R v Christos PODARAS [2009] NSWDC 276

New South Wales District Court

CITATION: R v Christos PODARAS [2009] NSWDC 276

JUDGMENT DATE: 20 October 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The tendency rule does not apply.

CATCHWORDS: CRIMINAL LAW - jury trial - objection to line of cross-examination - questions about another prisoner lying - whether line of questioning amounts to credibility evidence - application of the tendency rule - appropriate notice not given under s 97(1)(a) of the Evidence Act 1995

LEGISLATION CITED: Evidence Act 1995 s 97(1)(a), s 100, s 101A

PARTIES: Regina Christos Podaras

FILE NUMBER(S): 2008/14426

COUNSEL: Ms Herbert Mr Watts

SOLICITORS: Director of Public Prosecutions Catherine Hunter Solicitor

JUDGMENT

1. The Crown Prosecutor, Ms Herbert, has objected to the line of cross-examination by Mr Watts. Mr Watts is cross-examining one of the principal witnesses in the Crown case. He is the person who is alleged to be the victim of a serious assault. The accused is said to be one of the persons responsible for that assault.

2. Mr Watts is asking this witness questions touching upon the behaviour of another person who was part of the assault. The questions concern that other person behaving in a way that involved her lying about this witness, and having a motive to harm this witness. That other person is going to be called by the Crown as a witness, but has not yet given evidence. One question which arises is whether this line of cross-examination amounts to credibility evidence as that is defined in s 101A of the Evidence Act 1995.

3. It does appear in my opinion that evidence about another witness lying and having a motive to harm this witness is relevant to the other person's credibility. However, Mr Watts argues that it is not credibility evidence because it is not relevant only because it affects the assessment of the credibility of that other person. He also argues that it does not fall within the other classification in s 101A because although it may affect the assessment of the credibility of the other person, it is not otherwise inadmissible. He goes on to argue that it is admissible as tendency evidence.