Regina v Lodhi

[2006] NSWSC 670

CITATION:	Regina v Lodhi [2006] NSWSC 670
JUDGMENT DATE :	19 May 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	Allow Question
CATCHWORDS:	Criminal law - lies - extent of the credibility rule - meaning of substantial probative value
LEGISLATION CITED:	Evidence Act
CASES CITED:	Regina v RPS (NSWCCA unreported 13 August 1997) Fowler (NSWSC Dowd J, 6 May 1997) Lockyer (1996) 89 A Crim R 457 at 459
PARTIES:	Regina v Faheem Khalid Lodhi
FILE NUMBER(S):	SC 2006/1094
COUNSEL:	Mr R. Maidment SC; Mr G. Bellew - Crown Mr P. Boulten SC; Mr P. Lange - Accused
SOLICITORS:	DPP (Commonwealth) - Crown Michael Doughty Solicitor - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

FRIDAY 19 May 2006

2005/1094 - REGINA v Faheem Khalid LODHI

JUDGMENT - - On cross-examination of accused in relation to asserted deliberately misleading material in exhibit “VV”; see p 1034 of transcript.

1 HIS HONOUR: A contentious issue has arisen between the Crown and the defence in relation to an area of questioning raised in the cross-examination of the accused.

2 The Crown has taken the accused to a job application he made to the firm of Thomson Adsett Architects. This document is in evidence and, as I recall it, is part of exhibit “VV”.

3 The background to the questions the Crown now wants to ask arise out of relatively extensive cross-examination that has occurred yesterday afternoon and this morning in relation to asserted untruths in exhibit “S1” and exhibit “OO”.

4 In relation to these documents, the accused has insisted before the jury that he did not intend to hide his true identity and that, to the extent that it might seem that he has, he says that these entries were just mistakes or misunderstandings of one kind or another on his part. So, it is against that background that the Crown turns to the job application.

5 The Crown wants to put to the witness that in preparing this apparently carefully written document details of the accused's work experience between June 2000 and June 2002, there is deliberately misleading material, that is, material that would have led his potential employer to assume that he had been full-time employed with Ausko World Constructions in that period of approximately two years here in Australia. The truth is that for about 13 months of that time, the accused worked in Pakistan, although, as Mr Boulten SC correctly points out, he was working in one way or another in Pakistan during this time as an architect.

6 The issue which arises here requires an examination of the credibility rule and the exception to it in s 103 of the Evidence Act.

7 The starting point I think is s 55 of the Evidence Act which provides that evidence is relevant in the proceedings being evidence that, if it were accepted, could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings.

8 Sub-section (2) of s 55 provides that, in particular, evidence is not taken to be irrelevant only because it relates only to the credibility of a witness. So evidence that goes to credibility may be relevant in a particular trial, but only if it satisfies sub-s (1), that is to say, it is evidence that, if it were accepted, could rationally affect directly or indirectly the assessment of the probability of a fact in issue.

9 I am prepared to find that this material that the Crown wishes to raise does satisfy the relevancy hurdle. Nevertheless, the situation is very much then affected by s 102 of the Evidence Act. That section says evidence that is relevant only to a witness's credibility is not admissible.

10 Section 103 contains the exception that has been the subject of principal debate in the proceedings here this morning. This is critical to the outcome of the matter.

11 Section 103 states:

“(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

(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.”

12 The critical question is whether the evidence the Crown seeks to adduce is evidence that has substantial probative value. The expression “probative value” is defined in the Dictionary to the Evidence Act although the definition is not of direct application

13 In Regina v RPS (NSWCCA, unreported, 13 August 1997) the meaning of the words "substantial probative value" in s 103(1) was considered. Hunt CJ at CL stated:

“Section 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has 'substantial probative value'. The 'probative value' of evidence is defined in the s 3 Dictionary as meaning 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue', but both the context in which that phrase appears and the subject matter of s 103 indicate that that definition does not apply.
That is made clear by the terms of sub-s (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness.
Such an interpretation accords with the intention of the Law Reform Commission.
The addition of the word 'substantial' nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one.”

14 The Crown correctly pointed to the remarks of Hunt CJ at CL in this passage to which I have referred where his Honour had said that the word "substantial" imposes a limitation upon the common law and that limitation, I agree, is an important one.

15 What, then, is the import of the word "substantial" where it appears in s 103? In my opinion, the word "substantial", when used in relation to the probative value of the evidence in s 103(1), should be contrasted with the use of the word "significant" in relation to the probative value of evidence to be admitted under s 97(1) as an exception to the tendency rule. It has been held for the purpose of this subsection that "significant" means "important" or "of consequence", and before evidence can be admitted under that provision, it must be more than merely relevant. It may have less than a substantial degree of relevance; (see Lockyer (1996) 89 A Crim R 457 at 459).

