, did not do so. The material passages have been set out in the reasons of Greg James, J. They exacerbated the problem, rather than alleviated it, by the emphasis given to whether Rachel Golby was lying and a rather confusing direction which included that, through the evidence of Rebecca Jones, Kerry Francis, Mrs. Robertson and Detective Senior Constable Hayes, what Rachel Golby said out of court could be taken as evidence of an eye witness account of the incident. 8 What I have said applies in general to the leave given to the prosecution to question Mrs. Kathleen Golby. In my opinion there was a miscarriage of justice, and the conviction should be quashed and a new trial ordered. 9 GREG JAMES, J: This is an appeal against conviction and an application for leave to appeal against sentence. 10 At a trial in the District Court of New South Wales at which he had pleaded not guilty, the appellant was found guilty of a charge of having, on 21 June 1998 at Umina, maliciously inflicted grievous bodily harm upon Matthew Gray. That offence, under s.35(b) of the Crimes Act 1900, is punishable by a maximum penalty of seven years imprisonment. 11 On 24 March 2000, he was sentenced to imprisonment for five years and six months, commencing on that day and expiring on 29 September 2005. A non-parole period was imposed of four years, one month and two weeks. The appellant had been on bail for approximately 21 months prior to sentence. 12 A first trial had commenced on 13 March 2000. In that trial, the entire Crown case had concluded and the appellant had given evidence in chief when, during an interruption of his cross-examination, the question of whether the complainant's evidence might be undermined by what appeared to be a mistake as to a relevant day and whether it might be open to a juror to accept the account of the complainant and hold that the accused was a liar, in consequence of that mistake, was raised. 13 The trial judge, of his own motion, indicated that he was prepared to discharge the jury. After he indicated this and that the mistake might be adverse to a proper consideration of the appellant's evidence, counsel sought the jury be discharged. Following that discharge, a second trial was commenced with a fresh jury. It is from that trial that the appeal is brought. 14 A number of objections had been taken and rulings on evidence had been made during the first trial. The second trial proceeded substantially on the basis of those rulings without further detailed objection, argument or the giving of detailed reasons by the trial judge, apparently on the basis that the parties' rights were preserved. 15 Certain of the grounds of appeal challenge some of such rulings, particularly those by which his Honour granted leave to the Crown Prosecutor to cross-examine certain witnesses called in the Crown case and permitted the calling of evidence in the Crown case of statements asserted to be inconsistent with aspects of those witness' accounts. Those grounds were:- "(1) His Honour erred in granting leave to the Crown Prosecutor to cross-examine Rachel Golby. … (6) His Honour erred by admitting the evidence of Rebecca Jones. (7) His Honour erred by admitting the evidence of Kerry Francis. (8) His Honour erred by admitting the evidence of Kim Robertson. (9) His Honour erred in admitting the evidence of Detective Senior Constable Hayes as to the out of court representations of Rachel Golby. (10) His Honour erred by granting leave to the Crown Prosecutor to cross-examine Kathleen Golby." 16 It will be convenient to consider those grounds initially and to consider them together, as they raise a common question, but I should here note that in addition, there were other grounds (apart from the asserted severity of the sentence) referring to the asserted inadequacy of his Honour's directions in the summing-up and the mode of questioning of the witnesses. None of the other grounds asserted would, if successful, warrant other than a new trial. For the moment, I put the other grounds to one side. 17 In the context, although the legal point is common to his evidence also, it is not necessary particularly to consider the grant of leave to cross-examine Daniel Bjedov, which was the subject of a separate ground of appeal, for the reasons which later appear in this judgment. 18 To consider how it came about that grants of the leave complained of were given and the challenged evidence called, it is necessary to set out a short summary of the Crown case. 19 Shortly, it was contended for the Crown that Matthew Gray, the complainant, while visiting his girlfriend, Rachel Golby, at her home in Umina, was assaulted by the appellant in the backyard of that home. The complainant asserted that he was struck with a post, and hit three to four times on the arm and the leg, occasioning him severe injuries; he recognised his assailant; he called for Rachel as he was being assaulted; he saw Rachel's mother, father and brother in the backyard and recalled them telling the appellant to leave; he was screaming to Rachel's brother for assistance; he was carried to Rachel's mother's car and driven by Rachel and her mother to Gosford Hospital. He complained to his mother the next morning at the hospital and asked her to ring the police. He informed the police on their attendance that he had been bashed by the appellant. 20 The appellant gave evidence denying the complainant's account. Some reference to the circumstances as given in evidence surrounding that account is helpful. 21 On the morning prior to the attack, the complainant and Rachel Golby had been lying alongside each other in her bedroom when the appellant had entered the room and there was some conversation between the appellant and Rachel. The appellant had made remarks to the complainant, refusing to shake his hand and indicating that the appellant knew what he looked like. After the appellant left, Rachel had told her mother in the complainant's presence that the appellant had come over and she reiterated to her mother what the appellant had said to the complainant. The complainant said in evidence that Mrs. Golby, Rachel's mother, told him to be careful of the appellant. 22 He left the Golby home but returned for dinner. After dinner, he and Rachel retired to her downstairs bedroom. After watching television with her for about half an hour, he left the room to visit the outside toilet on the other side of the backyard. When leaving the toilet he was detained by the appellant who asked him to go to the appellant's car. He refused and started to call out for Rachel. The appellant struck him to the side of the face, causing him to fall to the ground and then struck him three or four times with the post. 23 Some of the evidence of the complainant, in particular of conversations with or statements made by other persons, including his mother, Kim Robertson, seems to have been admitted as a consequence of rulings made in the prior trial and, in particular, on the basis that unfavourable evidence was expected to be given by Rachel Golby. 