Legal Research > Evidence Act tables

Sections 135-139

 

Part 3.11: Discretions to exclude evidence

Section 135: General discretion to exclude evidence


Meier
NSW CCA 21.5.1996
Evidence Act 1995 (NSW) s.135 - identification evidence
Held: s.114 inapplicable as identification occurred before Act applicable - general discretions to exclude evidence - failure to reject evidence on discretionary grounds involved risk of miscarriage of justice - appeal allowed.

Mesiti aka Lewis
NSWDC (Ducker DCJ) 23.5.1996
Evidence Act 1995 (NSW) s.135 - 11y complainant identified accused from photos shown to her by police - police used photo of accused taken three weeks prior to arrest instead of at time of arrest
Held: although evidence of identification not excluded under s.115 use of photograph taken prior to arrest created situation of prejudice sought to be avoided by s.115 and excluded under s.135.

Stidworthy
NSWDC (Bellear DCJ) 19.6.1996
Evidence Act 1995 (NSW) s.135 - fingerprint evidence - fingerprint expert having difficulty recalling basis for opinion
Held: court required to balance probative value against dangers that, inter alia, fact finder may use evidence to make decisions on an improperly, perhaps emotional, basis - probative value outweighed by unfair prejudice - to correct unfairness would result in undue waste of time

Mordy
NSWSC (Dowd J) 12.8.1996
Evidence Act 1995 (NSW) ss.135 & 137
Held: 'prejudice' and 'prejudicial' requires some improper approach to evaluation of evidence other than fact that it is adverse - mere fact that evidence is of slight probative value does not of itself cause it to be prejudicial or to create a prejudice

Huang-Tung, Tam & Kuan
NSWSC (Barr J) 25.2.1997
Evidence Act 1995 (NSW) s.135 - drug importation via crate consignment air freighted from Bangkok - four previous consignments (possibly 'dry runs') air freighted to Sydney from Bangkok - similar delivery modus operandi - Asian males receiving crates with Chinese glass-framed paintings.
Held: danger of prejudice is that tribunal of fact will use evidence upon a basis logically unconnected with issues in case - in this case probative value outweighs any prejudice

Lockyer
(1997) 89 A Crim R 457; NSWSC
Evidence Act 1995 (NSW) s.135 - murder - tendency evidence - adduced by accused against Crown's principal witness to suggest witness committed murder.
Held: s.135 does not depart from R v Christie [1914] AC 545 discretion at common law - unfair prejudice is not established by mere fact that evidence has only slight probative value - nor is it established because it may reduce effect of Crown case - same considerations apply to determination of unfair prejudice where evidence is tendered either by Crown or accused - no danger of unfair prejudice - evidence admissible

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.135 - prior inconsistent statement by Crown witness - juvenile robbed and murdered adult victim - juvenile accomplices professed at trial to have no memory of statement made police about homicide - statement recorded on ERISP - leave granted to crown to cross-examine witness.
Held: judge correct in granting crown leave to cross-examine own witness - evidence satisfied exclusions to hearsay rule - trial judge took into consideration relevant factors weighing probative value versus unfair prejudice.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.135 - sexual assault - evidence of belief of complainant that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not unfairly prejudicial to accused.

Singh-bal
(1997) 92 A Crim R 397; NSW CCA
Evidence Act 1995 (NSW) s.135 - disputed oral admission to police - no contemporaneous record - voir dire held to consider admission.
Held: voir dire procedure misconceived - trial judge can only exclude evidence if probative value outweighed by prejudicial effect - question of whether admission made is for jury - if jury accepted admission made no danger that jury could have been misled or confused by it - no relevant prejudice

Marks
NSW CCA 2.5.1997
Evidence Act 1995 (NSW) s.135 - attempted armed robbery - identified from photos at police station - details of each photo blackened with texta - by trial name of applicant visible through texta.
Held: cited with approval Carusi (1997) 92 A Crim R 52 - when considering probative and prejudicial value judge cannot consider whether jury should accept evidence or not - must only consider whether, taken at its highest, probative value of evidence is outweighed by prejudicial effect.

