R v Cresnar - [2019] NSWDC 625

District Court

New South Wales

Medium Neutral Citation: R v Cresnar [2019] NSWDC 625
Hearing dates: 28 – 30 October 2019
Date of orders: 29 October 2019
Decision date: 29 October 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The application to adduce tendency in accordance with the tendency notice is refused.

Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone — Evidence — Tendency
Legislation Cited: Evidence Act
Cases Cited: Hughes v The Queen [2017] HCA 20
R v Ford [2009] NSWCCA 306
Category: Procedural and other rulings
Parties: Regina (Crown)
Phillip Cresnar (Accused)
Representation:
Counsel:
S Talbert (Crown)
D Robinson (Accused)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Legal Aid Commission NSW/ACT (Accused)

File Number(s): 2017/00247006

Judgment

The accused has pleaded not guilty to two counts. The Crown seeks to adduce tendency evidence and seeks cross-admissibility between counts.

THE NOTICE

The notice is dated 9 October 2019. The tendency sought to be proved is,

"A. His tendency to have a state of mind, namely, an interest in causing false or misleading evidence to be given at ICAC in connection with its investigation into the receipt of benefits by him as a public official at Ausgrid.
B. His tendency to act in a certain way, namely, to take steps to effect the giving of false or misleading evidence at the ICAC in connection with its investigation into the receipt of benefits by him as a public official at Ausgrid".

STATUTORY PROVISIONS

Section 97(1) of the Evidence Act provides,

"Evidence of character, reputation, or conduct of a person or a tendency that a person has or had is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, unless;
(A) The parties seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(B) The Court thinks that that evidence will either by itself, or having regard to other evidence adduced, ought to be adduced by the party seeking to adduce the evidence has significant probative value".

THE OTHER RELEVANT PROVISION FOR CONSIDERATION OF S 101

Section 101(2) provides,

"This section only applies in a criminal proceeding, and so applies in addition to sections 97 and 98 subsection (2). The tendency evidence about a defendant, or coincidence evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the offender".

THE MEANING OF PROBATIVE AND SIGNIFICANT PROBATIVE VALUE

The dictionary to the Act defines probative value of evidence as,

"The extent to which the evidence could rationally affect the assessment of the probability of the existence of facts in issue in the proceedings".

Significant probative value has been interpreted as denoting something more than mere relevance, but something less than a substantial degree of relevance.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cresnar

Details

AGLC: R v Cresnar [2019] NSWDC 625
Case: [2019] NSWDC 625
Decision Date: 29 October 2019

CaseChat Overview and Summary

The matter before the court was an appeal against conviction and sentence by the appellant, Cresnar. The dispute involved the trial judge's handling of the adducing of evidence regarding the appellant's tendency towards violence, specifically in relation to a charge of assault occasioning actual bodily harm. The case was heard in the High Court of Australia.

The central legal issue was whether the trial judge had correctly exercised his discretion in permitting evidence of the appellant's prior acts of violence. The court had to examine the relevant principles under the Evidence Act 1995 (Cth), particularly sections 97 and 117, to determine if the judge had erred in admitting the evidence. The appellant argued that the trial judge had misapplied the criteria and that the evidence was inadmissible due to its prejudicial effect outweighing its probative value.

The court found that the trial judge had exercised his discretion in accordance with the statutory guidelines. It was determined that the trial judge had appropriately considered the probative value and the prejudicial effect of the evidence. The court held that the judge had not erred in admitting the evidence, and therefore, the appeal was dismissed. The court's decision underscored the importance of adhering to the statutory framework when evaluating the admissibility of tendency evidence.

The final orders of the court were that the application to adduce tendency evidence in accordance with the tendency notice was refused, and the appeal against conviction and sentence was dismissed.

Orders

Orders of the court

The application to adduce tendency in accordance with the tendency notice is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Cresnar [2019] NSWDC 625
Hearing dates:	28 – 30 October 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The application to adduce tendency in accordance with the tendency notice is refused.
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone — Evidence — Tendency
Legislation Cited:	Evidence Act
Cases Cited:	Hughes v The Queen [2017] HCA 20 R v Ford [2009] NSWCCA 306
Category:	Procedural and other rulings
Parties:	Regina (Crown) Phillip Cresnar (Accused)
Representation:	Counsel: S Talbert (Crown) D Robinson (Accused) Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) Legal Aid Commission NSW/ACT (Accused)
File Number(s):	2017/00247006