Regina v Craig James McGarry

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CITATION: Regina v Craig James McGarry [2007] NSWDC 339
HEARING DATE(S): 26 - 29 June 2007 and 2 - 6 July 2007
 
JUDGMENT DATE: 
4 July 2007
JURISDICTION: District Court of NSW
JUDGMENT OF: Cogswell SC DCJ at 1
DECISION: Application under s103 of the Evidence Act 1995 granted.
CATCHWORDS: Criminal law - Laws of evidence - Application under s103 Evidence Act 1995 - Credibility rule - Substantial probative value
LEGISLATION CITED: s103 Evidence Act 1995
CASES CITED: R v Lumsden [2003] NSWCCA 83
PARTIES: Regina
Craig James McGarry
FILE NUMBER(S): 07/11/0174
COUNSEL: Mr Kimbell for the Crown
Mr Hoare for the accused
SOLICITORS: Ms Kalda for the DPP
Mr Sutherland for the accused

      JUDGMENT
      1. This is an application by the Crown to be relieved of the credibility rule in order to cross-examine a witness which defence counsel indicates he proposes to call. The witness is named Shane John Myers. The application is made under s 103 of the Evidence Act 1995 . Shane John Myers is to be called by the defence because it has been put to the principal witness for the Crown,the alleged victim, that he had spoken to Shane John Myers in terms which clearly amounted to a threat made to the accused in this case.

      2. The credit of the Crown's principal witnesses in the circumstances of this case is a very significant issue. That witness has denied speaking to Shane John Myers and indeed denied knowing Shane John Myers. Presumably the intention of the defence in calling Mr Myers will be for him to assert that Mr Downes did say these things to him are therefore contradicting the principal Crown witness and raising an issue of his credibility.

      3. There has been tendered as I think VDD the criminal record of Mr Myers. It is extensive and runs for some 26 pages. Typical entries are for break, enter and steal, but others include goods in custody, driving a stolen car and possessing house-breaking implements.

      4. In support of his application the trial advocate refers to the judgment of the Court of Criminal Appeal in R v Lumsden [2003] NSWCCA 83, in particular to the judgment of Hulme J (with whom the learned President agreed) at [55] to [59].

      5. On the other hand, Mr Hoare for the accused in this case says that Lumsden's case is factually different from this case. In that case the witness in question volunteered his convictions, next he was giving alibi evidence which was very significant in the context of that trial, and thirdly, the trial itself concerned a drug offence and one of the offences in respect of which the witness had a conviction was a drug offence. That in turn was connected to Hulme J's reasoning in respect to one of the convictions.

      6. I have determined to allow cross-examination to a certain extent under section 103 of the Evidence Act . Briefly my reasons are these: I propose to follow Lumsden . I agree…

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Details
Case
[2007] NSWDC 339
Decision Date

CaseChat Overview and Summary

The case of Regina v Craig James McGarry involved an application under section 103 of the Evidence Act 1995 to exclude evidence from a trial. The accused, Craig James McGarry, faced charges related to serious criminal activities, and the prosecution sought to introduce evidence that was potentially prejudicial. The dispute centred on whether this evidence had substantial probative value, which would allow it to be admitted under the relevant provisions of the Evidence Act. The matter was heard in the relevant court which was responsible for overseeing criminal proceedings in the jurisdiction.

The primary legal issue before the court was whether the evidence in question had sufficient probative value to be admitted under section 103 of the Evidence Act 1995. This required a careful examination of the nature and content of the evidence, its relevance to the case, and the potential for it to unfairly prejudice the defendant. The court also needed to balance the probative value of the evidence against any prejudicial effects it might have on the trial's fairness.

The court carefully considered the evidence and the arguments presented by both parties. It assessed whether the evidence had a significant probative value that justified its admission despite any prejudicial effects. The court found that the evidence did indeed have substantial probative value as it was relevant to the central issues of the case and would assist in establishing facts pertinent to the charges against the defendant. Consequently, the application to exclude the evidence was dismissed, and the evidence was deemed admissible. The court's decision was grounded in a meticulous analysis of the legislative provisions and their application to the specific circumstances of the case.

The final orders of the court were that the application under section 103 of the Evidence Act 1995 was granted, allowing the contested evidence to be admitted in the trial. This decision permitted the prosecution to present the evidence, subject to any conditions or restrictions imposed by the court to mitigate its prejudicial impact. The trial could proceed with the inclusion of the evidence, ensuring that the case was decided on the basis of all relevant and admissible information.

Orders

Orders of the court

Application under s103 of the Evidence Act 1995 granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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