Part 3.11: Discretions to exclude evidence
Section 135: General discretion to exclude evidence
Section 136: General discretion to limit use of
Section 137: Exclusion of prejudicial evidence in criminal
Buchanan, Smith and ThomasNSWSC  4.8.2004, Buddin
JEvidence Act 1995 (NSW) s137 - murder of inmate at Long Bay Gaol -
joint criminal enterprise - partial identification of three offenders by inmate
who witnessed murder from photograph - Pitkin
distinguishedHeld: no basis for excluding evidence pursuant to
s.137.Buchanan, Smith and ThomasNSWSC  10.8.2004, Buddin
JEvidence Act 1995 (NSW) ss. 135, 137, 138 - murder of prisoner - joint
criminal enterprise - partial identification of three offenders by inmate who
witnessed murder from photograph - photos of 3 accused placed in first 20 photos
presented to witness - grouping of all aborigines at beginning also skews
process - failure to group array according to physical similarity -
contamination of evidence by witness discussing with other inmates - all
suspects in one set of photos - z3ZP Crimes Act 1914 (Cth) contrasted - no
impropriety pursuant to s.138. Held: evidence admitted.
DerbasNSWSC  23.8.2004, Dunford JEvidence Act 1995
(NSW) s114, 115 - murder of prison inmate - Crown witness gave evidence at Crime
Commission - during evidence identified two accused from between six to twelve
photographs - subsequently made statement to police - whether evidence could be
given of initial identification at Crime CommissionHeld: application
to exclude evidence refused - s.115 did not apply because not identification
made by someone from photos kept for use by police and shown to them by police -
s.114 did not apply because picture identification is excluded by section -
definition of 'picture identification' under s.115 not relevant to s.114 - s.114
definition does not require picture identification to be made from photos kept
for the use of police officers - if s.114 did apply still admissible because one
accused refused identification parade when arrested seven months earlier and
identification made of second accused was recognition evidence - s.137 not
applied - weaknesses in procedure can be dealt with in cross-examination,
comments and directions to jury
 NSWSC 1806 Johnson J
Evidence Act 1995 (NSW) s. 65(2)(d), 137 – murder – brother made three statements to police on separate occasions – first statements exculpatory – third statement inculpated accused and brother – at time of third statement brother arrested for unrelated offence and sought bail – not cautioned and aware police could link him to movements of accused – took police to where alleged weapons discarded – brother since deceased – reliability of statement – whether unfair prejudice
Held: evidence allowed – s. 65 - statement reliable – focus on circumstances of making of statement – can take into account evidence of matters both before and after statement made – evidence of second witness given at committal corroborating statement irrelevant – possibility of involvement in offence irrelevant because no suggestion witness would be charged
s.137 – probative value substantial – forensic disadvantage of witness not being available considered – corroborating witness available – previous inconsistent statements could be tendered – directions to jury
 NSWCCA 100
Evidence Act 1995 (NSW) 137 - whether trial judge has independent obligation to consider application of s 137 in the absence of reliance on that section – defence at trial objected to the tender of 4 Exhibits on the ground of relevance but did not rely on s 137
Held: Appeal dismissed. FDP v R  NSWCCA 317; 74 NSWLR 645. held that a trial judge is not obliged by s 137 to reject evidence on his or her own motion in the absence of an objection based on that section; affirmed in Potts v R and Shepherd v R  NSWCCA 245; Penza and Di Maria v R  NSWCCA 21.
At : In both Steve  NSWCCA 231; 189 A Crim R 68 and Chand  NSWCCA 53, where the Court found that the trial judge ought to have considered s 137 independently of any objection by trial counsel, the danger of unfair prejudice arising from the evidence in question was plain. Where, as in those cases, the danger of unfair prejudice is manifest, an obligation to exclude the evidence under s 137 may arise in accordance with the trial judge's overriding obligation to ensure a fair trial according to law (Pemble v R  HCA 20; 124 CLR 107 at 117-8 per Barwick CJ; James v R  HCA 6; 88 ALJR 427 at ).
At -: Any risk of undue prejudice arising from the exhibits impugned in the present case cannot be characterised as so obvious that the trial judge was obliged to intervene to ensure that the appellant was not denied a fair trial. The decision of counsel at trial to refrain from invoking s 137 for the trial judge's consideration and to object instead on the basis of relevance tends to confirm this to have been the case: see Ward v R  NSWCCA 46 at . Accordingly the trial judge did not err in failing to consider s 137 of his own motion. The appellant further cannot now rely on s 137 for the first time on appeal pursuant to r 4 of the Criminal Appeal Rules (NSW).