(Special leave to appeal refused: (1998) 72 ALJR 1134)

Fernando

NSWSC (Abadee J) 29.5.1997
Evidence Act 1995 (NSW) s.135 - admissibility of police video evidence depicting hospital grounds and damaged motor vehicle which had been broken into and goods stolen
Held: evidence admitted

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.135 - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence - leave granted to Crown to cross-examine witness for inconsistent evidence.
Held: evidence allowed

Velevski (No.3)
NSWSC (Dunford J) 12.6.1997
Evidence Act 1995 (NSW) s.135 - admissibility of Crown expert to testify whether accused able to sleep for 14 to 16 hours on day of homicide
Held: evidence relevant and admissible - Judge declined to exercise discretion under s.135 or 137.

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.135 - supply and possess pistol - during search on street asked police 'can we talk?'- in interview room refused interview and made comments about being set up - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: probative value not outweighed by prejudice

Ford
NSWSC (Barr J) 22.4.1998
Evidence Act 1995 (NSW) s.135 & 137 - charged with stabbing murder of fellow prisoner in prison yard - evidence from two eye-witnesses to murder who recognised accused - both acquainted with accused from prison environment - no identification parade held or identification made from photographs - accused of distinctive appearance
Held: evidence highly prejudicial but not unfairly so - probative value of evidence of highest order.

Mankotia
NSWSC (Sperling J) 21.7.1998
Evidence Act 1995 (NSW) s.135 - stabbing murder of girlfriend - Crown sought to lead evidence of photos of deceased at flat and in mortuary after wounds cleaned showing wounds to neck and face, holes in clothing and pooled and splattered blood - also sought to lead evidence of video of deceased in flat - accused did not deny killing
Held: followed Milat NSWSC (Hunt CJ at CL) 5.6.1996 at p.28 - 'unfair prejudice' means 'real risk that it will be misused by the jury...'- horrific nature of photos not grounds for rejection (Allen NSW CCA 1.12.1992, Murdoch (1987) 37 A Crim R 118, Baraghith (1991) 54 A Crim R 240) - some photos allowed, some excluded on basis of, inter alia, duplication - video disallowed - duplicating images has dramatic quality which may heighten emotion.

Moffatt [No.2]
NSWSC (Kirby J) [226] 18.3.1999 (upheld (2000) 112 A Crim R 201; NSW CCA 23.5.2000)
Evidence Act 1995 s 135 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: admissible - higher tolerance to alcohol because of long history of alcoholism - answers to ERISP appear consistent and lucid - corroborated in many aspects.

Crisologo
(2000) 99 A Crim R 178 (NSW CCA)
Evidence Act 1995 (NSW) s.135 - sexual assault - trial judge rejected evidence of accused's exculpatory account of offence given to mother and wife two days after offence - account identical to accused's account at trial.
Held: when considering probative value of evidence given on behalf of accused must bear in mind accused bears lesser evidentiary onus - probative value does not need to be as strong.

FAP
NSW CCA [278] 6.9.1999
Evidence Act 1995 (NSW) s.135 - robbery - identification made from nine photographs including two of accused - unreasonable to hold identification parade in circumstances.
Held: absence of identification parade always relevant to exercise of discretion under s.135 & 137 - troubled by small number of photographs used and presence of two photos of accused - in circumstances, however, no error in discretion of judge in admitting evidence.

West [325]; Smith [317]; Morris [326]
NSW CCA 21.10.1999
Evidence Act 1995 (NSW) s.135 & 137 - armed robbery - accused recognised by police officers from photos taken by bank security cameras
Held: probative value outweighed danger of prejudice
(NB: High Court allowed appeal on basis evidence not relevant)

OGD [No. 2]
(2000) 50 NSWLR 433; NSW CCA [404] 13.9.2000
Evidence Act 1995 (NSW) s.135 - sexual offences on nephew over 5 years - evidence led from three other boys that appellant had also sexually abused them - whether evidence should have been excluded on basis of possibility of concoction.
Held: s.135 and s.137 discretions - Judge made no error in allowing evidence in this case.

