Citation: Regina v Lodhi [2006] NSWSC 670
Court: Supreme Court of New South Wales
Date: 19 May 2006
Judge(s): Whealy J
Background
The accused was on trial and had been cross-examined about alleged untruths in two documentary exhibits. His consistent position before the jury was that any apparent concealment of his identity in those documents was the result of mistake or misunderstanding, not deliberate deception.
The Crown then sought to cross-examine the accused about a third document: a job application made to a firm of architects. The Crown contended that this document contained deliberately misleading information about the accused's work experience. Specifically, the application gave the impression that the accused had been continuously employed in Australia over a two-year period, when in fact he had spent approximately 13 months of that time working as an architect in Pakistan.
The defence opposed the questioning on the basis that it did not clear the statutory threshold required to override the credibility rule in the Evidence Act.
Legal Issues
- Whether the proposed cross-examination evidence was relevant under s 55 of the Evidence Act
- Whether the credibility rule in s 102 barred its admission
- Whether the evidence satisfied the exception in s 103(1) by having "substantial probative value" in relation to the accused's credit as a witness
- What the word "substantial" means in s 103(1), and how it differs from "significant" as used elsewhere in the Act
Decision
Whealy J accepted that the evidence cleared the relevance threshold under s 55, but noted that s 102 then operated to exclude evidence relevant only to a witness's credibility. The question therefore turned on whether the s 103(1) exception applied.
His Honour examined the meaning of "substantial probative value" in s 103(1). Drawing on the Court of Criminal Appeal's reasoning in Regina v RPS, he confirmed that "probative value" in this context refers to the capacity of the evidence to rationally affect the jury's assessment of the witness's credit, not to a fact in issue. The word "substantial" imposes a meaningful limitation beyond the common law position, where almost anything bearing on credit was admissible.
Whealy J distinguished the term "substantial" from "significant" as used in s 97(1) regarding the tendency rule. His Honour held that evidence has substantial probative value for the purposes of s 103(1) only where its potential to affect the jury's assessment of the witness's credit is such that credit cannot be adequately determined without regard to it. There must be a real and likely connection between the evidence and the credit of the witness at the time of giving evidence, and that connection must operate in a substantial way.
Applying that standard, Whealy J found the job application evidence passed the threshold, though only just. Relevant to that conclusion were: the assumption that the document contained an untrue representation; the importance a potential employer would place on honest disclosure of work history; the heightened professional standards expected of a registered architect; and the accused's own presentation to the jury as a person of high moral and religious standards. His Honour allowed the Crown to ask the question.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 103(1) of the Evidence Act, evidence adduced in cross-examination of a witness is only admissible despite the credibility rule if it has "substantial probative value" in relation to the witness's credit, not merely to a fact in issue.
- Whealy J held that "substantial probative value" sets a higher bar than "significant probative value" as used in s 97(1): the evidence must be of such potential effect on the jury's assessment of the witness's credit that credit cannot adequately be determined without it.
- There must be a real and likely connection between the proposed evidence and the witness's credibility at the time of giving evidence, and that connection must operate in a substantial way.
- A prior false or misleading statement to a potential employer can satisfy the s 103(1) threshold, particularly where the accused has put their honesty and moral character in issue before the jury, though the margin in this case was described as relatively small.
- The factors listed in s 103(2), including whether the evidence tends to prove a knowingly false representation made under an obligation to tell the truth, are not exhaustive but serve as reliable indicators of the type of evidence likely to meet the statutory threshold.
Legislation and Cases Referenced
Legislation
- Evidence Act (NSW), ss 55, 97, 102, 103, 135, 137
Cases
- Regina v RPS (NSWCCA, unreported, 13 August 1997)
- Fowler (NSWSC, Dowd J, 6 May 1997)
- Lockyer (1996) 89 A Crim R 457