24 Rachel Golby's evidence in chief plainly diverged substantially and in many respects from an original statement she had given to police. It was clearly open to the trial judge to consider that her evidence was, in a number of those respects, at least, to be unfavourable as well as inconsistent with her prior accounts. 25 In her evidence in chief, before leave to cross-examine was given, she referred to the appellant as someone she had had a previous relationship with, some two and a half to three years ago; he was a good family friend. She referred to the appellant coming to her room on the morning of 21 June but gave a version of the conversation that ensued which was materially different from that given by the complainant. Her evidence did not include the appellant saying anything to the complainant other than, "How are you going, mate". Similarly, her evidence was inconsistent with that of the complainant as to the conversation between herself, her mother and the complainant. She contended she had rung the complainant to ask him to purchase drugs for her and that he had returned to the house with a cap of heroin which she shot up. 26 At 6.00 pm, she called the complainant to come to dinner, since he was some 15 minutes late. On her account, after dinner they returned to her room where she fell asleep. She said the next thing she heard was a loud scream coming from outside. She got up and ran into the door which was locked. She opened the door and found the complainant alongside the garden bed. At that point she called her parents. Her parents went to the complainant and put him in the car and took him to hospital. 27 She did not know what had happened to the complainant and told her mother that on the way to the hospital. At the complainant's suggestion, her mother contacted his mother. 28 During a conversation at the hospital, the complainant, she said, said to her, "Gary Hogan did it" and "let's just say Garry Hogan did it, because he [the complainant] would get a whole heap of money out of it and that he would give me a quarter of it". She asked him how he could say that when the appellant didn't even know the complainant. At about this time the complainant's mother arrived. 29 She asserted she did not tell the complainant's mother what had happened, because she did not want to tell any lies. She just said that he got bashed. She said she was not present at any substantial conversation between the complainant and his mother. She claimed that on 22 June, when she visited the complainant in hospital, he wanted to know if she could go along with him in blaming Garry Hogan for the assault, as he wanted to "go for a claim" (presumably seeking victims compensation). He told Rachel Golby that he would give her a quarter of any money that he received. She agreed because she was on drugs at the time. 30 During this conversation, she said, the complainant's mother was present. Whilst at the hospital, she saw Rebecca Jones and said to her that she did not know what had happened to the complainant, only that he had just got bashed. 31 At this point of the trial, the Crown Prosecutor made what is referred to as "an application under s.38 of the Evidence Act 1995 to cross-examine the witness". Defence counsel is recorded as opposing the application. The following appears in the transcript:- "As I held last week, I consider that s.38 is applicable and I propose to let the Crown Prosecutor cross-examine this witness as I did last week. Mr. Cruickshank you might be right about one thing, about us getting another story next week if there was another trial, but that doesn't mean s.38 doesn't apply." 32 At the commencement of the previous trial, the Crown Prosecutor had foreshadowed applications were to be made under s.38 "re unfavourable Crown witnesses" and there was some consideration of whether the Crown should be permitted to open representations made to police by Rachel Golby. 33 The Crown had declined to call her father as an unreliable witness and had succeeded on an application to issue a bench warrant for the arrest of her mother as she had not attended on subpoena. 34 At p.43 of the transcript on 13 March 2000 in first trial appears the following:- "CROWN PROSECUTOR: You Honour I have an application to make in the absence of the jury. HIS HONOUR: Yes. Members of the jury you'll be taken to the jury room while I hear what the Crown Prosecutor wants to say to me. IN THE ABSENCE OF THE JURY CROWN PROSECUTOR: You Honour could the witness be asked to wait outside whilst I make my application? HIS HONOUR: Yes, would you wait outside. The Crown Prosecutor wants to say something to me. He won't be very long, so don't go too far away. WITNESS STOOD DOWN CROWN PROSECUTOR: Your Honour I seek the leave of the court to be allowed to cross-examine this witness under the three heads outlined under s.38(1) of the Evidence Act, that the witness is unfavourable to the Crown, that the witness may reasonably be supposed to have knowledge about which it appears to the court the witness is not in examination in chief making a genuine attempt to give evidence and (c) that the witness had made prior inconsistent statements to the evidence she is now giving. The prior inconsistent statements your Honour are detailed in her statement to the police dated 23 June 1998. HIS HONOUR: Have you got a copy of it? CROWN PROSECUTOR: Yes, your Honour. MFI 1 - STATEMENT OF RACHEL GOLBY DATED 23 JUNE 1998 HIS HONOUR: You said statements, are there others? CROWN PROSECUTOR: There are your Honour. I'll have my solicitor hand you a full copy of the brief with the different statements marked. HIS HONOUR: I only want the three statements that you say she's made. CROWN PROSECUTOR: Yes. Just pull out then the statement of the witness dated 23 June 1998, the statement of Kim Robertson, the mother of Matthew Gray, paragraphs 32 and 33. The statement of Senior Constable Wallace Bicket, paragraph 5, the statement of Kerry Francis, paragraph 13 and 14 and the statement of Rebecca Jones, paragraph 10 and paragraph 13. HIS HONOUR: I've got one statement only of the witness. CROWN PROSECUTOR: There's a record of interview taken on 24 June 1998 that I hand