R v Schwenke

[2021] NSWDC 247

District Court

New South Wales

Medium Neutral Citation:

R v Schwenke [2021] NSWDC 247

Hearing dates:

7 June 2021 – 9 June 2021

Date of orders:

09 June 2021

Decision date:

09 June 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 16 and 25

Catchwords:

EVIDENCE – aggravated kidnapping and strangulation offences – objection to cross-examination on credibility of witness called by accused – whether witness’ criminal history and driving record substantially affect assessment of credibility

Legislation Cited:

Evidence Act 1995 (NSW) ss 103, 137

Cases Cited:

R v Aldridge (1990) 20 NSWLR 737

Texts Cited:

Australian Law Reform Commission, Uniform Evidence Law Report, (February 2006)

Stephen Odgers SC, Uniform Evidence Law (15th ed, 2020, Thomson Reuters)

Category:

Procedural rulings

Parties:

Director of Public Prosecutions (NSW)
Mr G Schwenke (the accused)

Representation:

Counsel:
Mr P Lowe for the Director of Public Prosecutions (NSW)
Mr S Molloy for the accused

Solicitors:
Director of Public Prosecutions (NSW)
Naomi Steinberg Lawyers for the accused

File Number(s):

2019/19370

Publication restriction:

Nil.

Judgment

1. The proceedings have reached the stage where the Crown has closed its case and the accused has called Mr Danyal Raffie as a witness.

2. Put in general terms, this proceeding concerns an offence of aggravated detention for advantage by the accused of the complainant on 6 January 2019 and another offence of intentionally choking the accused on the same date.

3. The Crown wishes to raise questions, in cross-examination, about Mr Raffie’s traffic record and criminal history. The accused’s Counsel objects to him doing so.

Context

4. The Crown’s case relies not only upon the evidence of the complainant as to what the accused did to her on 6 January 2019, but ‘background’ evidence, about other uncharged acts of what the accused did on and after the alleged offending. One aspect of that background evidence is that after the alleged offending, the accused, the accused’s father and the complainant travelled to the Minto fruit-market. It was the complainant’s evidence that she was made to go to the fruit-market, that she was wearing her pyjamas and not any footwear and, further, that the accused restrained her in this public place.

5. The complainant was cross-examined about this event. The complainant acknowledged that she knew Mr Raffie but said she did not recall seeing him on this occasion and did not recall giving Mr Raffie’s step-daughter, Angel, a hug.

6. In his evidence in chief, Mr Raffie said that he went to the fruit-market, saw the complainant with the accused (and the accused’s father) and that his step-daughter, Angel, gave the complainant, and the accused, a hug and a kiss. He also gave evidence to the effect that the complainant did not appear to be acting in any way other than normal, in accordance with his past acquaintance of her.

7. The Crown prosecutor wishes to probe the witness on two levels. First, he wishes to adduce evidence that Mr Raffie drove to the fruit-market at a time when he was disqualified from doing so. Secondly, he wishes to adduce evidence that Mr Raffie has a criminal history which includes the fact that in March 2008, Mr Raffie received the sentence of a bond for the offences of stealing property and obtaining money by deception.

8. The accused objects that the evidence is inadmissible under s 103 of the Evidence Act 1995 (NSW) and/or s 137 of that legislation.

The aspect of driving whilst disqualified

9. Section 103(1) generally permits cross-examination as to a witness’ credibility “if the evidence could substantially affect the assessment of the credibility of the witness”.

10. Section 103(2) provides two non-exhaustive considerations that the Court must have regard to when evaluating whether the evidence could substantially affect assessment of a witness’ credit. They are:

“(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.”

11. As Mr Odgers SC identified in his text [1] (at [EA.103.60]), the provenance of s 103 is the proposal by the Australian Law Reform Commission (‘ALRC’) that not any aspect of a witness’ character may be open to cross-examination on credit:

“The research of psychologists suggests that emphasis should be placed on evidence of conduct which is similar to testifying untruthfully (ie involves false statements) and which took place in circumstances similar to those of testifying (ie the witness was under a substantial obligation to tell the truth at the time).”

1. Stephen Odgers SC, Uniform Evidence Law (15th ed, 2020, Thomson Reuters).

12. In this case, the complainant did not seriously dispute the circumstance that Mr Raffie was there at the fruit-market and the questioning about his driving whilst disqualified was irrelevant to the question whether he was in fact at the premises. Indeed, to the contrary, the premise to the question is that Mr Raffie was at the fruit-market; and that he was only there because he drove himself, illegally.

13. The issue in contention is Mr Raffie’s observations of the complainant, on such matters as her demeanour and her interaction with the accused, in particular the extent to which, if at all, the accused restrained her freedom of movement at the fruit-market.

14. Having regard, as I must to s 103(2), the evidence of his driving whilst disqualified would not satisfy s 103(2)(a). I regard the consideration in s 103(2)(b) to be neutral.

15. In my opinion, the evidence that the accused was disqualified whilst driving could not substantially affect the assessment of his credibility. It is only evidence designed to blacken his character in the eyes of the jury and, to adopt the words of the ALRC [2] (par 12.28) of “distracting” the jury from determining the issues of fact, being the complainant’s appearance, demeanour at the fruit-market and her interaction with the accused.

    2. Australian Law Reform Commission, Uniform Evidence Law Report,(February 2006)

16. I reject the questioning directed to whether the witness attended at the fruit-market by reason of his driving there, whilst he was disqualified.

Use of the witness’ criminal history

17. Mr Raffie is now 32 years of age.

18. On 6 March 2008, when he was 19 years of age, Mr Raffie received a bond for offences relating to stealing property and obtaining money by deception. I accept, for present purposes, that both offences connote dishonesty.

19. I note that although the entirety of Mr Raffie’s criminal history was placed before the Court for the purpose of determining the objection, the Crown prosecutor indicated that his intention was only to cross-examine Mr Raffie about his offending conduct in March 2008.

20. In a general sense, the circumstance that a witness has previously engaged in dishonest behaviour may be relevant to the assessment of his credit and reliability when giving evidence. Under the common law, evidence as to a witness’ criminal record was generally admissible as affecting the witness’ credit: R v Aldridge (1990) 20 NSWLR 737.

21. It remains the case, however, that for s 103(1) to be satisfied the evidence must substantially affect the assessment of credibility of a witness. That is a word of limitation.

22. Here, the dishonest behaviour occurred approximately 9 years before the occasion when the accused engaged in the alleged offending and when the witness was privy to an incident which was background evidence to the alleged offending. The witness is now in the process of giving evidence over 13 years since the time when he engaged in the offending conduct; at a time when the witness was only 19 years of age. He is now 32 years of age and has a daughter and two step-children.

23. Of course, the Court does not know of the precise circumstances of the previous dishonest conduct. But it is not insignificant that the sentence was only a bond. Although the offences connote dishonest conduct, they do not connote dishonesty in circumstances where the witness was under an obligation to tell the truth (s 103(2)(a)).

24. In the circumstances, in my opinion, the evidence of Mr Raffie having committed the offences in March 2008 would not substantially affect the assessment of his credibility as a witness giving evidence in a trial in June 2021.

25. I reject this proposed line of questioning by the Crown.

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Endnotes

Decision last updated: 15 June 2021