R v Sparrow - [2009] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPARROW
[2009] SASC 206
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice David)
15 July 2009
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - DIRECTION TO JURY - ADEQUACY OF WARNING
EVIDENCE - ADMISSIBILITY AND RELEVANCY
Appeal against conviction - appellant charged with attempted aggravated robbery - alleged that the defendant used force against victim attempting to commit theft while in company of another person and armed offensive weapons, namely knife and club -admissibility of identification evidence - appellant described by victim to police as having distinctive and long moustache - appellant declined to participate in identification parade - police prepared identification procedure using “photo kit” containing 12 photographs - victim immediately selected appellant during videotaped identification procedure - whether Judge’s directions on identification inadequate - whether piece of wood located by police in vehicle at home of defendant admissible - whether Judge’s directions as to use of piece of wood inadequate -whether trial Judge erred in refusing to allow cross-examination of victim as to prior arrest - whether miscarriage of justice arose.
Held: appeal dismissed - proposed identification evidence can be excluded if the trial Judge is of the opinion that the evidence had little probative weight but was likely to be gravely prejudicial to the accused - evidence of an out-of-court identification through the use of photographs is admissible - use of photographs in an identification process is relevant to the weight and sufficiency of the evidence, not their admissibility - Judge’s directions on identification adequate - Judge did not err in exercise of his discretion to admit piece of wood as item of evidence - evidence as to victim’s prior arrest irrelevant to issues at trial - no miscarriage of justice arose.
Criminal Law Consolidation Act 1935 (SA) s 137(2) and s 270A, referred to.
Alexander v The Queen (1981) 145 CLR 395; Festa v The Queen (2001) 208 CLR 593; Domican v The Queen (1992) 173 CLR 555; Wakeley v The Queen [1990] 64 ALJR 321; R v Maslen (1995) 79 A Crim R 199, considered.

R v SPARROW
[2009] SASC 206
Court of Criminal Appeal: Bleby, Gray and David JJ

BLEBY J. In my opinion this appeal should be dismissed. I agree with the reasons of Gray J.
GRAY J.
This is an appeal against conviction.
Allan Dean Sparrow, the defendant and appellant, was charged on Information with the offence of attempted aggravated robbery contrary to sections 137(2) and 270A of the Criminal Law Consolidation Act 1935 (SA). The particulars forming part of the Information alleged that on 25 April 2005 the defendant at Grange, while in company with another person and armed with offensive weapons, namely a knife and club, used force against TM attempting to commit the theft of a mobile phone and money.
The defendant was convicted by unanimous jury verdict following a trial in the District Court.
The Trial
The prosecution led evidence from TM and the police officer responsible for the investigation of the incident. It was the prosecution case that at about 4:30am on 25 April 2005, an attempt was made by two men to rob TM on the Grange Jetty. A piece of wood was used as a weapon. On the prosecution case, the defendant was the older and larger of the two men. This man, it was said, had a distinctive moustache. Following the incident the offenders were seen to enter and drive away in a four-wheel drive vehicle. TM acknowledged that he had not looked at the vehicle carefully. However, he described the vehicle as a four-wheel drive white Toyota.
TM immediately contacted the police following the incident. Police attended at the home of the defendant on the day of the incident. At the property they located a four-wheel drive vehicle - a yellow Nissan - and found a piece of wood in this vehicle. At trial TM described the stick of wood located by the police as looking the same as the weapon that had been used against him.
TM provided to police a description of the older man who had attacked him at about 4:40am on 25 April 2005 at the Grange Jetty car park. He described the man as having a large moustache that came down both sides of his mouth.
When interviewed on 25 April 2005 the defendant was asked to participate in an identification parade. He responded that he wished to obtain legal advice in relation to that request. The Director of Public Prosecutions was later advised that the defendant was not prepared to participate in such a process. This led to the preparation of the identification procedure using a “photo kit”. There was no dispute that at the time of his arrest the defendant had a distinctive moustache which hung considerably below the line of his lower jaw.
There was no contention by the defendant that there had been any illegality or improper conduct on behalf of the police in the construction of the photo kit or the conduct of the identification procedures.
On 21 August 2005 police showed TM a “photo kit” containing 12 photographs, one of which was a photograph of the defendant. The identification process was video recorded and the consequent recording tendered at trial. The video recorded TM looking at the photographs and almost immediately selecting the photograph of the defendant as being one of the two men who attacked him. In evidence TM said that he was certain that he had identified one of the attackers.
