Citation: Regina v Craig James McGarry [2007] NSWDC 339
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 on charges that are not specified in the judgment. The Crown's case rested substantially on the evidence of a principal witness, who was alleged to have been the victim. Defence counsel indicated an intention to call a witness named Shane John Myers to contradict the Crown witness.
The defence case was that the Crown's principal witness had spoken to Myers in terms amounting to a threat against the accused. The Crown witness denied both making those statements and knowing Myers at all. Myers was therefore being called to undermine the Crown witness's credibility.
Before Myers gave evidence, the Crown applied to cross-examine him on his criminal record, which ran to 26 pages and included entries for break and enter, goods in custody, driving a stolen car, and possessing housebreaking implements. That application required the Crown to obtain leave under section 103 of the Evidence Act 1995, which restricts cross-examination on credibility unless the evidence has substantial probative value.
Legal Issues
- Whether the Crown should be relieved of the credibility rule under section 103 of the Evidence Act 1995 to cross-examine a defence witness on his criminal record
- Whether the witness's prior convictions had "substantial probative value" in assessing his credibility
- What limits, if any, should be placed on the permitted scope of cross-examination
Decision
Cogswell SC DCJ granted the Crown's application, finding that the proposed cross-examination had substantial probative value within the meaning of section 103. His Honour followed the Court of Criminal Appeal's majority judgment in R v Lumsden [2003] NSWCCA 83, in particular the reasoning of Hulme J (with whom the President agreed).
Defence counsel argued that Lumsden was factually distinguishable. In that case, the witness had volunteered his convictions, was giving alibi evidence of great significance, and held a drug conviction in a drug trial. His Honour accepted those factual differences but found they did not displace the Lumsden reasoning. Although Myers was not an alibi witness, his evidence went directly to the credibility of the Crown's principal witness, making it similarly significant in the context of the trial.
His Honour also noted that the state of the law in this area had been described as unsettled in Odgers' Uniform Evidence Law (7th ed), but considered himself bound by the Lumsden majority. The court then limited the permitted cross-examination in two ways. First, it was confined to convictions for offences bearing on dishonesty, specifically break and enter, larceny, and driving a stolen car, on the basis that such offences tend to show a greater likelihood of making a false representation. Second, cross-examination was restricted to offences committed on or after 23 May 2002, on the basis of temporal relevance.
Orders Made
- Crown's application under section 103 of the Evidence Act 1995 granted, permitting cross-examination of the defence witness on his criminal record
- Cross-examination limited to convictions for dishonesty-related offences (including break and enter, larceny, and driving a stolen car)
- Cross-examination further limited to offences committed on or after 23 May 2002
Key Takeaways
- Under section 103 of the Evidence Act 1995, a party may cross-examine a witness on credibility only where the evidence has "substantial probative value"; the District Court found that threshold met where prior convictions reflected a propensity for dishonesty.
- The District Court followed R v Lumsden [2003] NSWCCA 83 despite factual differences, applying the principle that convictions for offences such as goods in custody and break and enter can bespeak dishonesty sufficient to satisfy section 103.
- A witness's significance to the credibility of another witness at trial, even outside an alibi context, was treated as a relevant consideration in determining whether the substantial probative value threshold is met.
- Where leave is granted, the court retains a discretion to confine cross-examination to a subset of convictions, here limited by the nature of the offences and their proximity in time.
- Acknowledged uncertainty in the case law does not displace binding appellate authority; the court treated the Lumsden majority as binding despite commentary suggesting the area remained unsettled.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 103
Cases
- R v Lumsden [2003] NSWCCA 83
Secondary Sources
- Odgers, Uniform Evidence Law (7th ed)