Regina v MTN; Regina v CVH [2002] NSWSC 60

New South Wales Supreme Court

CITATION : Regina v MTN; Regina v CVH [2002] NSWSC 60 revised - 29/10/2009 FILE NUMBER(S) : SC 70034/00; 70012/01 HEARING DATE(S) : 12 February 2002 JUDGMENT DATE : 12 February 2002

Regina PARTIES : MTN CVH JUDGMENT OF : O'Keefe J

Mr G J Tabuteau - Crown COUNSEL : Mr P Bodor QC - Accused MTN Mr F Santisi - Accused CVH DPP (NSW) SOLICITORS : Michael Croke & Co - Accused MTN Nicopoulos & Associates - Accused CVH CATCHWORDS : Evidence - Effect of Section 192(2) of Evidence Act - Compound verb - Meaning and effect of "is to take" LEGISLATION CITED : Evidence Act 1995, ss 38, 137, 192, CASES CITED : Adam v R [2000] HCA 57 DPP (NSW) v Sinton [2000] NSWSC 473, unreported DECISION : Leave to cross examine granted.

IN THE SUPREME COURT OF NEW SOUTH WALES criminal DIVISION O'Keefe J 12 February 2002 70034/00 – Regina v MTN 70012/01 – Regina v CVH

JUDGMENT - on application by the Crown for leave to cross-examine Andre Nasr under s 38 - see page 538. HIS HONOUR: 1 Application has been made by the Crown for leave to cross-examine Andre Nasr (the witness) pursuant to s 38 of the Evidence Act 1995. The basis of the application is threefold, namely:

1. That the witness has given evidence in the trial of the present matter which is unfavourable to the Crown; 2. That the witness has given evidence in such trial about a matter of which he has or may be supposed to have actual knowledge but in his examination in chief the witness has not made a genuine attempt to give correct evidence; 3. That the witness has on a previous occasion, namely on 3 October 1999, made a statement which is inconsistent with a material part of the evidence which he has given at the present trial. 2 The trial in which the witness has been called by the Crown involves the death of one young person, the wounding of another and an affray, all of which took place at Lahood's Snooker and Amusement Centre, Campsie on 10 November 1997. 3 Both accused, namely MTN and CVH, have been charged with murder and affray. One has also been charged with malicious wounding; the other with assault. 4 The witness was present in the period leading up to and at the time of the events out of which the charges arise. He has pleaded guilty to assault occasioning actual bodily harm and to affray. As a result of his pleas, an undertaking to give truthful evidence at the trial of the two accused and to assist the authorities in the prosecution of the charges against such accused, he was dealt with leniently by the court when his pleas were accepted in satisfaction of a charge of murder which had been previously laid against him. 5 The witness made two statements, one dated 3 December 1997, the other dated 3 October 1999. Both of these were stated on their respective faces to be "true to the best of my knowledge and belief". The second statement was made a matter of days before the giving by the court of the decision referred to above. In his statement of 3 October 1999 the witness said: "7. ...Where it says I stood in the doorway of the centre, that is where I saw JD walked (sic) up to MTN and CVH who were also near the doorway. JD had in his hands something wrapped up in like a thin white shirt or singlet.