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. 3. I regard the conviction for shop lifting as being relevant to the credibility of this witness. It was entered in 2005 and I regard it as having substantial probative value and it demonstrates an inclination to be dishonest. 4. I do not regard the other matters as going so much to the witness's credibility because they are not convictions, they are conditional discharges. However, the basis for the discharges in each case must have been findings by the learned magistrate who dealt with these various matters that the person in question had a mental condition, either as a result of a mental illness or some other condition. That, in my opinion, must affect the reliability of this witness. 5. I therefore propose to allow the Crown to cross-examine the witness about his mental condition and the orders which have been entered in relation to these offences. But I will not permit the Crown to specify the matters with which the witness, Shane Downes, had been charged in each case. The cross-examination must proceed in terms of generic references to offences. 6. To that extent I propose to relieve the Crown of compliance of the credibility rule and grant his application under section 103 of the Evidence Act 1995 and also to allow cross-examination on the grounds of reliability. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.