Ngo
(2001) 122 A Crim R 467; NSWSC [595] Dunford J 8.3.2001
Evidence Act 1995 (NSW) ss.135 & 137 - murder - technical evidence to be given in relation to murder weapon
Held: technicality of evidence no basis to exclude - responsibility of counsel to ensure evidence presented in way jury can understand

Richards
(2001) 123 A Crim R 14; NSW CCA [160] 1.5.2001
Evidence Act 1995 (NSW) s.135 - drug offences - accused prohibited from cross examining Crown witness on non-custodial sentence witness received in return for assistance - Crown would respond by leading evidence of other reasons for lenient sentence including fears for witness - Judge at trial ruled this would result in prejudice to accused by suggesting witness feared accused and result in discharge of jury - ruled evidence inadmissible
Held: evidence wrongly excluded - look at unfair prejudice of evidence itself, not subsequent consequences of evidence led in response - appeal dismissed because questioning made clear to jury witness given non custodial sentence.

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.135, 136 - stalking - appellant convicted of harassing cousin who refused to marry him - Judge allowed evidence of threatening conduct of appellant towards complainant and family in preceding 5 years.
Held: relationship evidence not unfairly prejudicial - although TJ did not direct his mind to discretions under ss. 135 and 136, there was no basis upon which he could have justifiably exercised his discretion to exclude or limit any of relationship evidence.

Clark
(2001) 123 A Crim R 506; NSW CCA [494] 13.12.2001
Evidence Act 1995 ss. 135-137 - murder - evidence of hostile relationship between appellant and deceased - whether 'relationship evidence' admissible - evidence of contemporaneous representations by deceased demonstrating deceased's negative state of mind about relationship with appellant.
Held: admissibility of 'relationship evidence' governed by Evidence Act - its reception turned upon three issues: relevance, application of any exclusionary provision, and whether any order should have been made under ss. 135-137 - Frawley (1993) 69 A Crim R 208 distinguished - numerous authorities referred to - no error in not excluding evidence under s135-137 - general discussion of provisions

Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) ss.135, 137 - admission of conversations between accused and police, particularly alleged admission.
Held: no error - no miscarriage of justice - appeal dismissed

Lim & Yeung
NSW CCA [293] 30.7.2002
Evidence Act 1995 ss135-137 - possess drug - evidence of intercepted telephone calls to which appellants were not party - admissibility of statements made by participants to joint criminal enterprise against other alleged participants - reasonable evidence of pre-concert - whether conversations admissible
Held: no error in not excluding evidence under ss135, 137 - conversations made in furtherance of conspiracy.

Giovannone
(2002) 140 A Crim R 1; NSW CCA [323] 14.8.2002
Evidence Act 1995 (NSW) 135, 136 - pervert course of justice - tendency and coincidence evidence of prior payments and meetings
Held: specific directions as to use and standard of proof of tendency and coincidence evidence should have been given to jury - possibility of a miscarriage of justice.

Glover
NSW CCA [376] 11.9.2002
Evidence Act 1995 (NSW) s.135, 137 - malicious damage by explosives - whether TJ erred in admitting evidence to that accused had sought immunity from prosecution in respect of offences in conversation with Federal Police
Held: request for immunity was highly probative - prejudice not unfair to accused and accordingly ss 135 and 137 had no application

Cohen
NSW CCA [339] 12.9.2002
Evidence Act 1995 (NSW) 135, 137 - aggravated break, enter/commit indecent assault - whether TJ erred in admitting evidence of alleged conversation by appellant on basis of its equivocality and inability to assess its probative value.
Held: appeal dismissed - although words were tendered as an admission, true import of words was a circumstantial fact for jury to consider in light of other facts found - could not be said that admission of statements could have prejudiced appellant unfairly

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.135 - drug supply - improperly obtained admissions - discretion to admit ERISP - where answers obtained after accused claimed right to silence - where caution not given until part way through interview - whether cause to believe truth of answers adversely affected
Held: TJ adverted to ss 85, 90 and 138 of the Evidence Act - open to TJ to reach conclusions he did: R v Plevac (1995) 84 A Crim R 570 and R v Clarke (1997) A Crim R 41 applied.

