New South Wales Supreme Court CITATION : R v Jones & Ors (No7) [2007] NSWSC 1158 JUDGMENT DATE : 17 April 2007 JUDGMENT OF : Buddin J DECISION : Objection overruled. CATCHWORDS : Objection to cross-examination of Crown witness upon his antecedent conduct LEGISLATION CITED : Evidence Act Regina Adam Jones PARTIES : Samuel Jones Elizabeth Jean Jones Lydia Jones Adam Samuel Jones FILE NUMBER(S) : SC 2006/2009; 2006/2010; 2006/2011; 2006/2012; 2006/2007 J Pickering (Crown) D Price (Adam Jones) (Accused) COUNSEL : D Stewart (Samuel Jones) (Accused) G Whitehead (Elizabeth Jones) (Accused) C Watson (Lydia Jones) (Accused) W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused) S Kavanagh (Solicitor for Director of Public Prosecutions) Conaghan Hunter P/L (Adam Jones) SOLICITORS : Ross Hill & Co (Samuel Jones) Neil J O'Connor & Associates (Elizabeth Jones) Ian Rolfe Solicitor (Lydia Jones) Adamson Solicitors (Adam Samuel Jones) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LIST BUDDIN J TUESDAY 17 APRIL 2007 2006/2009 - Regina v Adam JONES 2006/2010 - Regina v Samuel JONES 2006/2011 - Regina v Elizabeth Jean JONES 2006/2012 - Regina v Lydia JONES 2006/2007 - Regina v Adam Samuel JONES JUDGMENT – (No 7) Objection to cross-examination of John William Smith upon aspects of his antecedent conduct JUDGMENT 1 His Honour: John William Smith has given evidence of having witnessed critical parts of the events which culminated in the death of his brother, William Smith. He has identified Adam Jones Snr, Adam Jones Jnr and Sam Jones Snr as having participated in the attack upon him. He also said that he saw Elizabeth Jones with a knife at the time of the attack. He has also given evidence in which he denied seeing any members of his family armed with weapons at the time of the incident. He also denied that he himself had been armed. 2 I was informed that in the Local Court at Lismore in 1992 the witness was found guilty by a Magistrate of a charge that "with intent to obtain for himself $500 in cash, made a statement 'we have finished painting your house' which he knew to be false or misleading in a material particular". He was convicted and fined $500. He was also ordered to repay the money to the owner. His brother, Noah Smith Snr was dealt with in an identical fashion in respect of the same offence. I have been provided with a document which purports to set out the factual background to the offence. The relevant material is set out below: About 9 am on Wednesday the 17th of June, 1992, the defendants approached an eight-year old woman in Casino in the front yard of her home. They asked the woman is she wanted her roof painted. The woman declined. They then spoke with her further, suggesting they were offering a good price and that the roof should be painted in the dry weather. The woman then agreed. The defendants then spent a short time spraying her tiled roof. They then informed the woman that the job was finished and they asked her for $500. The woman gave the defendants $250 and made arrangements with them to return after lunch, after she had gone to the Bank to obtain the rest of the money. In the meantime, the elderly woman contacted her sister who, in turn, contacted the Police. Police spoke with the def endants about 1.30 pm today in Casino. They admitted having been the persons who painted the roof. They both then agreed that they had not finished painting the roof. It is alleged that their deception is telling the elderly woman that they had finished painting the roof and by that false statement, obtaining money from her. Apart from the deception, the quality of the work has been examined by a painter who is a tradesperson. Police have been informed that the roof has been painted with K-Mart brown fencing paint. There has been no preparation of the roof and the paint has been applied over mould etc. It is alleged that the defendants make money by doing poor quality work on elderly persons houses and then obtaining money from them. Evidence will be lead of a complaint in relation to the defendant John Smith as far back as 1985 and in relation to the defendant Noah Smith as recently as the 11th of June, 1992. 3 The Crown objected to the witness being cross-examined about the prior conviction. First, it was submitted that the proposed cross-examination of the witness did not have "substantial probative value" within the meaning of s 103 of the Evidence Act. The Crown also relied upon s 103(2)(b) which is in the following terms: (2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 4 In essence the Crown submitted that given that the incident occurred in 1992 it could not have "substantial probative value" because it was too remote in time from the incident with which this trial is concerned. It was also submitted that the offence was of a trivial nature. Indeed the Crown Prosecutor went so far as to submit that it was difficult to accept that the facts disclosed a criminal offence. Suffice it to say that the Magistrate, who heard the case, took a different view. 5 It is clear that the honesty and reliability of the witness has been put in issue in the trial. His credibility is important in the proof of the Crown case. His denials that any members of his family had a weapon is hotly contested. That matter assumes considerable significance given the nature of the issues which some of the accused, at least, contend will require resolution by the jury. They include questions of provocation and/or excessive self-defence. I dealt with these issues in much greater detail when considering whether to allow cross-examination of the present witness' father and his brother, Noah Smith Snr, in respect of a violent incident which took place in 1996. It is unnecessary to repeat what I said on that occasion. 6 With that background in mind and having regard to the facts that are in issue in this trial, I am of the view that the material, to employ the language of s 103 of the Evidence Act, has "substantial probative value". In coming to that view I have considered both the nature and significance of the evidence which the witness has given as well as his demeanour as he was giving it, together with the nature and significance of the matters upon which it is intended that he be cross-examined. Notwithstanding the period of time that has elapsed since the convictions were recorded, I have formed the view that they are matters upon which it is appropriate to permit cross-examination. 7 I have formed the view however that it was appropriate to place certain restrictions upon the scope of the cross-examination. In particular I will not permit any cross-examination of the witness about an earlier complaint said to date back to 1985 which did not result in any charges. Nor will I permit the present witness to be cross-examined about the fact that Noah Smith Snr was also convicted of the present offence. No application was made to cross-examine him whilst he was in the witness box. He has now returned to England. I am informed that the fact sheet has only just become available. Nevertheless counsel were aware of his criminal record at the time he was giving evidence and indeed cross-examined him upon it. Counsel did not, in any event, press an argument that the cross-examination should extend to either of the matters upon which I have said that I will not permit cross-examination. 8 Counsel did however contend that they should be permitted to cross-examine the witness about evidence which he gave at the committal hearing. The witness was asked if he had ever been convicted of a criminal offence. He said that he had not. He has not given evidence to that effect in this Court. 9 I have been provided with several pages of transcript of the proceedings at the committal hearing in order to place the evidence given by the witness in some sort of context. That context is important because a considerable number of questions were directed to the witness suggesting that he had performed acts of violence upon his own wife. That series of questions led to a legal argument, the details of which are not recorded in the transcript. The question which was then asked, (which preceded the question about whether the witness had any previous convictions) was whether or not the witness was a violent man. The witness denied that he was. Seen in that context, the answer given by the witness is, in my view, quite ambiguous. I do not think that it should be read literally. There may be other problems with the question in any event. Be that as it may, I am not persuaded that the evidence in question satisfies the statutory test. Accordingly, I will not permit cross-examination upon it either. ********** 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.