up to your Honour now and the statement of Senior Constable Wallace Bicket. HIS HONOUR: I though you said there were three statements of the witness. CROWN PROSECUTOR: No your Honour, three statements to, I beg your pardon your Honour. There is a third note from the witness. HIS HONOUR: So I've got a statement and a record of interview. CROWN PROSECUTOR: And a fax was sent by the witness on 13 March. I give that to your Honour. HIS HONOUR: All right. Let me have a look at these to start with. She's clearly given evidence inconsistent with paragraph 8 of the statement of 23 June 1998. CROWN PROSECUTOR: Yes. HIS HONOUR: Now I'll have to look at the record of interview. Is there any particular part of it to which I should look? CROWN PROSECUTOR: No your Honour. The record of interview contains basically the retraction along the lines of the evidence given in court today. HIS HONOUR: I am only skim reading the record of interview but there appears to be nothing in that suggesting that she'd used drugs. CROWN PROSECUTOR: That's correct your Honour. There's a reference to drinking alcohol on that day. HIS HONOUR: Yes, Tropicana, whatever that is. CROWN PROSECUTOR: Yes. HIS HONOUR: You've given me the statement of Kim Marie Robertson who is the mother of the complainant. CROWN PROSECUTOR: That's correct your Honour. HIS HONOUR: What paragraph is relevant in that? CROWN PROSECUTOR: Paragraph 32 and 33. HIS HONOUR: That tends to confirm her initial statement to the police. CROWN PROSECUTOR: That's correct. HIS HONOUR: You've given me a statement of Rebecca Susan Jones. CROWN PROSECUTOR: Yes, paragraph 10 and paragraph 13 your Honour are the relevant paragraphs. HIS HONOUR: Paragraph 10 of this statement seems to confirm her initial statement to the police and her statement to the complainant's mother. CROWN PROSECUTOR: Yes your Honour and paragraph 13 in so far as when asked what she told the police on 23 June 1998 she said 'I told the truth'. HIS HONOUR: Now the statement of Kerry Francis. She confirms what Rebecca Jones says generally speaking. CROWN PROSECUTOR: That's correct at paragraphs 13 and 14. HIS HONOUR: Yes and paragraph 5 of Constable Bicket's statement confirms what she told police and what she told the others. Well Mr. Cruickshank. CRUICKSHANK: Your Honour did ask about drugs. HIS HONOUR: In the record of interview. CRUICKSHANK: There's no reference in the record of interview your Honour. HIS HONOUR: No but there is in the document sent by facsimile. CRUICKSHANK: In that document also your Honour and in the statement made by Stephen Vaughan Robinson, a police officer. HIS HONOUR: I don't have that statement. CRUICKSHANK: My friend might have a copy of it. CROWN PROSECUTOR: Yes I hand that up. CRUICKSHANK: His statement's dated 21 July 1998 your Honour. He was one of the investigating officers. In paragraph 23 he said that on Monday 29 June, which is approximately a week later, he went to the Golby's house. He spoke to Mr. Golby, Mr. Frank Golby. Rachel Golby was unable to speak, she was dribbling from the mouth and she appeared to be affected by drugs or alcohol and she was just incoherent apparently your Honour. That's a few days after. I'd submit that a drug habit is not something that descends on a person overnight. HIS HONOUR: Whether that be right or wrong, she didn't mention on 24 June having used drugs. CRUICKSHANK: Your Honour she's talking to police officers and of course using drugs is a criminal offence. Drinking alcohol to excess is not. HIS HONOUR: Yes. CRUICKSHANK: There are in the statements made to the girls at least there is reference -- HIS HONOUR: Look I'm not here assessing the witness. I'm considering whether or not the Crown falls within s.38 of the Evidence Act. Clearly the evidence given by the witness so far is unfavourable to the Crown. CRUICKSHANK: Yes your Honour. HIS HONOUR: Clearly it is evidence by reference to what she's told others, where she may reasonably supposed to have knowledge and clearly it is inconsistent with her statement. CRUICKSHANK: Well it's clearly inconsistent with her statement your Honour and I don't about B, I wouldn't say that it's clearly -- HIS HONOUR: Well in view of her statements to other witnesses, her two girlfriends, the complainant's mother and a policeman, I can conclude that she may reasonably be supposed to have knowledge of that which he is speaking about. CRUICKSHANK: Well your Honour she says that she made those statements at the behest of the victim, that's as I understood her evidence here your Honour. HIS HONOUR: Well not quite -- CRUICKSHANK: She said that that was to get money, well to get money is mentioned by the two girls, for Matt to get money out of it. HIS HONOUR: Well that doesn't mean that she's not giving evidence contrary to s.38 of the Evidence Act. Seems to me frankly to be without argument that she is in breach of s.38 and I propose to let the Crown cross-examine her. On this application the statements that I have been given will be marked for identification and will remain with the papers. MFI A1 - STATEMENT OF RACHEL GOLBY DATED 23 JUNE 1998 MRI A2 - RECORD OF INTERVIEW WITH RACHEL GOLBY DATED 24 JUNE 1998 MFI A3 - FACSIMILE MFI B - STATEMENT OF KIM MARIE ROBERTSON MFI C - STATEMENT OF REBECCA SUSAN JONES MFI D - STATEMENT OF KERRY FRANCIS MFI E - STATEMENT OF CONSTABLE WALLACE BRUCE BICKET MFI F - STATEMENT OF CONSTABLE STEPHEN VAUGHAN ROBINSON HIS HONOUR: Those documents are marked for identification in relation to this application under s.38 and those documents will remain with the court file. CRUICKSHANK: Your Honour I think when this matter was canvassed at the outset I did put the proposition that it was inappropriate for the Crown to call the witness because she was of so little credit. I concede that it is a matter for the Crown, but I would just like that noted on the record your Honour. HIS HONOUR: Yes will -- CRUICKSHANK: -- it's clearly the function of the Crown your Honour, but the court has little control over the manner in which the Crown conducts its case, but I would just like it noted your Honour that she appears to be of so little credit that it was inappropriate that she be called. HIS HONOUR: I think Mr. Cruickshank in view of the fact that the complainant had said that she was present at the door when things occurred and that thereafter she did things, it would have been unwise for the Crown to have called her, not to call her and suffered the request from you for a Jones v. Dunkell [sic] or Regina v. Buckman inference. As you say it is for the Crown to make the decisions and he has decided to call her." 35 It is notable that his Honour gave no further reasons for his ruling nor did he identify the factors to which he had regard when granting leave. There was no analysis of which factors pursuant to s.38(1)(a), (b) or (c) were the bases or basis of leave. 