Taylor
NSW CCA [194] 7.11.2003
Evidence Act 1995 (NSW) s135 - murder - admissibility of solicitor's file note containing instructions from client as business record under s 69(2) - whether TJ erred in exercise of discretion under s.135 in refusing to allow defence to tender file note - where file note concerned statement by witness with history of drug abuse and mental problems and who had made inconsistent statements.
Held: file note was business record under s.69 - no error in exercise of TJ's discretion under s.135 to refuse tender - Bell J at [130] (with whom court agreed): 'I consider that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few'.

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.135, 137, 138 - multiple sexual assault offences - complainant described co-accused, G as having ponytail - identified G from photo board - only 8 of 15 photos had long hair - no photos with ponytail - G had longest hair - whether evidence of identification unfair - whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed - no error in admission of evidence of identification - nothing distinctive about photo of G - process videotaped - directions as to identification evidence adequate - not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence

Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence 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.
 
Nguyen
[2006] NSWSC, 834 (Hulme J) 29.8.2006
Evidence Act 1995 (NSW) s.78, 79 - murder – admissibility of evidence of police officers identifying offenders from CCTV cameras – prejudice where identification based on contact police had with accused:
“Senior Constable Young said that he had been stationed at Cabramatta since 1995 and his duties had included beat policing and bike squad duties. Since 1996 he had met with K. Nguyen on well over 100 occasions and met with each of the other accused on at least 50 occasions. He had seen Khanh in the company of the others. On occasions he had spent in excess of half an hour in face-to-face contact with all four and described one particular occasion on 7 November 2003 when he had had conversation with all but ATCN.”
Held: not prejudicial enough:
[36] In this connection it is appropriate to note that some few years ago Cabramatta, where most, if not all, of the observation and contact of which the officers spoke occurred, received a deal of press publicity to the effect that street dealing in illegal drugs was rife there. Given the suburb’s reputation, one would expect that the police would make efforts to know whoever was to be seen around and while, no doubt the matters just referred to might well be cause for suspicion on the part of the police and the jury, they also go to explain the police officers’ interest in the Accused without that interest being indicative of the Accused actually offending.
[37] I have no difficulty in accepting the proposition that the jury would be likely to infer that the police at least recognised the possibility that the Accused may have been involved in some form of illegal activity. However there is no evidence that would justify any conclusion that the accused were actually offending in any way and it would be sheer speculation to conclude that they had. Indeed, one may perhaps add that the frequency with which the police officers saw the Accused is an indication that they were not offending often enough or badly enough to be caught, arrested and goaled.
[38] But even if the conclusion was drawn that the Accused were indulging in some crime, there is no evidence as to what that was, certainly no evidence to suggest it involved violence or came remotely near the offences of murder or maliciously causing grievous bodily harm on which they have been arraigned. To my mind it is inconceivable that a jury would be influenced to convict a person of an offence as serious as murder on the basis that that the police suspected, or that the person might have, or perhaps had, indulged in either some unknown extent of drug dealing or other criminal activity. If that were a significant risk, we may as well throw out the jury system.
 
Petroulias (No.6)
[2007] NSWSC 16, Johnson J, 30.1.2007
Evidence Act 1995 (NSW) s.55 – defraud Commonwealth – admissibility of conversations taped under listening warrant
Held:
[11] With respect to s.135, it should be understood that all relevant evidence led in the Crown case at trial is prejudicial to the Accused, but it is only that of which the probative value is outweighed by the danger of unfair prejudice which is excluded, that is, evidence which has only slight probative value but which carries with it a probability that it be misused by the tribunal of fact in a way logically unconnected with the issues in the case: Serratore (1999) 48 NSWLR 101 at 109 [31]. Evidence is not unfairly prejudicial merely because it makes it more likely that the Accused will be convicted. The prejudice to which s. 135 refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: BD (1997) 94 A Crim R 131 at 139; Papakosmas (1999) 196 CLR 297 at 325 [91].
 
