R v Hufnagl, Ernst No.2

PARTIES: Regina (Commonwealth) - Prosecutor Ernst Hufnagl - Accused

COUNSEL: B. Levet - Crown Prosecutor W. Hunt - Accused

SOLICITORS: Mr M. Poberezny Office of the DPP (Cwlth) Ms P. Purcell - Watsons

HIS HONOUR: Application pursuant to s.38 Evidence Act to cross-examine witness in re-examination

1. On 26 June - that is, yesterday - towards the end of the Crown case the Crown called John Paul Holloway. He was, as it seems to me, a key witness for each side and an alleged co-conspirator. He gave evidence yesterday afternoon.

The Crown case was that the accused had conspired with Holloway and others to steal [a container] TEXU' 351 and its contents at a time when it was at the Port Botany terminal. It is agreed between the parties that Holloway pleaded guilty to a charge under section 131.1 of the Commonwealth Criminal Code of dishonestly attempting to appropriate such property. It is also agreed that he had a role in the commission of the theft of TEXU 351 and was, in fact, caught shortly after the theft, driving a truck away from the P&O Port Botany container facility.

In March 2007 Holloway gave evidence on his own sentencing proceedings before Judge Zahra, and that was the only account that he had given of his role in the theft of the 40-foot container. He had not agreed to co­operate with the prosecution, he had not received any discount from the Court at the sentencing proceedings on account of any intention to co-operate with investigators or prosecutors.

During the course of his evidence-in-chief in this trial I took the view that he was generally co-operative and gave an account of his involvement consistent, generally, with the Crown case. From Holloway's point of view, it had been three years since his arrest. With the passage of time he was sometimes imprecise on detail. His evidence was that he had never met the man who entered the cabin of the truck while it had been at the parking bay prior to entering the terminal proper.

On the Crown case, the person who entered the cabin of the truck was the accused. Holloway had given evidence that the man entering the truck had scribbled on a document which, on the Crown case, is Exhibit AP. On the Crown case, this document was then handed to security at the exit gate.

The witness had told Judge Zahra on sentencing that when the scribbling was done he was told by the man who entered the truck to "hand it" - meaning, the document on which he had scribbled - "in when you're leaving," meaning leaving the terminal. While Holloway gave evidence of being told to hand a document out at the exit gate, he did not nominate that particular document that the Crown was entitled to have him nominate in the light of the evidence he had given before Judge Zahra. The Crown made an application to cross­examine Holloway for the purpose of securing the evidence he had given before Judge Zahra.

Significantly, the Crown did not seek to identify through Holloway the person who entered the truck. Questions asked in chief by the Crown were these (page 708): "Q. Is it the situation that you're not able to recognise the person who came into the truck? A. I don't understand what you mean.

Q. The person that got into your truck while you were in the truck parking area, was that someone that you had or hadn't seen before? A. No, I hadn't seen them before.

Q. You are not able to recognise that person? A. If they (sic) were standing in front of me I might be able to. They (sic) were only in my presence for a few minutes."

There was perhaps some further evidence that went to identification at page 711: "Q. Were you told that by telephone? A. Yes.

Q. Were you told that by John or by the other person? A. By the other person.

Q. Did that person appear to be the same person that you had spoken to in the trailer? A. Yes I think so, yeah.

Q. The person who had got into the trailer? A. Yeah. Well the voice might have sounded a bit different on the phone but yeah, I assumed it was the same person."

Why it is significant that the Crown did not seek to identify the person is that the proceedings before Judge Zahra were conducted upon an agreed assumption that the accused person was the person who had entered the truck. From the transcript before Judge Zahra on 1 March 2007 "Q. So you had met Mr Hufnagl before? A. No, I hadn't.

Q. I take that to mean, on this night was your first encounter with him? A. That's correct.

Q. And what happened? He got the truck at some point? A. Well, a man entered the truck and since then I've worked out that it is that Hufnagl. Only reading the statement of facts and stuff like that, he did get in the truck for a short period of time and wrote something on one of the documents that I had, that I had been given to by the person who asked me to drive the truck."