 NSWSC 495 Beech-Jones J
Evidence Act 1995 (NSW) s. 137– murder – murder of partner - statements made by victim suggesting earlier violence –
Held: evidence rejected - rejected statements made 4 days and 30 hours after alleged incidents – also rejected statement 'this has been going on…' as lacking in detail under s.137
 NSWSC 850 Button J
Evidence Act 1995 (NSW) s137– murder – admissibility of evidence of voice identification
Held: followed XY - questions of credibility, reliability, weight, and alternative explanations or inferences, are for the jury – irrelevant to discretion of judge
Smith (No 3)
 NSWSC 771, Garling J
Evidence Act 1995 (NSW) 137 – murder – identification evidence - S observed person at scene – later saw single photograph of A accompanying online news article about the murder admissibility of identification evidence by S - unreliability - displacement effect
Held: Identification evidence by S is inadmissible under s 137.
When a person sees, or is shown, a single photograph rather than a photo array from which one photograph is chosen, it is obvious that an identification arising from that single photograph may be unreliable. As well, where the photograph is associated with the description that the person is wanted by the police, albeit for the provision of assistance, those difficulties are magnified: at . Alexander v The Queen (1981) 145 CLR 395 at 400. Risk of displacement effect i.e. that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person. Real risk that S has, entirely unconsciously, substituted that image in the photograph for the image in his mind of the face of the person whom he saw.
 NSWCCA 316
Evidence Act 1995 (NSW) ss 90, 137– sexual offences against step-daughter – pre-text conversation in park – s.5F Crown appeal against exclusion of evidence
Held: allowed appeal – TJ failed to consider the nature and extent of the risk of unfair prejudice in light of proper directions – even when admissions equivocal and ambiguous pre-text conversations have been admitted
 NSWSC 1152 Button J
Evidence Act 1995 (NSW) ss 137– murder – admissibility of photos of deceased
Held: evidence admitted – jury warned as to nature of photos – relevant to issue in dispute – nature of photo
 NSWDC 199, Yehia SC DCJ
Evidence Act ss 55, 79, 137 – prison assault – accused identified by prison officers from CCTV footage – one accused observed by prison officers over period of 3 weeks – second accused observed by prison officers over 4 months – CCTV footage not clear – application of Smith - whether officers in better position than jury to make identification – whether ad hoc expert opinion – whether possible contamination of opinion caused by discussion between officers prior to identification as to who which prisoners were in the footage
Held: Evidence not admissible – evidence in relation to first prisoner not relevant under s 55 – only generally observed by officers over three weeks – Smith applied – officers in better position than jury to identify second prisoner so evidence relevant under s.55 – opinion evidence as 'ad hoc expert' admissible under s.79 – neither prison officers qualified as ad hoc experts – possible contamination of evidence made it prejudicial under s.137
 NSWSC 182 Hall J
Evidence Act ss 55, 137 – manslaughter – punched strangers walking down street – Crown sought to lead evidence that accused undertook training for 5 months Krav Maga Defence Institute – also evidence from martial arts expert viewing CCTV footage that accused demonstrated martial arts training in his assault on victims – crown sought to rely on evidence as showing state of mind
Held: Evidence excluded– possible to envisage how evidence of training and proficiency could be relevant to state of mind – this evidence of training established course had defensive training and established attendance of accused but not proficiency – training evidence did not support evidence of expert that CCTV showed proficiency – not relevant under s.55 – even if relevant should be excluded under s.137 - unfair prejudice resulting from low level of skill – expert evidence too vague as to proficiency and no evidence accused had training in martial arts suggested by expert
Simmons & Moore (No 2)
 NSWSC 143 Hamill J
Evidence Act ss 90,137,138 – unsolved missing persons investigation – suspected cold case murder – covert investigation using "scenario technique" – A makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police "elicited" admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude.
Held: Relevant parts of conversation and admissions admissible.
(Tofilau v The Queen  HCA 39; 231 CLR 396)
 NSWCCA 206
Evidence Act s137 – fraud - voice identification evidence – where witnesses participated in voice identification parade – where differences in recording of A's voice and recordings of sample voices attributable to method of recording and production - whether evidence ought not to have been admitted.
Held: Evidence admissible. In determining an application to exclude voice identification evidence pursuant to s 137, court must take into account all relevant circumstances including conditions under which recordings were made and nature of identification procedure. No unfair prejudice in this case and no error by trial judge in admitting evidence. Voice identification evidence weaknesses, including sound quality, were matters properly to be considered by jury in determination of weight to be given to evidence. -, -. R v John  Crim LR 456; R v Blick  NSWCCA 61; 111 A Crim R 326; Alexander v The Queen  HCA 17; 145 CLR 395.
