R v Rogerson; R v McNamara (No 20)

[2016] NSWSC 75

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 20) [2016] NSWSC 75
Hearing dates:	15 February 2016
Date of orders:	15 February 2016
Decision date:	15 February 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [14]
Catchwords:	CRIMINAL LAW – Evidence – Cross-examination – Cross-examination as to credibility – Where witness sought to be cross-examined about previous drug possession – Whether the evidence could substantially affect the credit of the witness – Cross-examination refused
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Ms K Shead – Accused McNamara   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. Counsel for the accused McNamara wishes to cross-examine the current witness, Hubert Sha, about matters which counsel concedes go only to his credit. The Crown objects to that line of cross-examination. The issue arises in this way.

2. Mr Sha was asked in cross-examination whether or not he had taken any drugs before giving evidence today. He answered no to that question. He was also asked whether or not he had taken any drugs prior to giving evidence in these proceedings last Friday. His answer was again no.

3. Counsel wishes to put to Mr Sha details of convictions recorded against, and penalties imposed upon, him in the latter part of 2015 in relation to his possession of illegal drugs. On the basis of that evidence, counsel will submit in due course that Mr Sha’s denial of drug use prior to giving evidence is untruthful. Counsel accepts that the acceptance of such a submission would depend, at least in part, upon an assessment of Mr Sha’s demeanour in the witness box.

4. It is apparent that on 21 October 2015 Mr Sha was charged with possessing a prohibited drug, namely a quantity of ecstasy. He was fined in respect of that offence.

5. On 29 October 2015 he was charged with possessing a prohibited drug, namely a quantity of Ice. He was again fined.

6. On 14 December 2015 he was charged with possessing prohibited drugs, namely amounts of Ice and cannabis. The outcome of that matter is not apparent.

7. The amounts of prohibited drug of which Mr Sha was in possession on each of those three occasions appear consistent with the drug being for personal use.

8. The credibility rule is expressed in s. 102 of the Evidence Act 1995 (NSW) (“the Act”) in the following terms

"Credibility evidence about a witness is not admissible".

9. Section 103 of the Act, upon which counsel relies, is in the following terms:

Exception: cross-examination as to credibility

(1)  The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2)  Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:

(a)  whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

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

10. The Crown submitted that the evidence was incapable of substantially affecting the assessment of the credibility of Mr Sha. The Crown submitted, in particular, that Mr Sha's appearance and demeanour in the witness box were matters which lent themselves to a subjective assessment and that in any event, there was no evidence at all which might indicate that Mr Sha's demeanour and appearance in the witness box today, and/or last Friday, were any different to how he might normally present.

11. In determining whether or not the evidence could substantially affect the assessment of the credibility of Mr Sha, I am required to take into account the matters in s. 103(2)(a) and (b) of the Act. In terms of s. 103(2)(a), Mr Sha is obviously under an obligation to tell the truth when giving evidence. However, I am not satisfied that the evidence to which I have referred tends to prove that his denials of drug use prior to giving evidence are necessarily false. Counsel for McNamara submitted that Mr Sha’s demeanour when giving evidence was consistent with recent drug use. That is possible, but as the Crown has submitted, it may well be that such demeanour is consistent with how he generally presents.

12. In terms of s. 103(2)(b), the events about which counsel seeks to cross-examine Mr Sha occurred only a matter of months ago. That factor may weigh in favour of allowing the cross-examination to proceed.

13. However, I am not satisfied that in all of the circumstances the evidence could substantially affect the assessment of Mr Sha’s credibility. The mere fact that there are recent occasions on which he has been found in possession of prohibited drugs in amounts consistent with personal use does not, without more, support a conclusion that his denials of drug use prior to giving evidence are false. As I have said, there is nothing to suggest that his demeanour when giving evidence is any different to his normal presentation.

14. For those reasons, the cross-examination will not be permitted.

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Decision last updated: 15 June 2016