District Court New South Wales Medium Neutral Citation: R v Cresnar [2019] NSWDC 625 Hearing dates: 28 – 30 October 2019 Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: The application to adduce tendency in accordance with the tendency notice is refused. Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone — Evidence — Tendency Legislation Cited: Evidence Act Cases Cited: Hughes v The Queen [2017] HCA 20 R v Ford [2009] NSWCCA 306 Category: Procedural and other rulings Parties: Regina (Crown) Phillip Cresnar (Accused) Representation: Counsel: S Talbert (Crown) D Robinson (Accused) Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) Legal Aid Commission NSW/ACT (Accused) File Number(s): 2017/00247006 Judgment 1. The accused has pleaded not guilty to two counts. The Crown seeks to adduce tendency evidence and seeks cross-admissibility between counts. THE NOTICE 1. The notice is dated 9 October 2019. The tendency sought to be proved is, "A. His tendency to have a state of mind, namely, an interest in causing false or misleading evidence to be given at ICAC in connection with its investigation into the receipt of benefits by him as a public official at Ausgrid. B. His tendency to act in a certain way, namely, to take steps to effect the giving of false or misleading evidence at the ICAC in connection with its investigation into the receipt of benefits by him as a public official at Ausgrid". STATUTORY PROVISIONS 1. Section 97(1) of the Evidence Act provides, "Evidence of character, reputation, or conduct of a person or a tendency that a person has or had is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, unless; (A) The parties seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (B) The Court thinks that that evidence will either by itself, or having regard to other evidence adduced, ought to be adduced by the party seeking to adduce the evidence has significant probative value". THE OTHER RELEVANT PROVISION FOR CONSIDERATION OF S 101 1. Section 101(2) provides, "This section only applies in a criminal proceeding, and so applies in addition to sections 97 and 98 subsection (2). The tendency evidence about a defendant, or coincidence evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the offender". THE MEANING OF PROBATIVE AND SIGNIFICANT PROBATIVE VALUE 1. The dictionary to the Act defines probative value of evidence as, "The extent to which the evidence could rationally affect the assessment of the probability of the existence of facts in issue in the proceedings". 1. Significant probative value has been interpreted as denoting something more than mere relevance, but something less than a substantial degree of relevance. The majority in Hughes v The Queen [2017] HCA 20 adopted at [40], the following description of significant probative value from Campbell JA's judgment in R v Ford [2009] NSWCCA 306, "The disputed evidence should make more likely to a significant extent the facts that make up the elements of the offence charged." The determination of whether probative value is significant is an evaluative judgment about which minds may differ. As the majority in Hughes noted at [16], "The open textured nature of an inquiry and whether the Court thinks that the probative value of the evidence is significant means it is inevitable that reasonable minds might reach different conclusions." 2. The majority in Hughes made it clear that the determination where the tendency evidence has significant probative value requires two separate evaluations. First, whether the evidence supports the asserted tendency and secondly, whether the asserted tendency supports the elements of the offence. The majority said, at [41]: "The assessment of whether evidence has significant probative value involves consideration of two inter-related but separate matters. The first is the extent to which the evidence supports the asserted tendency. The second is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of identity of a known offender, that is instead a question concerning whether the offence is committed. It is important to consider both matters. By seeing that there are two matters involved, it is easier to appreciate the dangers in focussing on single labels such as, "underlying unity" and "pattern of conduct", or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence by itself, or together with other evidence, strongly supports proof of the tendency. And (ii) the tendency strongly supports the proof of a fact that makes up the offence charged." CROWN FEATURES OF COMMONALITY 1. The Crown pleads the following features of commonality in respect of the charges. 1. The allegations are in connection with the ICAC investigation into allegations that the accused corruptly solicited and accepted benefits from Ausgrid contractors and subcontractors; 2. The allegations concern evidence given, or to be given at the associated ICAC compulsory examination; 3. The alleged false evidence given by the accused for count 1 was specifically in relation to what the accused did in exchange for benefits from contractors. The false evidence that it is alleged the accused attempted to cause to be given for count 2 was similarly specifically in relation to what the accused did in exchange for benefits from a contractor (namely Bastow); 4. The alleged conduct took place on 17 April 2014, count 1, and 21 August 2014, count 2, during the period that ICAC compulsory examinations were being held in connection with the accused's conduct. CROWN'S SUBMISSIONS 1. The evidence in relation to each count strongly supports these tendencies. It is the combination of the evidence for each count which gives the tendency evidence its significant probative value. Paragraphs 3 and 4 of the tendency notice set out both the accused's purported tendencies and a list of common features that inform those tendencies. (I suspect those submissions should have read paragraphs 4 and 5.) Each of the allegations are in connection with ICAC investigation into the accused's corruptly soliciting and accepting benefits from Ausgrid contractors and subcontractors. 