Basanovic (No 4)
 NSWSC 1100 (Davies J)
Evidence Act 1995 (NSW) s 65(2), s 137 - hearsay evidence – unfair prejudice – witness J examined by Crime Commission – transcripts of evidence from witness J overseas at trial – whether witness J unavailable – whether reasonable steps taken to secure attendance – steps first taken three days before trial to commence – no explanation for delay – witness in Australia in weeks leading up to trial – whether probative value of evidence outweighed by unfair prejudice – no notice given to rely on hearsay evidence.
Held: Tender of evidence of transcript of witness J rejected. Sections 65(2)(a), (c) and (d) are made out. J cannot be considered to be a person who is not available to give evidence because the Crown has not demonstrated that all reasonable steps have been taken to secure his attendance: at ; Kazzi  NSWCCA 241; (2003) 140 A Crim R 545 referred to.
Unfair prejudice to A by the admission of this evidence and that danger outweighs the probative value of the evidence. Accused will not have opportunity to cross-examine J to test his evidence about what MB is alleged to have told him. That is a significant prejudice because it would mean the jury had before it J's untested evidence of what he claims MB told him. Crown would then use that evidence of J's to point to inconsistencies in what it is believed MB will say if he gives evidence as seems likely. Shamouil  NSWCCA 112; (2006) 66 NSWLR 228; BD (1997) 94 A Crim R 131; Papakosmos  HCA 37; (1999) 196 CLR 297
 NSWSC 164 Wilson J
Evidence Act ss 55, 137 – murder – assaulted de facto partner – issue whether murder or manslaughter – Crown seeking to tender evidence of volatile nature of relationship – whether relevant – whether probative value outweighed by prejudice
Held: Evidence admitted – crown required to establish mental element – evidence establishing context of relationship relevant – not unfairly prejudicial provided evidence of relationships between accused and deceased
 HCA 12
NTCCA – sexual offences - Appellant convicted of sexual offences against step granddaughter - Tendency evidence from complainant that appellant had stroked her leg on a separate occasion allowed to show sexual interest (under s.97) - Evidence of complaint to friend, aunt, mother and grandmother allowed (under s.137)
Whether tendency and complaint evidence wrongly admitted - Whether trial judge should have regard to credibility and reliability if evidence when assessing the probative value of evidence under s.97(1)(b) and s.137.
Result - Appeal allowed – French CJ, Kiefel, Bell and Keane JJ, Gageler agreeing as to the result – tendency evidence should not have been admitted
Test for probative value under Act
The key issue is the phrase 'if it were accepted' which is present in the relevance test under s.55 and missing from the definition of 'probative value' in the dictionary. Otherwise the test for both relevance and probative value is identical.
FRENCH CJ, KIEFEL, BELL and KEANE JJ - TJ does not consider reliability or credibility of evidence when assessing probative value
Considered that the missing phrase should be imported into the probative value test since both test are identical. This means a trial judge should assume the evidence will be accepted by the jury and must not consider questions of credibility or reliability in applying the test.
They further explain that evidence that is weak or fanciful may be rejected not because an assessment has been made as to its reliability or credibility but because it is unconvincing and does not have a high enough probative value , , 
The majority did refer to the question of concoction. They rejected the submission that it is "well-established" that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch –left consideration of impact of joint concoction to another time 
GAGELER J - TJ should consider reliability and credibility of evidence when assessing probative value
By contrast Gageler J found the absence of the phrase from the definition significant and felt compelled by language, structure and evident design of the legislation to find that the test for probative value includes a consideration of the reliability and credibility of the evidence. He also found the comment of McHugh J in Papakosmos (1999) 196 CLR 297 at  compelling.
NETTLE AND GORDON JJ (both Victorian) - - TJ should consider reliability and credibility of evidence when assessing probative value
Nettle and Gordon were also convinced that the absence of the phrase from the definition was significant and concluded there was no compelling reason to depart from the natural or ordinary meaning of the words in the statute which suggest that under s.55 the test involves assuming the jury accept the evidence while under s.97 the court should not make that assumption. They also indicated a 'logical preference' for McHugh over Gaudron J in Adam (2001) 207 CLR 96 at  -, 
Section 138: Discretion to exclude improperly or illegally obtained
Mehajer and Jacobs
DPP v Coe
 NSWCCA 228
Evidence Act 1995 (NSW) s 138 – s.5F Crown Appeal against exclusion of evidence - police officer attended rural property for firearm audit – wandered around property looking for resident – found cannabis plantation – returned with search warrant – trial judge excluded all evidence on basis of trespass
Held: appeal allowed and evidence admitted – considered but did not need to decide if trespass – assuming contravention of trespass law judge erred in finding conduct 'reckless' and contravention one of 'substantial gravity' – applied meaning of 'reckless' from Gedeon (2013) 237 A Crim R 326 at