36 In evidence at the second trial, Rachel Golby confirmed that she had made the three page statement of 23 June 1998, the contents of which were put to her by the questioner at a time at which she had the document before her. After the grant of leave, the cross-examiner put the content to her in detail although the statement itself was not admitted into evidence. There was objection to some small portion of that content, but in the main the witness admitted making the asserted statements to the police, although denying their truth. 37 Detective Hayes had interviewed Rachel Golby who, he said, had said she had witnessed the assault. He interviewed her at Gosford Police Station where he obtained the signed statement. It appears from the questions put to Miss Golby that the contents of that statement were, except as to the important matter of the presence of Rachel Golby in the backyard, almost directly and precisely corroborative of the account given by the complainant. Whilst the complainant's evidence did not clearly show that she had seen the attack, her accounts asserted variously that she had and that she had not. His evidence did not directly show she had.

38 In cross-examination by the Crown Prosecutor, Rachel Golby denied that she had spent the afternoon with Rebecca Jones and Kerry Francis on 21 June 1998, listening to music and drinking. She denied telephoning Kerry and Rebecca, asking they come to the hospital to keep her company and had denied taking any heroin on 21 June 1998. She denied saying to Kerry Francis, "it wasn't supposed to have been, supposed to be Matt, it should have been me". She denied saying that Matt was just a warning and Garry was going to get her. She denied telling Kerry Francis they were mucking around in her room when Matt went to the toilet and that Garry Hogan had been responsible for the bashing. She also denied telling Kerry Francis that she had walked out and jumped on Garry's back and bit him on the ear and with all her strength pulled him off. She said that her father did not come out, hit Garry and tell Garry to leave. Nor did her brother come out and carry the complainant into the house and later into the car. She denied giving a similar account to Rebecca Jones and that Rebecca Jones stayed with her on the night of 22 June. She asserted she did not remember telling the complainant's mother that the complainant had been assaulted at the beach and denied telling her that, "my ex-boyfriend attacked Matthew". She asserted she did not see the appellant strike the complainant with the post. She denied hearing the appellant say, "If Matt dobs on me, I'll kill his mother, sister and him". 39 Defence counsel cross-examined her principally as to the circumstances of the making of her various statements to police, her drug taking and her memory. 40 Thereafter, the Crown Prosecutor embarked on a further cross-examination, not limited to the topics canvassed by defence counsel but including whether she had lied when she had asserted she had caught the appellant sleeping with Rebecca Jones three weeks earlier and the circumstances of her mentioning that observation. She was further cross-examined about her "retraction interview" and her drug taking. The lack of objection seemed to suggest that the opportunity to further cross-examine and the ambit of that cross-examination were thought to have been within the trial judge's earlier rulings. 41 Immediately following the conclusion of Rachel Golby's evidence, Rebecca Jones was called by the Crown and gave evidence that she had never seen Rachel Golby or Matthew Gray affected by or take drugs. She gave an account of her conversations and activities with Rachel Golby which had been foreshadowed by the questioning of Rachel Golby. In that account she also said that she had never seen Matthew Gray supply drugs to any person and that Rachel Golby did not appear affected by drugs when she saw her on 21 June 1998. 42 Similarly, Kerry Francis gave evidence that she had never seen Rachel Golby use drugs or be affected by them and otherwise corroborated Rebecca Jones' account of the events of 21 June 1998 and 22 June 1998. 43 Kathleen Golby, Rachel's mother, was then called and gave evidence that at a time after dinner Rachel Golby came in screaming that Matthew had been hurt. Her husband went out to see what happened. She saw the complainant on the ground but could not see anyone else after searching for them. She collected the keys to the car and her husband put the complainant in the car. She and Rachel drove the complainant to the hospital. There was no discussion in the car about what happened to the complainant, and at the hospital she telephoned the complainant's mother, at his request. She did not tell the complainant's mother what had happened and did not discuss the assault with her daughter, as her daughter was affected by drugs. 44 On 22 June 1998, she visited the complainant in hospital with her son. The complainant's mother was also at the hospital. She did not recall talking to the complainant's mother. On the way home she tried to ask her daughter what happened but she was "so co-inherent [sic] it wasn't funny". She was "on drugs". Later she said that she did speak to her daughter about it while driving home but her daughter said she didn't know what was going on, she was inside. She said her daughter had also been on drugs at home at dinner before the incident. She was asked about Rebecca Jones and Kerry Francis being at the hospital and at her house. 45 Later in the week, her daughter told her the complainant was blaming the appellant so that he could get compensation and that the appellant had not been there. She said Rachel told her she had made a statement "against Garry". 46 She had a discussion with her daughter about telephoning Detective Hayes and having her statement "squashed". She took her daughter to the police station on 24 June to retract that statement. She later became aware the statement had not been "squashed or retracted". At that point, the transcript records the following:- "(Application by the Crown under s.28 seeking leave to cross-examine the witness. Cruickshank opposes application. Leave granted. Cruickshank seeks basis of application.) IN THE ABSENCE OF THE JURY WITNESS STOOD DOWN (Crown submits that subsection (1) and subsections (a), (b) and (c) are applicable. Cruickshank further opposes application. Crown Prosecutor allowed to cross-examine.)" 