Regina v Craig James McGarry

[2007] NSWDC 339

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 that there are factual differences of the kind outlined by Mr Hoare. Although the witness in this case, Mr Myers, is not an alibi witness, his evidence is very significant so far as the credit of the principal Crown witness is concerned. In addition, one of the offences in respect of which the witness in Lumsden was convicted was goods in custody which Hulme J described as bespeaking dishonestly. (I should have said earlier that another argument of Mr Hoare was that the position regarding the cross-examination on criminal records was an unsettled area of the law. That position is reflected in the commentary contained in the seventh edition of Uniform Evidence Law by Odgers. However, in my opinion I am bound by the majority judgment of the Court of Criminal Appeal in Lumsden . The reasoning of Hulme J on this point attracted the concurrence of the learned President as I have said.)

7. I regard the evidence upon which the Crown seeks to cross-examine this witness as having substantial probative value, but I propose to limit that cross-examination to convictions relating to the witness' credibility which will relate to offences concerning dishonesty such as break and enter and larceny, and driving a stolen car because I am of the view that such offences tend to prove that the witness is more likely to make a false representation. And I propose to limit the cross-examination to offences committed since 23 May 2002 because they are closer in time.

8. Accordingly, subject to further directions which I will give in the course if any questions, I propose to grant the Crown's application.

oOo