R v Hufnagl, Ernst No.2 [2008] NSWDC 140

Reported Decision : 7 DCLR (NSW) 207

New South Wales District Court

CITATION: R v Hufnagl, Ernst No.2 [2008] NSWDC 140

JUDGMENT DATE: 27 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Application: S38 Evidence Act 1995 is granted. Leave to cross-examine limiited to questions challenging earlier rejection of accused as relevant person, and relating to witness's motive to lie.

CATCHWORDS: Criminal Law - Interlocutory Judgment - Application to cross-examine witness in re-examination - issue not raised in cross-examination allowed at conclusion of evidence in chief - witness in seperate earlier testimony gave evidence he "worked out" accused was relevant person - in cross-examination denys accused relevant person - Crown seeks to challenge truth of assertion - Crown seeks to impugn credibility of witness in address to jury - tensions between issues of fact and questions of credit - identification of accused primarily issue of fact - s.38 limited to issues of credit - cross-examination limited to credit issues only

LEGISLATION CITED: s. 38 Evidence Act 1995

CASES CITED: R v Parkes [2003] NSWCCA 12

PARTIES: Regina (Commonwealth) - Prosecutor Ernst Hufnagl - Accused

FILE NUMBER(S): 2006/11/0447

COUNSEL: B. Levet - Crown Prosecutor W. Hunt - Accused

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

JUDGMENT

HIS HONOUR: Application pursuant to s.38 Evidence Act to cross-examine witness in re-examination 1. On 26 June - that is, yesterday - towards the end of the Crown case the Crown called John Paul Holloway. He was, as it seems to me, a key witness for each side and an alleged co-conspirator. He gave evidence yesterday afternoon.