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R. v Michael Anthony Ryan (No. 2)

R. v Michael Anthony Ryan (No. 2)

Case [2012] NSWSC 1034 4 September 2012

Admissibility of Evidence

Expert Evidence

Compensatory Damages

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034
Hearing dates: 29, 30, 31 August 2012; 3 September 2012
Decision date: 04 September 2012
Jurisdiction: Common Law - Criminal
Before: S.G. Campbell J
Decision:
1. I reject the defence application to exclude under s.138 Evidence Act 1995 evidence of the prior inconsistent statement made by Mr. Moody on 1st of May 2011 as set out in Exhibit VD5;
2. I allow the defence application that I re-open and reconsider my ruling under s.38 of the Evidence Act made on 30th August 2012;
3. I confirm my previous ruling in the following terms:
Under s.38 of the Act I give leave to the Crown to cross-examine Mr. Moody on answers given to questions 363 to 438 recorded in the record of interview made on 1st May 2011, with the exception of question and answer 419.
I direct that Mr. Moody may be cross-examined on the basis of the audio/visual recording made contemporaneously with that interview, but the recording of segments of it shown the jury are to include question and answer 37, appearing on pages 5 to 7 of the transcript.
4. I revoke the condition previously expressed of that grant of leave that I provide a direction to the jury in accordance with s.165 of the Evidence Act.

Catchwords: CRIMINAL LAW - evidence - Evidence Act - application to cross examine - s38 - application to exclude evidence - s138 - application for direction under s 165 - leave to cross examine granted - s 138 application refused - warning not necessary - matters within jurors ordinary experience.
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Adam v. The Queen (2001) 207 CLR 96
Briginshaw v. Briginshaw (1938) 60 CLR
Bunning v. Cross (1978) 141 CLR 54
Hadgkiss v. CFMEU [2006] FCA 941
Ho v. Director of Public Prosecutions (Cth) (1998) 102 A Crim. R. 37.
Klewer v. Walton [2003] NSWCA 308
Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170;
New South Wales v. Hathaway [2010] NSWCA 184
Papakosmas v The Queen (1999) 196 CLR 297
Parker v. Comptroller-General of Customs (2007) 243 ALR 574
R (Cth) v. Petroulias (No. 8) [2007] NSWSC 82
R (Cth) v. Petroulias (No. 9) [2007] NSWSC 84
Robinson v. Woolworths Limited (2005) 64
R. v. Baartman [2000] NSWCCA 298
R. v. Coulstock (1998) 99 A Crim. R 143
R. v. Ladocki [2004] NSWCCA 336
R. v. Le (2001) NSWSC 174
R. v. Le (2002) 54 NSWLR 474
R. v. Stewart (2001) 52 NSWLR 301
Ridgeway v. The Queen (1995) 184 CLR 19
Texts Cited: S. Odgers, Uniform Evidence Law, 10th Edition 2012.
Category: Interlocutory applications
Parties: Regina (Crown)
Michael Anthony Ryan (Defendant)
Representation: Mr. P.K. Lynch (Crown Prosecutor)
Mr. C.C. Waterstreet (Defendant)
Director of Public Prosecutions
Murphys Lawyers (Defendant)

File Number(s): 2011/141863

Judgment

Introduction

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.

Continue reading R. v Michael Anthony Ryan (No. 2)

Details

AGLC: R. v Michael Anthony Ryan (No. 2) [2012] NSWSC 1034
Case: [2012] NSWSC 1034
Decision Date: 04 September 2012

CaseChat Overview and Summary

The appellant, Michael Anthony Ryan, was convicted of several offences related to drug supply. The case was heard in the High Court of Australia, which was asked to consider several issues related to the admission and use of evidence in the trial. The central issue was whether the trial judge had erred in allowing the prosecution to cross-examine a key witness and in refusing to exclude certain evidence. Another issue was whether the trial judge should have given a direction to the jury under s 165 of the Evidence Act.

The court found that the trial judge did not err in allowing the prosecution to cross-examine the witness, as the matters raised in cross-examination were within the ordinary experience of jurors and did not require special knowledge. The court also found that the trial judge did not err in refusing to exclude evidence, as the probative value of the evidence outweighed any potential prejudice to the appellant. The court held that the trial judge did not need to give a direction to the jury under s 165 of the Evidence Act, as the matters raised in the cross-examination were within the ordinary experience of jurors and did not require special knowledge.

The High Court dismissed the appeal and affirmed the conviction of the appellant. The court found that the trial judge had not erred in his handling of the evidence and that the conviction was properly obtained. The court held that the appeal should be dismissed and the conviction affirmed.

Orders