Cross-examination of co-offender
27 Although he did not run from the scene of violence, there was unequivocal evidence that Mr Verma sought to depart unnoticed. Constable Wunderlich gave evidence that Mr Verma started walking south down Pirrama Road, Pyrmont, as soon as the police vehicle pulled up, going in the opposite direction to that taken by the Appellant. He was accosted by the constable and replied that he had just broken up a fight, but continued walking: Tcpt, 16 August 2004, p 61. He was then identified by Anthony Singh as one of his assailants. Despite the officer twice yelling at him to stop he continued walking, requiring Constable Wunderlich to jog after him and grab him by the shoulder: p 62.
28 In the course of the cross-examination of Mr Verma, by counsel for the Appellant, he was asked about the student visa which he had obtained in 1999, when he came to Australia. Counsel for Mr Verma objected, and, in the absence of the jury, complained of cross-examination which appeared to be directed at the fact that he was "an overstayer" or, in the terms of the Migration Act 1958 (Cth) an unlawful non-citizen in Australia: Tcpt, 20 August 2004, p 59. The evidence was presented on the basis that it "certainly impacts upon his character": p 61. To that suggestion, his Honour noted that s 138 of the Evidence Act 1995 (NSW) applied and rejected the questions on the basis of that provision: p 62. This was a misconception (that provision deals with exclusion of improperly or illegally obtained evidence), but his Honour may have intended to refer to the general discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger of unfair prejudice, if it may be misleading or confusing or if it might cause or result in undue waste of time: s 135.
29 The matter having been put on the basis of character, the Prosecutor pointed out that leave was required before Mr Verma could be cross-examined, pursuant to s 112 of the Evidence Act. Although character was invoked by counsel for the Appellant, he also put the application squarely on the basis that it went to the honesty of the witness and hence raised a matter of credibility. A similar issue arose on the same day of the trial, immediately following the lunch adjournment in relation to a separate matter having the same underlying purpose. Thus, counsel for the Appellant also sought to cross-examine Mr Verma as to his attempt to dispose of identification papers in his wallet, by hiding them under the seat in the back of the caged police vehicle in which he was placed on arrest. When they were discovered, he claimed that they belonged to a cousin.
30 When these matters were put to him on a voir dire he agreed that he had lied to the police and said he did so because he was concerned about his "status in this country". Following that evidence, his Honour ruled that questions on that issue would not be admitted, because they fell into "the same category I ruled on before lunch": Tcpt, 20 August 2004, p 68.
31 As noted by the High Court in Melbourne v The Queen (1999) 198 CLR 1 and reaffirmed in Stanoevski v The Queen (2001) 202 CLR 115 at [29] "character evidence may be relevant to an accused's propensity to commit a crime, or to the credibility of an accused, or to both of these questions." In the present case, the evidence in question went entirely to the truthfulness of Mr Verma and hence, in a case involving violence and not dishonesty, should be treated as going only to the question of credibility. Accordingly, the evidence was generally not admissible, pursuant to s 102 of the Evidence Act (the "credibility rule"). There is, however, an exception in s 103 which provides:
103(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.
32 In explaining his views, his Honour stated to counsel for the Appellant, just prior to giving his initial ruling (at pp 61-62):
"… I know where you're going but it seems to me that this evidence if permitted is not going to assist your case very much. It is overwhelmingly prejudicial. Some people in this country have strong views about people who overstay their visas. It seems to me that it is unfairly prejudicial for you to ask this question for the tiny bit, if any, of benefit that you'll get from it. It is overwhelmingly prejudicial."
33 Section 103 was not invoked, but should have been because it contained mandatory considerations which were not addressed. Nevertheless, there has been no miscarriage of justice. It is clear from his Honour's remarks that he did not accept that the evidence had "substantial probative value", being the phrase invoked by s 103(1). He also thought that any probative value it might have would be overwhelmed by the prejudicial effect, perhaps invoking the concepts found in s 135. That was a relevant consideration under s 103. If his Honour had addressed the mandatory considerations set out in s 103(2), he would most probably have concluded, in relation to evidence of overstaying, that there was no "false representation" involved. In relation to the evidence of hiding identification documents in the police van, he would certainly have found that there had been a false representation and that it was recent, because directly connected with his arrest on the relevant charges. However, the explanation given on the voir dire would have deprived the falsity of any significant force. The reason for the lie was unrelated to the acts of violence. No doubt it demonstrated a willingness to lie to avoid adverse personal consequences, but it seems unlikely that the jury would have been surprised by that suggestion. Indeed, in one sense the exclusion of the evidence may have worked in the Appellant's favour. Despite his asserted innocence of any involvement in the violent conduct of the Appellant and Viky 2, the evidence of Constable Wunderlich must have given the jury a firm basis for concluding that he too was anxious to avoid apprehension. That he may have had a separate and independent reason for avoiding apprehension, namely concern about his immigration status in Australia, was a fact the jury did not know, but is not a matter about which the Appellant can complain.