Criminal law: May 2018

Odisho v R [2018] NSWCCA 19

Evidence – cross examination of own witnesses – questioning on credibility only

The Court of Criminal Appeal (‘CCA’) has examined applications for leave to cross examine one’s own witnesses under s 38 of the Evidence Act 1995 (NSW) (‘the Act’). The core principle seems to be that grants of leave will be strictly interpreted, and if there is any possibility that cross examination will stray into territory which is only about credibility (however hard it may be to define what that means), then leave must be separately sought.

The appellant was convicted by a jury of wounding with intent to cause grievous bodily harm, and with using a pistol without a permit. The victim presented himself to a hospital early one morning, having been shot twice below the knee and once in the buttock, so police were called. The appellant and another man (eventually given an indemnity) were initially charged with the shooting. The victim gave two statements which were partly the basis of the Crown case. The co-offender had left some cocaine with the victim for safekeeping, who instead used some of it himself; being shot three times was his punishment for that transgression. To that end, the victim had been taken for a drive with the two offenders, the appellant had handed the co-offender a loaded gun, and the co-offender (under threat that he himself would be shot if he didn’t punish the victim) turned around and shot the victim three times. But when he came to give evidence at trial, the victim instead said that the appellant hadn’t been there at all.