16 In Fowler (SCNSW, Dowd J, 6 May 1997), his Honour held that evidence would be admitted under s 103(1) if it had a real persuasive bearing on the reliability of the witness, although I take his Honour to have been in fact referring to credibility.

17 The word "substantial" is a word that should be given its full import, in my view.

18 It seems to me that before evidence can have substantial probative value in respect of the credit of a witness, it must have such potential to affect the jury's assessment of the credit of the witness in respect of the evidence he or she has given that the credit of the witness cannot be determined adequately without regard to it. If the probative value of the evidence can be any less than this, there does not appear to me to be any real distinction between the terms "significant probative value" and "substantial probative value" as they are used in the Act.

19 To my mind, there must be such a connection between the evidence to be admitted and the credit of the witness at the time of giving the evidence that the former is likely to affect the latter in a substantial way. That seems to me to be the import of the matters set out in s 103(2) to which the Court must have regard when determining whether the evidence is of sufficient probative value so as to justify admission, notwithstanding the credibility rule.

20 Those matters set out in sub-ss 2(a) and (b) in s 103 are not the only matters the Court may take into account when determining whether to admit the evidence, but they do highlight the fact there must be a real correlation between the evidence to be admitted and the credit of the witness. In addition, they are reliable indications as to the type of evidence that will satisfy the statutory hurdle.

21 There are perhaps two other matters that might have a relevance, although I do not think that they do in the present matter. First, one always needs to bear in mind the provisions of ss 135 and 137 of the Evidence Act. I don't think any issue arises under those sections in the present matter.

22 Secondly, I think it is always important to bear in mind that the credibility rule is concerned to a significant extent with preventing a situation from arising where issues that are essentially side issues may tend to sidetrack the tribunal of fact, that is the jury in this case, from the real issues in the proceedings.

23 That brings me then to really the nub of the arguments. The Crown concedes, and I think very fairly so, that not every lie that is told has substantial probative value. Far from it. We are all familiar with little white lies that are told, sometimes to get people out of an embarrassing situation, sometimes even to avoid hurting or confronting other people. Those sort of lies stand at one end of the spectrum. At the other end, there are the types of lies that are envisaged in sub-s 2 of s 103 of the Evidence Act. I gave an example during the course of the argument that seems to me to have some substance: where, for example, a person may fill out the form required for the provision of a pension or social services and, in that form, make deliberately false and misleading statements, in circumstances where if the truth were told the person would not be entitled to the pension or social benefit concerned. Such a lie stands at the opposite end of the spectrum.

24 The question which arises here is, what are we really dealing with? The Crown categorises the statements in the job application form as statements which would be considered very important by the potential employer and such a potential employer would expect an applicant for a job to be scrupulously honest in relation to matters such as work experience.

25 Mr Boulten, on the other hand, says that, as the evidence shows, the applicant was working as a project manager for a building company during part of the relevant two year period and he left that job because he was not entirely satisfied with it. He went back to Pakistan and in fact worked as an architect on several projects there for over a year. So Mr Boulten says that the probative value is really less in the present context because the lie, if it be a lie, is simply one of telling an employer that he was fully employed as a project manager in Sydney when the truth was that he was working as an architect in Pakistan.

26 The submissions I have outlined show how very close to the border this particular matter stands. It is possible to view the statements in the job application in the way the Crown puts them and the way Mr Boulten has put them. But, in my view, they do ultimately fall on the side of the line, perhaps only just so, advocated by the Crown and I am prepared to find that they are matters which would have a substantial probative value.

27 The starting point in my reasoning is the assumption, which I think is proper to make for the purposes of the section, that a lie was involved in the format of the material in Exhibit “VV”. It is true, as Mr Boulten argued, that there may be an explanation for the lie which will rob the credit issue of its sting. But for the purposes of the ruling, I think it is appropriate to assume, as I have said, that the material was an untrue representation. Secondly, I agree with the Crown that a potential employer would consider it important that a potential employee should provide truthful information about his or her past working experience. Thirdly, this is particularly so in the case of a qualified and registered architect whose professional standards should be beyond reproach. Fourthly, the accused has put himself forward as a person of high religious standards and a person who struggles for inner perfection and moral virtue.

28 I think that credibility is very much in issue in this trial and the question which arises is: Does the fact that the accused has told a lie, if that be the fact, about his work experience in the written document I have identified carry with it the type of probative value that I have identified as being necessary under s 103? For the reasons I have given, I conclude that it does, although I should say that it perhaps passes that hurdle, by a relatively small margin. I am prepared to allow the Crown to ask the question.

**********