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Published online by Cambridge University Press: 01 January 2025
The application of s 137 of the uniform evidence legislation, which essentially restates the Christie discretion, has been thrown into confusion with the Supreme Courts of New South Wales and Victoria taking a restrictive and expansive interpretation respectively of the meaning of ‘probative value’ for the purpose of the weighting exercise between probative value and unfair prejudice. Definitive clarification of such an important and well known evidential principle, which could reasonably have been previously regarded as settled law, will most likely be postponed until a suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution of the application of s 137, by applying well-understood principles of statutory interpretation, to argue in favour of the Victorian expansive approach to the meaning of ‘probative value’ in the uniform evidence legislation.
The author would like to thank the anonymous referees for their valuable comments.
1 See, eg, Pattenden, Rosemary, Judicial Discretion and Criminal Litigation (Oxford University Press, 2nd ed, 1990)CrossRefGoogle Scholar; Cross, Rupert, ‘Discretion and the Law of Evidence: When it Comes to the “Forensic Crunch”’ (1979) 30(4) Northern Ireland Legal Quarterly 289Google Scholar; Weinberg, Mark, ‘The Judicial Discretion to Exclude Relevant Evidence (1975) 21(1) McGill Law Journal 1Google Scholar; Livesey, Bernard, ‘Judicial Discretion to Exclude Prejudicial Evidence’ (1968) 26(2) Cambridge Law Journal 291.CrossRefGoogle Scholar
2 [1978] AC 171.
3 Cross, Rupert, ‘Discretion and the Law of Evidence: When it Comes to the “Forensic Crunch”’ (1979) 30(4) Northern Ireland Legal Quarterly 289, 294.Google Scholar
4 Weinberg, above n 1, 41.
5 [2012] VSCA 328 (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA) (‘Dupas’). In Dupas, three witnesses gave identification evidence of having seen the applicant at the Fawkner cemetery in Melbourne on the day of the murder. Two of those witnesses had previously seen the applicant on television in connection with other murders of which he had been convicted, and the third witness had seen the applicant's photograph in a newspaper accompanied by comment he had murdered the victim. A number of years had passed between the sightings of the applicant at the cemetery and their identification of the applicant as the person they had seen on the day of the murder.
6 The uniform evidence legislation covers six Australian jurisdictions: Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); Evidence Act 2011 (ACT); and Evidence (National Uniform Legislation) Act 2011 (NT). The States ‘holding out’ against the uniform evidence legislation are now reduced to Queensland, South Australia and Western Australia.
7 [2006] NSWCCA 112 (Simpson and Adams JJ agreeing) (‘Shamouil’). In Shamouil, the victim of a shooting identified the respondent in a photo-board identification. The victim later retracted his earlier identification evidence. The trial judge excluded the evidence of the photo-board identification pursuant to s 137 of the Evidence Act 1995 (NSW). The Crown appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which provides for such an appeal if a ruling on admissibility of evidence substantially weakens the prosecution's case, on the basis that, first, his Honour had wrongly considered the reliability of the identification evidence when determining its probative value, and, secondly, his Honour had failed to identify any unfair prejudice. The defence argued that the identification evidence caused unfair prejudice because of the danger of the jury speculating as to why the victim might have retracted his statement.
8 Dupas [2012] VSCA 328 [63].
9 Section 137 of the Evidence Act 2008 (Vic) provides for the Exclusion of prejudicial evidence in criminal proceedings. 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 accused.’
10 Dupas [2012] VSCA 328 [63].
11 R v Christie [1914] AC 545.
12 Dupas [2012] VSCA 328 [65]. The use of the word ‘discretion’ requires clarification. Section 137 uses the word ‘must’ which is mandatory. However, because the judge is engaged in an evaluation and comparison between the probative value of the evidence and the danger of unfair prejudice if the evidence is admitted, the weighting exercise is discretionary.
