R v Deborah Joy Davidson & Anor [2000] NSWSC 197

New South Wales Supreme Court

CITATION : R v Deborah Joy Davidson & Anor [2000] NSWSC 197 FILE NUMBER(S) : SC 70205/99; 70206/99 HEARING DATE(S) : 2 March 2000 JUDGMENT DATE : 2 March 2000

Regina v Deborah Joy Davidson PARTIES : Regina v Mark William Helmhout JUDGMENT OF : Bell J

C: Mr R D Cogswell SC COUNSEL : DD: Mr J S Stratton MH: Mr G Corr C: D Knott, Director of Public Prosecutions SOLICITORS : DD: Brenda Duchen MH: J R Jeffery, South Eastern Aboriginal Legal Service CATCHWORDS : CRIMINAL LAW - Application to cross-examine witness on criminal record LEGISLATION CITED : Evidence Act 1995, ss97, 103 DECISION : See paras 3, 5, 6

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Thursday, 2 March 2000

70205/99 - REGINA v DEBORAH JOY DAVIDSON 70206/99 - REGINA v MARK WILLIAM HELMHOUT

JUDGMENT - Application to cross-examine Edward William Szkudelski on criminal record 1 HER HONOUR: Mr Stratton makes application pursuant to s 97 of the Evidence Act 1995 ("the Act") to cross-examine the witness Edward Szkudelski with a view to establishing that Mr Szkudelski is a person with a tendency to act in a particular way, namely, to behave violently. 2 The notice served in accordance with the requirements of Part 3.6 of the Act specified as the tendency sought to be established "a tendency to commit crimes of violence to obtain cash". Mr Stratton sought to amend the notice to expand the tendency to that more general one which I have described. The Crown did not contend that it had been prejudiced in any way by the amendment and accordingly, to the extent that the notice fails to comply with the requirements of Part 3.6, pursuant to s 100, I dispense with the notice requirements. 3 Mr Stratton's application was that he be permitted to cross-examine the witness upon various entries in his criminal record which is Ex A on the voir dire. The matters the subject of Mr Stratton's application were the entries for offences of violence; an unlawful assault in January 1984, convictions before the Geelong Magistrate's Court in February 1984 for assault, a common assault dealt with by the Queanbeyan Local Court in August of 1996, an assault which was dealt with by the Queanbeyan Local Court in July of 1997 and a matter which is pending against the witness, namely an aggravated robbery offence contrary to s 95(1) of the Crimes Act. I consider that each of those matters meets the test imposed by s 97(1)(b) of the Act of having significant probative value and I allow cross-examination of the witness in respect of those matters. 4 The Crown objected to cross-examination concerning a conviction for "possession of an unlicensed firearm" recorded before the Queanbeyan Local Court in April 1997 and I note that Mr Stratton did not press that matter. 5 Additionally, Mr Stratton sought to cross-examine upon information contained in the criminal history computer print-out produced by the Police Service which discloses that one of the witness' aliases is the name "Eddie the Knife". I do not allow evidence to be led on that topic. In my view it does not meet the test imposed by s 97(1)(b) of the Act. 6 I note that, additionally, Mr Stratton has signalled his intention to cross-examine the witness upon the topic of the witness' alleged conviction for trafficking in drugs, being a matter which resulted in a sentence of imprisonment. That matter is put upon the basis of the witness' credit. I propose to allow cross-examination on that topic. I am satisfied that a conviction for trafficking in drugs which resulted in a sentence of imprisonment meets the test of substantial probative value for the purposes of s 103. **********