The defence case was that the prosecution had not proved beyond reasonable doubt that the defendant was one of the two men responsible for the attack on TM. The defendant did not give evidence himself and did not call any witnesses.
The issue at trial was whether the prosecution had proved that the defendant was involved in the incident. It was not disputed that TM had been the subject of an attempted aggravated robbery.
The Appeal
Discretion to exclude identification evidence
Prior to the commencement of the trial objection was taken to the admissibility of the photo kit identification evidence. The Judge summarised the defendant’s objection:
As to the objection to evidence of the photographic array, defence counsel made these points. First, that the creation of false images of other persons, in this case the imposition on the faces of the 11 other persons in the array of the accused’s own moustache, is of itself an improper approach to the preparation of an array set of photographs.
Secondly, he contended that the use of the accused’s own moustache on the 11 other persons in the array here created a level of unfairness. If the superimposition was to be done, fairness would demand that there be a variety of images with different types of moustaches, albeit similar moustaches to that of the accused.
Further, he said that in any event the superimpositions were, in some respects, badly done. He addressed the court with respect to particular photos that demonstrated, he said, that face.
Overall, it was thus contended that the probative value of the array was overcome by the prejudice resulting from the matters of which he complained.
The Judge rejected the submissions and reasoned as follows:
I have viewed the video film of the identification procedure. Having considered what is before me and the submissions of the parties, I have concluded that the DPP should be allowed to lead the evidence of the array, that there would be no unfairness resulting from that procedure, and for these reasons:
First, I can find no logical reason to reject an array where properly prepared, but altered, images are used. It seems to me that the very essence of any identification process is to aim at significant levels of similarity, if possible, so as to better ensure the reliability of any resulting identification.
Secondly, I should say I found there to be some merit in the defence criticisms of the use of the same moustache on all 11 people and in its observations that in some cases the superimpositions were unconvincing. Even so, I cannot ignore the evidence of the video identification process, in the face of which a jury would be entitled to conclude, as indeed it appeared to me, that the complainant had little or no regard to all other images on the array, said as much, and more or less immediately identified the accused.
In the circumstances of this particular application, that appears to me to be an important piece of evidence and argues against what might otherwise be some proper criticism of the superimposition process. I have concluded that any prejudice arising from the process of array is outweighed by its probative value.
On appeal it was contended that the Judge’s exercise of discretion miscarried. It was further complained that, having admitted the evidence, the Judge’s directions were insufficient, and that a risk of a miscarriage of justice had arisen. Further complaint was made with respect to the adequacy of the Judge’s direction regarding the use the jury could make of the evidence concerning the piece of wood.
A trial judge, when considering the possible exclusion of evidence of positive photographic identification, should assess the probative value of the proposed evidence and any prejudice to the defendant that may result from its admission as evidence in the trial. The proposed evidence can be excluded if the trial judge is of the “opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused”.[1]
[1] Alexander v The Queen (1981) 145 CLR 395, at 402-3 per Gibbs CJ.
One method of a witness making an accurate identification is by way of the witness selecting a person from a group. As Gibbs CJ observed in Alexander:[2]
The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime. If an identification parade is held for that purpose, it goes without saying that precautions must be taken to ensure that no prompting, suggestion or hint is given to the witness that any particular member of the group is the suspect.
…
The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held.
However, evidence of an out-of-court identification through the use of photographs is admissible.[3] The use of photographs in an identification process is relevant to the weight and sufficiency of the evidence, not admissibility.[4]
[2]    Alexander v The Queen (1981) 145 CLR 395 at 399-400 per Gibbs CJ.
[3]    Alexander v The Queen (1981) 145 CLR 395 at 402-403 per Gibbs CJ.
[4]    Festa v The Queen (2001) 208 CLR 593, at 601 per Gleeson CJ.
The question for a court in determining whether the discretion to exclude a piece of evidence should be exercised in favour of a defendant on the basis that its admission would be more prejudicial than probative is whether the suggested prejudice gives rise to an unfairness.[5] Unfairness can arise when there is a risk that relevant and probative evidence may be improperly used. In Festa, Gleeson CJ outlined the relevant principles as follows:[6]
There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect.
…
The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term "prejudice". Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility. [footnotes omitted]
[5] Festa v The Queen (2001) 208 CLR 593, at 603 per Gleeson CJ.
[6] Festa v The Queen (2001) 208 CLR 593, at 603 per Gleeson CJ. See also at 609-10 per McHugh J.