47 In consequence of that permission, the Crown cross-examined Mrs. Golby about her evidence at the previous trial and concerning what had happened in the backyard. An account was put to her of a conversation it was asserted she had with the complainant's mother incriminating the appellant. She denied it. She denied telling the complainant's mother that the complainant had been assaulted on the beach. She denied that the complainant's mother asked Rachel if she had been able to recognise the men who assaulted her son. She denied telling the complainant's mother on 22 June that she had lied the night before and that it was her daughter's ex-boyfriend that had assaulted the complainant. She denied telling the complainant's mother that the appellant was hiding in the backyard, that Rachel was out the back screaming and her husband pulled Garry off Matt. Mrs. Golby said she had no idea what happened until she spoke to her daughter a couple of days after the assault. 48 Defence counsel cross-examined her principally about her daughter's drug taking. The Crown Prosecutor again was permitted further cross-examination about what she could see in the backyard and her evidence at the earlier trial. By leave, the defence counsel was permitted further questions about what the witness had formerly said about her daughter being affected by drugs. 49 The complainant's mother, Mrs. Kim Robertson, was then called and gave evidence that on her arrival at the hospital at about 9.45 pm on 21 June 1998, both Rachel and her mother started telling her what happened. They told her that Matthew and Rachel had gone for a walk along the beach; Rachel had gone to the toilet, but heard Matthew start screaming. Rachel ran out and found two men attacking him. They told the complainant's mother that the complainant was carried back to Rachel's house from whence she and Mrs. Golby had brought him to the hospital. She said that Mrs. Golby had told her on 22 June 1998 that she had lied about what had happened the night before and had given to her an account of Rachel and Matthew being at her place when Matthew went outside to go to the toilet and was attacked by the complainant who hit him with a piece of wood. She said that Mrs. Golby told her not to let Matthew go to the police, and that the appellant was a very jealous person and had attacked the complainant after seeing him together with Rachel. 50 Her evidence was that Mrs. Golby also told her that Rachel had been screaming out the back and her husband had gone outside and called the appellant off the complainant. In that conversation, according to the complainant's mother, Rachel had referred to the appellant as being her ex-boyfriend who was very jealous and who she had seen hitting the complainant after he had gone out to go to the toilet. She said she had jumped on his back and bit his ear and screamed out to his mother and father. 51 Detective Senior Constable Robinson gave evidence that he had spoken to Rachel Golby on 24 June 1998 and found her coherent and able to converse quite readily with police. He saw no sign, it appears, of drug disorientation. 52 On 29 June 1998 when he spoke to her, he found her affected by drugs or alcohol . She was unable to keep her eyes open; she was dribbling from the mouth and slurred when attempting speech. 53 Detective Senior Constable Christopher Hayes had attended Gosford District Hospital on 23 June 1998 and obtained a signed statement from the complainant. It was witnessed by the complainant's mother. It identified the assailant as Garry Hogan. 54 It was submitted that the trial judge had erred in permitting the cross-examinations I have referred to in failing to have regard to various sections of the Evidence Act 1995, including s.192 (matters to be considered on the question of leave), ss.135 and 137 (rejection in discretion of prejudicial evidence), ss.102 and 103 (inadmissibility of credit evidence) and s.60 (hearsay evidence). Further, that his Honour failed to have regard to s.38(6) and to restrict cross-examination to those areas to which s.38 refers. 55 When one examines his Honours' reasons, there was no advertence to those matters and particularly those which s.192 of the Evidence Act 1995 provides nor was there any limitation such as is suggested by s.38 on the ambit of cross-examination expressed by his Honour or observed by the Crown Prosecutor. Indeed, the matters which may be taken into account under s.38(6) were not adverted to. 56 The cross-examination of necessity raised questions as to whether or not Rachel Golby might have committed such criminal offences as were involved in attempting to mislead the police. But no reference was made to the prospect of having to inform her of her right to object under s.132 and her rights in respect of possible self-incrimination under s.128. 57 Section 38 provides as follows:- "(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:- (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purpose of this Act (other than s.39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (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. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if:- (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and (b) the party is a witness in the proceeding." 58 Section 192 provides as follows:- "(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:- (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceedings; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 59 The statutory framework for the application under s.38 includes s.37(1) which provides that:- "a leading question must not be put to a witness in examination in chief or in re-examination unless:- (a) the court gives leave or …" 60 Cross-examination is defined in Clause 2 of Part 2 of the dictionary to the Act:- "(2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence." 61 Questioning a witness called by a party "as though the party were cross-examining the witness" (s.38(1)) would presumably include the technique of using leading questions. Division 5 of Part 2.1 deals with cross-examination. Section 42 permits the use of leading questions unless the court disallows the question or directs the witness not to answer it. 62 In considering the matters the court may take into account on those questions, the court is directed by s.42(2) to take into account:- "42(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:- (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and (b) the witness has an interest consistent with an interest of the cross-examiner; and (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and (d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used." 63 What may be done in cross-examination about a prior inconsistent statement is provided for by s.43. Section 44, except as provided by that section, does not permit questioning of a witness about a previous representation alleged to have been made by another, unless evidence of the representation has been admitted or will be admitted. The procedure for cross-examination on another's document is provided for by s.44(3). 