Klein (No.1)
[2008] NSWSC 333, Buddin J, 31.3.2008
Evidence Act 1995 (NSW) ss. 135, 137 – murder – CCTV footage shows appellant short distance from murder – Crown seeking to tender reconstruction showing police officer
Held: evidence excluded – significant differences between CCTV footage and reconstruction in terms of clothes and actions / behavior – reconstruction misleading and confusing
 
Aytugrul
[2010] NSW CCA [272] 3.12.2010
Evidence Act 1995 (NSW) ss 135, 137 – murder – DNA evidence – hair under victim’s fingernail alleged to be accused’s - whether miscarriage of justice due to directions on DNA evidence – admissibility of DNA evidence – expert evidence that 99.9% of the world population could be excluded as having the DNA profile in issue – appellant submitted that DNA evidence being expressed as exclusion percentages should have been rejected and that when expressed as percentages of close to 100, the evidence was unfairly prejudicial and should have been rejected pursuant to s 135 or s 137.
Held: (per Simpson J; Fullerton J agreeing; McClellan CJ at CL dissenting on this point) There is nothing to suggest the evidence before the jury, framed as it was, was unduly or unfairly prejudicial, or confusing or misleading such as to raise for consideration either s 135 or s 137. No deficiency in the way in which the jury was directed in relation to the DNA evidence: at [198]-[199].
GK [2001] NSWCCA 413; 53 NSWLR 317 (‘relative chance of paternity’ evidence) is not binding authority that evidence of the kind there under consideration is never admissible; it is a conclusion that, on the facts of that case, either s 135 or s 137 could be invoked in order to exclude the relative chance of paternity evidence. Nor is Galli [2001] NSWCCA 504; 127 A Crim R 493 authority for the proposition. Neither is authority for the proposition that “exclusion percentage” evidence is never admissible, nor that such evidence, though admissible, must inevitably be excluded under either s 135 or s 137: at [196].
 
Delle Vergin (No.2) [2013] NSWSC 215, Colefax SC DCJ
Evidence Act s 90, 135(a), 137 – sexual offences against 15y victim – surveillance device warrant obtained – three telephone conversations recorded between victim and accused and victim’s father and accused – accused unaware at the time of allegations – no admissions but responses could be evidence of consciousness of guilt – upon arrest accused exercised right to silence
Held: Evidence excluded – considered purpose of surveillance warrants for serious offence difficult to investigate – this offence not extraordinary - purpose of conversations was to deprive accused of right to silence – extinguished right without clear and proper basis – distinguished Pavitt (2007) 169 A Crim R 452 – prejudice outweighed probative value
 
Carroll
[2013] NSWCCA 1031
Evidence Act 1995 (NSW) s 135, 137 - Application for exclusion of identification evidence - identification of A in an out-of-court identification by array of photographs - witness had previously given a description of A to police as having tattoos and tattoos up to the neck prior to formal identification process - witness observed and interacted with A for some time before and after participating in subject offences - witness observed and spoke with A on subsequent occasion whilst in custody - whether observation and interaction with A on second occasion resulted in "displacement effect" - conversation and meeting with A on second occasion is more accurately characterised as recognition of a person the witness was previously involved with capable of re-enforcing the original mental image of the person - array of photographs compiled by software which randomly selected photographs from a database that share "parameters of likeness" to photograph of A taken soon after date of offences - array of photographs included some photos exhibiting tattoos - a sound basis existed upon which the array of photographs was compiled - probative value of identification evidence not outweighed by the danger of unfair prejudice to the accused.
Held: Application for the exclusion of the identification evidence under ss 135 and 137 refused
 

Rogerson; McNamara (no 21)

[2016] NSWSC 79 (Bellew J)

Evidence Act 1995 (NSW) s 135 -  Murder - Crown witness stated he could only understand part of a conversation he had with others who spoke in another language  – defence objected to conversation being admitted.

Held: Evidence rejected. Witness' account of conversations was disjointed and incomplete.

 

Rogerson; McNamara (no 45)

[2016] NSWSC 452 (Bellew J)

Evidence Act 1995 (NSW) s 135 -  Murder - Account given by A of death of V – Allegation of threats made by the co-A at that time – Where terms of threat included reference to a previous attempted murder of a police officer – Where further evidence of A of conversation with co-A where co-A is alleged to have admitted involvement in previous or attempted murders –evidence relied upon by A in respect of duress – application to exclude evidence of conversation made by co-A.

Held: Evidence excluded. Real danger if evidence admitted jury would be left with distinct impression co-A was complicit in murder of a number of other people.

