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…