64 In Stanoevski v. The Queen [2001] HCA 4 (8 February 2001), the High Court considered the application of s.192 as an expression of matters to be considered on the grant of leave in relation to a cross-examination on character. It held that s.192 applied to such applications for leave to cross-examine. It referred to the mandatory requirement that the matters referred to in s.192 be taken into account. The approach taken there is, in my view, validly applied to the analogous situation of considering a grant of leave under s.38, notwithstanding under that section further particular matters are to be considered. Section 192 applies generally to applications for leave. 65 In the judgment of Gaudron, Kirby and Callinan, JJ., the following appears: "Section 192 applies to this case, and in particular to the exercise by the trial judge of his or her discretion under s.112 of the Act. It should be noted that the leave required under s.112 is not leave to adduce evidence, but to cross-examine about the character of a defendant. In addition to matters which may be relevant in a particular case, in all cases the court must take into account the matters prescribed by s.192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably have been relevant to the way in which his discretion ought to be exercised had he adverted to them." 66 Those words are of direct applicability in my view to this case. Their Honours continued at paragraph 43:- "The cross-examination on the report raised a very grave possibility of unfairness to the appellant within the meaning of s.192(2)(b). By giving permission for that cross-examination to take place the trial judge was allowing the undertaking of an extensive collateral inquiry by the prosecutor." 67 Their Honours continued at paragraph 47:- "It follows that matters of the kind which s.192(2) provides should be considered were of relevance to this case and to the trial judge's decision to permit the prosecutor to cross-examine as he did. In not taking properly these, and matters of weight and relevance into account, and in not therefore exercising his discretion in accordance with s.192 of the Act, the trial judge fell into error." 68 It was held that the trial had miscarried to the extent that it was not possible to say no substantial miscarriage of justice had occurred. 69 McHugh, J. considered that the appeal must be allowed. He referred to the grant of leave as follows:- "By reason of s.112 of the Evidence Act 1995 (NSW) ('the Act'), the prosecution needed the leave of the trial judge to cross-examine the appellant on matters in the report which suggested that she was not of good character. In the course of the Crown case, the learned judge gave a preliminary ruling on the issue of leave. He said that, if the appellant adduced evidence of good character, he would grant leave to the prosecution to cross-examine the appellant on matters in the report 'unless some other matter arises that would cause me to hold a different view'. Later, after the appellant had given evidence of good character, the judge gave the prosecution leave to cross-examine her on the matters in the report. Section 192 of the Act directed the judge to have regard to certain matters in determining whether leave to cross-examine should be granted. However, his Honour, over the objection of the appellant's counsel, gave leave without considering these matters - indeed without being referred to them. Because that is so, the appellant was cross-examined in breach of the Act. Her trial was flawed by a 'wrong decision of any question of law' within the meaning of s.6 of the Criminal Appeal Act 1912 (NSW). Her conviction cannot stand unless the prosecution can establish that her conviction has not resulted in a miscarriage of justice." 70 Hayne, J. agreed with Gaudron, Kirby and Callinan, JJ. in the result, referring to collateral issues such as are thrown up by cross-examination of witnesses on credit (including witnesses cross-examined by those calling them) as follows:- "Practical necessity requires that there be some limits to the range of matters which can be investigated at a trial. Pursuit of every collateral issue would unreasonably prolong trials with little or no countervailing advantage. The common law sought to chart a course between two competing considerations: first, avoiding juries 'being beguiled by the evidence of witnesses who could be shown to be, through defect of character, wholly unworthy of belief' and second, seeking 'to prevent the trial of a case becoming clogged with a number of side issues'. As a result, '[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them'." (Footnotes omitted) 71 He said of the exercise of the trial judge's discretion to allow cross-examination on character:- "It is enough to say that, in the course of argument at trial, attention was not directed to the operation of s.192 of the Act. The trial judge did not consider the several matters which that section required to be taken into account in exercising, as he did, the discretion under s.112 to give leave to the prosecutor to cross-examine the appellant about matters arising out of evidence given about her character. That discretion was, therefore, exercised without taking account of relevant considerations and the discretion miscarried. It cannot be said that the cross-examination which was allowed would inevitably have been permitted had the various matters referred to in s.192 been taken into account. It follows that it cannot be said that the appellant did not, as a result, lose a real chance of acquittal and, thus, this is not a case in which the proviso applies." (Footnotes omitted) 72 It is clear that the cross-examinations were of great significance in the conduct of the present case. Rachel Golby's evidence was of great importance. It was not clear independently of Rachel Golby whether it could properly be asserted that she did see the incident. Neither her brother nor her father was called, and her mother's credit was similarly assailed. An assumption seems to have been made that her initial account had to be a true one. That account did not entirely accord with the account of the complainant in that his account did not make clear that she saw the incident. 