13 See Evidence Act 1977 (Qld) s 130; Evidence Act 1929 (SA) s 34KD(2); Evidence Act 1906 (WA) s 5 and s 31A(2). In Western Australia, there is no reference to a general discretion to exclude evidence, but s 5 states that the Act does not derogate from the rules of evidence existing at common law that are not inconsistent with the Act's provisions. In Slater v The Queen [2004] WASCA 151, the court quashed a conviction and ordered a new trial based on the admission of a videotape of the appellant's police interview, in which he denied the offences with which he was charged, but admitted to asking about a sixteen-year-old girl's availability for sex and that he had commonly supplied alcohol and cannabis to young people at parties at his home. The Court of Appeal held that this evidence should not have been admitted as its probative value was outweighed by its prejudicial effect. Furthermore, the well-known case of Bunning v Cross (1978) 141 CLR 54, which dealt with illegally obtained evidence, came to the High Court on appeal from the Full Court of the Supreme Court of Western Australia. Section 31A(2) allows the admission of propensity evidence or relationship evidence if the court considers (a) the evidence has significant probative value and (b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. Section 31(2)(b) is taken from the dissenting judgment of McHugh J in Pfennig v The Queen (1995) 182 CLR 461, 529. Section 31A(2) ‘confers on the courts greater power to admit propensity and relationship evidence than exists at common law’: Russell v The State of Western Australia [2011] WASCA 246 [353] (Buss JA). For a discussion of the meaning of ‘significant probative value’ and whether probative value outweighed the risk of an unfair trial, see Dair v The State of Western Australia [2008] WASCA 72. The case concerned the stabbing of a policeman and the admission of evidence that the appellant had been convicted of four other offences involving assaults on police in their attempts to avoid arrest.
14 (2004) 92 SASR 146.
15 Ibid 210 [665]–[666].
16 [2010] SASCFC 80.
17 R v S, DD [2010] SASCFC 80 [117] (footnotes omitted).
18 Dupas [2012] VSCA 328 [222]–[225].
19 Ibid [60], citing R v Christie [1914] AC 545 (the ‘Christie discretion’).
20 Ibid [61].
21 Dupas v R (2010) 241 CLR 237.
22 Ibid 251 [37] (French CJ, Gummow, Hayne, Heydon, Crennan, Keifel and Bell JJ), citing R v Glennon (1982) 173 CLR 592, 5989 (Mason CJ and Toohey J agreeing).
23 Ibid [38].
24 R v Shamouil [2006] NSWCCA 112 [49].
25 Ibid [50].
26 (1997) 92 A Crim R 52, 65–6.
27 R v Singh–Bal (1997) 92 A Crim R 397, 403; R v Yates [2002] NSWCCA 520 [255]–[256].
28 R v Shamouil [2006] NSWCCA 112 [60].
29 Ibid [64].
30 Ibid [65].
31 Dupas [2012] VSCA 328 [68].
32 See, eg, R v Sood [2007] NSWCCA 214; R v Mundine [2008] NSWCCA 55.
33 Dupas [2012] VSCA 328 [68].
34 Ibid [140].
35 Ibid.
36 R v Christie [1914] AC 545, 599; Noor Mohamed v The King [1949] AC 182, 192; Harris v DPP [1952] AC 694, 707.
37 Pfennig v The Queen (1995) 182 CLR 461, 487–8.
38 R v Doyle [1967] VR 698 (Scholl, Pape and Adam JJ).
39 Festa v The Queen (2001) 208 CLR 593, 602–3 (Gleeson CJ).
40 Dupas [2012] VSCA 328 [226].
41 [2013] NSWCCA 121. The case in R v XY concerned charges of indecently assaulting a child under the age of 10 years. The contested evidence involved two telephone conversations between the complainant and the accused, which were taped nine years after the alleged incidents, with the inference being available that the accused was acknowledging sexual misconduct with the complainant. The trial judge held it would be unfair to admit the evidence given the manner in which it was obtained, and the vague proposition notionally adopted by the accused in circumstances where it would be unsafe to assume the knowledge of the accused.
42 The majority comprised Basten JA, Hoeben CJ at CL, Simpson and Blanch JJ, with Price J in dissent.
43 R v XY [2013] NSWCCA 121 [66].
44 Ibid [224].
45 Ibid [225].
46 Dupas [2012] VSCA 328 [156]. See also Smith, Tim and Odgers, Stephen, ‘Determining “Probative Value” for the Purposes of Section 137 in the Uniform Evidence Law’ (2010) 34 Criminal Law Journal 292, 293.Google Scholar
47 (1999) 196, CLR 297, 323.
48 R v Shamouil [2006] NSWCCA 112 [53].
49 (2001) 207 CLR 96, 115 [60].
50 Section 55(1) of the uniform evidence legislation reads: ‘The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the existence of a fact in issue in the proceeding.’
