Citation: R v Christos Podaras [2009] NSWDC 276
Court: District Court of New South Wales
Date: 20 October 2009
Judge(s): Cogswell SC DCJ
Background
The accused was charged in connection with a serious assault, with the Crown alleging he was one of several persons responsible. During a jury trial, defence counsel sought to cross-examine the alleged victim about the behaviour of another person who had also been involved in the assault and who was yet to give evidence as a Crown witness.
The cross-examination focused on that other person having lied about the alleged victim and having a motive to harm him. The Crown objected to this line of questioning, prompting a ruling on the admissibility of the proposed evidence.
Legal Issues
- Whether the proposed cross-examination constituted "credibility evidence" as defined in s 101A of the Evidence Act 1995
- Whether the evidence instead qualified as tendency evidence under the tendency rule
- Whether the tendency rule nonetheless barred the evidence because the accused had not given the notice required by s 97(1)(a) of the Evidence Act 1995
- Whether the court should exercise its discretion under s 100 to dispense with the notice requirement
Decision
The court considered first whether the evidence was credibility evidence within the meaning of s 101A. Although evidence of another witness lying and having a motive to harm the complainant was plainly relevant to that other witness's credibility, the court accepted defence counsel's submission that it was not relevant only for that purpose. Because it was not otherwise inadmissible, it also fell outside the second limb of the credibility evidence definition.
The court accepted that the evidence pointed to a tendency on the part of the other person to act in a way that would harm the complainant. The evidence therefore fell within the tendency rule, rather than the credibility evidence provisions.
The Crown's procedural objection was that no notice had been given as required by s 97(1)(a). Defence counsel applied under s 100 to have the notice requirement dispensed with, pointing out that the subject matter of the cross-examination had already been disclosed in material served by the Crown. The court noted that the primary consideration on such an application is the extent of any prejudice to the other party. The Crown did not argue that it was prejudiced or taken by surprise.
Satisfied that the notice requirement could be dispensed with and that the evidence carried significant probative value, the court directed that the tendency rule was not to apply, allowing the cross-examination to proceed.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court confirmed that evidence is not "credibility evidence" under s 101A of the Evidence Act 1995 where it serves a purpose beyond merely affecting the assessment of a witness's credibility.
- Evidence of a witness's conduct pointing to a tendency to act in a particular way toward another person can qualify as tendency evidence, even when it arises in the context of cross-examination during a jury trial.
- Under s 100 of the Evidence Act 1995, a court may dispense with the notice requirement in s 97(1)(a) where the opposing party cannot demonstrate prejudice or surprise.
- Significant probative value is a necessary consideration before a court directs that the tendency rule is not to apply under s 100.
- Disclosure of the relevant subject matter in Crown-served material was treated as a relevant factor in weighing whether the absence of formal notice caused any unfairness.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97(1)(a), 100, 101A
Cases cited: None cited in the judgment.