It was said by the Director that it would be a “near impossible” task for the police to find photographs of individuals who had a moustache of similar proportions to those of the defendant’s moustache and also fitted the other general characteristics of the defendant. It was contended that it was appropriate to transplant the defendant’s moustache from his photograph to the other photographs, so that the defendant did not stand out unfairly from the array. It was said that in the circumstances the fairest procedure available had been followed.
Counsel for the Director contended that if a person charged with a crime had a distinctive appearance they should not be allowed, for that reason, to prevent evidence being obtained by the police through the use of a photo kit adapted in the manner adopted in the present proceeding. It was accepted, however, that a clear and cogent direction by the Judge was called for. It was contended that in the circumstances the Judge’s discretion to admit the evidence was an appropriate and proper exercise of his discretion.
In my view the photo kit evidence was admissible. The Judge was entitled to conclude as a matter of discretion that it should not be excluded. However, it was important as the Director acknowledged that clear and cogent directions should be given to protect against possible misuse of the evidence.
Adequacy of direction on identification
It is convenient now to return to the Judge’s directions with regard to the use of the identification evidence. As this is a central issue in the appeal, it is appropriate to set out the relevant portion of the Judge’s summing up:
Let me say something about identification evidence. You should approach this kind of evidence with some caution. It is easy for an honest witness to make a mistake in identification and experience has shown that miscarriages of justice have occurred as a result of such mistakes. Witnesses can be mistaken and even be quite sure of their identifications. A mistaken witness who is sure of his identification can be a convincing witness and therein lies considerable danger. Even a number of apparently convincing witnesses as to identification can be mistaken.
The ability to form and retain an accurate impression of a culprit, including his physical appearance or any other features, may be affected by factors including the nature and level of the witness’s involvement in the incident, the frailty of human observation and memory, and a possible tendency to reconstruct events in the mind over a period of time.
You have probably had experiences in your own lives where you have mistaken someone’s identity, where you have seen someone in the street or supermarket and you thought you recognised them but then it was not that person at all. It can happen even when a person is well known to you but, of course, the risk of error increases with somebody less well known, or even more if the person is a stranger.
Whilst I am required to alert you to those dangers attendant upon this form of identification, I must, however, also say to you that if after a careful examination of the evidence of [TM] as to identification (and he is a person about whom you have had a chance to form some judgment) and if after considering other evidence in the case going to identification, namely, his description of the accused provided to police after the incident and before he saw the photos, and after paying due heed to the warning I have given you, you are satisfied beyond reasonable doubt about the correctness of the identification of the accused as one of the offenders, then you are entitled to act upon that evidence of identification.
In approaching your task you should carefully examine the circumstances in which the identification was made, and there are several aspects to that that might assist you in your considerations. How long did [TM] have the larger man under observation during the incident on the jetty? As to this, you heard him say that the whole episode occupied about five minutes. Separately, he said the exchanges of words that occurred were over 5 to 10 seconds and that the wrestling, itself, occurred over 20 to 30 seconds. So what you make of the period of observation or the period of time when he had the chance to make an observation of the larger man, is a matter for you.
At what distance was the observation made? Well, [TM’s] evidence is that he did not look at the assailant’s face until the conversation commenced, but by that time the assailant was within arm’s reach. After that, of course, they got even closer as they wrestled, although he did say that in the course of the wrestling he was also keeping an eye on the young man, who was within metres.
In what light or lighting conditions was the observation made? On [TM’s] evidence it was still dark, but the jetty was lit by light posts, he said, 15 or 20 m apart. The nearest light to them he described as some 3 to 4 m away and behind him.
Was his view impeded, in any way, from the assailant? Again, that is a question for you to consider. Do you think that the lighting conditions or the assailant’s hood or the circumstances of the struggle might have affected his ability to carefully observe that larger man? It is a matter for you.
Had he ever seen the accused before, or the assailant before? The answer to that is ‘no’. You know that.
Was there anything distinctive about that person? Again, it is a matter for you. You heard [TM] speak of the accused’s skin colour, his hair, his eyes and the long moustache. He also spoke of his height and his weight. He described a large stomach and then he said that he thought that the man weighed 90 kg, a weight that we know, from the evidence, does not match that of the accused. He did say, that is to say, [TM], that he was not a good judge of weights.
You might consider the time lapse between the observation and the subsequent identification. You know from the evidence that the identification was in August, some four months after the incident.
There is another practical comment which ought to be made about [TM’s] evidence. You can well imagine that if you were a witness to the kind of situation that he has described, it would become perhaps a memorable one for you. You are entitled to consider whether, if the events were frightening, as he said they were, his impressions and recollections as to the personal appearance and distinctive features of the large man, to the extent that he had a chance to see them, may have been stimulated so they might well have remained vivid for some time well after that night. Of course, you might think that it goes the other way and he might readily forget. It is a question for you.