That evidence given by Holloway before Judge Zahra had been made after both Holloway and the accused had been co-accused before the Local Court on charges relating to this very matter. Each had been in the presence of the other on that occasion for at least some time. It is to be remembered that the proposition of inability to recognise the male who entered the truck was evidence led by the Crown. When the Crown made this application to cross-examine Holloway earlier in this trial, while the application was not confined to the topic on which leave was ultimately granted, there was no application to cross-examine on the identity of the male person who had entered the truck.

I accept that it would have been inappropriate to seek to identify the male person by the Crown pointing to the accused and asking the question, "Is that him?" But that was not the only means available. The Crown had the opportunity of raising the very issues in cross-examination when the first leave was given that he would now be seeking in this application, because the Crown now seeks leave to cross-examine Holloway for a second time. The application is made pursuant to section 38(1)(a) and (c). I should point out that the evidence given by Holloway in relation to "working out that it was Hufnagl" was never tested by the Crown in the proceedings before Judge Zahra. Section 38(4) appears predicated upon natural justice issues. It together with section 38(1)(b) are indicators of the desirability that the cross-examination constitute part of the evidence-in-chief of the witness.

However, it is clear from authority that that cannot always be so. See R v Parkes [2003] NSWCCA 12 at paragraph 70 per Ipp JA.

"There is ample authority that an application to question a witness under section 38 may be allowed where unfavourable evidence is led in cross-examination: It is sufficient to refer to R v Milat and Pantoja, Mansour . There is also ample authority to the effect that section 38 is not limited to circumstances where the unfavourable evidence is unexpected. It is sufficient to refer to R v Esho , R v Fowle r ." (References excluded).

Further, it appears that the Crown is concerned with an issue of fact, that is, he seeks to overturn the exclusion of the accused as the person who entered the truck. He seeks to do that through attacking the witness's credibility on the issue but it seems to me he is interested in more than this. He is interested in obtaining relevant evidence as to the identification of the person entering the cabin as being the accused. My reading of section 38(3) is that cross-examination is limited to matters relevant to credit only.

The credit only issue would require the Crown to impugn credibility of the witness to a leading question asked by him, and at a time when he was not really prepared to contest the evidence he now regards as being untrue. In my view, that would be unfair to the witness and indeed to the defence, who crafted the cross-examination of the exclusion of the witness upon, he claimed, non-recognition of anybody at a time when Holloway was in Court seated basically opposite the accused.

The defence council had started his cross-examination by referring back to that proposition, as I recall, that Holloway was unable to recognise anybody, and built upon that a scenario where the two men had seen each other on two occasions, one before his sentencing proceedings when they were both at the Local Court and one after the sentencing proceedings when they were both at the District Court in different roles on that occasion.

So the dilemma for me is this, the Crown is entitled to impugn the witness on this issue, but it seems to me that particularly at this late stage in the trial and given that he earlier had an opportunity so to do, it would be unfair to allow him to ventilate much more than is needed to be permitted to impugn Holloway before the jury.

In giving leave, matters that I need to take into account: the extent to which it would be unlikely to add to or shorten the length of the hearing, given the nature of the leave I anticipate this hearing will not have much time added to it. Indeed, more time has been spent, I imagine, agitating the issue than would be taken in the course proposed. The extent to which it would be unfair to a party or to the witness, I have dealt with both of those in my remarks thus far. The importance of the evidence in relation to which leave or permission is sought:- the issue is an important one and hence the leave that I am giving. The nature of the proceedings:- they are proceedings in a criminal trial in which the liberty of the accused would be at risk in the event of a conviction and a significant issue of responsibility to seek out those guilty of crime in respect of looking at it from the Crown's point of view.

Mr Crown has supplied two issues on which he seeks to ask questions. That is, that the witness was lying on the issue when he said that it was not Hufnagl who had entered the truck and, secondly, that his reason for lying was to assist Hufnagl evade conviction. Provided the cross-examination is strictly confined to those issues, I would permit it.

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