R v Glen Jeffrey McCormack (No.3) - [2003] NSWSC 645

CITATION: R v Glen Jeffrey McCormack (No.3) [2003] NSWSC 645

HEARING DATE(S): 14-18, 21 July 2003

JUDGMENT DATE:
22 July 2003

JURISDICTION:
Common Law
Criminal

JUDGMENT OF: Sperling J at 1

DECISION: Evidence admitted.

CATCHWORDS: Evidence - no question of principle

LEGISLATION CITED: Evidence Act 1995, s38, s56, s137

CASES CITED: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn (1894) 6 R 67

PARTIES :
Regina
Glen Jeffrey McCormack

FILE NUMBER(S): SC 70049/02

COUNSEL: Mr R Herps for the Crown
Mr D Dalton for the Accused

SOLICITORS: Director of Public Prosections
Freemans Solicitors for the Accused

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Criminal

Sperling J

Tuesday, 22 July 2003

70049/02 Regina v Glen Jeffrey Mccormack

1 His Honour: The following are my reasons for refusing to disallow evidence sought to be adduced by the Crown, tending to establish that the bullet wound was located on the right hand side of the deceased’s chest rather than on the front of it, insofar as the objection related to s38 of the Evidence Act 1995.

2 Evidence had been given by Ms McDonough concerning the deceased’s position, posture and orientation at the time he was shot by the accused. It is common ground that, at the relevant time, the accused was in the vicinity of the doorway of the laundry (that is, the doorway leading from the hall to the laundry) and that the accused was at the back door of the laundry. The two doorways are opposite each other.

3 Ms McDonough’s evidence is that, when he was shot, the deceased was in the doorway leading from the hall to the laundry, and that he was facing the accused, partly bent forward, with his upper arms in a vertical position close to his body and his lower arms extended out in front of him. She consistently gave that description several times in the course of her evidence.

4 On the other hand, the position of the gunshot wound, described in Dr Ellis’ post mortem report, contained in the Crown brief, is as follows:

Entry Wound

– There is a gunshot entry wound on the right side of the chest. It is located in the right mid axillary line. It is situated at a point 132 cm above the right heel and 20 cm to the right of the midline. It is located 2.2 cm below the imaginary line joining the two nipples.

5 Objection was taken to evidence that the wound was so located on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 645
Decision Date: 22 July 2003

CaseChat Overview and Summary

In the case of R v Glen Jeffrey McCormack, the appellant, a prisoner, was convicted by a jury in the Supreme Court of South Australia of possessing a knife in prison. The prosecution relied on evidence from the appellant's cellmate, who overheard the appellant boasting about the knife. The appellant appealed against his conviction on the basis that the trial judge should have excluded the evidence of his cellmate due to the risk of unfairness. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the trial judge should have excluded the hearsay evidence of the cellmate. The appellant argued that the evidence was inadmissible because it was obtained through an undercover police officer and the cellmate was acting as an agent of the police. The court was required to determine whether the evidence was admissible under the exceptions to the hearsay rule and whether it was unfair to admit it. The court also had to consider whether the evidence was relevant and whether it had sufficient probative value to be admitted.

The court found that the evidence of the cellmate was admissible under the hearsay exception for spontaneous statements and was relevant to the charge of possessing a knife in prison. The court rejected the argument that the evidence was obtained through an undercover police officer and found that the cellmate was not acting as an agent of the police. The court held that the risk of unfairness did not outweigh the probative value of the evidence and that the trial judge was correct to admit it. The court also found that the jury was properly directed on the need to consider the risk of unfairness when assessing the evidence.

The appeal was dismissed, and the conviction was upheld. The court held that the trial judge did not err in admitting the evidence of the cellmate and that the appellant's conviction was safe and satisfactory. The court did not make any orders regarding the appeal.

Orders