51 These sections deal with the tendency rule and the coincidence rule.
52 Section 135 states: ‘The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading of confusing; or (c) cause or result in undue waste of time.’
53 Dupas [2012] VSCA 328 [63]; R v Christie [1914] AC 545.
54 Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) [957].
55 Heydon, Dyson, Cross on Evidence (LexisNexis, 9th ed, 2013) 373 [11125].Google Scholar
56 R v Carusi (1997) 92 A Crim R 52, 65–6 (Hunt CJ at CL); BBH v R (2012) 286 ALR 89 [112] (Heydon J).
57 Festa v R (2001) 208 CLR 593 [51] (McHugh J). See also R v Cavkic (No 2) (2009) 28 VR 341 [47] (Vincent and Nettle JJA, Vickery AJA).
58 (1999) 196 CLR 297, 323.
59 (2001) 208 CLR 593 [51].
60 Heydon, above n 55, 375 [11125].
61 Ibid, citing inter alia R v Singh–Bal (1997) 92 A Crim R 397, 403 (NSWCCA); Adam v R (2001) 207 CLR 96, 115 [60].
62 R v Mundine (2008) 182 A Crim R 302 [44].
63 R v Suteski (2002) 56 NSWLR 182 [116]; Martin v Tasmania (2008) 190 A Crim R 77 [89]–[91].
64 Heydon, above n 55, citing inter alia Papakosmas v R (1999) 196 CLR 297 [92]; R v Serratore (1999) 48 NSWLR 101 [31].
65 Heydon, above n 55, citing inter alia R v BD (1997) 94 A Crim R 131, 139 (NSWSC); R v Suteski (2002) 56 NSWLR 182 [117].
66 (2001) 207 CLR 96, 115 [60].
67 Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012) 814 [1.3.14760].Google Scholar
68 Ibid.
69 [2006] NSWCCA 112 [60]–[67].
70 R v Shamouil [2006] NSWCCA 112 [63].
71 Odgers, above n 67, 817 [1.3.14760]. Section 56(2) states that: ‘Evidence that is not relevant in the proceeding is not admissible’.
72 Odgers and Smith, above n 46, 304.
73 Ibid.
74 (1995) 182 CLR 461, 528–9.
75 Pfennig v The Queen (1995) 182 CLR 461, 529.
76 Ibid.
77 Ibid, 529–30 (emphasis in original).
78 (1999) 196, CLR 297, 323.
79 Ibid.
80 Gans, Jeremy and Palmer, Andrew, Uniform Evidence (Oxford, 2011) 317 [16.2.1]Google Scholar, citing in support Director of Public Prosecutions (Tas) v Lynch (2006) 16 Tas R 49.
81 [2012] VSCA 328 (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA).
82 [2011] TASCCA 7.
83 [2006] NSWCCA 112 [60]–[67] (Spigelman CJ).
84 KMJ v Tasmania [2011] TASCCA 7 [34].
85 Gans and Palmer, above n 80.
86 Odgers, above n 67.
87 (2001) 207 CLR 96, 115 [60].
88 [2006] NSWCCA 112 [60]–[67].
89 Gans and Palmer, above n 80.
90 Ibid, citing R v Shamouil [2006] NSWCCA 112 [63] (Spigelman CJ).
91 Ibid.
92 R v Christie [1914] AC 545.
93 R v Carusi (1997) 92 A Crim R 52, 65–6 (Hunt CJ at CL).
94 R v XY [2013] NSWCCA 121, [66] (Basten JA).
95 R v Shamouil [2006] NSWCCA 112, [63] (Spigelman CJ).
96 [1914] AC 545.
97 R v Christie [1914] AC 545, 559 (Moulton LJ).
98 Ibid, 559–60.
99 Edmond, Gary, ‘Specialised Knowledge, the Exclusionary Discretions and Reliability: Reassessing Incriminating Expert Opinion Evidence’ (2008) 31 University of New South Wales Law Journal 1, 8–9.Google Scholar
100 Noor Mohamed v R [1949] AC 182; Harris v Director of Public Prosecutions [1952] AC 694; Karuma v The Queen [1955] AC 197.
101 [1980] AC 402, 434.
102 (1950) 82 CLR 133
103 R v Lee (1950) 82 CLR 133, 134 (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ).
104 (1977) 137 CLR 517, 541.
105 [1987] 1 Qd R 239, 251.
