Court of Criminal Appeal
Supreme Court
New South Wales

Amendment notes

Medium Neutral Citation:: R v XY [2013] NSWCCA 121
Hearing dates:: 19 March 2013
Decision date:: 22 May 2013
Before:: Basten JA at [1];
Hoeben CJ at CL at [83];
Simpson J at [94];
Blanch J at [180];
Price J at [209]
Decision:: Appeal dismissed.
Catchwords:: APPEAL - criminal - Director's right of appeal against ruling on admissibility of evidence - whether exclusion of evidence substantially weakened prosecution case - how appellate court to determine whether ruling substantially weakens prosecution case - whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) - Criminal Appeal Act 1912 (NSW)

EVIDENCE - exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value - s 137 Evidence Act 1995 (NSW) - whether permissible for court to consider credibility and reliability of evidence in determining probative value - where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 - restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 - whether material difference between approaches

EVIDENCE - exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value - s 137 Evidence Act 1995 (NSW) - whether failure to identify particular unfair prejudice - failure to consider how proper direction could overcome risk of unfair prejudice - whether trial judge erred in excluding evidence

EVIDENCE - criminal proceedings - respondent charged with sexual offences - evidence of telephone conversations between complainant and respondent nine years after alleged incident - transcripts included responses to allegations - whether vagueness of allegations created risk of unfair prejudice - whether danger that jury would use evidence for impermissible tendency inference - whether risk could be overcome by proper direction - s 137 Evidence Act 1995 (NSW)

EVIDENCE - criminal proceedings - discretion to exclude evidence that would be unfair to defendant - transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant - whether unfair to admit evidence requiring accused to explain to jury - whether infringement of right to silence - s 90 Evidence Act 1995 (NSW)

STATUTORY INTERPRETATION - construction of statute - precedent - resolving conflicting authorities - whether Court of Criminal Appeal entitled to follow its own earlier authority - where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong - whether Court of Criminal Appeal required to find later authority plainly wrong - course conducive to orderly administration of justice - where courts interpreting uniform state legislation not national in operation - uniform Evidence Acts
Legislation Cited:: Charter of Human Rights and Responsibility Act 2006 (Vic)
Crimes Act 1900 (NSW), ss 61J, 61L
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 294AA; Div 1, Pt 5
Evidence Act 1995 (NSW), ss 85, 90, 97, 98, 101, 103, 135, 137, 138
Judiciary Act 1903 (Cth), s 78
Serious Sex Offenders Monitoring Act 2005 (Vic), s 11
Surveillance Devices Act 2007 (NSW)
Cases Cited:: Attwood v The Queen [1960] HCA 15; 102 CLR 353
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Ballog v ICAC (1990) 169 CLR 625, 635
Broome v Cassell & Co [1972] AC 1027
Bropho v State of WA (1990) 171 CLR 1
Coco v The Queen (1994) 179 CLR 427
Condon v Pompano Pty Ltd [2013] HCA 7
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
Director of Public Prosecutions v Patrick Stevedores Pty Ltd [2012] VSCA 300
Dupas v The Queen [2012] VSCA 328
EM v The Queen [2007] HCA 46; 232 CLR 67
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Festa v The Queen [2001] HCA 72; 208 CLR 593
FCT v Citibank Ltd (1989) 20 FCR 403
Fleming v White [1981] 2 NSWLR 719
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
House v The King [1936] HCA 40; 55 CLR 499
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
MA v The Queen [2013] VSCA 20
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290
Marshall v Director-General, Department of Transport [2001] HCA 37; 205 CLR 603
Papakosmas v R [1999] HCA 37; 196 CLR 297
Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
Pfennig v the Queen [1995] HCA 7; 182 CLR 461
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
The Queen v Dupas (No 3) [2009] VSCA 202
The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159
R v Broyles [1991] 3 SCR 595
R v Cook [2004] NSWCCA 52
R v Carusi (1997) 92 A Crim R 52
R v Cavalli [2010] QCA 343
R v Christie [1914] AC 545
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Mundine [2008] NSWCCA 55; 182 A Crim R 302
R v Murray (1987) 11 NSWLR 12
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v SJRC [2007] NSWCCA 142
R v Suman Sood [2007] NSWCCA 214
RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526
Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259
Texts Cited:: Australian Law Reform Commission, Evidence (Interim) Report No. 26 (1984)
Category:: Principal judgment
Parties:: Director of Public Prosecutions (Appellant)
XY (Respondent)
Representation:: Counsel:

P G Ingram SC/T Smith (Appellant)
S J Odgers SC (Respondent)
Solicitors:

S Kavanagh, Solicitor for Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)
File Number(s):: 2011/402672
Decision under appeal
Jurisdiction:: 9101
Date of Decision:: 2012-11-06 00:00:00
Before:: Quirk DCJ
File Number(s):: 2011/402672

Judgment

1BASTEN JA: On 6 November 2012 the respondent (against whom outstanding charges remain unresolved) was to be tried on an indictment containing five counts of indecently assaulting a child under the age of 10 years and one count of aggravated sexual assault. Following the arraignment of the respondent, a voir dire was held in relation to the tender of the records of two telephone conversations between the complainant and the respondent. The trial judge, Quirk DCJ, rejected the evidence pursuant to powers conferred by ss 90 and 137 of the Evidence Act 1995 (NSW). The Director of Public Prosecutions has appealed against those rulings on evidence pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which permits the Director to appeal as of right "against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case". As will appear, the correctness of the ruling made by the trial judge and the materiality of the evidence in the prosecution case are closely related. Accordingly, it is not desirable to dispose of the jurisdictional issue in isolation from the substantive argument.

2The respondent's written submissions invited the Court to depart from its judgment in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, particularly the principle that in applying s 137 of the Evidence Act the courts assess the capacity of the evidence to support a particular finding, but not its credibility and reliability, those being matters to be left to the jury if the evidence be admitted. The need to reconsider the reasoning in Shamouil is confirmed by the decision of the Victorian Court of Appeal not to follow Shamouil in Dupas v The Queen [2012] VSCA 328 ("Dupas (2012)") and MA v The Queen [2013] VSCA 20.

3The appeal should be allowed for the following reasons:

(1) the relevance of the evidence depended upon an inference being drawn from the telephone conversations that the accused was acknowledging sexual misconduct with the complainant;

(2) the assertion that if the evidence were admitted the accused would in a practical sense be forced to give evidence to rebut the inference, supports the conclusion that the inference was available;

(3) the inference being available, it was a matter for the jury to decide whether it should be drawn;

(4) any perceived pressure on the accused to give evidence would flow primarily from the need to contradict the complainant's testimony, not any need to explain the phone call; in those circumstances it would not be unfair to the accused to permit the evidence to be adduced, so that the discretion in s 90 was not engaged;

(5) if the jury drew the inference, the probative value of the evidence would be significant and the prosecution case would be significantly strengthened;

(6) the potential for prejudice would lie in a failure to give proper weight to the absence of any clear allegation in the first call, and the possibility of misunderstanding the accused's response;

(7) the risk of prejudice could readily be addressed by directions to the jury which would reduce the risk of impermissible reasoning to an insignificant level; the probative value of the evidence being potentially significant, the exclusionary power in s 137 was not engaged, and

(8) because the evidence, if admitted, had the capacity to substantially strengthen the prosecution case, the Court had jurisdiction to intervene pursuant to s 5F(3A).

Factual circumstances

4The indictment alleged six incidents on five separate occasions, between 1 February and 31 October 2002 at Doonside. The complainant was then eight years of age and in primary school. The complainant's mother had separated from her father, who was then living in Queensland. The complainant's mother formed a relationship with another man who, at the relevant time, lived in the house with the complainant, her mother and the complainant's two siblings. The respondent was a close friend of the mother's de facto partner and spent much time at the home of the complainant whilst she lived there, for a period of some nine months in 2002.

5There are four main elements in the prosecution case. The primary evidence is to be found in a statement obtained by the police from the complainant. Secondly, evidence to be called from the complainant's mother identifies various contextual elements, including the presence of the respondent at the complainant's home on a number of occasions and an occasion on which the respondent took the complainant out in his car, being evidence supportive of aspects of the complaints.

6Thirdly, the complainant stated that she remembered noticing "a mole or a sore on top of his penis toward the tip of it" on an occasion when she says that the respondent took his penis out of his pants and made her rub it. There are photographs obtained by the police which appear to show a small red lesion on the head of the accused's penis. However, an expert medical report provides little assistance as to whether the mark is one which might have been present 10 years earlier.

7The fourth aspect of the prosecution case is the transcript of two telephone conversations between the complainant and the respondent, taped in August 2011, approximately nine years after the alleged incidents. The Court has the benefit of both a transcript of the conversation and a recording. It is not possible to describe the full flavour of the exchange, but the significant features may be noted.

8The first conversation commenced with the complainant seeking to establish to the respondent (with whom she had not had contact for 10 years) who she was. There is an available inference that he did remember her. There was then the following exchange:

"COMPLAINANT: Yeah do you remember what you used to do to me?

RESPONDENT: Yeah fuckin' oath and I wouldn't mind doing it again ... ha ha."

9The complainant then complained that it had ruined her life, to which the respondent appeared to express disbelief. She said that she got "kicked out" of home and that she was "going to the cops about it". The conversation continued:

"RESPONDENT: When did this happen anyway?

COMPLAINANT: When I was eight years old you just admitted it.

RESPONDENT: Eight years old ...

COMPLAINANT: Remember you used to tell me I was bad and I was the bad one but now I'm older now I know that you're the bad one.

RESPONDENT: When you were in high school man not eight years old.

COMPLAINANT: I was eight years old.

RESPONDENT: I remember you from high school, remember when you were wearing the maroon jackets and that and went to high school ...."

10The call then disconnected, but the complainant rang back. The second call involved a longer response from the respondent suggesting that he remembered her and her family and asserting that he was a good friend. However, when the complainant put express complaints ("You used to touch me next to the trampoline at the back") he denied any memory of the events.

Reasons of trial judge

11The first basis of objection raised by the defence invoked s 85 of the Evidence Act, which, so far as relevant, is in the following terms:

85 Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

12The trial judge rejected the application of that provision on the basis that the respondent did not know that police were facilitating and recording the conversation. That conclusion is not in issue on the appeal, but the language of s 85 was reflected in later statements in reasons.

13The accused next relied on both s 90 and s 137 of the Evidence Act as alternative bases for excluding the evidence. Those sections are in the following terms:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

14The reasons of the trial judge commenced with an extract from the joint reasons of McColl JA and Latham J in Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452 at [70]. The Court in Pavitt was dealing with an appeal against conviction, one ground of which was that a tape recording of a telephone conversation between the complainant and the accused should have been rejected, pursuant to either s 90 or s 138 of the Evidence Act. (Section 138 deals with the exclusion of improperly or illegally obtained evidence and was not relied upon in the present case.) The discussion in Pavitt explored the case law dealing with different circumstances in which admissions had been improperly obtained or extracted under conditions which would render it unjust or unfair for the evidence to be adduced. Some of the cases were decided under the Evidence Act, but others applied the general law, including two decisions of the Canadian Supreme Court. The principles extracted from the latter cases discussed whether "the informer who caused the accused to make the statement ... was acting as an agent of the state": at [47].

15That language seems to reflect concepts underlying s 85. The trial judge held that the complainant was an "agent of the state", as described in Pavitt, and by the Queensland Court of Appeal in R v Cavalli [2010] QCA 343. That conclusion may be doubted: the joint judgment in Pavitt stated at [71]:

"We would add that views may differ about whether a complainant is a state agent, even if the conversation is recorded in circumstances facilitated by the police .... For our part we would not readily apply the label of state agent to a complainant speaking to a suspect who had not been charged, nor refused to speak to police."

16Both Pavitt and Cavalli relied on the decision of the High Court in The Queen v Swaffield [1998] HCA 1; 192 CLR 159 which involved two appeals, one from Queensland and one from Victoria, each involving general law principles and not the uniform evidence laws.

17In any event, the trial judge accepted that whether or not the complainant was an "agent of the State" was not determinative and continued (p 7), "If I am wrong, questions of unfairness to the accused are still relevant". Given that the focus of consideration at that stage was s 90, the only relevant consideration was unfairness. In addressing the application of s 90, the trial judge relied upon the following propositions.

