Citation: R v Schwenke [2021] NSWDC 247
Court: District Court of New South Wales
Date: 9 June 2021
Judge: Abadee DCJ
Background
The accused faced charges of aggravated detention for advantage and intentionally choking the complainant, both alleged to have occurred on 6 January 2019. Part of the Crown's case included background evidence about events after the alleged offending, particularly an outing to a fruit market at Minto where the complainant said she was made to attend in her pyjamas and without footwear, and was restrained in public by the accused.
The accused called a witness, Mr Raffie, who had been present at the fruit market that day. Mr Raffie gave evidence that the complainant appeared normal and interacted warmly with his step-daughter, evidence that cut against the complainant's account of being restrained in public.
With the Crown's case closed, the Crown prosecutor sought to cross-examine Mr Raffie on two matters: first, that he had driven to the fruit market while disqualified from driving; and second, that he had a criminal history including offences of stealing and obtaining money by deception for which he received a bond in March 2008, when he was 19 years old. The accused objected to both lines of questioning.
Legal Issues
- Whether cross-examination of Mr Raffie about his disqualified driving could substantially affect the assessment of his credibility under s 103 of the Evidence Act 1995 (NSW)
- Whether cross-examination about his 2008 criminal history involving dishonesty offences could substantially affect the assessment of his credibility under s 103
Decision
Issue 1: Disqualified driving
The court rejected the proposed questioning about Mr Raffie's disqualified driving (at [16]). The fact that Mr Raffie drove while disqualified was essentially a premise of the question itself, since the very point was that he arrived at the fruit market by driving there. The complainant had not seriously disputed that Mr Raffie was at the fruit market, so the driving was not relevant to any live issue in the case (at [12]). The real issue was what Mr Raffie observed about the complainant's demeanour and freedom of movement while there (at [13]).
Abadee DCJ held that the driving evidence would not satisfy s 103(2)(a), that the s 103(2)(b) consideration was neutral, and that the evidence could not substantially affect the assessment of Mr Raffie's credibility (at [14]-[15]). The court adopted the ALRC's language, describing such questioning as designed only to "blacken" the witness's character and to distract the jury from the real factual issues (at [15]).
Issue 2: 2008 criminal history
The court acknowledged that prior dishonest conduct can, as a general proposition, be relevant to a witness's credibility and reliability, as recognised under the common law in R v Aldridge (at [20]). However, s 103(1) requires more than mere relevance: the evidence must be capable of substantially affecting the credibility assessment, and "substantially" operates as a word of limitation (at [21]).
Abadee DCJ found that the 2008 offences fell short of that threshold (at [24]-[25]). The offending had occurred approximately 13 years before the trial, when Mr Raffie was only 19 years old. He was now 32, with a daughter and step-children. The sentence was only a bond, and neither offence involved dishonesty in circumstances requiring him to tell the truth, meaning s 103(2)(a) did not assist the Crown (at [22]-[23]). The court rejected this proposed line of questioning as well (at [25]).
Orders Made
- Cross-examination of Mr Raffie about his driving while disqualified was rejected (at [16])
- Cross-examination of Mr Raffie about his 2008 criminal history was rejected (at [25])
Key Takeaways
- Under s 103 of the Evidence Act 1995 (NSW), cross-examination on credibility is only permissible where the evidence could substantially affect the credibility assessment, a threshold the District Court confirmed is meaningfully higher than mere relevance (at [21]).
- Evidence that a defence witness committed a driving offence to reach a location was found insufficient to satisfy s 103, where the witness's presence at that location was not genuinely in dispute and the evidence would only distract the jury from the real factual issues (at [12]-[15]).
- Prior dishonesty offences do not automatically meet the s 103 threshold. The court weighed the age of the offending, the youth of the offender at the time, the subsequent passage of time, the severity of the sentence, and whether the prior conduct involved an obligation to tell the truth (at [22]-[24]).
- Section 103(2)(a) carries particular weight where prior dishonest conduct did not arise in circumstances requiring the witness to be truthful, distinguishing it from perjury or fraud on a court (at [23]).
- The District Court reaffirmed the ALRC's underlying rationale for s 103: to prevent cross-examination designed merely to blacken a witness's character rather than to assist the jury in assessing the evidence genuinely in dispute (at [15]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 103, 137
Cases
- R v Aldridge (1990) 20 NSWLR 737