R v Rogerson; R v McNamara (No 28) [2016] NSWSC 160

R v Rogerson; R v McNamara (No 28) [2016] NSWSC 160

Mr Duff's belief about the import or meaning of a conversation with Rogerson was not relevant and amounted to his interpretation of what was said, so the question seeking that belief was disallowed. The single disallowed question did not require discharge of the jury because any prejudice could be cured by directions that questions are not evidence and the question should be disregarded. Mr Duff's 1994 drug supply offending and 1997 sentence did not tend to prove a false representation under an obligation to tell the truth, were more than 20 and 18 years old respectively, and were not capable of significantly bearing on his credit, so credit cross-examination was refused. Mr Duff's...

Jurisdiction
Australia
Judgment Date
01 March 2016
Procedural Posture
Criminal Procedural and Evidentiary Rulings / During Trial Evidence and Cross Examination
Outcome
Question disallowed; application to discharge the jury dismissed; application to cross-examine Mr Duff on his criminal history refused; Crown application for leave to cross-examine Mr Duff under s. 38 granted on a limited basis; s. 106 issue deferred.
Legal Topics
['cross Examination of Witness' 'objection to Form of Question' 'application to Discharge Jury' 'credibility Evidence' 'unfavourable Witness' 'evidence Act 1995 (nsw) Ss 38, 103 and 106']
['criminal Law' 'evidence' 'practice and Procedure'] ['cross Examination of Witness' 'objection to Form of Question' 'application to Discharge Jury' 'credibility Evidence' 'unfavourable Witness' 'evidence Act 1995 (nsw) Ss 38, 103 and 106']

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Procedural Posture

Criminal Procedural and Evidentiary Rulings / During Trial Evidence and Cross Examination

Legal Issues

  1. 1 ['Whether counsel for McNamara should be allowed to ask Mr Duff a question seeking to elicit his belief that Rogerson was looking for an alibi.' 'Whether the jury should be discharged because the disallowed question was put in the presence of the jury.' 'Whether counsel for McNamara should be permitted to cross-examine Mr Duff as to his criminal history for credibility purposes.' 'Whether the Crown should be granted leave under s. 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Duff as an unfavourable witness.']

Ratio Decidendi

Mr Duff's belief about the import or meaning of a conversation with Rogerson was not relevant and amounted to his interpretation of what was said, so the question seeking that belief was disallowed. The single disallowed question did not require discharge of the jury because any prejudice could be cured by directions that questions are not evidence and the question should be disregarded. Mr Duff's 1994 drug supply offending and 1997 sentence did not tend to prove a false representation under an obligation to tell the truth, were more than 20 and 18 years old respectively, and were not capable of significantly bearing on his credit, so credit cross-examination was refused. Mr Duff's...

Court Disposition

Question disallowed; application to discharge the jury dismissed; application to cross-examine Mr Duff on his criminal history refused; Crown application for leave to cross-examine Mr Duff under s. 38 granted on a limited basis; s. 106 issue deferred.

Orders

  • ['The question put by Ms Shead commencing at T1382 L1 was not allowed.' 'The application to discharge the jury was dismissed.' 'Cross-examination of Mr Duff about his criminal history was not allowed.' 'The Crown was granted leave to cross-examine Mr Duff under s. 38 of the Evidence Act 1995 (NSW), limited to the...