2. Specifically, each of the allegations are in connection with the corrupt receipt of benefits from contractor Jason Bastow. In relation to count 1, it is alleged that the false evidence was in relation to what the accused did in exchange for benefits from Jason Bastow. In relation to count 2, it is alleged that the false evidence that he attempted to cause to be given from Jason Bastow was in relation to what the accused did in exchange for benefits from Jason Bastow. The false evidence for each count concerned false evidence given or to be given before the ICAC. 3. The Crown submits that the alleged conduct, in relation to each of the counts is temporarily connected with a period of months in 2014 and during the period that ICAC held compulsory examinations concerning the accused's conduct. The Crown further submits that the particular context and subject matter of the false evidence, being evidence given or to be given before ICAC, as to the reason for the receipt of benefits by the accused from Jason Bastow is a compelling common feature across each count, such that the evidence is strongly probative of the tendencies advanced by the crown. THE ACCUSED SUBMISSIONS 1. The accused submits that there needs to be a careful assessment of the probative value of the proposed tendency evidence in the context of the issues in the trial, and it is against that background that an assessment can be made as to whether it is significant or not. The accused submits that the focus must be on; 1. The strength of the inference that can be drawn from the conduct or the tendency of a person to have a particular state of mind, or to act in a particular way; and 2. The extent to which the tendency increases the likelihood that a fact in issue did or did not occur. 1. It is further submitted on behalf of the accused that the principal focus in assessing the probative value of tendency evidence is on the logical connection between the tendency evidence proffered and the fact in issue which the prosecution seeks to prove. The logical connection is stronger where the similarities are clearer. Section 97 focuses attention on the precise logical connection between the evidence proffered and the elements of the offence charged. 2. The accused further submits that in respect of count 1 the fact in issue is whether the accused knowingly gave false evidence. As to count 2, the fact in issue is whether it was the accused who attempted to influence Jason Bastow to give false evidence; in other words, identity. It is further submitted a tendency to have a state of mind, namely an interest in causing false or misleading evidence, to be given at ICAC and a tendency to act in a particular way, namely to take steps to effect the giving of false or misleading evidence to ICAC is not relevant to count 1. The stated tendency appears to be relevant only to count 2. 3. It was further submitted on behalf of the accused that an analysis of the similarities/dissimilarities in the proposed tendency evidence for count 1 when compared to count 2 indicates that there are no close similarities between them. For count 1 the conduct is the giving of false evidence, (himself) before ICAC. Whereas for count 2, it is the writing and delivery of a letter to another witness. As such there is no logical connection between the proposed tendency evidence and the issues in the trial. CONSIDERATION 1. There is likely to be a high degree of probative value if; 1. The evidence by itself or together with other evidence strongly supports proof of a tendency; and 2. The tendency strongly supports the proof of a fact that makes up the offence charged. 1. The fact in issue for count 2 is whether it was the accused who attempted to influence Jason Bastow to give false evidence. The issue is identity. Was he the writer of the anonymous letter to Bastow. What was said by the High Court in Hughes v R at [39] has relevance. "Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence." 1. I accept the accused's submissions that a tendency to have a state of mind, namely an interest in causing false or misleading evidence to be given at ICAC, and a tendency to act in a particular way, namely take steps to effect the giving of false or misleading evidence to ICAC is not relevant to count 1. There are no close similarities between the counts. I do not accept that the evidence by itself or together with other evidence strongly supports proof of tendency and the asserted tendency strongly supports the proof of fact that makes up the offence charged. The asserted tendency does not have significant probative value for there to be cross admissibility. 2. The application to adduce tendency in accordance with the tendency notice is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2019