At [36]:  Need not be satisfied evidence will be unfairly prejudicial; only that probative value is substantially outweighed by danger it might be so: Seven Network Limited v News Limited (No 8) [2005] FCA 1348 at [16].  In considering that question, must be mindful of any danger it might be misused by jury in some unfair way: Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at [91], [98].

 

Tai

[2016] NSWCCA 207

Evidence Act 1995 (NSW) s 135(a) – Armed robbery – statements of alleged victim since deceased admissible under s.65 – excluded under s.135 – s.5F Crown appeal

Held: no error in decision of trial judge – inconsistencies in version of accused – no opportunity to cross-examine possible witnesses that could throw light upon inconsistencies due to inadequate police investigation

 

Droudis (No.13)

[2016] NSWSC 1350 (Johnson J)

Evidence Act 1995 (NSW) ss.97, 55, 137, 135(c) – Murder – Judge alone trial - Crown case that A, at behest of M, stabbed V to death  - Crown sought to lead evidence of tendency on part of A that  A had a particular state of mind arising from her belief in M's spiritual superiority; because of this state of mind, A acted in a particular way, namely that she engaged in socially and morally reprehensible acts at behest of M -  Crown contends tendency evidence bears upon a fact in issue in the trial, namely, the identity of the person that murdered V – defence objection under s 135(c) that evidence might 'cause or result in undue waste of time.'

Held: Evidence admissible.

s 55:  relevant for the purposes of ss.55-56 to the resolution of the principal fact in issue in the trial - nature and dynamics of the relationship between M and A are relevant, being capable of shedding considerable light upon the alleged motive of A (and M) and the state of mind of A in acting in different ways at the behest of M. Evidence forms part of a multi-facetted circumstantial case which by Crown.

At [48]-[49]: The test of relevance - Enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. Possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at 538 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 [39]. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 537-538 [40].

s 97: evidence has "significant probative value" (referred to -  Elomar v R [2014] NSWCCA 303; 316 ALR 206; IMM v The Queen [2016] HCA 14; 90 ALJR 529; Hughes v R [2015] NSWCCA 330; BC v R [2015] NSWCCA 327)  - had regard to not only this tendered evidence, but also other evidence which Crown will adduce in in support of the circumstantial case against A.

s 137: At [52]-[55]:   Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 [15]. Section 137 requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM at 538 [47].

 The danger of "unfair prejudice" in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 280 [196].

s 135(c)  The tendered evidence to which objection is taken is almost entirely in the form of video, audio or documentary evidence. Time required for tender of the challenged evidence will not be excessive in the context of this trial - probative value of evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

At [57]-[60]: s 135 is based upon assumption the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular statutory opinion is formed. A discretionary process is involved, with formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is "substantially outweighed" by a "danger" of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].

The apparent purpose of s.135(c) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue - "once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of 'undue waste of time'": Dyldam Developments Pty Limited v Jones at [93].

s.135(c) has equal application to a Judge-alone trial.

 

Qaumi (No 61)

[2016] NSWSC 1192 (Hamill J)

Evidence Act – ss.110(2), (3), 135, 137 - admissibility – in evidence in chief Counsel asked accused if it was first time in custody – accused answered yes – co-offender sought to led evidence that accused had record for assault – also sought to lead CCTV footage of accused attacking co-offender in dock

Held:  application to admit evidence refused – both s.110(2) and (3) had been engaged – good character raised in evidence - mistake by counsel – probative value of evidence not great in rebutting limited evidence led as to first time in custody - showing of CCTV footage prejudicial to other accused and could mislead jury – exploration of incident would waste time – probative value outweighed by danger of unfair prejudice

 

 

 


 

Section 136: General discretion to limit use of evidence

Welsh
(1996) 90 A Crim R 364; NSW CCA, 6.11.1996
Evidence Act 1995 (NSW) s.136 - murder - expert medical evidence bearing on state of mind of accused - expert's opinion based on history of accused as related to her by accused and accused's mother
Held: evidence of accused's medical history admissible for non-hearsay purpose of establishing basis of doctor's opinion - under s.60 statements made to doctor also admissible as evidence of their truth - operation of s.60 subject to discretion under s.136.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.136 - sexual assault - evidence of belief of complainant that accused had assaulted people and shot someone tendered to explain why she did not call out for help - admitted as going to issue of consent
Held: adequacy of trial judge's directions as to limited use jury could make of such evidence.

