R v Jones & Ors (No3)

[2007] NSWSC 771

CITATION:	R v Jones & Ors (No3) [2007] NSWSC 771
JUDGMENT DATE :	3 April 2007
JUDGMENT OF:	Buddin J
DECISION:	Objection overruled.
CATCHWORDS:	Objection to cross-examination of Crown witness upon her antecedent conduct
LEGISLATION CITED:	Evidence Act
PARTIES:	Regina Adam Jones Samuel Jones Elizabeth Jean Jones Lydia Jones Adam Samuel Jones
FILE NUMBER(S):	SC 2006/2009; 2006/2010; 2006/2011; 2006/2012; 2006/2007
COUNSEL:	J Pickering (Crown) D Price (Adam Jones) (Accused) D Stewart (Samuel Jones) (Accused) G Whitehead (Elizabeth Jones) (Accused) C Watson (Lydia Jones) (Accused) W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Conaghan Hunter P/L (Adam Jones) Ross Hill & Co (Samuel Jones) Neil J O'Connor & Associates (Elizabeth Jones) Ian Rolfe Solicitor (Lydia Jones) Adamson Solicitors (Adam Samuel Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 3 APRIL 2007

2006/2009 - Regina v Adam JONES
2006/2010 - Regina v Samuel JONES
2006/2011 - Regina v Elizabeth Jean JONES
2006/2012 - Regina v Lydia JONES
2006/2007 - Regina v Adam Samuel JONES

JUDGMENT – (No 3) Objection to cross-examination of Carolyn Smith upon aspects of her antecedent conduct

1 His Honour: I have previously ruled that the witness may be cross-examined upon aspects of her antecedent conduct. These are my reasons for so ruling.

2 Carolyn Smith has given evidence of having witnessed critical parts of the events which culminated in the death of her brother-in-law, William Smith. She has implicated Adam Jones Snr, Adam Jones Jnr and Elizabeth Jones as having participated in the attack upon him. She has also given evidence in which she denied seeing any members of her family armed with weapons at the time of the incident.

3 I am informed that in the Local Court at Temora in 1995 the witness was convicted and placed on a good behaviour bond in respect of offences of stealing and obtaining property by deception. I have been provided with the fact sheet which was tendered to the court when the witness pleaded guilty. It is unnecessary to refer to the fine detail of that material. The deception arose in relation to the negotiation of a cheque.

4 I have also been informed that the witness was interviewed by police in Victoria in 1996 about the alleged theft of two cheques, which together were worth in excess of $20,000, from a disabled man. The monies were alleged to have been received by the witness. She denied knowing that the money was stolen and was apparently released without charge. Although she was unemployed at the time she was unable however to explain how she came to be in possession of such large sums of money.

5 I should note that Ms Smith also gave the following evidence:

Q. Have you ever had problems in a caravan park in Yarrawonga in Victoria?
A. I can't remember. Not that I know of.

Q. You hold yourself out to be an honest woman, don't you?
A. Try to be.

Q. And you wouldn't knowingly try to deceive or to trick anybody, would you?
A. No.

Q. And you have always tried to abide by the law, do you?
A. Try to.

Q. But do you succeed?
A. Yes.

Q. Do you?
A. Yeah I do . (T 1168)

6 The Crown objected to the witness being cross-examined about either matter. First, it was submitted that the proposed cross-examination of the witness did not have “substantial probative value” within the meaning of s 103 of the Evidence Act. The Crown also relied upon s 103(2)(b) which is in the following terms:

(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

7 In essence the Crown submitted that given that the incidents occurred in 1995 and 1996 respectively they could not have “substantial probative value” because they were too remote in time from the incident with which this trial is concerned. He also submitted that the offences dealt with at Temora Local Court were of a fairly minor nature whilst the Victorian matter amounted to no more than an allegation. He pointed out that the incident did not result in any charges being laid much less convictions being recorded. I accept that that is not an unimportant consideration.

8 It is clear that the honesty and reliability of the witness is an issue in the trial. Her credibility is important in the proof of the Crown case. Her denials that any members of her family had a weapon is also hotly contested. That matter assumes some significance given the nature of the issues which some of the accused, at least, contend will require resolution by the jury. They include questions of provocation and/or excessive self-defence.

9 With that background in mind and having regard to the facts that are in issue in this trial, I am of the view that the material, to employ the language of s 103 of the Evidence Act, has “substantial probative value”. In coming to that view, I have considered both the nature and significance of the evidence which the witness has given as well as her demeanour as she was giving it, together with the nature and significance of the matters upon which it is intended that she be cross-examined. Notwithstanding the period of time that has elapsed since the matters which resulted in convictions in Temora Local Court occurred, I formed the view that they are matters upon which it is appropriate to permit cross-examination. Not without some hesitation, I also decided to allow cross-examination in respect of the Victorian matter as well. In arriving at that decision I also had regard to the further answers concerning that matter which were given by the witness on the voir dire. I also had regard to the fact that there was apparently a measure of similarity between the circumstances of the Victorian matter and the offences committed in New South Wales.

10 I formed the view however that it was appropriate to place certain restrictions upon the scope of the cross-examination in respect of the Victorian matter. In particular I disallowed any cross-examination of the witness about the fact that the alleged victim of the offence was a disabled person. Counsel did not, in any event, press an argument that the cross-examination should extend to that matter.

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