Citation: [2017] NSWDC 213
Court: District Court of New South Wales
Date: 5 April 2017
Judge: Judge S Norrish QC
Background
Four accused faced trial on charges including wounding with intent to cause grievous bodily harm and participating in a criminal group. The alleged victim, referred to here as the principal Crown witness, was shot at least three times and beaten with a blunt object at a motorcycle club premises in western Sydney on 7 July 2014. He was in custody at the time he gave evidence, facing a number of outstanding charges.
Counsel for one of the accused sought to cross-examine the Crown witness on three categories of pending charges: use of a false document to influence a public duty, two counts of demanding property with menaces with intent to steal, and a goods in custody charge. The application was made on the basis that these matters were relevant to the witness's credibility.
The judgment records rulings made on 3 April 2017, with reasons delivered on 5 April 2017.
Legal Issues
- Whether cross-examination of the Crown witness on his outstanding charges was permissible under ss 102 and 103 of the Evidence Act 1995 (NSW) as evidence that could "substantially affect" the assessment of his credibility.
- If permitted under s 103, whether such cross-examination would nonetheless be excluded under s 135 of the Act.
Decision
Issue 1: False medical certificate and goods in custody charges
The court had no difficulty allowing cross-examination on these two matters. The false medical certificate charge, which arose from sending a fraudulent document to a court to avoid an appearance, raised matters of particular dishonesty directly relevant to the witness's credibility (at [23]). The goods in custody charge similarly raised honesty-related issues, compounded by conflicting answers the witness gave during the voir dire (at [23]).
Issue 2: Demand money with menaces charges
The court refused cross-examination on the two demanding money with menaces counts. The witness's own account, accepted as the starting point for the analysis, was that he was seeking to recover money he believed was owed to a third party, not obtaining property dishonestly for himself (at [24]). The court found that, even at its highest, cross-examination on these matters could not "substantially affect the assessment of the credibility of the witness" as required by s 103(1) in the context of the actual issues in the trial (at [27]).
The court also noted that a "general honesty" basis for cross-examination, as distinct from a specific dishonesty, requires careful analysis and may not satisfy the s 103(1) threshold, drawing on Odgers SC's commentary (at [21]). The witness's known penchant for violence, meanwhile, was already established from his proven criminal history, and no counsel had sought to press that history in cross-examination (at [26]).
Issue 3: Discretionary exclusion under s 135
As an alternative basis, the court found that even if s 103 had been satisfied for the menaces charges, it would have excluded the cross-examination under s 135. Pursuing those matters would have required calling further evidence about which the witness could not meaningfully respond, consuming disproportionate trial time on an issue incapable of satisfactory resolution in the circumstances (at [28]).
Orders Made
- Cross-examination of the Crown witness on credibility grounds relating to the demand money with menaces charges was not permitted.
Key Takeaways
- Under s 103 of the Evidence Act 1995, cross-examination on a witness's outstanding charges clears the threshold only where it could "substantially affect" the credibility assessment, not merely where it raises general concerns about the witness's character (at [21], [27]).
- Where a witness admits involvement in conduct but offers an account negating dishonest intent, such as claiming entitlement to demand money on behalf of a third party, the court may find no element of dishonesty capable of satisfying the s 103(1) test (at [24]).
- Charges that primarily disclose a propensity for violence, rather than dishonesty, may carry limited credibility weight where a witness's violent history is already established through proven convictions (at [26]).
- Even where s 103 is satisfied, s 135 provides a further basis for exclusion if pursuing the cross-examination would require collateral evidence that the witness cannot meaningfully address and would consume undue trial time (at [28]).
- Specific dishonesty, particularly conduct directed at court proceedings, stands on stronger footing than conduct characterised principally by intimidation or threats when the credibility inquiry turns on truthfulness about the facts in issue (at [23]-[24]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 - ss 102, 103
Cases
- Not stated