73 It can be accepted that the account Rachel Golby gave at trial was "unfavourable" to the Crown case in a number of respects. It can be accepted that that account contained important inconsistencies with the initial prior account she gave to the police. The account given by her mother was also, but to a lesser extent, unfavourable. But the course taken by the trial judge in granting leave does not seem to have included examination of those matters required to be considered by s.38(6) and those under s.192 the High Court held should be considered, nor did his Honour have regard to the discretions referred to in Regina v. Lozano (CCA, unreported 10 June 1997) per Hunt, CJ. at CL., Sperling and Barr, JJ. at 7 or those adverted to in Regina v. GAC (CCA, unreported 1 April 1997) at 15-16. In each of those decisions both s.192 and the provisions of the Evidence Act 1995 relating to discretionary rejection were referred to as appropriate to be examined on the consideration of the grant of leave. 74 The criteria under s.38 and the discretionary considerations, as well as the matters required to be considered under s.192, are adverted to in Regina v. Fowler [2000] NSWCCA 142. 75 It is to be noted that defence counsel had submitted that the witness should not be called due to her lack of credit. The cross-examination ranged widely and evidence was called from Miss Francis and Miss Jones so that the effect, in my view, was to shift the focus of the trial from the witness' testimony as to what had occurred to matters collateral to the issue at trial, although plainly of great significance to the witness' credit. 76 The cross-examination was general in nature. It included cross-examination about what the witness had had to drink, whether or not she had taken heroin, whether she was on drugs and what drugs, including heroin, speed and "pills" such as Serapax and Valium and marijuana she had taken. It developed into a wholesale attack on credit as well as dealing with those matters in relation to issues that were at least peripherally relevant at the trial or might have been relevant to the witness' opportunities and capacity to observe what had occurred. She was specifically cross-examined on a number of occasions by the proposition being put to her that she was lying to protect the accused. The questioning asserted the content of prior inconsistent statements whether relevant to issues or on credit. Much of the cross-examination was prejudicial to the appellant. 77 There was cross-examination which ranged so widely as to question her about whether the complainant and Rebecca Jones had been sleeping together which had caused a rift in her friendship with Rebecca Jones. There were questions put as to whether she had caught the two sleeping together and as to the nature of the house in which this had occurred. This was entirely collateral and far from the issue. 78 The cross-examination of Kathleen Golby raised matters as to the credit of Rachel Golby, hearsay as to the events in the backyard and assertions of her having denigrated the character and disposition of the appellant. Some of it was highly prejudicial to the appellant and of limited relevance. 79 The evidence that was led from Rebecca Jones, Kerry Francis and Mrs. Robertson of prior inconsistent accounts included matters that, at best, might have been relevant only as to credit on collateral or peripheral questions. There appears to have been no separate consideration of whether that evidence or any of it should have been permitted to be led. Much, it seems to me, should have been excluded. 80 The important matter is not whether such cross-examination might have elicited, amongst other evidence, evidence which might properly have been used in the trial. The issue, rather, concerns whether or not the questions as to such matters as were explored should have been permitted to be asked. It is necessary, when giving consideration to the grant of leave, to have regard to the effect on the trial of the ambit of questioning and of the matters that might be raised. It is essential when considering the grant of leave to consider how far, at least initially, cross-examination might be permitted to extend, having regard to the bounds set by s.38, to the matters to which regard must be had when granting leave in s.38(6) and s.192 and to whether prejudicial matters to which ss.135 and 137 might apply might be raised. 81 Leave might be further extended as a consequence of a further application, but lest the cross-examination should divert the focus of the trial as, in my view, it did here, it is necessary for a trial judge to take considerable caution in considering the matters the legislation and says the High Court has held he or she must consider and to give consideration to those matters by confining, at least initially, leave to that then seen as necessary, reconsidering the ambit in accordance with the criteria, if further leave is sought. 82 Regrettably what happened in this trial did not meet the statutory criteria. I conclude that the trial judge fell into error and each of the grounds of appeal I have referred to is made out. Leave should not have been granted as it was to cross-examine Daniel Bjedov for the same general reasons. 83 I consider that the trial miscarried when his Honour granted leave, as he did, notwithstanding there was a basis on which in each case leave might have properly been granted. 84 Even if leave would almost certainly have been granted, it could not be successfully argued that would necessarily have permitted as wide an ambit of cross-examination as occurred. I conclude there was a miscarriage. 85 There is, in this case, because the necessary matters were not taken into account, no need to examine the appropriateness of the Crown having called the witnesses, notwithstanding they were known to be unfavourable. The decision of this court in upholding the Crown's right to do so (Regina v. Adam (1999) 47 NSWLR 267) has been the subject of an appeal to the High Court, at present undetermined. It is not, in my view, necessary to turn, other than as shortly as I have, to the burgeoning jurisprudence concerning s.38 which has developed since the coming into effect of the Evidence Act 1995. Nor is it necessary to consider in detail how individual aspects of the evidence might have been used had there been some detailed analysis of their utility and the effect of their reception on the trial in the light of those passages of the summing up to which I shall turn. 86 Unless his Honour's directions to the jury were such as to show that what occurred as a result of the grants of leave permitting such wide and diverse attacks would not have been of substantial effect, the appeal must be allowed. 