(1) After identifying the admission, she found that "the circumstances of the conversation may have adversely affected the truth of that response and, therefore, make the admission of the evidence unfair": p 7.

(2) "Although the Crown submits that the accused was 'fully aware' to whom he was speaking at the time he made the 'admission' sought to be relied upon, I am not satisfied that he was so aware in the first conversation in which the alleged admission was made": p 8.

(3) There was background noise to the telephone call suggesting "distractions" and "a confused situation ... as evidenced by the early responses of the accused, and the very vague proposition notionally adopted by the accused": p 9.

(4) The voice of the complainant would have changed over the nine years since they last communicated and "would not have been recognisable to the accused" and "the accused did not recognise her name or her voice": p 10.

(5) After noting that the complainant had made no reference to specific conduct, nor to her age at the time, the trial judge held that "the truth of the alleged admission may have been adversely affected by the manner in which it was obtained, that is, a proposition which is vague, put in circumstances where assumed knowledge by the accused cannot be safely assumed and, therefore, it would be unfair if it were admitted": p 10.

(6) The reference by the respondent to somebody with whom he had had an association "and impliedly a sexual one" at the time she was a high school student suggests he may have had someone else in mind and hence "the reliability of the alleged admission was adversely affected": pp 10-11.

18The language of (1) appeared to reflect s 85(2). At least (2), (3), (4) and (6) involve factual findings. The prosecution challenged the correctness of various factual findings. For example, in respect of (3), the prosecutor noted that the background noise and the possible distractions affected the second conversation, but not the first. In respect of (6), the prosecutor submitted that the comment was speculation not supported by evidence. However, the significant point in respect of each of these steps in the reasoning is that the trial judge assessed the shortcomings of the evidence as support for the inference for which the prosecution contended, rather than assessing its capacity to constitute an implied admission.

19The third passage in the reasons turned to s 137 of the Evidence Act. The trial judge identified the respondent's submissions in respect of s 137 as based on the proposition that he would be "forced to give evidence at the trial to explain his version of what was being said in these conversations" and would thereby be "compelled to abandon his right to silence": p 11. That was said to constitute "unfair prejudice": p 12. She also accepted that "the jury could interpret the phone call, particularly the first phone call, as an admission by the accused that he could have had some sexual activity with a high school student, and reason from that, that if he had done so to a high school student, he would have been capable of committing these alleged offences on the complainant when she was eight years old": p 12. Each of these factors was said to reveal a danger of unfair prejudice. There was no consideration of the extent to which appropriate directions could remove or mitigate these risks.

20On the other side of the balance, the judge held that "the circumstances which led to the alleged admission are such that the probative value of the admission is substantially reduced". The trial judge was satisfied that the probative value of the telephone conversations was outweighed by the danger of unfair prejudice.

Relevant legal principles

21It is clear from reading the reasons of the trial judge as a whole that her assessment of the strength of the evidence went well beyond any question of its capability to constitute an admission and hence to support the prosecution case. The judge did not purport to speculate as to how a jury with all the evidence before them would assess the available inference, but made findings, for example as to whether the accused (who gave no evidence on the voir dire) recognized the complainant's voice. Other factors were expressed in terms of possibilities ("the truth of the admission... may have been adversely affected..."). Although there was some confusion at particular points as to whether the judge was addressing s 90 or s 137, that was no doubt due to an overlap between the concepts in each section.

22The challenge to the reasoning of the trial judge gave rise to three questions, namely:

(1) Was the approach adopted, which involved an assessment of the weight of the evidence, available to the trial judge?

(2) If so,

(a) by what standard should the findings of the trial judge be assessed on appeal, and

(b) according to the appropriate standard, were the findings erroneous?

(3) If not, can this Court intervene?

(a) resolving a conflict in authorities

23Section 137 of the Evidence Act encapsulates a principle well established under the general law, but changes its form from a discretionary power to exclude admissible evidence to a duty to exclude evidence falling within the specified evaluative assessment. The general law principle constituted, in effect, a safety valve to prevent a criminal trial miscarrying where evidence which is otherwise relevant and admissible carries a risk that the jury will "use the evidence or be affected by it in a way that the law does not permit": Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 528 (McHugh J). Many exclusionary rules of evidence have a similar purpose, namely to protect the jury from evidence which might be relevant, but which the law considers may be misused. Rules requiring warnings have a similar function.

24The exercise involved in weighing the value of the evidence if properly used against the risk of misuse has been described as requiring a comparison of "incommensurable considerations": Shamouil at [71] (Spigelman CJ); Pfennig at 528 (McHugh J). With higher levels of education than was common in earlier times, there has been a growing willingness to leave a wider range of evidence to the jury. A similar approach could lead to the view that the occasions calling for the exercise of the exclusionary power pursuant to s 137 should also reduce. On the other hand, there may be a countervailing tendency in operation, namely to use the exclusionary power more commonly in circumstances where more potentially prejudicial evidence has become admissible.

25This Court has approached s 137 by focusing on the capacity of the evidence to support the prosecution case, rather than assessing the actual weight which the trial judge or a jury, acting reasonably, might attribute to such evidence. This approach emphasises the constitutional role of the jury as the body responsible for assessing the credibility and reliability of witnesses, for drawing appropriate inferences and for assessing the strengths and weaknesses of the evidence. This approach, which may be described as a "restrictive" or "narrow" approach by reference to the role of the judge, was authoritatively formulated in Shamouil.

26An approach which would allow the trial judge to assess probative value was upheld by the Victorian Court of Appeal in Dupas (2012). The Court was satisfied that the approach adopted in Shamouil was "manifestly wrong and should not be followed": at [63]. Because the approach of the trial judge reflected that upheld in Dupas (2012), there is a live question as to whether this Court should (in the sense of being obliged to) follow Dupas (2012) or whether it should follow its own earlier decision in Shamouil. The Director took the position that Shamouil was to be followed unless shown to be clearly wrong, which he submitted was not the position adopted by the respondent.

27It is true that senior counsel for the respondent vacillated as to the course he wished to take. Rather obliquely, the respondent's written submissions noted that "the correctness of [Shamouil] is now very much an open question, after the judgment of an unanimous five-judge Victorian Court of Appeal holding in Dupas ... that 'Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed'": at par 27. However, his primary position was that he did not need to challenge the correctness of Shamouil because that case stood for the limited principle that it was not for the court to assess the credibility of the witness or the "reliability" of the proffered evidence when determining probative value. The respondent argued that his case raised no issue as to credibility or reliability; rather, "the issue is the strength of the inference which the Crown seeks to draw from what was said": at par 26. In order to uphold the power of the trial judge to assess the strength of the inference relied upon by the prosecution, he accepted the need to challenge the approach adopted in R v Suman Sood [2007] NSWCCA 214 which held that it was "no part of the trial judge's function in assessing probative value under s 137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied": at [40] (Latham J; Ipp JA and Fullerton J agreeing). His alternative position was that, if Sood found its justification in Shamouil, then he challenged the approach accepted in Shamouil. He obtained some support for the proposition that Sood went beyond accepted authority, by reference to statements in the judgments of this Court in DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262 at [78]-[82] (Whealy JA); see also at [10] (Bathurst CJ), [11] (Allsop P), [135] (McClellan CJ at CL) and [136] (McCallum J).

28When, in the course of oral argument, it was suggested that this Court may be obliged to follow Dupas (2012) senior counsel for the respondent submitted that Dupas (2012) was correct and that Shamouil was clearly wrong. However, neither he nor counsel for the Director was willing to address the question whether this Court was required to follow Dupas (2012). Whatever the respondent's position, that adopted by the Director was unacceptable. If he contended (as he did) that this Court should follow its own earlier decision in Shamouil, he was obliged to confront the status of the Victorian Court of Appeal decision.

29Apart from the lack of proper submissions in respect of the issue, there is another difficulty in determining the proper course to be taken in this Court in the light of the conflicting decisions.

30The difficulty involves two limbs. First, conventional statements of the doctrine of precedent under the common law require that courts in a hierarchical system are bound to follow decisions on points of law by courts at a higher tier of the hierarchy: Broome v Cassell & Co [1972] AC 1027 at 1054 (Lord Hailsham); Fleming v White [1981] 2 NSWLR 719 at 725-726 (Street CJ; Hope JA and Nagle CJ at CL agreeing); Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 (Moffitt P) and 185 (Priestley JA) (Glass JA agreeing with both). They also follow their own decisions, unless found to be clearly wrong or, in the preferable terminology adopted by Nettle JA in RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 526 at [104], for a "compelling reason": Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [273], [277], [281]-[284] and [301].

31The Victorian Court of Appeal, however, at least when exercising State jurisdiction, does not stand within the same hierarchy as this Court, although both courts have a common final court of appeal above them, namely the High Court. (On one view, this could give rise to analogous issues for the doctrine of precedent as arose for courts in different jurisdictions having a common final court of appeal in the Privy Council.) A critical factor for Australian intermediate courts of appeal is that each State court forms part of the "integrated judicial system for which Chapter III provides": Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 at 102-103 (Gaudron J); see also 112 and 114-115 (McHugh J), 138 and 143 (Gummow J). Once it is accepted that the State courts occupy a "constitutionally mandated position in the Australian legal system" - see Condon v Pompano Pty Ltd [2013] HCA 7; 295 ALR 638 at [123] - it is at least plausible that the relationship of the State Supreme Courts, inter se, will derive some characteristics from the constitutional context: Gett v Tabet at [279]-[280]. What those characteristics may be cannot be properly explored in this case because no party addressed the issue and no party gave notice to the Attorneys pursuant to s 78 of the Judiciary Act 1903 (Cth).

32Nevertheless, the significance of the point must be noted. In Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485, a case involving the proper construction of the Corporations Law, then uniform State law, the High Court stated at 492:

"Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong."

33The "same principle" was said to apply in relation to "non-statutory law": Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]. Without knowing the legal basis for such a principle, it is not possible to say whether the principle applies to uniform legislation which is not "national" in its operation. The Victorian Court of Appeal in Dupas (2012) appears to have assumed that the principle does apply and that it was required to follow Shamouil unless satisfied that it was "plainly wrong". Furthermore, without knowing the legal basis for the principle thus expressed, it is not entirely clear what approach this Court should take to a finding of another intermediate Court of Appeal that its earlier decision was "plainly wrong".

34In earlier times, the willingness of intermediate courts of appeal to defer to each other's statements on issues of principle was based on the practice of comity. It is better described as a practice, rather than a principle, because comity denotes courtesy or civility. It reflects more than that, however: the effective administration of impartial and independent justice depends upon the maintenance of public respect for the courts as an institution. Whilst the hierarchical structure of courts is posited upon the need for an appellate system to correct error in courts lower in the hierarchy, the categorisation of a decision of another court at the same level of the hierarchy as plainly or clearly wrong on a point of law is the antithesis of treating courts of equal status with courtesy and civility. That is true whether the earlier decision was decided by the same court or by a different court, although it is more likely to appear as a gratuitous insult when applied to another court. The phrase is an awkward and inappropriate way of indicating the need for restraint on the part of an appellate court when refusing to follow an earlier decision of its own or of another intermediate appellate court.

35The inappropriateness of the whole exercise becomes apparent when, as in the present case, this Court has declined to depart from a line of its own authority, but the court of another jurisdiction declares that line to be "plainly wrong". Is this Court only entitled to follow its own earlier line of authority if it declares that the decision finding its earlier authority plainly wrong was itself "plainly wrong"? That issue has been addressed and resolved in a sensible manner by the Victorian Court of Appeal in two decisions. In RJE, the Victorian Court was required to determine whether or not it should follow an earlier decision of its own. In joint reasons, Maxwell P and Weinberg JA accepted that they should do so unless they regarded the earlier decision as clearly or plainly wrong, which, in the instant case, they did: at [48]. However, the position was, as they explained, "complicated" by a decision of the New South Wales Court of Appeal which had followed the earlier Victorian authority because at least a majority of that Court was not persuaded that the Victorian authority was clearly wrong: Tillman v Attorney General (NSW) [2007] NSWCA 327; 70 NSWLR 448 at [88] (Giles and Ipp JJA, Mason P dissenting). The Victorian Court, being persuaded that its own earlier authority was clearly wrong, noted that the issue involved "a question which directly affects the liberty of the subject and there is good reason why the error should not be perpetuated": at [48]. The Court also placed some weight, at least implicitly, on the fact that the majority in Tillman would also "if unconstrained" have reached the same conclusion: at [49].