Overall, it is important for you to make your own assessment of this evidence, taking into account the impression that [TM] made upon you as a witness. You may have regard to what you think was his general reliability as a witness. What impressions did you form, having seen and heard from him, not on this question of identification, but generally?
If you are not satisfied beyond reasonable doubt as to the accuracy and reliability of the identification evidence, you cannot use it as a basis for convicting the accused or supporting any other evidence in the case which you might have accepted as implicating him. If you were to get to that point you would not be satisfied, beyond reasonable doubt, that the prosecution has proved its case and you would acquit.
Later in summing up, when dealing with the defence case, the Judge summarised the points made by defence counsel on the dangers of the identification evidence.

The question to be determined is whether this direction was adequate in all the circumstances or whether there was a risk of a miscarriage of justice as a result of some inadequacy in this direction.
In Domican,[7] the High Court, when discussing the adequacy of directions on identification, observed:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed (9) Kelleher v. The Queen [1974] HCA 48; (1974) 131 CLR 534, at p 551; Reg. v.Turnbull (1977) QB 224, at p 228; Reg. v. Burchielli (1981) VR 611, at pp 616-619; Reg. v. Bartels (1986) 44 SASR 260, at pp 270-271. The terms of the warning need not follow any particular formula (10) Reg. v. De-Cressac (1985) 1 NSWLR 381, at p 384; Finn (1988) 34 ACrim R 425, at pp 435-436. But it must be cogent and effective(11) Reg. v. Dickson (1983) 1 VR 227, at p 230; Reid (Junior) v. The Queen (1990) 1 AC 363, at p 380. It must be appropriate to the circumstances of the case(12) Reg. v. Aziz (1982) 2 NSWLR 322, at p 328; Allen (1984) 16 ACrim R 441, at pp 444-445. Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case’(13) Smith v. The Queen (1990) 64 ALJR 588. A warning in general terms is insufficient(14) Kelleher (1974) 131 CLR, at p 551. The attention of the jury "should be drawn to any weaknesses in the identification evidence"(15) ibid. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it(16) Davies and Cody v. The King (1937) 57 CLR 170, at pp 182-183. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.[footnotes omitted].
[7] Domican v The Queen (1991-1992) 173 CLR 555 at 561-562.
As earlier observed, the evidence of identification was central to the prosecution case. It was made plain at trial that there was no case without it. In such a case the jury should be given a direction in accordance with the above observations in Domican. The direction need not follow any particular formula but it must be appropriate to the facts of the case.[8]
[8] Festa v The Queen [2001] 208 CLR 593 at [173]-[176].
The jury in the present proceedings were directed as to the caution required in approaching identification evidence, the risk of mistake and that miscarriages of justice have occurred as a result of such mistakes, the considerable danger associated with mistaken identification, the frailty of human observation, the possibility of reconstruction and the need to heed the warning given. Further, the circumstances in which the victim had made his observations were highlighted for the jury: the period of time during which the observation was made, the lighting conditions, the continuity of his observations, the fact that the offender was wearing a hood, aspects of the victim’s description of the offender that did not match the defendant and the time that passed between the incident and the identification procedure. True it is that no reference was made to the disadvantages associated with the two-dimensional and static nature of photographs.[9] However, sufficient was said by the trial Judge in what was a strong and otherwise comprehensive direction which identified the possible risks of false identification appropriate to the circumstances of this case. As earlier observed, the jury were reminded of the defence criticisms of the evidence. The directions given in this case, as set out earlier in these reasons, in my view, were appropriate
[9] Alexander v The Queen(1981) 145 CLR 395, 409 Stephen J.
Supporting evidence
On the hearing of the appeal it was accepted that it was proper for the Judge to have admitted into evidence the piece of wood located by the police. However, complaint was made about the failure of the police to show the piece of wood to TM and to do so well before the trial. It was said that the failure to do so greatly weakened the effect of the evidence.
The Judge’s direction with respect to the piece of wood was as follows:
What you know about [the piece of wood] is that it was recovered by the police when they went to the accused’s house on the day of the alleged events. It was found in the yellow Nissan. It was not then shown to [TM], as I have said, and he did not see it until the time of this trial.
I should warn you that you should not conclude that the stick found at the accused’s premises, on that morning, necessarily implicates him in the events on the Grange jetty. It has not been positively identified as the same stick, and all you can do with that evidence is take it into account as an item of circumstantial evidence when you are weighing up the remaining evidence against the accused. You will give to it what weight you think proper.
