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Supreme Court 15 February 2016

R v Rogerson; R v McNamara (No 20)

[2016] NSWSC 75

Drugs
CRIMINAL LAW EVIDENCE CROSS EXAMINATION CROSS EXAMINATION AS TO CREDIBILITY

Citation: R v Rogerson; R v McNamara (No 20) [2016] NSWSC 75
Court: Supreme Court of New South Wales
Date: 15 February 2016
Judge: Bellew J

Background

This decision arose as an evidentiary ruling during the joint criminal trial of two accused. Counsel for one of the accused, McNamara, sought to cross-examine a Crown witness, referred to here as the witness, about matters counsel expressly conceded went only to credibility.

The witness had denied taking drugs before giving evidence on the day in question, and also before giving evidence the previous Friday. Counsel for McNamara sought to put to the witness details of three drug possession convictions recorded against him in late 2015, involving ecstasy, ice, and cannabis respectively, all in quantities consistent with personal use. The aim was to support a submission that the witness's denials of drug use before giving evidence were untruthful.

The Crown objected to the proposed cross-examination, arguing the evidence was incapable of substantially affecting the assessment of the witness's credibility.

  • Whether cross-examination of a witness about prior drug possession convictions was permissible under the credibility exception in s 103 of the Evidence Act 1995 (NSW).
  • Specifically, whether the proposed evidence "could substantially affect the assessment of the credibility of the witness" within the meaning of s 103(1).
  • What weight to give the two statutory considerations under s 103(2): whether the evidence tended to prove that the witness knowingly or recklessly made a false representation under oath, and the recency of the relevant events.

Decision

Bellew J began from the default position under s 102 of the Evidence Act 1995 (NSW), which renders credibility evidence about a witness inadmissible. The exception in s 103(1) permits such cross-examination only where the evidence "could substantially affect" the witness's credibility.

On the s 103(2)(a) consideration, the court accepted that the witness was under an obligation to tell the truth. However, Bellew J was not satisfied that the prior possession convictions necessarily tended to prove the witness's denials of drug use were false. Counsel's submission that the witness's demeanour was consistent with recent drug use was possible, but the Crown's counter-submission carried weight: that demeanour may simply reflect how the witness ordinarily presents.

On the s 103(2)(b) consideration, the court acknowledged the convictions were recent, occurring only months before trial, and that this factor weighed in favour of allowing the cross-examination. However, recency alone was insufficient to tip the balance.

Taking all circumstances together, Bellew J held that the mere fact of recent possession convictions in amounts consistent with personal use did not, without more, support a conclusion that the witness had lied about abstaining from drugs before giving evidence. The cross-examination was refused.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 103(1) of the Evidence Act 1995 (NSW), the credibility rule can be displaced only where the proposed cross-examination evidence could "substantially affect" the assessment of the witness's credibility. The threshold is a meaningful one, not merely that the evidence is relevant to credit.
  • Prior drug possession convictions in amounts consistent with personal use do not, without more, substantially affect a witness's credibility simply because the witness has denied drug use before testifying.
  • Where a witness's demeanour is put forward as consistent with recent drug use, the court may reject that inference if the demeanour is equally consistent with the witness's ordinary presentation, and there is no comparative baseline to establish a difference.
  • Recency of the prior events (a s 103(2)(b) factor) can weigh in favour of permitting the cross-examination but does not override the overarching requirement that the evidence could substantially affect the credibility assessment.
  • Both statutory considerations in s 103(2) must be weighed in context; neither operates as a standalone gateway to admissibility.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 102, 103

Cases cited:
No cases were cited in the judgment.