36The Victorian Court of Appeal also took into account a practical consideration and a doubt as to the legal principle adopted in Farah Constructions in the High Court. In issue in RJE was the meaning of the word "likely" in relation to an offender thought likely to commit a further offence if released on completion of a custodial sentence, pursuant to s 11(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic). There was similar legislation in New South Wales (the subject of Tillman and other authorities) and, although the language used was not to be found in national legislation, the Court fairly stated that "it would be facile to construe the Monitoring Act as if it were unique to Victoria and the problem of its construction were of merely parochial concern": at [50] (Maxwell P and Weinberg JA) and at [104] (Nettle JA).

37The Victorian Court of Appeal returned to the issue in Director of Public Prosecution v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; 296 ALR 156 at [128], where Maxwell P, Weinberg JA and Ferguson AJA stated:

"In our opinion, an intermediate appellate court such as our own, faced with conflicting decisions of other intermediate appellate courts, is not bound to follow any one of those decisions. The position might be different if, post-Farah, an intermediate appellate court had said that an earlier decision of that court, or of another intermediate appellate court, was plainly wrong. In such circumstances, this Court might be bound to follow the later decision unless we took the view that the later decision was 'plainly wrong'. Failing that, this Court is at liberty to state the law as it thinks appropriate."

38Although the comments in Patrick Stevedores deal directly with the situation faced by this Court, there are two reasons for not following that approach. First, it implies that Farah Constructions is the final statement of the High Court as to the doctrine of precedent, despite what was later said in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[2008 HCA 5; 233 CLR 259. Secondly, it is not conducive to the orderly administration of justice for intermediate courts of appeal to characterise or even to routinely consider characterising the judgments of their colleagues in other jurisdictions as "plainly wrong".

39The first reason concerns the state of authority in the High Court with respect to such matters. As noted in RJE, on 27 February 2008, the Court adopted, without reference to Farah Constructions (delivered on 24 May 2007 by a similarly constituted Court), the following statement of McHugh J in Marshall v Director-General, Department of Transport [2001] HCA 37; 205 CLR 603 at [62], in relation to a particular phrase used in the legislation of various jurisdictions:

"But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. ... Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation."

See Walker Corporation at 31, relied on by Maxwell P and Weinberg JA in RJE at [52] and by Nettle JA at [103]. (Nettle JA did not agree that the Court should depart from the earlier line of authority on that basis, but was able to achieve the same result by reliance on the Charter of Human Rights and Responsibilities Act 2006 (Vic).)

40Uncertain though the state of current authority is, the course this Court should take in all the circumstances is to determine for itself the correct approach to the statutory provision, giving proper consideration to the reasoning and conclusions of earlier authorities, both in this Court and in the Victorian Court of Appeal.

(b) should the Court now follow Shamouil?

41In Shamouil, Spigelman CJ stated at [60]:

"The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility."

42There are a number of points to make in relation to this statement. First, s 137 only requires the court to balance different qualities of particular evidence proffered by the prosecution (namely, probative value and unfair prejudice). It does not require assessment of the proffered evidence by reference to other aspects of the prosecution case. Nor does it require a balancing of the proffered evidence against conflicting evidence likely to be led for the defence: cf R v Cook [2004] NSWCCA 52 at [43] (Simpson J).

43Secondly, the proposition is concerned with issues of "reliability and credibility". It does not deny that an assessment must be made of the "probative value" of the proffered evidence. Rather, the Chief Justice noted the definition of "probative value" in the Dictionary to the Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": at [61]. He noted that "[t]he focus on capability draws attention to what it is open for the tribunal of fact to conclude": at [61]. He further opined that reference in the definition to how the evidence could "rationally" affect the probability of a fact also directed attention "to capability rather than weight": at [62]. This proposition may be thought ambiguous, in that assessing "the extent" to which evidence could affect the probability of a fact is to assess its weight. Read in context, the reference to "weight" should be understood as a reference to the weight likely to be given to the evidence by the jury, acting rationally. It is that exercise which was rejected at [61].

44Thirdly, adoption of "a restrictive approach" was not intended to exclude all consideration of credibility and reliability. There must be, as the Chief Justice noted, an initial assessment as to whether it was open to a jury acting reasonably to use the proffered evidence in assessing the existence of a fact. If the trial judge were satisfied that evidence could not rationally affect the assessment of the probability of a fact in issue, it would not be relevant evidence and would therefore not be admissible: Evidence Act, ss 55 and 56. That, however, is not the end of the exercise. The extent to which the evidence could rationally affect the probability of a fact in issue involves an evaluative judgment. That judgment is not a forecast of the weight the jury is likely to give the evidence, nor is it a statement of the weight the judge would give the evidence. That is so for a number of reasons. For example, the evidence is being assessed in isolation: its ultimate weight will often depend upon circumstances not yet fully revealed. Were that not so, a different assessment might be made depending on the stage at which the question of admissibility was determined. Often it will be determined on a voir dire before the trial properly opens. It would be most unfortunate if the prosecution were required in some manner to call the whole of its case to demonstrate the probative value which the evidence, seen in context, would provide. Further, even if some overall assessment were required, as may be necessary in applying the s 5F(3A) test, it is likely to be undertaken, properly, on the papers and not by calling oral testimony.

45Fourthly, the reasoning in Shamouil should not be extracted from its factual context. Mr Shamouil was charged with shooting a Mr Dawood (the victim). Shortly after he was shot, the victim provided a detailed description of the shooter to police. Less than three weeks later, he identified the shooter from a board containing 20 photographs. He later made a statement retracting his evidence. If his evidence had gone to a jury (as it did), there would have been issues as to credibility and as to the reliability of identification evidence, with its notorious difficulties. It was in this context that Spigelman CJ sought to focus on "what it is open for the tribunal of fact to conclude" and reject consideration of "what a tribunal of fact is likely to conclude": at [61].

46Fifthly, Spigelman CJ did not deny the need to assess the probative value of the evidence, taken at its highest, for the purpose of the "weighing" exercise prescribed by s 137. When discussing unfair prejudice, the Chief Justice referred to the following passage in the judgment of McHugh J in Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]:

"It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. ... It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."

47The Chief Justice then noted at [74] in Shamouil:

"[the trial judge] said that 'juries can be seduced by unreliable identification evidence'. It was this which his Honour identified as constituting the 'real danger of unfair prejudice'. In this analysis his Honour makes no reference to the warning about unreliable evidence under s 165. Such a warning must be taken into account before drawing the conclusion that such prejudice as may arise would be 'unfair'."

48Two factors are apparent from these passages. First, in carrying out the "weighing" exercise, it would be necessary for the trial judge to consider where the prosecution evidence fell on a scale of probative value ranging from strong to weak. Secondly, the unreliability of the evidence was a factor to be weighed on the other side of the scale, together with the likely effectiveness of warnings about the nature of such unreliability. In effect, Shamouil requires careful attention to the language of the statute and the exercises required to be undertaken: the judgment must be read as a whole. The prosecution is entitled to have its evidence assessed according to its capacity to support the prosecution case, which is not to say that the reliability of the evidence may not be a factor, at least in some cases, in applying the test provided in s 137.

49The discussion of Shamouil in Dupas (2012) tended to extract and address the early passages (as to removing credibility and reliability from the assessment of probative value), as if they denied the need to assess probative value for the purpose of the weighing exercise. That Spigelman CJ undertook this task is not in doubt; what he did not do was determine whether the jury would reject the retraction (the credibility issue): at [78]. It may be noted that the term "credibility" has both a common meaning and a statutory meaning. Its common meaning (or one such meaning) is whether the witness is to be believed. That is often distinguished from the question whether the evidence, objectively considered, is plausible. Thus, plausibility may well affect an assessment of credibility, but will leave open a conclusion that the witness genuinely believes that he or she is telling the truth but the evidence is objectively implausible. The statutory definition of "credibility", on the other hand, when applied to a witness, includes "the witness' ability to observe or remember facts and events", the subject of the evidence. This latter element would often be defined as "reliability", which suggests that in the statements in Shamouil, "credibility" was used in some more limited sense.

50To understand why Dupas (2012) held Shamouil clearly wrong it is convenient to set out the principles articulated by the Victorian Court at [63]:

"(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.

(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.

(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase 'taken at its highest' is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.

(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.

(e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not.

(f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function."

51As Shamouil was held to be "manifestly wrong", it is also necessary to determine the point of departure identified in these principles. There appears to be one point only, which appears in paragraph (c). Whilst accepting that the trial judge must assume that the jury will accept the evidence to be truthful [perhaps a reference to "credibility" in the sense used in Shamouil] the judge is nevertheless "not required to make an assumption that its reliability will be accepted". The next sentence, dealing with the use of language in a "no case submission" context, is beside the point. However, if (c) is an introduction to the exercise identified in (d), it is by no means clear that even this point is a significant difference between the Dupas principles and Shamouil, read in full.

52Paragraph (d) addresses the "weight" which the jury "could", not "would" or "will", give the evidence. That statement is consistent with Shamouil and appropriate as far as it goes. However, the second limb of s 137 requires an assessment of "the danger of unfair prejudice to the defendant". The possibility of prejudice could extend beyond giving the evidence undue weight and may extend to compelling (in a practical sense) the accused to give an explanation in the witness box which will reveal prejudicial information not part of the prosecution case. An example would be evidence of flight from police, which might be relied upon as giving rise to an inference of consciousness of guilt of the offence charged, whereas the alternative explanation might involve revelation that the accused feared arrest for an entirely separate offence: see R v Cook, above at [42].

53In truth, the statement of principles was probably not intended to be read as comprehensive. In a case of conflicting inferences, at least where one inference gives rise to a risk of unfair prejudice and the other supports the prosecution case, Shamouil and Dupas (2012) are to similar effect. The Court in Dupas stated at [114]:

"As Domican v The Queen [[1992] HCA13; 173 CLR 555] illustrates, a primary consideration which informs the exercise of the discretion is that the dangers of possible misuse by the jury of such evidence will ordinarily be able to be addressed by the giving of appropriate directions by the trial judge. Deficiencies in the evidence do not, in most circumstances, lead to exclusion, either because of the weight that could properly be given to it or because directions would remove, or reduce, the risks of prejudice or a combination of the two."

Application of principles - s 137

66The importance of Shamouil lies not in the precise language used (the judgment is not to be treated as a statute) but in the general principle it articulates. The operation of that principle may vary depending upon the circumstances of the case. In broad terms, the principle has three elements:

(1) in determining inadmissibility under s 137, the judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case;

(2) it follows from (1) that the judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight;

(3) it also follows from (1) that the judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight.

67This principle does not produce uniformity of approach in all cases. The "weighing" exercise required if s 137 is engaged not only involves incommensurates, but elements that may interrelate in a variety of ways. For example, in the present case there are a number of possible inferences to be drawn from the recorded conversations. Those on which the prosecution relied, based on the key response of the accused set out at [8] above, were that his response -

(a) was made after he had identified who the complainant was;

(b) involved a realisation that she was referring to sexual activities between them, and

Other available inferences were, for example, that:

(d) the respondent had not correctly identified the complainant;

(e) whether he had or not, he guessed she was referring to sexual activities and gave a jocular response, and

(f) even if there had been some form of acceptance of her suggestion, because no particular activities had been identified, his admission could not support any particular count in the indictment.

68Determining which inferences should be accepted was quintessentially a function for the jury. Before the exclusionary obligation in s 137 could arise, the judge had to identify the relevant "unfair prejudice". That meant identifying how the evidence (if admitted) would be left to a jury and wherein lay the risk of misuse. No particular element of prejudice was identified. Had it been, the risk that a jury would not appreciate the nature of the problem after proper direction had then to be assessed. The trial judge did not undertake that exercise because the previous step had not been taken. That was an error of law: it is not necessary to consider the question identified as (2)(a) at [22] above.

