R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034

Supreme Court New South Wales

Medium Neutral Citation: R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034 Hearing dates: 29, 30, 31 August 2012; 3 September 2012 Decision date: 04 September 2012 Jurisdiction: Common Law - Criminal Before: S.G. Campbell J Decision: 1. I reject the defence application to exclude under s.138 Evidence Act 1995 evidence of the prior inconsistent statement made by Mr. Moody on 1st of May 2011 as set out in Exhibit VD5; 2. I allow the defence application that I re-open and reconsider my ruling under s.38 of the Evidence Act made on 30th August 2012; 3. I confirm my previous ruling in the following terms: Under s.38 of the Act I give leave to the Crown to cross-examine Mr. Moody on answers given to questions 363 to 438 recorded in the record of interview made on 1st May 2011, with the exception of question and answer 419. I direct that Mr. Moody may be cross-examined on the basis of the audio/visual recording made contemporaneously with that interview, but the recording of segments of it shown the jury are to include question and answer 37, appearing on pages 5 to 7 of the transcript. 4. I revoke the condition previously expressed of that grant of leave that I provide a direction to the jury in accordance with s.165 of the Evidence Act. Catchwords: CRIMINAL LAW - evidence - Evidence Act - application to cross examine - s38 - application to exclude evidence - s138 - application for direction under s 165 - leave to cross examine granted - s 138 application refused - warning not necessary - matters within jurors ordinary experience. Legislation Cited: Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Adam v. The Queen (2001) 207 CLR 96 Briginshaw v. Briginshaw (1938) 60 CLR Bunning v. Cross (1978) 141 CLR 54 Hadgkiss v. CFMEU [2006] FCA 941 Ho v. Director of Public Prosecutions (Cth) (1998) 102 A Crim. R. 37. Klewer v. Walton [2003] NSWCA 308 Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170; New South Wales v. Hathaway [2010] NSWCA 184 Papakosmas v The Queen (1999) 196 CLR 297 Parker v. Comptroller-General of Customs (2007) 243 ALR 574 R (Cth) v. Petroulias (No. 8) [2007] NSWSC 82 R (Cth) v. Petroulias (No. 9) [2007] NSWSC 84 Robinson v. Woolworths Limited (2005) 64 R. v. Baartman [2000] NSWCCA 298 R. v. Coulstock (1998) 99 A Crim. R 143 R. v. Ladocki [2004] NSWCCA 336 R. v. Le (2001) NSWSC 174 R. v. Le (2002) 54 NSWLR 474 R. v. Stewart (2001) 52 NSWLR 301 Ridgeway v. The Queen (1995) 184 CLR 19 Texts Cited: S. Odgers, Uniform Evidence Law, 10th Edition 2012. Category: Interlocutory applications Parties: Regina (Crown) Michael Anthony Ryan (Defendant) Representation: Mr. P.K. Lynch (Crown Prosecutor) Mr. C.C. Waterstreet (Defendant) Director of Public Prosecutions Murphys Lawyers (Defendant) File Number(s): 2011/141863