R v Hufnagl, Ernst No.1 [2008] NSWDC 134

New South Wales District Court

CITATION: R v Hufnagl, Ernst No.1 [2008] NSWDC 134

HEARING DATE(S): 23/06/08

JUDGMENT DATE: 24 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Application to exclude handwriting samples rejected; application to exclude some answers in ROI granted.

CATCHWORDS: Criminal Law - interlocutory judgment - application to exclude evidence - handwriting samples - admissions - ROI - poor quality photographs used to confront accused in course of interview - allegations of identifying accused within photographs - no means available to accused to verify identity - misrepresentation re fornsic procedures being undertaken in respect of photographs - questions predicated on premise allegations correct - incriminating answers unfairly finessed from accused - meaning of admissions - can a lie constitute an admission - availability of s.90 relief when s138 "covers the field". Discussion of s.90.

LEGISLATION CITED: s.85, s90, s138 Evidence Act 1975

PARTIES: Regina Ernst Hufnagl

FILE NUMBER(S): 08/06/0447

COUNSEL: B. Levet for Crown (Cwlth) W. Hunt for Accused

SOLICITORS: Mr M. Poberezny Office of the DPP (Cwlth) Ms P. Purcell of Watsons Solicitors

JUDGMENT Applications to exclude evidence pursuant to ss 85, 90, and 138 Evidence Act 1995 1. Ernst Hufnagl is charged: Between about 21 September 2004 and 31 March 2005 at Sydney, NSW and elsewhere, he did conspire with John Paul Holloway and divers other persons to dishonestly appropriate property belonging to another person with the intention of permanently depriving the other person of the property, namely one shipping container numbered TEXU7273351 and its contents, which property belonged to a Commonwealth entity, that is the Australian Customs Service.