R v Glen Jeffrey McCormack (No.3)

[2003] NSWSC 645

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

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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.

The location of the wound, so described, is distinctly on the side rather than the front of the chest, tending to establish that, at the time of the shooting, the deceased was not in the position described by Ms McDonough but that the side of his upper body was presented to the accused with the deceased’s right arm somewhat away from the body.

5 Objection was taken to evidence that the wound was so located on the ground that the Crown should not be permitted to adduce evidence which impugned that of an earlier Crown witness without having first sought leave to cross examine the witness pursuant to s38 of the Evidence Act 1995.

6 Section 38 provides, so far as is presently relevant, that a party who has called a witness, may, with the leave of the Court, question the witness, as though the party were cross examining the witness, about evidence given by the witness that is unfavourable to the party.

7 Whether evidence which is merely to the disadvantage of a party is unfavourable within the meaning of the section is, on the authorities, a vexed question. That is particularly so in the case of a criminal trial where the Crown has an obligation to call all relevant and credible evidence whether it is favourable to the Crown’s theory of guilt or otherwise. However, for the purpose of the present ruling, I assume in favour of the accused’s argument that Ms McDonough’s evidence was, in the respect I have mentioned, unfavourable to the Crown within the meaning of the section and that leave would have been granted to the Crown to cross examine if the application had been made. (I would observe in passing that I think those are generous assumptions.)

8 The argument advanced on behalf of the accused is essentially based on the principle in Browne v Dunn (1894) 6 R 67. The rule has since been formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.

9 Where the rule is relied on as a basis on which to exclude evidence and the proceedings are under the Evidence Act 1995, the rule comes into collision with s56 which provides that, except as otherwise provided in the Act, evidence that is relevant in a proceeding is admissible in the proceeding. The only section appearing to provide otherwise in the circumstances of this case is s137 (which provides that, in a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.) I think that section is probably capable of accommodating the disallowance of evidence under the rule in Browne v Dunn but the emphasis would then be thrown onto unfairness to the accused as distinct from any unfairness to the witness (insofar as that was ever a critical consideration).

10 I have found it unnecessary to resolve how the rule in Browne v Dunn is to be reconciled with the operation of s56, where (as here) the rule is invoked as a ground upon which to oppose the admission of evidence. Making an assumption in favour of the accused's argument, I proceeded on the basis that I have the power to exclude the evidence by reason of a failure on the part of the Crown to seek leave to cross examine the witness pursuant to s38.

11 I rejected the argument based on s38 because, however it is to be juridically categorised, it must involve, in the end, the exercise of a discretion which would turn on protecting the accused against unfair prejudice.

12 To appreciate that there can have been no unfair prejudice to the accused, one had only to consider what would have occurred if the Crown had sought leave to cross examine the witness and if leave had been granted. The Crown prosecutor would then have discharged his obligation (assuming he had one) by putting some such question as follows to the witness: “Is it not the fact that, when you heard the shot, the right hand side of the deceased’s chest was towards the accused, with the accused’s right arm away from the torso?” Or, if the Crown prosecutor did not wish to be seen to be embracing that theory of fact in preference to the evidence which had been given by the witness, the question might have been, “What do you say to the suggestion that, at the time of the shot, the deceased’s chest may have been towards the accused [etc.]?” Having seen and heard the witness giving her previous evidence, I do not doubt that she would have disagreed. The Crown Prosecutor would then have done all that the accused’s counsel submits was necessary, and there it would have been left. The only other possibilities are that the witness would have agreed with what was put or would have been unsure which was the case.

13 I did not see how the accused had suffered any disadvantage in dealing with the proposed evidence, let alone unfair prejudice, because such a cross examination by the Crown Prosecutor, with any of those responses on the part of the witness, had not occurred. (I would add the observation that, subject to what might be said in argument, it does not seem to me that for the deceased to have been presenting the right hand side of his torso to the accused at the time of the shooting, with his arm away from his body, if that be the case, is at all inconsistent with the shooting having been in self-defence.)

14 It is for those reasons that I declined to reject the proposed evidence by reason of the Crown not having sought leave to cross examine the witness pursuant to s38.

-oOo-

Last Modified: 07/28/2003