87 In the summing-up, his Honour gave directions to the jury as to how they might regard Rachel Golby's evidence in the light of the cross-examination and the evidence of Rebecca Jones, Kerry Francis and Mrs. Robertson. He said:- "She is an admitted liar. She told you that she is an admitted liar. She told you she lied to the hospital staff that the complainant, Mr. Gray, suffered his injury at the beach. She told you that she had lied to Senior Constable Hayes when she gave him her first statement. She lied to the hospital staff, and she admits that she did, and there is not any other conclusion that can be drawn other than that she lied to the hospital staff about where the complainant suffered his injury. Either she lied to Constable Hayes about what she said she saw or she has lied to you about what she has said she saw. … She may have told Senior Constable Hayes the truth. She may have told you the truth. She could not have told both you and Senior Constable Hayes the truth. The Crown Prosecutor asked that when you consider all of the evidentiary material, you will accept the evidence of Miss Rebecca Jones, Miss Kerry Francis and Mrs. Kim Robertson that the version given to them by Miss Rachel Golby was the truth." 88 His Honour continued to say that the witness had given a consistent version that she jumped on the back of the accused and bit his ear. He said:- "Now unless those three people have put their heads together and lied about what they were told, then it would be, you might think, and it is for you to decide, remarkable that each of them says that she was told by Miss Rachel Golby that she jumped on the back of the accused and bit his ear." 89 He reminded the jury that when they were considering whether that was a truthful version, that was a matter for them to decide, because they were the judges of the facts and said:- "The Crown Prosecutor asked you to accept that Miss Rachel Golby gave a truthful version when she spoke with Miss Rebecca Jones, Miss Kerry Francis, Mrs. Kim Robertson (the complainant's mother) and Senior Constable Hayes and that version, the one that the Crown Prosecutor asked you to accept, is similar, not in every respect, but in most respects with the version given to police by the complainant, Mr. Gray." 90 He directed the jury that the evidence of Rebecca Jones, Kerry Francis and Mrs. Robertson does not go to prove an eyewitness account of the attack on the complainant, merely a version of that incident given by Rachel Golby and her mother. He directed the jury:- "If it should be that you say to yourselves that Miss Rachel Golby's evidence is valueless and you put it aside and you say Mrs. Kathleen Golby's evidence is valueless and you put it aside, then obviously you would put aside the evidence of Miss Rebecca Jones, Miss Kerry Francis, Mrs. Kim Robertson and Senior Constable Hayes insofar as it relates to the first version given to him by Miss Rachel Golby, because their evidence does not go to prove an account of the incident involving the assault upon Mr. Matthew Gray. But if you accept the evidence of those people, then you may accept the version of the assault upon the complainant given to them by Miss Rachel Golby as being an eyewitness account of the incident involving the complainant, Mr. Gray, and the accused, Mr. Hogan." 91 His Honour thus directed the jury that the asserted out of court statements by Rachel Golby which she denied in evidence were before them for the truth of their content unless her testimony were to be entirely disregarded. 92 After referring to the evidence of Rachel Golby's mother and her version of the events, his Honour referred to the submission of the Crown Prosecutor that the prior inconsistent account asserted by Mrs. Robertson, the complainant's mother, to have been given to her by Mrs. Golby, Rachel Golby's mother, should be accepted as another eyewitness version of part of the incident involving the appellant in the backyard at the time of the incident involving the complainant. 93 His Honour had already directed the jury:- "There cannot be any issue in this trial, members of the jury, that at some time between the time that the complainant, Mr. Gray, and Miss Rachel Golby walked out of the back door of the house at 105 Mount Ettalong Road, Umina to go to Rachel's granny flat or cabin, as it was called, and the time when Mrs. Kathleen Golby heard a scream, and whether it was on the television or from the back courtyard, Mr. Matthew Gray, the complainant, was attacked by somebody and beaten with something which was sufficiently strong to break his left arm at the elbow and the lesser bone in his left lower leg, below the knee. Something happened to him in the backyard at that time. It did not happen anywhere else." 94 Again, his Honour directed as he had with Rachel Golby, that if you put aside Kathleen Golby's evidence you would also put aside the complainant's mother's evidence of the version given to her by Mrs. Golby, otherwise the prior account could be accepted as truthful. I do not consider these directions remedied the situation. 95 At the conclusion of the cross-examination, it was put to the witness, Rachel Golby, that she had said:- "As he [the appellant] left, he said to me, 'If Matt dobs on me, I'll kill his mother, sister and him'." 96 She denied it was said. The question contained an asserted statement which reflected badly on the appellant. In the context, the jury might have considered they could use it to his detriment. That statement only exemplifies the prejudice occasioned by the course the trial took. In particular, in my view, the summing up was not such as to have removed the effect of a question so couched. 97 I do not see that the directions in the summing-up were such as to cure the effect of the cross-examinations in the context of the leave having been granted as it was. 98 In my view, there should be a new trial. 99 The remaining grounds, if successful, would only go to a new trial and hence need not be further considered. 100 I am of the view that on the grounds I have referred to, the appeal should be allowed and a new trial ordered and I propose orders to that effect. 101 BADGERY-PARKER, AJ: I agree with the judgments and the orders proposed. ******

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