69If the trial judge erred, should this Court undertake the proper analysis? The parties accepted that that would be the proper course. Accordingly, it is necessary to ask what form of "unfair prejudice" the respondent relied on. In his written submissions the respondent's counsel stated:

"The primary basis for excluding the evidence was the vagueness of the allegation put to the respondent ... with the consequence that his admission ... was unreliable as evidence that he had sexually assaulted the complainant when she was under the age of 10 years. The respondent certainly impliedly admitted that he 'did' something, but the nature of the allegation meant that it was far from certain what it was that he was admitting he did. ... [T]he low probative value of the evidence meant that exclusion was mandated because of the danger that a jury would use the evidence for an impermissible tendency inference."

70The nature of the "tendency inference" was explained later in the submissions (paragraph 33) in the following terms:

"[The trial judge] did not hold that there was a danger of unfair prejudice on the basis that the jury would not be able adequately to assess the strength of the competing inferences. Rather, it was held that there was a danger that the jury would infer that the respondent was admitting to 'some sexual activity with a high school student' and use that prejudicially against the respondent. ... It was also open to her Honour to hold, implicitly, that judicial directions could not be certain to overcome such prejudice ...."

71The submission is based on the possible inference that, in the second conversation, the accused believed that he was speaking to somebody else with whom he had had a sexual relationship whilst she was a high school student. That is an inference that is open. However, the alternative inference is that the remark relied upon, which came late in the second conversation, was made at a stage when the accused had demonstrated that he knew to whom he was talking and the subject-matter of her allegation and was attempting to diminish the seriousness of his misconduct.

72The jury could readily be directed as to the alternative inferences. If they drew the inference favourable to the prosecution, there would be no risk of unfair prejudice. However, it would be necessary to direct the jury that, if they preferred the view that the accused was referring to a sexual liaison with another girl, then in high school, no possible inference could be drawn as to whether or not the complainant's allegations were true. The suggestion that the jury could not or would not understand and apply such a direction should not be entertained. Any risk of unfair prejudice on this account was fanciful and should be rejected. Accordingly, there was no basis to exercise the exclusionary rule in s 137.

73Because no real risk of unfair prejudice arose, and s 137, for that reason, was not engaged, there was no occasion to assess the "probative value" of the evidence. It follows that there is in this case no choice to be made between the principles derived from Shamouil and those articulated in Dupas. However, at least in these circumstances, the Shamouil approach demonstrates how s 137 operates. The trial judge may need to consider the weight to be given to each possible set of inferences, without accepting or rejecting either. That is consistent with the approach adopted in Sood.

Section 90 - unfairness

74The second basis for rejecting the evidence (dealt with before s 137 in the reasons of the trial judge) was the operation of s 90 of the Evidence Act. Each of the statements concerning reliability appears to have been part of the reasoning that it would be "unfair" to permit the use of the evidence. However, it cannot be "unfair" to allow the prosecution case to be put to the jury if the evidence is capable of supporting a conviction unless there is some other factor at play. Relevant factors have generally been considered to be either the potential for the evidence to be misused (for example where the evidence or any possible response indicates misconduct on another occasion), or potential weaknesses in the evidence which may not be adequately assessed by a jury, properly directed. In the present case, reliance was placed upon the fact that the accused might be forced to relinquish his "right to silence" in the face of such evidence, in order to provide an explanation to the jury.

75There are three problems with this approach. The first is that the accused has no "right to silence" in the sense that evidence cannot be admitted which, in practical terms, will demand an explanation. It is often a forensic decision for an accused and his or her counsel as to whether he or she will give evidence as part of the defence: that circumstance does not involve any abrogation of some common law immunity.

76Secondly, there was a degree of inconsistency between the reason for excluding the evidence, namely its weak probative value, or unreliability, and the perceived need to provide an answer. Thirdly, if in a practical sense, the respondent would feel compelled to testify, it would be to reject the complainant's direct evidence as to his conduct.

77No basis for excluding the evidence under s 90 was made good.

Jurisdiction to intervene

78The fact that error has been identified in the approach adopted by the trial judge does not entail the further conclusion that s 5F(3A) is necessarily engaged. That provision requires the appellate court to consider the part played by the excluded evidence in the prosecution case. Given that the proposed appeal arises at an interlocutory stage, and that the weighing exercise must be undertaken by the appellate court itself, it is clear that the exercise will be undertaken "on the papers".

79In Shamouil the Chief Justice dealt with the approach to be adopted under s 5F(3A) in the following terms:

"39 ... The jurisdictional issue posed for this Court under s5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to 'the prosecution's case', to be considered as a 'case'. This section is not concerned with the weight of the Crown's evidence.

40 This Court should determine whether or not a ruling on the admissibility of evidence 'substantially weakens' the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations."

80That is not to say that the appellate court should not note possible weaknesses in the prosecution case and the manner in which one piece of evidence may strengthen the probative value of other evidence. Thus, in the present case, the critical evidence which must be accepted by the jury for the prosecution to succeed will be that of the complainant. If the jury accepts the complainant as a witness of truth, it may be satisfied as to her evidence in respect of each count. Alternatively, it may have doubts with respect to some parts of her evidence, but not others. The supportive evidence has been noted above as involving four elements. These were, (1) the complainant's statement; (2) her mother's statement; (3) the photograph of the respondent's penis, and (4) the telephone conversations: at [5]-[7] above. None will confirm each count and, although highly persuasive as photographic evidence, the pictures of the apparent lesion on the tip of the respondent's penis is subject to the temporal limitations already noted. It follows that the exclusion of any part of the supportive evidence could substantially weaken the prosecution case.

81Despite the lack of particularity of the conduct complained of in the first telephone conversation, if the jury accepted the respondent's remark as an admission, it would significantly bolster the complainant's credibility, although it did not directly relate to any particular count. Nevertheless, its removal would clearly weaken the prosecution case to a substantial extent. The Court therefore has jurisdiction to intervene on the application of the Director.

Conclusion

82For these reasons, the Court should make the following orders:

(1) Set aside the decision made in the Parramatta District Court on 6 November 2012 excluding evidence of two recorded telephone calls between the accused and the complainant, made on 25 August 2011.

(2) Declare that records of the two telephone conversations between the complainant and the respondent were not rendered inadmissible by either s 90 or s 137 of the Evidence Act 1995 (NSW).

83HOEBEN CJ at CL: As Simpson J has pointed out, for the Court to have jurisdiction to hear this application, the Director of Public Prosecutions (the Director) had to establish that the rejection by the District Court of the evidence of the telephone calls eliminated or substantially weakened the prosecution case (s5F(3A) of the Criminal Appeal Act 1912). The Director submitted that by reason of the exclusion of that evidence, the prosecution case had been substantially weakened. That issue was disputed in this Court.

84On that issue I agree with Simpson J that this Court is to assume an interpretation of the evidence most favourable to the prosecution - i.e., that the respondent acknowledged having had some sexual engagement with the complainant at the time when he had contact with her family. The Court should then determine whether the exclusion of that evidence would substantially weaken the prosecution case. For the reasons given by her Honour, I agree that the excluded evidence meets the test of "substantially weaken" in s5F(3A). I express no opinion as to the application of s294AA of the Criminal Procedure Act 1986.

85I also agree for the reasons given by Basten JA and Simpson J that the primary judge erred in the application of s90 of the Evidence Act 1995 (NSW). There was nothing in the circumstances in which the telephone conversations took place that renders their admission unfair.

86In relation to s137 of the Evidence Act 1995, subject to the following observations, I agree with Basten JA and Simpson J that when assessing the probative value of the prosecution evidence sought to be excluded, the Court should not consider its credibility, reliability or weight. I specifically adopt what was said by Basten JA at [66] - [67].

87Accordingly, I agree that the Courts of NSW should follow R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 when applying s137 of the Evidence Act 1995.

88Where I differ from their Honours is as follows. When assessing the probative value of the prosecution evidence sought to be excluded, i.e., its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred. It was that to which the court was referring in DSJ v R; NS v R [2012] NSWCCA 9 at [10] (Bathurst CJ); [11] (Allsop P) and [78] (Whealy JA).

89Here, as Basten JA, Blanch and Price JJ have pointed out, there were alternative inferences available which were inconsistent with the prosecution case and which were objectively plausible. That is a matter which can properly be taken into account when carrying out the balancing exercise required by s137 to determine whether the probative value of the evidence is outweighed by its prejudicial effect.

90As a result I have reached a different conclusion to that of Basten JA and Simpson J when applying s137 to the facts of this case. When carrying out the balancing exercise, to determine whether the probative value of the prosecution evidence is outweighed by its prejudicial effect, I have concluded that its probative value is so outweighed. I have concluded that there is a significant risk that the jury would give the evidence more weight than it deserves and that the content of the evidence might "inflame the jury or divert the jurors from their task" (Festa v R [2001] HCA 72; 208 CLR 593 at [51] (McHugh J)).

91As Blanch J said "In the emotionally charged atmosphere of a child sexual assault trial evidence disclosing the respondent's promiscuity and interest in high school girls" is likely to create substantial and unfair prejudice towards him. There is a real danger of the jury using tendency reasoning to arrive at their verdict. The risk is such that it could not be adequately met by a direction from the trial judge.

92It follows that the evidence of the telephone calls between the complainant and the respondent was correctly rejected by the primary judge.

93I would dismiss the appeal.

94SIMPSON J: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the Director") appeals against a decision or ruling in the District Court in respect of the admissibility of certain evidence proposed to be tendered in a criminal trial. Such an appeal lies only where the Director establishes that the decision or ruling eliminates or substantially weakens the prosecution case.

95The ruling here in question was to exclude evidence the prosecution proposed to tender. The Director does not suggest that the ruling eliminates the prosecution case; he contends that, by reason of the exclusion of the evidence, the prosecution case is substantially weakened. That in itself is in issue. The respondent contends that the decision to exclude the evidence lacks that quality. If the exclusion of the evidence does not substantially weaken the prosecution case, there is no jurisdiction in this Court to entertain the appeal and review the ruling.

96The issue on the appeal, should the Director establish that the Court has jurisdiction, raises, inter alia, the approach to be taken by a court in criminal proceedings when objection is taken to evidence on the basis provided by s 137 of the Evidence Act 1995 - that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant.

97The issue is important because prior decisions of this Court (for example R v Cook [2004] NSWCCA 52; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228; R v Suman Sood [2007] NSWCCA 214; R v Mundine [2008] NSWCCA 55; 182 A Crim R 302) and a recent decision of the Court of Appeal of the Supreme Court of Victoria (Dupas v The Queen [2012] VSCA 328) are in sharp conflict. Put shortly, in this Court it has consistently been held that where a court is considering objection to evidence invoking s 137, questions of credibility, reliability or the weight to be attributed to the evidence in question has no part to play in the decision. In Dupas, a five judge bench of the Victorian Court of Appeal held that approach to be "manifestly wrong". It was the perceived need to resolve that conflict that gave rise to the convening of a five judge bench.

98Before this Court can come to deal with that issue, it is necessary to consider the jurisdictional question.

Background

99On 5 November 2012 the respondent was arraigned in the District Court on an indictment containing six counts. Five were of indecent assault brought under s 61L of the Crimes Act 1900. The sixth was of aggravated sexual intercourse without consent, brought under s 61J of the Crimes Act. The circumstance of aggravation alleged was that the complainant was under the age of 16 years.

100All offences were alleged to have been committed against the same complainant, between 1 February 2002 and 31 October 2002. Throughout that time the complainant was eight years of age.

101On arraignment, the respondent entered a plea of not guilty to each charge. Before a jury was empanelled, an issue arose concerning the admissibility of two aspects of evidence proposed to be adduced in the prosecution case. A voir dire took place, at the conclusion of which the trial judge ruled that none of the evidence would be admitted. She gave detailed reasons for her decision. In order to allow the Director to test the ruling the trial did not further proceed.

102This appeal concerns one part only of the evidence then in question. I will return to that.

The case the prosecution proposed to present at trial

103Since no evidence was called in the aborted trial, the material available to this Court consists of statements of intended witnesses, and tape recordings of two telephone conversations between the complainant and the respondent that took place on 25 August 2011 and were recorded pursuant to a warrant issued in this Court under the Surveillance Devices Act 2007. The telephone calls were initiated by the complainant, under the supervision of police investigating the complaints she had previously made, for the express purpose of engaging the respondent in conversation about her allegations, in the expectation or hope that he would incriminate himself. The only reason that there were two telephone calls is that, after a short time, the first call disconnected. The complainant almost immediately called again. It is the content of these conversations that constitutes the evidence the subject of the voir dire, and the subject of the present appeal. The content of the conversations is fully set out in the judgments of Basten JA and Blanch J, and I do not propose to repeat it, save so far as is necessary to explain the reasons for coming to the views that I have.

