Citation: R v Deborah Joy Davidson & Anor [2000] NSWSC 197
Court: Supreme Court of New South Wales (Criminal Division)
Date: 2 March 2000
Judge(s): Bell J
Background
Two accused, referred to here as the first defendant and the second defendant, faced separate but related criminal proceedings in the Supreme Court. During the trial, a witness was called whose criminal history became the subject of a contested evidentiary application.
Defence counsel for the second defendant sought leave to cross-examine the witness on entries in his criminal record. The application was made on two distinct bases: first, to establish that the witness had a tendency to behave violently; and second, to challenge the witness's credibility by reference to a drug trafficking conviction.
The Crown opposed certain parts of the application, and the court resolved each contested point on the voir dire (a preliminary hearing conducted to determine the admissibility of evidence).
Legal Issues
- Whether the witness's prior convictions for violent offences were admissible as tendency evidence under s 97 of the Evidence Act 1995, specifically whether they met the threshold of having "significant probative value"
- Whether the witness's alias "Eddie the Knife" met the same tendency evidence threshold
- Whether a prior drug trafficking conviction resulting in imprisonment was admissible to challenge the witness's credibility under s 103 of the Evidence Act 1995, which requires "substantial probative value"
- Whether the court should dispense with notice requirements under s 100 where the Crown had suffered no prejudice from an amended notice
Decision
Bell J permitted cross-examination on the violent offences in the witness's criminal record, covering an unlawful assault in 1984, convictions for assault in 1984, a common assault in 1996, a further assault in 1997, and a pending aggravated robbery charge. The court was satisfied that each of these matters met the s 97(1)(b) threshold of having significant probative value in establishing a tendency to behave violently.
The application to cross-examine the witness about his alias "Eddie the Knife" was refused. Bell J held that this material did not meet the significant probative value test required by s 97(1)(b), and leave to raise it was declined.
On the credibility question, Bell J ruled that the drug trafficking conviction, which had resulted in a custodial sentence, met the standard of substantial probative value required under s 103 for cross-examination going to a witness's credit. Cross-examination on that topic was therefore permitted.
The court also dispensed with strict compliance with the Part 3.6 notice requirements, noting the Crown had not been prejudiced by the amendment to the tendency notice expanding the scope from a tendency to commit crimes of violence for financial gain to the broader tendency to behave violently.
Orders Made
• Application to cross-examine Edward William Szkudelski on the following matters from his criminal record is allowed:
- Unlawful assault in January 1984
- Convictions for assault before Geelong Magistrate's Court in February 1984
- Common assault dealt with by Queanbeyan Local Court in August 1996
- Assault dealt with by Queanbeyan Local Court in July 1997
- Pending aggravated robbery offence contrary to s 95(1) of the Crimes Act
• Application to cross-examine on the witness' alias "Eddie the Knife" is refused
• Cross-examination on the witness' alleged conviction for trafficking in drugs is allowed
Key Takeaways
- Under s 97(1)(b) of the Evidence Act 1995, tendency evidence must have "significant probative value" to be admissible; here, multiple prior assault convictions and a pending aggravated robbery charge each cleared that threshold individually.
- An informal alias of a threatening character does not, without more, satisfy the significant probative value test for tendency evidence under s 97(1)(b).
- A prior conviction for drug trafficking resulting in imprisonment meets the "substantial probative value" threshold for credibility cross-examination under s 103 of the Evidence Act 1995.
- Where a Crown has suffered no prejudice from an amendment to a tendency notice, the Supreme Court confirmed it may dispense with the Part 3.6 notice requirements pursuant to s 100.
- The decision illustrates that the tests in ss 97 and 103 are applied separately and distinctly, with tendency evidence and credibility evidence each assessed against their own statutory threshold.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 100, 103, Part 3.6
- Crimes Act 1900 (NSW), s 95(1)
Cases cited: None cited in the judgment.