Citation: R v Jones & Ors (No 6) [2007] NSWSC 1157
Court: Supreme Court of New South Wales
Date: 11 April 2007
Judge(s): Buddin J
Background
Five accused faced trial arising from the death of a man (referred to here as the deceased). Two Crown witnesses, the deceased's father and brother, gave evidence identifying three of the accused as participants in the fatal attack. Both witnesses denied that any member of their family had been armed that night.
The defence case centred heavily on self-defence and provocation. The accused sought to establish that members of the deceased's family had armed themselves and were the initial aggressors. Complicating the Crown witnesses' denials, weapons were found concealed nearby after the incident, and DNA consistent with one witness's profile was located on those weapons.
Two of the accused had pleaded guilty to manslaughter on arraignment, with the Crown not accepting those pleas. The sole issue for them was whether the Crown could prove murder by excluding provocation and excessive self-defence beyond reasonable doubt.
Legal Issues
- Whether defence counsel could cross-examine two Crown witnesses about their 1996 criminal convictions for common assault, malicious damage, and affray
- Whether that prior conviction evidence was admissible under the credibility exception in s 103 of the Evidence Act (requiring "substantial probative value" before such cross-examination is permitted)
- Alternatively, whether the evidence was admissible as tendency evidence under s 97 of the Evidence Act (requiring "significant probative value")
Decision
Buddin J overruled the Crown's objection and permitted cross-examination on the prior convictions. The 1996 offences involved the two witnesses travelling with family members, arming themselves with baseball bats and a wooden stick, and attacking a victim at his home. Buddin J considered this directly relevant to the central factual contest in the present trial, not merely to the witnesses' general credibility.
His Honour accepted that the evidence had "substantial probative value" within the meaning of s 103. The prior convictions revealed that the two witnesses were capable of arming themselves with weapons and attacking another person while acting in concert with family members. Buddin J noted that ordinary human beings do not behave in that way, and that the parallel with the circumstances of the fatal incident gave the earlier conduct genuine probative weight. He further found that the passage of time since 1996 did not deprive the evidence of that probative value.
Buddin J also addressed the alternative tendency evidence pathway under s 97. He was satisfied the evidence would meet the lower "significant probative value" threshold under that provision in any event. The Crown did not oppose the dispensing of the usual notice requirement under s 100, and Buddin J formally dispensed with it, given no conceivable prejudice to the Crown arose.
Orders Made
No orders were made in this decision. The ruling was procedural, overruling the Crown's objection to the proposed cross-examination.
Key Takeaways
- Prior conviction evidence is not automatically limited to credibility under s 103 of the Evidence Act. Where the convictions reveal a pattern of conduct directly relevant to disputed facts at trial, they may carry "substantial probative value" sufficient to permit cross-examination.
- The "substantial probative value" threshold in s 103 was satisfied where the witnesses' earlier convictions showed a capacity to arm themselves with weapons and attack others alongside family members, closely mirroring the central factual dispute in the proceedings.
- Under s 97, tendency evidence need only meet the lower "significant probative value" standard. Buddin J held the evidence comfortably satisfied that test as an alternative basis for admissibility.
- The passage of time between prior convictions and the events at trial does not automatically diminish probative value. The significance depends on the nature and relevance of the conduct disclosed.
- A court may dispense with the notice requirement for tendency evidence under s 100 where no prejudice to the opposing party arises and that party does not oppose the dispensation.
Legislation and Cases Referenced
Legislation
- Evidence Act (NSW), ss 97, 100, 102, 103
Cases
- Palmer v R (1998) 193 CLR 1
- R v El-Azzi [2004] NSWCCA 455
- R v Fowler (NSWSC, 15 May 1997)
- R v Lewis (NSWSC, 20 June 1996)
- RPS v The Queen (unreported, NSWCCA, 13 August 1997)