104The central evidence in the prosecution case is that of the complainant. Her statement was made on 7 June 2011, nine years after the alleged offences, when the complainant was 17 years of age. Other proposed witnesses who provided statements were:

the complainant's mother;
the complainant's mother's de facto husband;
KL (junior), a neighbour and friend of the complainant;
Ms Vicki O'Neill;
Dr Maria Nittis;
Detective Senior Constable Erin Stubberfield.

The complainant's statement

105The complainant says in her statement that, in 2002, she lived with her mother, her two younger sisters, and her mother's de facto husband (RB) in a western suburb of Sydney. The respondent was a close friend of RB, and a regular visitor to the complainant's home. The complainant gave an account of a number of occasions on which, she said, the respondent had sexually interfered with her. It is unnecessary to recount the detail of her allegations. It is sufficient to note that, as is usual in such cases, there is nothing in her statement to suggest that any other potential witness was present on any such occasion. In that sense, the complainant's evidence is uncorroborated.

106The complainant, in her statement, referring to one of the assaults, said that she was "scared", but remembered noticing a mole or sore on top of the respondent's penis towards its tip.

107She also said that she had told her friend KL about the assaults, and that KL told her mother, as a result of which the complainant denied the truth of her allegations so that KL's mother would not tell the complainant's mother.

The statement of the complainant's mother

108The complainant's mother's statement potentially supports that of the complainant in two respects: (i) she gives accounts of two occasions on which the respondent was present at the house, in circumstances in which he was for a time alone with the complainant, and therefore had opportunity to engage in the conduct alleged, and on one of which he behaved in a manner that could be regarded as suspicious; (ii) she gives an account of an occasion when the complainant was 14 years of age (that is, about six years after the events of which she complains) on which the complainant exhibited signs of significant distress. According to her mother's statement, the complainant then said "[the respondent] molested me". The statement gives no indication that the complainant fixed a time or time period of the molestation.

109According to the complainant's mother, in 2002 the family, including RB and the children, moved from the suburb in which they had been living, to a location some distance away, and had no further contact with the respondent, except for one occasion, about four years later, when she drove to the respondent's home to pick up RB. She saw the respondent "briefly" outside the house. The complainant was in the back seat of the car.

The statement of RB

110RB's statement was made on 26 June 2012. He confirms his friendship with the respondent, and the respondent's regular visits to the complainant's home. More importantly, he gives an account of an occasion in about 2010 on which, after a dispute between himself and the complainant, the complainant said to him "your friend [respondent's first name] raped me".

The statement of KL (junior)

111KL gives a date of birth which indicates that she is two years older than the complainant. She said that, for a period of about 12 months when she was 9 years of age, she was a near neighbour and a friend of the complainant. She gives evidence of complaint. She said that one afternoon after school, she and the complainant and one of the complainant's younger sisters were sitting on the back verandah of the complainant's home. She said that the complainant was crying. She said that she did not remember exactly what the complainant told her but:

"... I know she was hurt and something bad happened."

She said that she told her mother of this but that her mother did not listen. [A statement made by KL's mother (also KL) was excluded by ruling of the trial judge. There is no appeal against that ruling.]

The statement of Vicki O'Neill

112Ms O'Neill was a school administrator in the primary school attended by the complainant. The complainant attended the school between 13 May 2002 and 23 October 2002. The girls' school uniform was:

"White shirt, burgundy pants/shorts and a burgundy jumper ..."

The statement of Dr Maria Nitiss

113Dr Nitiss is a forensic physician specialising in sexual assault. She examined photographs of the respondent's penis that were provided to her. She did not examine the respondent. She observed on the photographs a red lesion on the head of the penis which did not appear to be the result of an acute sexually transmitted infection or common dermatitis, but which she could not exclude as a type of red coloured naevus (mole) or minor scar. She observed that an important question is whether the lesion was recent or of longstanding; if the former, then it was unlikely to be the lesion described by the complainant. However, if it were longstanding, then it provides some support to the complainant's allegations. Dr Nitiss was not able, on the photographic evidence, to determine into which category the lesion on the respondent's penis fell. She also cautioned that interpretation of injuries from photographs should be treated with caution, having regard to the quality of the final image (which, in this case, were of good quality).

The statement of Detective Senior Constable Erin Stubberfield

114Detective Senior Constable Stubberfield gives evidence of conversations with the complainant and with her mother, starting on 7 June 2011, and of taking statements from them. She was present when the complainant made the telephone calls to the respondent and the two conversations ensued. She recorded those conversations.

115Detective Stubberfield says that she then contacted the respondent, and introduced herself as a detective from Penrith, to which the respondent replied:

"I'm not talking to you, talk to my solicitor."

116The transcript of the recorded conversations between the complainant and the respondent contains the following relevant passages. The complainant ascertained that she was speaking to the respondent, and identified herself by her first name, and as the daughter of RB's "girlfriend", whose first name she gave. After a short time, the respondent gave an indication that he remembered her and was aware of the identity of the caller and asked how she was doing. The following conversation then ensued:

"Complainant: Yeah, do you remember what you used to do me

Respondent: Yeah, fuckin oath and I wouldn't mind doing it again ... ha ha

...

Complainant: Um well you ruined my life cause of it ... you ruined my life ... you ruined my life

Respondent: How the fuck did I ruin your life

Complainant: My family don't believe that you did it to me ... my family didn't doesn't believe me

Respondent: That what I did to you

Complainant: Yeah and I got kicked out and all, so I'm going to the cops about it so

Respondent: When did this happen anyway

Complainant: When I was eight years old you just admitted it

Respondent: Eight years old

Complainant: Yes I was eight years old at the time

Respondent: Eight years old

Complainant: Remember you used to tell me I was bad and I was the bad one but now I'm old and now I know that you're the bad one

Respondent: ... when you were in high school man not not eight years old

Complainant: I was eight years old

Respondent: I remember you from high school, remember when you were wearing the maroon jackets and that and went to high school

Complainant: That was primary school

Respondent: Nah nah

Complainant: Yes it was

Respondent: Blacktown Boys Blacktown Girls High

Complainant: No

Respondent: That's alright anyway I have QC barrister so you do what you want to do ok I will meet you up here see ya"

117The second conversation, which took place almost immediately after, consisted primarily of the respondent denying the very unspecific allegations put to him by the complainant, and appearing to deny recollection of what he had previously said.

Jurisdiction - Criminal Appeal Act, s 5F(3A)

118As I have indicated above, an appeal by the Director under s 5F(3A) lies in two circumstances - (i) where the exclusion of the evidence "eliminates" the prosecution case; (ii) where the exclusion of the evidence "substantially weakens" the prosecution case. Here, it is not, and could not be, suggested that the exclusion of the evidence of the respondent's response to the complainant's telephone call eliminates the prosecution case. The question is whether its exclusion "substantially weakens" the prosecution case. That calls for examination of the whole of the evidence in the prosecution case, and the relative importance of the evidence in question in that context. It is for that reason that I have outlined above the other evidence proposed to be adduced.

119Ironically enough, the evaluation of the importance of the evidence in question in the prosecution case involves a question similar to one which will be raised by the substantive appeal, should jurisdiction be established - to what extent, if at all, does this Court consider questions of the credibility, reliability, or weight of the evidence the subject of the appeal? In that context, in Shamouil, Spigelman CJ said:

"39. The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s 137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to 'the prosecution's case', to be considered as a 'case'. This section is not concerned with the weight of the Crown's evidence.

40 This Court should determine whether or not a ruling on the admissibility of evidence 'substantially weakens' the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations."

120This is, however, not a simple instance of such an evaluation. In one sense, no serious question of credibility or reliability arises. The tape recording of the respondent's conversation with the complainant is clear, and the transcription of what he said is not in dispute. The prosecution will seek to rely upon the respondent's responses to the complainant as admissions - that is, as previous representations made by the respondent that are adverse to his interest in the outcome of the proceeding (Evidence Act, Dictionary). In particular the prosecution will rely upon the respondent's answer:

"Yeah, fuckin oath and I wouldn't mind doing it again ... ha ha"

as an admission that he had sexually interfered with the complainant. The answer is far from an unequivocal or explicit acknowledgement to that effect. It was made in response to the complainant's question:

"Yeah, do you remember what you used to do me[?]"

That, itself, was far from an unequivocal or explicit accusation. And the question and answer followed an introduction in which, it might be thought, the respondent had to be reminded of who the complainant was. Further, as Price J has pointed out, the answer ought not to be seen in isolation from the whole of the conversation, including what followed - the respondent's insistence that whatever engagement he had had with the complainant occurred when she was in high school. That, in itself, has to be seen in the context of his assertion that he remembered the complainant at high school "wearing a maroon jacket". "Maroon jacket" is broadly consistent with the evidence of Ms O'Neill, the primary school administrator, that the complainant's primary school uniform included a "burgundy jumper". (There is no evidence of the complainant's uniform when she was at high school, and no evidence of the high school she attended.)

121However, it is not unimportant that the complainant's mother's evidence is that, in September 2002, the family moved from where they were living to a location some distance away, and had no further contact with the respondent (except for the occasion, in about 2006, when she picked up RB from the respondent's home while the complainant was in the back seat of the car).

122Just what is to be read into the respondent's conversation with the complainant is a matter for determination by the jury. Plainly, a variety of inferences are available. The conversation is capable of interpretation, as the Director would have it, as an acknowledgement that the respondent had engaged in conduct of the kind of which the complainant complains. Taking into account the evidence of the colour of her primary school uniform, and the dates on which the family were in contact with the respondent, it is capable of being related to the period of the alleged offending.

123It would also be open to the jury to take an adverse view of the respondent's subsequent denials, and his reference to having "a QC barrister" available.

124At the other end of the spectrum, his answers are capable of the interpretation that, whatever engagement with the complainant the respondent acknowledged, it took place at a significantly later time, when the complainant was in high school (although, having regard to the evidence of when the complainant was in contact with the respondent, that might be a difficult proposition). If the jury were to take that view, relatively benign to the respondent, then the evidence could have no probative value in relation to the offences charged, but a potentially significantly prejudicial effect in establishing the respondent's interest in the complainant, and his willingness to engage in sexual contact with a school girl (although it cannot unequivocally be assumed that she was under the statutory age of consent).

125It is also possible, as the trial judge thought, that the jury might take the view that the Crown had not established that the respondent recognised the caller for who she actually was, and that his answer did not relate to her, but to some other schoolgirl.

126The value of the evidence to the prosecution case thus cannot be definitively assessed. That value depends entirely upon the interpretation that jury puts upon the evidence - that is, the inferences they draw from what the respondent said, in the context of the whole of the prosecution case. The task of this Court, under s 5F(3A), is to assume an interpretation most favourable to the prosecution - that is, that the respondent acknowledged having had some sexual engagement with the complainant. Having regard to the specific evidence of the period during which he had contact with the family, that would include fixing the time of the conduct he acknowledged within the timeframe of the indictment. If the jury were to draw the inference most favourable to the prosecution, and interpret the conversation as an acknowledgment of sexual contact with the complainant, the evidence is of considerable "cogency or force" (Shamouil, [77]).

127Moreover, this is a case in which the only direct evidence of the offences is that of the complainant. In R v Murray (1987) 11 NSWLR 12 at 19, it was held:

"In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable."

A direction in such terms became standard in cases such as the present, in which only one witness is able to give direct evidence of the events in question.

128Whether that remains a required or even correct direction may now be in some doubt. By s 294AA of the Criminal Procedure Act 1986 (introduced by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (No 88)), commencing 1 January 2007:

"(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.

(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section."

The section appears in Div 1 of Pt 5 of the Criminal Procedure Act, which applies to proceedings in respect of prescribed sexual assault offences, of which offences against s 61J and s 61L are instances.

129The Murray direction is/was not limited to cases involving allegations of sexual offence. It was of general application.

