Regina v Craig James McGarry [2007] NSWDC 338

New South Wales District Court

CITATION: Regina v Craig James McGarry [2007] NSWDC 338

HEARING DATE(S): 26-29 June 2007 2-6 July 2007

JUDGMENT DATE: 4 July 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ at 1

DECISION: Application under s103 of the Evidence Act 1995 granted. Application to cross-examine on reliability granted.

CATCHWORDS: Criminal law - Application to cross-examine Defence witness - Laws of evidence - Credibility - Reliability - Shoplifting conviction relevant to credibility - Mental health of witness - Substantial probative value of evidence

LEGISLATION CITED: s103 Evidence Act 1995 s33 Mental Health (Criminal Procedure) Act 1990

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 cross-examine a witness proposed to be called by the defence. The witness's name is Shane Raymond Downes and he is the brother of the principal Crown witness in the trial. Mr Downes has a criminal record, but all of the entries relate to the Local Court. Most of the entries are the subject of an order under either s 32 or s 33 of the Mental Health (Criminal Procedure) Act 1990. There is one entry for shoplifting in respect of which the witness received a s 9 bond.

2. The Trial Advocate wishes to cross-examine Shane Downes because it was put to his brother, the principal Crown witness, that he had said certain things to Mr Shane Downes. The principal Crown witness denied saying those things. There is, therefore, an issue as to the credibility of the Crown witness. That is a significant issue in the context of this trial.