106 [1996] 2 Qd R 68, 72.
107 Edmond, above n 99, 10, citing R v Lock (1997) 91 A Crim R 356, 364 (Hunt CJ at CL); R v Polkinghorne [1999] NSWSC 704 [51] (Levine J); R v Blick [2000] NSWCCA 61 [13], [20] (Sheller JA).
108 R v Lock (1997) 91 A Crim R 356, 364.
109 (1997) 92 A Crim R 52, 65–6.
110 [1987] 1 Qd R 239, 251.
111 Forbes, John, Evidence Law in Queensland (Thomson Reuters, 9th ed, 2012) 484 [130.4].Google Scholar
112 Edmond, above n 99, 14, citing Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888, 897 (1988).
113 [2012] NSWCCA 21.
114 Ibid [409].
115 Ibid [434].
116 Domican v The Queen (1992) 173 CLR 555, 561–2.
117 Wood v R [2012] NSWCCA 21 [460] (McClellan CJ at CL).
118 [2012] NSWCCA 21.
119 Wood v R [2012] NSWCCA 21 [289] (McClellan CJ at CL), citing [950] of the original trial.
120 Forbes, above n 111, 510 [130.67].
121 Ibid, citing Wells, QC (formerly Wells J), ‘A Critique of the Australian Law Reform Commission Draft Evidence Bill’ (1992) 9 Australian Bar Review 185, 197.Google Scholar
122 Ibid.
123 Ibid, 511 [130.67], citing Sarah Vogler and Mark Oberhardt, Tears and hugs after Kaihana Hussain freed (18 February 2010) Courier Mail <http://www.couriermail.com.au/news/queensland/tears-and-hugs-after-kaihana-hussain-freed/story-e6freoof-1225831564004>.
124 Forbes, above n 111, citing R v McKay [1965] Qd R 240, 246; R v Priestly (1967) 51 Cr App R 1, 2 (Sachs LJ).
125 R v Carusi (1997) 92 A Crim R 52, 65–6 (Hunt CJ); R v XY [2013] NSWCCA 121 [66] (Basten JA); R v Shamouil [2006] NSWCCA 112 [63] (Spigelman CJ).
126 [2013] NSWCCA 121 [224]–[225].
127 [2011] TASCCA 7 [34] (Evans J).
128 [2006] NSWCCA 112 [60]–[67] (Spigelman CJ).
129 (1997) 92 A Crim R 52, 65–6 (Hunt CJ at CL).
130 (1997) 92 A Crim R 397, 403.
131 [2002] NSWCCA 520 [255]–[256].
132 [2004] NSWCCA 233 [220]–[223].
133 (2001) 207 CLR 96, 115 [60].
134 R v Rahme [2004] NSWCCA 233 [220] (Hulme J).
135 Ibid [221]–[222] (emphasis in original).
136 Ibid [223].
137 (1995) 182 CLR 461, 528–29.
138 Pfennig v The Queen (1995) 182 CLR 461, 529.
139 Sarah Vogler and Mark Oberhardt, Tears and hugs after Kaihana Hussain freed (18 February 2010) Courier Mail <http://www.couriermail.com.au/news/queensland/tears-and-hugs-after-kaihana-hussain-freed/story-e6freoof-1225831564004>.
140 [2012] HCA 15.
141 [2013] HCA Trans 318.
142 Aytugrul v The Queen [2012] HCA 15 [2] (French CJ, Hayne, Crennan and Bell JJ).
143 Evidence Act 1995 (NSW).
144 Aytugrul v The Queen [2012] HCA 15 [6].
145 Ibid [24].
146 Ibid [29] (emphasis in original).
147 Ibid [41] (Heydon J).
148 519 US 172 (1997).
149 (1977) 137 CLR 517.
150 Aytugrul v The Queen [2012] HCA 15 [47]–[51].
151 Ibid [52]–[63].
152 Old Chief v United States 519 US 172, 186-187 (1997).
153 Aytugrul v The Queen [2012] HCA 15 [49].
154 Ibid [64].
155 Ibid [76].
156 [2013] HCA Trans 318.
157 Ibid 4.
158 Ibid.
159 Ibid 5–6.
160 [2012] VSCA 328 (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA).
161 [2013] NSWCCA 121 [66] (Basten JA).
162 Dupas [2012] VSCA 328 [63] (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA).