R v Hufnagl, Ernst No.2

Reported Decision: 7 DCLR (NSW) 207

District Court

CITATION:	R v Hufnagl, Ernst No.2 [2008] NSWDC 140
JUDGMENT DATE:	27 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application: S38 Evidence Act 1995 is granted. Leave to cross-examine limiited to questions challenging earlier rejection of accused as relevant person, and relating to witness's motive to lie.
CATCHWORDS:	Criminal Law - Interlocutory Judgment - Application to cross-examine witness in re-examination - issue not raised in cross-examination allowed at conclusion of evidence in chief - witness in seperate earlier testimony gave evidence he "worked out" accused was relevant person - in cross-examination denys accused relevant person - Crown seeks to challenge truth of assertion - Crown seeks to impugn credibility of witness in address to jury - tensions between issues of fact and questions of credit - identification of accused primarily issue of fact - s.38 limited to issues of credit - cross-examination limited to credit issues only
LEGISLATION CITED:	s. 38 Evidence Act 1995
CASES CITED:	R v Parkes [2003] NSWCCA 12
PARTIES:	Regina (Commonwealth) - Prosecutor Ernst Hufnagl - Accused
FILE NUMBER(S):	2006/11/0447
COUNSEL:	B. Levet - Crown Prosecutor W. Hunt - Accused
SOLICITORS:	Mr M. Poberezny Office of the DPP (Cwlth) Ms P. Purcell - Watsons

JUDGMENT

HIS HONOUR:
Application pursuant to s.38 Evidence Act to cross-examine witness in re-examination
1. On 26 June - that is, yesterday - towards the end of the Crown case the Crown called John Paul Holloway. He was, as it seems to me, a key witness for each side and an alleged co-conspirator. He gave evidence yesterday afternoon.

2. The Crown case was that the accused had conspired with Holloway and others to steal [a container] TEXU’ 351 and its contents at a time when it was at the Port Botany terminal. It is agreed between the parties that Holloway pleaded guilty to a charge under section 131.1 of the Commonwealth Criminal Code of dishonestly attempting to appropriate such property. It is also agreed that he had a role in the commission of the theft of TEXU 351 and was, in fact, caught shortly after the theft, driving a truck away from the P&O Port Botany container facility.

3. In March 2007 Holloway gave evidence on his own sentencing proceedings before Judge Zahra, and that was the only account that he had given of his role in the theft of the 40-foot container. He had not agreed to co­operate with the prosecution, he had not received any discount from the Court at the sentencing proceedings on account of any intention to co-operate with investigators or prosecutors.

4. During the course of his evidence-in-chief in this trial I took the view that he was generally co-operative and gave an account of his involvement consistent, generally, with the Crown case. From Holloway's point of view, it had been three years since his arrest. With the passage of time he was sometimes imprecise on detail. His evidence was that he had never met…