R v Glen Jeffrey McCormack (No.3) [2003] NSWSC 645

New South Wales Supreme Court

CITATION : R v Glen Jeffrey McCormack (No.3) [2003] NSWSC 645 HEARING DATE(S) : 14-18, 21 July 2003 JUDGMENT DATE : 22 July 2003

JURISDICTION: Common Law Criminal JUDGMENT OF : Sperling J at 1 DECISION : Evidence admitted.

CATCHWORDS : Evidence - no question of principle LEGISLATION CITED : Evidence Act 1995, s38, s56, s137 CASES CITED : Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1894) 6 R 67 PARTIES : Regina Glen Jeffrey McCormack FILE NUMBER(S) : SC 70049/02 COUNSEL : Mr R Herps for the Crown Mr D Dalton for the Accused SOLICITORS : Director of Public Prosections Freemans Solicitors for the Accused

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Criminal

Sperling J

Tuesday, 22 July 2003

70049/02 Regina v Glen Jeffrey Mccormack

Judgment No.3 – On admissibility of evidence 1 His Honour: The following are my reasons for refusing to disallow evidence sought to be adduced by the Crown, tending to establish that the bullet wound was located on the right hand side of the deceased's chest rather than on the front of it, insofar as the objection related to s38 of the Evidence Act 1995. 2 Evidence had been given by Ms McDonough concerning the deceased's position, posture and orientation at the time he was shot by the accused. It is common ground that, at the relevant time, the accused was in the vicinity of the doorway of the laundry (that is, the doorway leading from the hall to the laundry) and that the accused was at the back door of the laundry. The two doorways are opposite each other. 3 Ms McDonough's evidence is that, when he was shot, the deceased was in the doorway leading from the hall to the laundry, and that he was facing the accused, partly bent forward, with his upper arms in a vertical position close to his body and his lower arms extended out in front of him. She consistently gave that description several times in the course of her evidence. 4 On the other hand, the position of the gunshot wound, described in Dr Ellis' post mortem report, contained in the Crown brief, is as follows: Entry Wound – There is a gunshot entry wound on the right side of the chest. It is located in the right mid axillary line. It is situated at a point 132 cm above the right heel and 20 cm to the right of the midline. It is located 2.2 cm below the imaginary line joining the two nipples.