130Whether s 294AA impinges upon the application of Murray in sexual offence cases remains to be seen. To the best of my knowledge, that question has not been considered by this Court. It is arguable that a Murray direction is not "a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant" prohibited by sub-s (2), and is therefore still applicable. On the other hand, when introducing the legislation into Parliament, the Minister for Gaming and Racing, and Minister for the Central Coast, representing the Attorney General, said:

"The direction in Regina v Murray (1987) 11 NSWLR 543 provides that where there is only one witness asserting the commission of the offence, the evidence of the witness is to be scrutinised with great care. The typical sexual assault offence takes place in private without any other witnesses. The members of the task force agreed that the direction was unnecessary, as existing directions as to reasonable doubt were sufficient to protect the accused." (NSW Parliamentary Debates, Legislative Assembly, 18 October 2006, 2958)

131The relevance of the above is that it may be that the jury in the present case will be directed in terms of Murray - that is, by having their attention drawn to the fact that the evidence of the complainant is the only direct evidence against the respondent, and by being invited to scrutinise her evidence with care.

132If that is the case, evidence of an acknowledgment by the respondent, if the respondent's response to the complainant is so interpreted, would go a significant way to supporting the complainant's evidence. That in itself gives it "cogency or force". Exclusion of the evidence would substantially weaken the prosecution case.

133In my opinion, the evidence meets the test stated in s 5F(3A). This Court has jurisdiction to entertain the appeal.

The proceedings in the District Court

134The trial judge was invited to exclude the evidence on three bases: those provided by the Evidence Act 1995, s 85, s 90, and s 137. She rejected the respondent's contentions in respect of s 85, holding that that section had no application. She held, however, that both s 90 and s 137 operated so as to justify the exclusion of the evidence.

135Section 90 provides as follows:

"90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."

Section 137 is in the following terms:

"137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

136Before coming to an analysis of the trial judge's reasoning to the exclusion of the evidence, it is appropriate to make the following observations. The argument took place on the day fixed for the commencement of the trial. It is recorded in 30 pages of transcript. Some evidence in the voir dire was taken.

137Her Honour delivered her judgment at the commencement of business the following morning. It is plain that the judgment was prepared in some haste and under some pressure. Indeed, at an early stage of giving her reasons, her Honour noted that her remarks were intended to be as short as possible, and offered, if required, more complete reasons at a later time. As is so often the case in such circumstances, the reasons are perhaps not as ordered or as clearly laid out as might otherwise have been the case.

138Section 90 is predicated upon the evidence in question being tendered as an admission (and that it can properly be so categorised). The section involves the exercise of a judgment concerning the unfairness (or otherwise) of the admission of the evidence, having regard to the circumstances in which the admission was made. Here, as I have said in relation to the jurisdictional issue, the evidence is tendered as an admission, and is capable of being so categorised. For the purposes of the present appeal, it should be treated as constituting an admission by the respondent.

139Section 137 also calls for a judgment. That judgment is the evaluation of the probative value of the evidence relative to the danger it could cause of unfair prejudice.

140In respect of each provision, the trial judge undertook the necessary exercise. In my opinion, each determination is to be reviewed by this Court on principles stated in House v The King [1936] HCA 40; 55 CLR 499: see the discussion on a closely related issue in DAO v R [2011] NSWCCA 63; 81 NSWLR 568. Although, with respect to s 90, that very question was touched upon in EM v The Queen [2007] HCA 46; 232 CLR 67 at [55], the High Court found it unnecessary to decide that question.

141In substance, the Director's arguments can be stated as follows:

in respect of the decision to exclude the evidence under s 90, the trial judge's findings of fact, in a number of respects, cannot be sustained;

in respect of the decision to exclude the evidence under s 137, her Honour impermissibly took into account questions of credibility, reliability and weight, in contravention of the principle stated, inter alia, in Shamouil. Consideration of this latter contention inevitably raises the conflict between that decision and the Victorian decision in Dupas.

The trial judge's reasons

142Her Honour briefly outlined the relevant evidence. She quickly disposed of the s 85 argument, and turned, concurrently, to the s 90 and s 137 arguments. Although she was aware that each required separate consideration, she appears to have treated the factual basis relevant to each as coextensive with the factual basis relevant to the other. Since each section involves a consideration of possible unfairness, that is an understandable approach. Her Honour began by referring to the decision of this Court in Pavitt v R [2007] NSWCCA 88, 169 A Crim R 452, per McColl JA and Latham J, in which are stated a number of propositions relevant to the admission of covertly recorded conversations.

143The core of each decision is that, in all of the circumstances, the "admission" was unreliable. The trial judge accepted that, in making the telephone call to the respondent, the complainant was acting as "an agent of the State". In this context, "agent of the State" derives from the decision of the Supreme Court of Canada in R v Broyles [1991] 3 SCR 595, a concept adopted by the High Court in The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159, and which found its way into the propositions stated by McColl JA and Latham J in Pavitt. However, the trial judge found that that fact was not determinative, and that questions of unfairness to the respondent in the admission of the evidence remained relevant. She then referred to the answer in the conversation in which the respondent said "Yeah, fuckin oath and I wouldn't mind doing it again ... ha ha" and noted that the prosecution relied upon that as an admission. She then said:

"However, as submitted by the defence, the circumstances of the conversation may have adversely affected the truth of that response and, therefore, make the admission of the evidence unfair. [Counsel for the respondent] submits that when a person has allegedly adopted a proposition as the Crown asserts here the Court must consider whether or not the proposition was properly established by the conversation that occurred prior to that."

I take this to mean that the question asked by the complainant to which the respondent gave the answer was non-specific, and contained no explicit allegation to which the respondent could properly reply.

144The trial judge nevertheless appears to have accepted that the respondent's answer to the complainant's "question" could reasonably be interpreted as an admission. Her focus, as I read her judgment, was principally upon doubt about its reliability or truthfulness. Ultimately, she declared herself not satisfied that the respondent was "fully aware" of the identity of the caller in the first conversation, in which the admission was made. She reached this position because:

(i) the evidence indicated that there had been no contact between the complainant and the respondent between 2002, when the complainant was eight years of age, and 2011, when she was 17 years of age, and that human experience showed that it was unlikely that the voice of an eight year old would sound like that of a 17 year old (I take this to mean that her Honour found it doubtful that the respondent would have recognised the voice of the complainant);

(ii) that the tape recording made it clear that there was considerable background noise, and that the respondent was distracted by speaking to others during the course of the conversation with the complainant;

(iii) that the "accusation" made by the complainant was vague, and failed to identify with any specificity the conduct of which she was accusing the respondent, and that (at that point) the complainant failed to state her age at the time of the events or the conduct which she was alleging against the respondent;

(iv) that in the conversation the respondent appeared to believe that he was speaking to somebody with whom he had had an association (impliedly sexual) at the time when the other party to the association was a student at Blacktown Girls' High School; that the respondent appeared to be "perplexed", but did not concede any engagement with an eight year old at the time he knew her or had anything to do with her.

145The trial judge therefore concluded that the reliability of the "admission" was adversely affected, to such a degree that it would be unfair to permit it to be used in evidence. In reaching this conclusion, she specifically rejected a prosecution submission to the effect that the respondent's reference to a "burgundy jacket" as part of a school uniform of the person to whom he believed he was speaking dovetailed or interlocked neatly with the evidence that, as a primary school student, the complainant wore a "maroon jumper", thereby giving rise to an inference that the respondent was aware of the identity of the caller.

146Her Honour appears also to have accepted and taken into account, in the rejection of the evidence, a further defence submission that, should the evidence be admitted, the respondent would be forced to give evidence at the trial to explain his answer, thus being "compelled to abandon his right to silence".

147The Director takes issue with what is described as "the finding of fact" - that is, that the trial judge was not satisfied that the respondent knew the identity of the caller at the time he made the admission, which was at an early stage of the conversation. In effect, the Director submitted that it was not open to the trial judge not to be so satisfied. That is a very difficult proposition to establish - it entails the further proposition that the evidence that the respondent knew to whom he was speaking was so overwhelming that no other conclusion was reasonably open.

148I do not think that it was either necessary or appropriate for the trial judge to make a finding either way. It was not necessary, for the evidence to be admitted, that the prosecution establish that the respondent was aware of the identity of the caller. That was ultimately a question for the jury. The reliability of the admission was, however, relevant to the exercise required by s 90, and the facts relied on by the trial judge were material to that consideration.

Evidence Act, s 90

149The approach to be taken in the application of s 90 was considered by the High Court in EM. Gleeson CJ and Heydon J said;

"56 The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning ... In any particular case, the application of s 90 is likely to be highly fact-specific ..."

That was a case in which the unfairness was said to lie in assumptions made by the alleged offender about the use that would be made of anything he said to police officers, and I have omitted from the extract passages specifically relevant to that issue.

150Gleeson CJ and Heydon J accepted that unreliability is an important aspect of the unfairness discretion but added a reference to Swaffield in which it was made plain that unreliability is not the exclusive determining factor (Swaffield at [78]). Gummow and Hayne JJ agreed that questions of reliability play an important part in the exercise of the common law discretion to exclude confessional evidence in circumstances of alleged of unfairness (at [110]-[111]) (and, by implication, to the exercise of the s 90 discretion).

151At [107], their Honours said:

"... the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as 'fair' or 'unfair'."

At [115] their Honours identified the question presented by s 90 as:

"why did these circumstances make the use at his trial of the evidence of what he had said unfair?"

That is the question that must here be answered. That is not the question that was grappled with by the trial judge.

152I have concluded that there was error, in the House sense, in the approach taken by the trial judge. The error is that she went beyond considering questions of reliability (in the EM sense) and embarked upon a consideration of what motivated the respondent to give the answer that he did, and more importantly, what he intended to convey - for example, she said:

"He appears to believe that he is speaking to somebody with whom he has had some sort of association, and impliedly a sexual one, at the time that she was a high school student at Blacktown High ..."

That is a question to be determined by the jury.

153I accept, as I have above, that different interpretations may be placed upon the respondent's answer to the complainant. I accept that an argument is available to him (whether or not he gives evidence) that it has not been conclusively or even persuasively shown that, when he gave that answer, he knew that the person to whom he was speaking was the complainant. (I accept also that there are persuasive arguments to the contrary.) I accept that the answer cannot be construed as a confession to any of the individual allegations made by the complainant that have been translated into the individual counts on the indictment. I accept that the admission of the evidence might put the respondent in a position of needing to make a forensic decision about giving evidence or not giving evidence.

154I do not accept that this last is a relevant consideration. That a person might, by reason of the admission of contested evidence, consider himself or herself forced to give evidence in a criminal trial is not, ordinarily, a relevant consideration in the determination of the admissibility of the evidence. It cannot be said that evidence is unfairly prejudicial merely because it is of such potency or force that it calls for an answer by the accused person. The objective of Crown evidence in a criminal trial is to call for an answer, if an answer is available.

155True it is, that in Cook, I held that s 137 ought to be exercised in favour of that appellant, in circumstances in which the contested evidence (which was evidence of flight from the police, tendered as showing that he acted out of a consciousness of guilt) could have forced him to give an explanation. That was not because that appellant considered himself forced into the witness box, and was therefore denied his right to silence. It was because the only explanation he could give in respect of the flight evidence would have exposed him as having a history of the very kind of offence with which he stood charged. It was nothing to do with the abrogation of the right to silence.

156Acceptance of the propositions I have set out above does not dictate a conclusion that the evidence is unreliable. And, as Gleeson CJ and Heydon J said in EM, reliability is not the only consideration. Also relevant is that, should the evidence be admitted, the jury will undoubtedly have the benefit of argument from both parties as to what they should make of it, what interpretation they should place upon what the respondent said, and will also have the benefit of detailed directions from the trial judge as to the relevant alternatives.

157I agree with Basten JA that the evidence is admissible, and that there is nothing in the circumstances in which it was made that renders its admission unfair. The trial judge was in error in relying on s 90 to exclude it.

Evidence Act, s 137

158As I have set out above, it is plain that the trial judge took into account the reliability of the alleged admission by the respondent in her consideration of the objection based upon s 137.

