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District Court 29 October 2019

R v Cresnar

[2019] NSWDC 625

Public order & justice offences

Citation: R v Cresnar [2019] NSWDC 625
Court: District Court of New South Wales
Date: 29 October 2019
Judge: Grant DCJ

Background

The accused faced two counts related to proceedings before the Independent Commission Against Corruption (ICAC), which was investigating allegations that he had corruptly solicited and accepted benefits from Ausgrid contractors and subcontractors. Count 1 alleged that the accused knowingly gave false evidence before ICAC on 17 April 2014. Count 2 alleged that he attempted to cause another witness, Jason Bastow, to give false evidence before ICAC, with the allegation involving an anonymous letter sent to Bastow on or around 21 August 2014.

The Crown applied to adduce tendency evidence and sought cross-admissibility between the two counts. The tendency the Crown sought to establish was twofold: that the accused had a state of mind reflecting an interest in causing false or misleading evidence to be given at ICAC, and that he had a tendency to take active steps to bring about the giving of such false or misleading evidence.

The Crown argued that the two counts shared sufficiently common features, including their connection to the same ICAC investigation, the same subject matter (benefits received from Bastow), and the temporal proximity of the conduct in 2014, to justify cross-admissibility.

  • Whether the proposed tendency evidence met the threshold of "significant probative value" required under s 97(1) of the Evidence Act.
  • Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused, as required by s 101(2) for prosecution tendency evidence in criminal proceedings.
  • Whether the asserted tendency was logically connected to the facts in issue for each count, in particular count 1.
  • Whether the evidence on each count was cross-admissible to prove the tendency alleged.

Decision

Grant DCJ applied the two-step framework established by the High Court in Hughes v The Queen [2017] HCA 20. The first question is whether the evidence supports the asserted tendency. The second is whether that tendency, once established, makes the facts constituting the charged offence more likely to a significant extent.

His Honour accepted the accused's submission that the asserted tendency, that being an interest in and steps toward causing false evidence at ICAC, was not logically relevant to count 1. Count 1 concerned whether the accused himself knowingly gave false evidence. The proposed tendency was directed at causing others to give false evidence, which did not map onto the fact in issue for that count.

His Honour also found that the two counts lacked the close similarities necessary for cross-admissibility. Count 1 involved the accused personally giving evidence before ICAC, while count 2 involved the writing and delivery of an anonymous letter to a third-party witness. The conduct was sufficiently different that one did not meaningfully support proof of a tendency relevant to the other.

Because the asserted tendency lacked significant probative value across both counts, and the evidence did not strongly support proof of a tendency that in turn strongly supported proof of the elements of either offence, the application was refused in its entirety.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that the Hughes v The Queen framework requires two distinct evaluations: first, whether the evidence supports the asserted tendency, and second, whether that tendency meaningfully advances proof of the elements of the offence charged.
  • A stated tendency must be logically connected to the specific facts in issue for each count. Where a tendency relates to causing another person to give false evidence, it does not automatically bear on a count alleging that the accused personally gave false evidence.
  • Cross-admissibility between counts depends on more than a shared factual context. Differences in the nature of the conduct alleged across counts can defeat the required logical connection even where the underlying investigation and subject matter are the same.
  • Under s 101(2) of the Evidence Act, prosecution tendency evidence faces a heightened test in criminal proceedings: its probative value must substantially outweigh any prejudicial effect on the accused, in addition to meeting the significant probative value threshold under s 97.
  • Where the question is one of identity (as with count 2 and the anonymous letter), close similarity between the tendency evidence and the conduct alleged becomes particularly important to establishing the requisite probative value.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 98, 101

Cases
- Hughes v The Queen [2017] HCA 20
- R v Ford [2009] NSWCCA 306