You must not speculate, either, about the presence of the police at the accused’s premises on that morning. You heard it was in relation to something totally unconnected to this matter. You must not conclude anything adverse to the accused from the fact that he was visited by police at that time. Focus simply upon the charge that you are considering.
The jury had been told that, absent the photo kit identification evidence, the other items of evidence would not be sufficient on which to base a conviction. The evidence concerning the piece of wood was an item of circumstantial evidence to be taken into account by the jury. In my view this direction was adequate and fair.
Cross-examination of TM
During the course of the trial counsel for the defendant indicated that he proposed to cross-examine TM about his arrest for a cannabis matter in February 2008. TM’s arrest took place almost three years after the incident the subject of the trial. At the time of trial, TM had made no admission of guilt and there had been no finding of guilt.
The matter was raised before the commencement of evidence in the trial and later during the trial. On both occasions counsel for the defendant failed to identify a basis upon which the evidence would be relevant. It appears that the defendant wished to “simply ask [TM] if he is subject to current charges without going into the detail of those beyond [it being a charge] for a significant quantity of trafficking cannabis and to leave it at that”. It was contended that this would assist the jury to assess TM’s credibility. It was suggested that the 2008 charge would give rise to the possibility that as TM had been involved with cannabis in April 2008 and that he had a motive for making a false complaint some three years earlier.
The Judge rejected the application of the defendant to raise this topic with TM in cross-examination. He gave the following reasons for this rejection:
I’m persuaded that the line of inquiry and cross-examination sought to be pursued by the defence is so manifestly based upon speculation as to all aspects of it that I won’t allow the questioning, cross-examination, to follow the form suggested by [counsel].
On appeal it was submitted that the cross-examination should have been allowed as it could lead to evidence relevant to the assessment of the credit of TM.
The Court’s attention was drawn to a number of authorities that emphasised that trial Judges should be careful not to limit cross-examination upon credit. In Wakeley, the High Court observed:[10]
[10] Wakeley v The Queen [1990] 64 ALJR 321 at 325.
The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth MR, in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co and Lehwess v Austin and the Austin Motor Co [1935] AC 346 at 359, said:
“Cross-exmination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; ad with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness.”
In R v Kalia (1974) 60 Cr App R 200 and in R v Maynard (1979) 69 Cr App R 309, while the Court of Criminal Appeal affirmed the duty of counsel not to extend cross-examination unduly nor to pursue irrelevant lines of inquiry, it emphasised that counsel must always be at liberty to do their duty in the proper interests of the client. It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.
Subsequently in Maslen, Hunt CJ at CL observed:[11]
The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his oath, and the test of the admissibility of cross-examination for that purpose is whether it tends logically and rationally to weaken confidence in his veracity or in his trustworthiness as a witness of truth: Hawes (1994) 35 NSWLR 294 at 301. If a witness can be shown to have given false evidence upon one matter, that is one of the most obvious bases upon which the jury could be asked to disbelieve his evidence upon another matter. The fact that the evidence given by Mr Monk in chief which the cross-examination sought to demonstrate was untruthful was itself irrelevant, and need not have been led by the Crown, does not prevent the falsity of that evidence being taken into account in judging whether his evidence upon some other matter which is relevant is truthful: Hawes (at 301-302).
Subject to the usual parameters, trial judges should be careful not to limit cross-examination upon credit where the credit of the witness is seriously in issue: Wakeley (1990) 64 ALJR 321 at 325; Aldridge (1990) 20 NSWLR 737 at 742, 51 A Crim R 281 at 285-286.
Counsel on the appeal was unable to articulate any further relevance of the evidence than that identified by trial counsel. It was accepted on appeal that TM’s account at trial had not been seriously put in issue. Counsel submitted, however, that it had not been actively conceded that the events described by TM actually happened or happened in the way described.
[11] R v Maslen (1995) 79 A Crim R 199 at 204.
In my view the trial Judge was correct to conclude that the topic sought to be cross-examined on was irrelevant to the issues at trial. Even accepting that TM had been charged with a cannabis offence in 2008, this without more, was not going to assist the jury when assessing the credit of TM with respect to an incident that occurred almost three years earlier. The topic raised matters of mere speculation. To adopt the words of the High Court in Wakeley, the “stage” had been reached where “the judge should intervene”. An irrelevant line of enquiry would be pursued. There is no substance to this complaint.
Conclusion
I would dismiss this appeal.
DAVID J. I would dismiss the appeal for the reasons given by Gray J.