159Whether that was an error calls for consideration of the competing views of this Court (Shamouil, Cook, Mundine, Sood) and the Court of Appeal of Victoria (Dupas). A preliminary question is that explored in some depth by Basten JA at [23]-[40]. I agree with his Honour's conclusion at [40] that this Court should determine for itself the correct approach to the application of s 137, paying due regard to the expressed views of the Victorian Court of Appeal.

160What this Court said Shamouil was:

"60 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

...

64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [[1990] HCA 51] 171 CLR 207 at 275, this is not a permissible 'basis for enlarging the powers of a trial judge at the expense of the traditional jury function'. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137."

161What the Victorian Court of Appeal said in Dupas was encapsulated in para [63], set out below:

"63 For the following reasons, we are compelled to the view that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed. We are compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil as error can be demonstrated with a degree of clarity by the application of the correct legal analysis ... Our conclusions are as follows:

(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.

(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.

(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase 'taken at its highest' is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.

(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight.

(e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not.

(f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function." (italics in original, bold added)

162I state at the outset that, having given careful consideration to the reasoning of the Victorian Court of Appeal, I adhere to the views I have previously expressed in Cook and Mundine and my concurrence with those of Spigelman CJ in Shamouil.

163There are two evaluations that constitute the s 137 exercise - the assessment of the probative value of the evidence in question, and the assessment of its potential prejudicial effect. A judge asked to exclude evidence pursuant s 137 is necessarily asked to do so at a time before the evidence in the trial is complete. As a matter of practice, increasingly frequently (by reason of trial efficiency, and minimisation of jury inconvenience) this is done prior to the empanelling of the jury. Ordinarily, in this State at least, the assessments of probative value and prejudicial effect are made on the basis of documentary material - principally, the statements of witnesses. For the purposes of the evaluation, the assumption is made that the evidence will be accepted as accurate.

164In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 I said (with the concurrence of McClellan CJ at CL);

36 A decision to admit or reject evidence tendered under s 97(1) [of the Evidence Act] must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving 'a degree and value judgment' ..."

That proposition applies equally in respect of the consideration of rejection of evidence on the basis provided by s 137.

165Section 137 is one of a number of provisions in the Evidence Act in which the question of admissibility of evidence is contingent upon an assessment by the trial judge of its probative value, sometimes in conjunction with, or balanced against, some other specified consideration. "Probative value" is defined in the Dictionary as:

"... the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

166Other sections requiring assessment of probative value, in the context of questions of admissibility include:

s 97 (tendency evidence);
s 98 (coincidence evidence) (in respect of each of which admission depends upon the evidence being shown to have "significant probative value");
s 101 (for the purposes of criminal cases, imposing a further restriction on the use of tendency or coincidence evidence, such that the probative value must be shown "substantially" to outweigh any prejudicial effect it may have on the defendant);
s 103 (permitting, as an exception to the credibility rule (see s 102), cross-examination relevant only to a witness' credibility where the evidence is shown to have "substantial probative value");
s 135 (conferring a discretion to refuse to admit evidence if its probative value is "substantially outweighed" by the danger that it might be unfairly prejudicial to a party, misleading or confusing, or cause or result in undue waste of time);
s 138(3) (conferring a discretion to exclude improperly or illegally obtained evidence - one specified consideration in the exercise of the discretion is the probative value of the evidence).

Except for s 101 and s 137, each of which applies only in criminal proceedings, all provisions are of general application. It is of some interest and significance that s 97 and s 98 require the assessment of "significant probative value" to be made in the context of the evidence already adduced, and evidence anticipated to be adduced, by the party seeking to adduce the tendency or coincidence evidence. For myself, I do not see that requirement as involving the trial judge in weighing the relative merits of competing explanations for the conduct the subject of the tendency or coincidence evidence: see DSJ v R; NS v R [2012] NSWCCA 9; 215 A Crim R 349 at [10], [78]-[82].

167The actual probative value to be assigned to any individual item of evidence lies in the province of the tribunal of fact - in most criminal trials, the jury. It is not ordinarily possible to determine the actual probative value of any piece of evidence until the evidence in the proceeding is complete and the full picture can be seen. "Probative value" in the sections mentioned is plainly not used in that sense. It is used in the sense of the potential of the evidence to have the relevant quality. Where an assessment of probative value is a prerequisite to a decision to admit or not admit any particular item of evidence, the exercise for the trial judge is necessarily "predictive and evaluative" (Fletcher, at [35]). The prediction is of what use the jury could rationally make of the evidence, in the context of the trial evidence in its complete form. The evaluation is of the importance or significance of the evidence in the same context.

168The terms "credibility", "reliability" and "weight" have largely been used as though interchangeable. Although it is possible to discern differences in what is imported by these terms, I will, for present purposes, proceed on the basis that they convey essentially the same concept.

169Determination of the credibility of evidence will often depend upon the assessment of the witness who gives the evidence. Determination of reliability will often depend upon some analysis of the circumstances surrounding the coming into existence of the evidence.

170Determination of the weight to be given to any item of evidence will depend, not only on where that evidence fits in the overall mosaic of the evidence in the trial, but, in many cases, upon an assessment of a witness after cross-examination. It may also depend upon an assessment of the evidence of one witness against the evidence of another (or others). That is not something that can readily be undertaken at a pre-trial or interlocutory stage.

171Nor is it appropriate that the exercise be partially undertaken - as the Victorian Court of Appeal appears to envisage in [63](d), where it said that the judge is required:

"... to make some assessment of the weight that the jury could, acting reasonably give to that evidence." (bold added)

None of the sections that call for assessment of the probative value as a precondition to admissibility give any indication that some exploration of credibility, reliability or weight ought to be conducted, or, if so, what limits are imposed on the extent of that exploration. To embark upon a partial assessment of weight could, in my opinion, be potentially productive of real injustice. No boundaries with respect to the extent to which the weight of the evidence is to be explored are discernible in any of the provisions that call for evaluation of probative value.

172I appreciate that the construction of a statute will not ordinarily be dictated by the fact that it might have unwanted, or even undesirable, practical consequences. At least that is so where the language of the statute is clear, or where the intention of the legislature can be discerned with relative confidence. Even where it is not, unwanted practical consequences have a limited role to play.

173Here, there is nothing obvious in the language of the statute that suggests that probative value, at the admission stage, is to be determined by reference to the weight to be assigned to the evidence. That much is clear by the reasoning in Dupas - the Victorian Court of Appeal reached its conclusion by examination of historical precepts, not the language of s 137.

174The nature of the practical consequences of that interpretation is useful as a guide in answering the question whether the construction reflects the intention of the drafters of the legislation. That, in my opinion, is a further pointer to the position taken by this Court in Shamouil, in preference to that taken in Dupas.

175For these reasons, in addition to those given by Spigelman CJ in Shamouil, I maintain the view that questions of credibility, reliability and weight play no part in the assessment of probative value with respect to s 137. Although it does not call for present determination, it seems to me that the same must apply in all cases where admissibility depends upon such an assessment.

176Since it is quite clear that the trial judge did take into account such issues in the s 137 decision, error in the House sense has been demonstrated. This Court should intervene.

177Moreover, because of the approach taken by the trial judge, she made no assessment of the probative value of the evidence (on the assumption that the jury drew the inferences that will be urged by the prosecution) nor of the potential unfair prejudicial effect, having regard to appropriate available ameliorative directions.

178In my opinion, the evidence is admissible. What is to be made of it is a matter for the jury, when fully instructed.

179Accordingly, I agree with the orders proposed by Basten JA.

180BLANCH J: The Crown appeals pursuant to the provisions of s 5F(3A) of the Criminal Appeal Act 1912 from a ruling of the District Court at Parramatta on 6 November 2012.

181The respondent appeared for trial charged with five counts of indecently assaulting a child under the age of 10 years and one count of aggravated sexual assault. The offences are alleged to have occurred in 2002 when the complainant was eight years old. The respondent was a family friend who visited the family during 2002. Thereafter the family left the area.

182In 2011 the complainant made a complaint to the police who obtained a warrant and arranged for the complainant to have two telephone conversations with the respondent on 25 August 2011. These conversations were recorded.

183The trial judge excluded the evidence of those two telephone conversations pursuant to ss 90 and 137 of the Evidence Act 1995. It is that ruling the Crown appeals against asserting the ruling was wrong and that pursuant to s 5F(3A) of the Criminal Appeal Act the ruling substantially weakens the prosecution's case.

184The two conversations are as follows:

Telephone Interphase Transcript - 25 August 2011

V1 COMPLAINANT

V2 XY

V1 Hello

V2 What

V1 Hello who's this

V2 XY

V1 It's B

V2 Who's that

V1 B do you remember me

V2 Huh

V1 B

V2 Nah -- who's that

V1 Um remembers (sic) R's girlfriend KL's daughter

V2 R R, R's girlfriend

V1 R, RB Doonside

V2 Oh yeah

V1 Yeah do you remember me

V2 How you doing

V1 Um nothing much

V2 Hey

V1 Yeah do you remember what you used to do to me

V2 Yeah fuckin oath and I wouldn't mind doing it again...haha

V1 Alright then

V2 Aye

V1 Um well you ruined my life cause of it

V2 Sorry

V1 You ruined my life

V2 You what

V1 You ruined my life

V2 How the fuck did I ruin your life

V1 My family don't believe me that you did it to me

V2 Heh

V1 My family didn't doesn't believe me

V2 That what I did to you

V1 Yeah and I got kicked out and all, so I'm going to the cops about it so

V2 When did this happen anyway

V1 When I was eight years old you just admitted it

V2 Eight years old

V1 Yes I was eight years old at the time

V2 Eight years old

V1 Remember you used to tell me I was bad and I was the bad one but now I'm older now I know that you're the bad one

V2 - when you were in high school man not not eight years old

V1 I was eight years old

V2 I remember you from high school, remember when you were wearing the maroon jackets and that and went to high school

V1 That was that was primary school

V2 Nah nah nah

V1 Yes it was

V2 Blacktown boys Blacktown Girls high

V1 No

V2 That's alright anyway I have a QC barrister so you do what you want to do ok I will meet you up here see ya

Call disconnects

Telephone Interphase Transcript 2-25 August 2011

V1 COMPLAINANT

V2 XY

V1 Hello

V2 Yeah

V1 Hello

V2 Yeah

V1 I might not go to the cops but

V2 Nah don't worry about it man look I don't even remember you that much ok

V1 Yeah I might not go to the cops because

V2 It doesn't matter you if you want to, your willing to go do it I'm telling you mate, I was a good friend of yours, I was a good friend of your brothers I was a good friend of your fuckin mothers and fathers and you know what I've come to think about it I was thinking about it just then I don't even remember that

V1 What do you mean you don't remember

V2 I don't man I swear to god mate what at your mums and dads house

V1 R's you remember RB

V2 Oh yeah R yeah where he used to live with that big girl

V1 Next to that big girl Doonside

V2 Um

V1 You used to touch me next to the the trampoline at the back

V2 Oh mate

VI You used to give me stuff

V2 I don't remember man

V1 You gave me a bike

V2 A what

V1 A bike and you used to say it was bad I was the bad one

V2 oh

V1 Remember when you took me for a drive to a house I didn't even know where I was and you did it beside the house

V2 No way

V1 Yeah you did you can't deny it

V2 No way man

V1 You can't deny it

V2 No way oh well if you want to be like that mate you do what you want to do and urn I will work it all up after that cheers thanks mate alright

V1 Yep

V2 Ok if you want to go oh yeah if you wouldn't mind cheers mate yeah so

Call disconnects

185In my view the conversations were highly prejudicial to the respondent and unfairly so. In the first conversation the exchange:

Question "Yeah do you remember what you used to do to me"

Answer "Yeah fuckin oath and I wouldn't mind doing it again haha"

indicates the character of the respondent as someone prepared to engage in opportunistic casual sexual encounters. The subsequent part of that conversation indicates the respondent's interest in a girl he remembers at high school. In the state of NSW the usual age for such girls is between 12 and 18 and the relevant age of consent is 16.

186The topic of sexual activity with under age children is highly emotive in the community and for the respondent to portray himself as promiscuous and interested in high school age children could only have the effect of seriously damaging his character in the eyes of a jury.

