Regina v Lodhi [2006] NSWSC 670

New South Wales Supreme Court

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

Regina v RPS (NSWCCA unreported 13 August 1997) CASES CITED : 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.