Citation: Regina v Craig James McGarry [2007] NSWDC 338
Court: District Court of New South Wales
Date: 4 July 2007
Judge(s): Cogswell SC DCJ
Background
The accused stood trial in the District Court over a period spanning late June and early July 2007. The defence proposed to call a witness, the brother of the principal Crown witness, to support a version of events that contradicted the Crown's case. Specifically, the defence had put to the principal Crown witness that he had made certain admissions to his brother, which the Crown witness denied.
The Crown applied to cross-examine the defence witness on his criminal history and mental health background. His criminal record consisted entirely of Local Court matters, most of which had been dealt with by way of conditional discharge under mental health legislation rather than conviction. The one conventional conviction on his record was for shoplifting, for which he had received a bond.
The central question for the court was whether the Crown should be permitted to cross-examine this defence witness on matters going to his credibility and reliability, in circumstances where his record was largely composed of mental health diversions rather than standard convictions.
Legal Issues
- Whether the defence witness's shoplifting conviction was relevant to his credibility and had substantial probative value sufficient to enliven cross-examination under section 103 of the Evidence Act 1995
- Whether the witness's mental health history, reflected in the conditional discharges under mental health legislation, was relevant to his reliability as a witness
- What limits, if any, should apply to the scope of that cross-examination
Decision
The court held that the shoplifting conviction, entered in 2005, was relevant to the witness's credibility. The court found it demonstrated an inclination toward dishonesty and carried substantial probative value for the purposes of section 103 of the Evidence Act 1995. The credibility rule, which ordinarily limits cross-examination on matters going only to a witness's credibility, was therefore displaced in respect of that conviction.
The court drew a distinction between the shoplifting conviction and the remaining entries on the witness's record. The other matters were not convictions but conditional discharges. However, the court reasoned that the basis for those discharges must have been findings by the relevant magistrates that the witness suffered from a mental illness or other condition. That mental health history was treated as affecting the witness's reliability rather than his credibility in the strict sense.
On that basis, the court also permitted cross-examination on the witness's mental condition and the orders made in connection with those matters. However, the court imposed a limit: the Crown could not identify the specific charges associated with each mental health order. Cross-examination was required to proceed by way of generic references to offences only, without specifying the underlying conduct.
Orders Made
- Application under section 103 of the Evidence Act 1995 to cross-examine the defence witness on credibility grounds: granted
- Application to cross-examine the defence witness on reliability grounds (mental health history): granted
- Cross-examination on mental health orders limited to generic references to offences; specific charges not to be disclosed
Key Takeaways
- A conviction for shoplifting can constitute evidence of substantial probative value going to a witness's credibility, sufficient to satisfy the test under section 103 of the Evidence Act 1995, where it demonstrates dishonest conduct.
- Conditional discharges made under mental health legislation are not convictions and do not, of themselves, go to a witness's credibility in the same way; however, the mental health findings underlying those discharges may nonetheless be relevant to a witness's reliability.
- The District Court treated credibility and reliability as distinct concepts, permitting cross-examination on different grounds for each, rather than collapsing them into a single inquiry.
- Where cross-examination on mental health orders is permitted, the court retains a discretion to limit its scope. Here, that discretion was exercised to allow generic references to offences only, without identification of the specific charges involved.
- Under section 103, the credibility rule does not operate as an absolute bar; courts assess whether the proposed cross-examination has substantial probative value in the context of the specific issues at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 103 (exception to the credibility rule where evidence has substantial probative value)
- Mental Health (Criminal Procedure) Act 1990 (NSW), sections 32 and 33 (conditional discharge of defendants with mental health conditions)
Cases cited: None cited in the judgment.