187In Attwood v The Queen [1960] HCA 15; 102 CLR 353 at 359 the High Court in a joint judgment of Dixon CJ, McTiernan J, Fullagher J, Taylor J and Menzies J said as to evidence of bad character:

"It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle. 'The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety nine. Willes J (1865) Le Co at p541' "

188Exceptions to this principle such as the admissibility of tendency and coincidence evidence are strictly governed by the provisions of ss 97 and 98 of the Evidence Act and prior to the inception of that Act by the common law. There is no claim that the evidence should be admitted here as falling into any such exception.

189Section 137 of the Evidence Act is mandatory in its terms. It states:

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

In consequence the trial judge was bound to evaluate both the unfair prejudice and the probative value of the evidence in issue.

190The commentary in paragraph 957 of the Australian Law Reform Commission, Evidence (Interim) Report No. 26 (1984) introducing the Evidence Act makes it clear the discretion is the common law discretion and points out that "prejudice" ... means "damage to the accused's case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have."

191In Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51] McHugh J said:

"But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."

192Evidence is not admitted unless it is relevant. Once admitted the evidence is probative of the guilt of an accused. Of necessity that means the evidence is prejudicial. It is only where the evidence is unfairly prejudicial that the discretion to exclude it arises. In deciding that issue it is necessary for the trial judge to weigh the probative value of the evidence against its unfair prejudice to the accused. In doing that the judge must take into account any directions that could be given to minimise the prejudice created (R v Cook [2004] NSWCCA 52 at [37] per Simpson J).

193In the instant case, in the emotionally charged atmosphere of a child sexual assault trial, evidence disclosing the respondent's promiscuity and interest in high school girls would create a highly significant and unfair prejudice to the respondent. It introduces a real danger of the jury using tendency reasoning to arrive at a verdict.

194In performing the balancing exercise between unfair prejudice and probative value the courts in this state have been guided by the judgment of Spigelman CJ in Regina v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. He quoted with approval the statement of Hunt CJ at CL (with whom Newman and Ireland JJ agreed) in R v Carusi (1997) 92 A Crim R 52 at 65-66 where it was said:

"The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect;"

195He referred to other authorities to the contrary including Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 and said at [60]-[61]:

"The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely "the extent to which the evidence could rationally affect the assessment ...". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty."

196He also observed at [71]:

"Like other sections of the Evidence Act, s 137 calls upon a judge to compare essentially incommensurable considerations: probative value on the one hand and unfair prejudice on the other. As Justice Scalia once put it, this is like asking "whether a particular line is longer than a particular rock is heavy. (Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) at 897)". Nevertheless, this is a task that judges are often called upon to perform."

197He emphasised it was not desirable for the Court to undertake an investigation into the weight of evidence based on credibility or reliability because to do so would be to usurp the function of the jury.

198It is to be noted that in the present case the evidence sought to be tendered does not give rise to any question of credibility or reliability. The evidence is known and can be evaluated.

199It was held in R v Suman Sood [2007] NSWCCA 214 at [40] per Latham J:

"... it was no part of the trial judge's function in assessing probative value under s 137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied, even assuming that an alternative explanation was given by the respondent on the voir dire."

200In that case the Health Insurance Commission executed a search warrant on Dr Sood to investigate fraud. When the authorities eventually got to see Dr Sood they found cash receipt books and receipts discarded in waste bins. The Crown asserted this was done by Dr Sood because of her consciousness of guilt. Evidence was given by Dr Sood and she denied disposing of the books. After hearing considerable evidence on the matter it was obvious a real issue of credibility arose and in those circumstances for the judge to decide the issue was a clear usurping of the function of the jury and so the Court held. It is this credibility issue to which the passage quoted refers.

201In assessing the probative value of evidence in DSJ v R; NS v R [2012] NSWCCA 9 Bathurst CJ said at [10]:

"However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered."

(Allsop P agreed with that comment at [11]).

202At [78] Whealy JA said:

"... the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value."

203The judgment of Whealy JA was endorsed by Bathurst CJ, Allsop P, McClellan CJ at CJ and McCallum J.

204The alternative explanation or explanations must amount to a "real possibility" or be such as to "rob the evidence of its otherwise cogent capacity". The case of R v SJRC [2007] NSWCCA 142 was a case where this Court held the impugned evidence was not robbed of its cogency and force. In that case the accused sent two text messages the day after an alleged sexual assault apologising for his behaviour. The content of those text messages very strongly supported the complainant's account of what happened and so the Court held. The same cannot be said in this case.

205In my view the contention by the Crown that the comments made by the respondent in the conversations under review amount to a confession is open to question. There are other interpretations open including that he was not aware of the real identity of the complainant.

206The trial judge correctly noted the respondent could not be expected to recognise the voice of the complainant after nine years and when she had grown up in the intervening time. She noted that the background noise in the call and the respondent's early responses indicated a degree of confusion at the respondent's end of the call. She also noted the lack of clarity in what is said to be a confession. She also noted his positive denial when he understood her claim related to a time when she was eight years old.

207Those matters are all relevant for the judge to consider when assessing the capacity of the evidence to establish the fact in issue. What must be done then is to weigh that capacity against the unfair prejudice. In this case when I do that I find the capacity of the evidence to prove guilt is compromised because of the competing inferences open when interpreting the conversations and the unfair prejudice is highly significant. It is evidence that may inflame the jury or divert the jurors from their task. Furthermore, such prejudice could not be corrected by directions to the jury and it outweighs the probative value of the evidence.

208In my view the trial judge was correct in rejecting the evidence and accordingly, I would dismiss the appeal.

209PRICE J: I agree with Hoeben CJ at CL and Blanch J that the appeal should be dismissed, but wish to express my reasons for that agreement.

210Section 5F (3A) of the Criminal Appeal Act 1912 is as follows:

"(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."

211The Court does not have jurisdiction unless the Crown discharges the onus of establishing that the exclusion of the two telephone conversations by the trial judge substantially weakens its case.

212The two telephone conversations that were excluded are comprehensively contained in [184] in Blanch J's judgment. The Crown places particular reliance on the following exchange between the complainant and the respondent in the first conversation:

"[complainant] Yeah do you remember what you used to do to me

[respondent] Yeah fuckin oath and I wouldn't mind doing it again ... haha."

213The Crown contends that the conversation, taken at its highest is an admission by the respondent of sexual misconduct with the complainant and without that evidence the prosecution case essentially relies upon the evidence of the complainant alone. The Crown says that its case depends on the jury forming a favourable view of the credibility of the complainant. The Crown argues that the exclusion of the evidence leaves the complainant to be assessed by the jury without any significant supporting evidence, in circumstances where the complainant has come forward years after the alleged offence. As a result, the prosecution case has been substantially weakened.

214The respondent submits that the evidence excluded by the trial judge is of such low "probative value" that its exclusion will not "substantially" weaken the prosecution case.

215This Court's task is to determine whether the trial judge's rejection of the telephone calls not "weakens" but "substantially weakens" the prosecution case by asking whether or not that would be the effect "on the assumption that the jury accepted the evidence." The prosecution case is to be considered as a whole and questions of weight are irrelevant: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [39] - [40].

216The content of the conversations does not disclose an express admission of sexual impropriety by the respondent but the Crown's argument is that an inference can be drawn that the respondent made a "general admission" of sexual misconduct with the complainant. The drawing of inferences requires more than optimistic leaps of instinct or imagination, it requires the ability to reason from facts admitted or proved. The obligation to assess the conversation at its highest does not mean, in my opinion, that the context in which the respondent said "...I wouldn't mind doing it again" is to be ignored. An examination of the first recorded conversation is required in order to ascertain the inference that the evidence itself is capable of supporting.

217In the first recorded conversation, the exchange between the complainant and the respondent included the following:

"[respondent] When did this happen anyway

[complainant] When I was eight years old you just admitted it

[respondent] Eight years old

[complainant] Yes I was eight years old at the time

[respondent] Eight years old

[complainant] Remember you used to tell me I was bad and I was the bad one but now I'm older now I know that you're the bad one

[respondent] when you were in high school man not not eight years old

[complainant] I was eight years old."

218Accepting that for the purpose of s 5F(3A), regard is not to be had to competing explanations for the words that are said to be an admission, the highest inference the evidence is capable of supporting is that the respondent acknowledged he had engaged in sexual misconduct with the complainant when she was in high school. It is not a general admission of sexual misconduct with her.

219All of the charges upon which the respondent is to be tried are alleged to have occurred when the complainant was eight years old. I do not consider that if the jury drew this inference that the probative value of the evidence would be significant.

220I do not think that the Crown's contention that the respondent made a general admission of sexual misconduct is enhanced by the respondent's statement in the first recorded conversation; "I remember you from high school, remember when you were wearing the maroon jackets and that and went to high school". Although the Crown proposes to adduce evidence that the complainant's primary school uniform included burgundy shorts and a burgundy jumper, the respondent made it very clear in all of his conversation that whatever he meant by "...I wouldn't mind doing it again" was confined in his mind to when the person with whom he was speaking was in high school.

221I do not agree with the Crown's submission that the complainant's evidence is left without significant support by the exclusion of the recorded conversations. The complainant's evidence is supported by that of her mother who recalls regular visits by the respondent to the family home, an occasion when the respondent took her daughter out in his car and the complaint made by her daughter, who was then 14 years old, that the respondent had molested her. Furthermore, the complainant's recollection of noticing a mole or a sore on the top of the respondent's penis is supported by the police photographs that reveal a small red lesion on the head of the penis. Although the medical practitioner is unable to express an opinion as to whether the lesion may have been present in 2002, a jury, when considering the evidence in combination, could well consider that the presence in 2012 of a lesion that is consistent with the complainant's recollection to be an egregious coincidence. There is also the evidence of KL (junior) who recalls the complainant crying but did not remember exactly what the complainant told her but she knew that the complainant was hurt and something bad had happened.

222In my view, the Crown's challenge to the trial judge's decision fails to clear the first hurdle. The Crown has not discharged the onus of establishing that its case has been substantially weakened.

223As to s 137 Evidence Act 1995, I agree with Blanch J's identification at [185], [186] and [193] of the unfair prejudice that might arise to the complainant from the admission of the conversations. To my mind, it is unnecessary to consider questions of competing explanations as the evidence viewed at its highest is weak and is substantially outweighed by the danger of unfair prejudice to the respondent, which could not be corrected by jury directions. The exclusionary power in s 137 mandated the rejection of the evidence.

224Whilst upon my analysis, it is unnecessary to consider the conflict in the approaches to be taken to s 137 Evidence Act since the decision in Dupas v The Queen [2012] VSCA 328, it seems to me that enabling the trial judge to consider questions of credibility, reliability or weight when s 137 is invoked, is likely to enhance the fundamental principle that an accused is to receive a fair trial. Although Simpson J at [163], [170]-[171] refers to the practical difficulties that may arise by adopting such an approach, it is not uncommon for a witness to be cross-examined during a voir dire and an assessment can be made by the trial judge of the actual probative value of the evidence. More often than not, the probative value of evidence may be assessed from the witness statements without the necessity of calling witnesses.

225In my opinion, the approach taken in Dupas does much to avoid evidence being before a jury which in reality (rather than being taken at its highest in favour of the Crown) has little probative value and is outweighed by the danger of unfair prejudice to the accused.

226For these reasons, I would dismiss the appeal.

**********

Amendments

14 February 2014 - [3(6)] - deleting 's' in "misunderstanding"; [8] amend to now read "she had not had"; [24] deleting "a" after "namely"; [34] deleting "the" before "each"; [37] amending Patrick Stevedores citation; [38] and [39] amending citation of Walker Corporation, [39] correcting name of Act; [53] amending "read in" to "read as".
Amended paragraphs: [3(6)], [8], [23], [24], [34], [37], [38], [39], [53]

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: 14 February 2014

Court of Criminal Appeal Supreme Court New South Wales

Judgment

Factual circumstances

Reasons of trial judge

Relevant legal principles

(a) resolving a conflict in authorities

(b) should the Court now follow Shamouil?

Application of principles - s 137

Section 90 - unfairness

Jurisdiction to intervene

Conclusion

Background

The case the prosecution proposed to present at trial

Jurisdiction - Criminal Appeal Act, s 5F(3A)

The proceedings in the District Court

Evidence Act, s 90

Evidence Act, s 137

Amendments

Court of Criminal Appeal
Supreme Court
New South Wales