R v Christos Podaras
[2009] NSWDC 276
•20 October 2009
CITATION: R v Christos PODARAS [2009] NSWDC 276
JUDGMENT DATE:
20 October 2009JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The tendency rule does not apply. CATCHWORDS: CRIMINAL LAW - jury trial - objection to line of cross-examination - questions about another prisoner lying - whether line of questioning amounts to credibility evidence - application of the tendency rule - appropriate notice not given under s 97(1)(a) of the Evidence Act 1995 LEGISLATION CITED: Evidence Act 1995 s 97(1)(a), s 100, s 101A PARTIES: Regina
Christos PodarasFILE NUMBER(S): 2008/14426 COUNSEL: Ms Herbert
Mr WattsSOLICITORS: Director of Public Prosecutions
Catherine Hunter Solicitor
JUDGMENT
1. The Crown Prosecutor, Ms Herbert, has objected to the line of cross-examination by Mr Watts. Mr Watts is cross-examining one of the principal witnesses in the Crown case. He is the person who is alleged to be the victim of a serious assault. The accused is said to be one of the persons responsible for that assault.
2. Mr Watts is asking this witness questions touching upon the behaviour of another person who was part of the assault. The questions concern that other person behaving in a way that involved her lying about this witness, and having a motive to harm this witness. That other person is going to be called by the Crown as a witness, but has not yet given evidence. One question which arises is whether this line of cross-examination amounts to credibility evidence as that is defined in s 101A of the Evidence Act 1995.
3. It does appear in my opinion that evidence about another witness lying and having a motive to harm this witness is relevant to the other person’s credibility. However, Mr Watts argues that it is not credibility evidence because it is not relevant only because it affects the assessment of the credibility of that other person. He also argues that it does not fall within the other classification in s 101A because although it may affect the assessment of the credibility of the other person, it is not otherwise inadmissible. He goes on to argue that it is admissible as tendency evidence.
4. It does appear to me to amount to evidence of the conduct of the other person pointing to a tendency on her part to act in a particular way, namely, to do harm to this particular witness. I accept Mr Watts’ submission that it is tendency evidence.
5. Ms Herbert points out that it still cannot be led because Mr Watts has not given the appropriate notice under s 97(1)(a) of the Evidence Act. Mr Watts relies upon the non applicability of that notice requirement by making an application to me under s 100 of the Evidence Act to dispense with the notice requirement in this case. He points out that the area that he is cross-examining on in fact is disclosed in material served upon him by the Crown.
6. One of the important areas in giving leave under s 100 is the extent of any prejudice to the other party. Ms Herbert does not put forward an argument to the effect that the Crown is prejudiced or taken by surprise, so that I am inclined to direct the tendency rule not to apply. I do need also to regard the evidence as having significant probative value. In my opinion, the area that Mr Watts is cross-examining about has significant probative value so far as the evidence of the other person proposed to be called by the Crown is concerned, and I give a direction under s 100 of the Evidence Act that the tendency rule is not to apply, despite the accused’s failure to give notice under s 97.
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