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.136 - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence - leave granted to Crown to cross-examine witness for inconsistent evidence.

BD
(1997) 94 A Crim R 131
Evidence Act 1995 (NSW) s.136 - sexual assault - appellant sought to use evidence of complaint to attack credit of complainant
Held: (Hunt CJ at CL) discretion under s.136 should be used sparingly - should only be restricted if unreliability cannot be dealt with by warning
Held: (Smart J in dissent) to admit evidence of complaint as truth of fact is usually unfair to accused - s.136 restriction should usually apply.

BDF
NSW CCA [98] 6.5.1999
Evidence Act 1995 (NSW) s.136 - evidence of complaint.
Held: where evidence of complaint does not fall clearly within precise terms of s.136 use of evidence should ordinarily be limited only where its unreliability is such that it cannot be cured by a warning pursuant to s.165 (R v BD).

Papakosmas v The Queen
(1999) 196 CLR 297; HCA 12.8.1999
Evidence Act 1995 (NSW) s.136 - evidence of complaint.
Held: no general rule that evidence of complaint should be restricted under s.136 - will depend upon circumstances of case - in this case recency, spontaneity and consistency of complaint with other conduct and demeanour of complainant means not a case for s.136 limitation - (per McHugh J) s.136 should only be invoked where danger of hearsay not cured by warning under s.165 - no prejudice just because evidence strengthens Crown case.

TJF
(2001) 120 A Crim R 209; NSW CCA [127] 12.4.2001
Evidence Act 1995 (NSW) s.136 - sexual offences - complaints made 7 months and 2 years after offences committed - no request for direction to restrict use of evidence.
Held: although evidence of complaint not fresh counsel did not ask for it to be excluded - tactical decision to rely upon inconsistencies in evidence of complaint.

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.135, 136 - stalking - appellant convicted of harassing cousin who refused to marry him - Judge allowed evidence of threatening conduct of appellant towards complainant and family in preceding 5 years.
Held: relationship evidence not unfairly prejudicial - although TJ did not direct his mind to discretions under ss. 135 and 136, there was no basis upon which he could have justifiably exercised his discretion to exclude or limit any of relationship evidence.

RTB
NSW CCA [104] 5.4.2002
Evidence Act 1995 (NSW) s.136 - child sexual assault - whether medical history of complainant given by doctor admissible - whether recital should have been admitted only as basis for opinion and not as evidence of truth of facts asserted.
Held: only part of complainant's medical history given by doctor relating to opinion was re penile penetration of anus - evidence went further to encompass "oral genital contact'- this evidence was not basis of opinion, was irrelevant and should not have been admitted.
Held: recital should have been admitted only as basis for opinion and not as evidence of truth of facts asserted - recital by doctor of complainant's medical history will often carry risk of unfair prejudice, where statements are admitted as evidence of truth of facts asserted - it may be appropriate to limit use of such evidence, so it is received simply as basis upon which doctor expressed his or her opinion

Chai
NSW CCA [512] 20.12.2002
Evidence Act 1995 (NSW) 136, 137 - manslaughter - joint enterprise - two victims assaulted and later died in hospital - whether TJ erred in not excluding evidence by MK that SHL had told her appellant had told SHL to come and bash victims - SHL gave different account of conversation
[this matter remitted to NSWCCA from HC - [2002] HCA 12]
Held: not typical case for operation of ss 136 or 137 where generally evidence is both inessential to Crown case and liable to cause prejudice to accused because of its emotional impact - evidence not unfairly prejudicial - evidence properly admitted

Livingstone
NSW CCA [122] 30.4.2004
Evidence Act 1995 (NSW) s 136 - Maliciously discharge firearm with intent to cause grievous bodily harm - appellant allegedly fired shots at neighbour on roof - complainant telephoned brother and complained of being shot at by neighbour - dispute at trial as to whether shots in fact fired - evidence of telephone call given by both complainant and brother - TJ restricted use of evidence as to 'making of phone call and not as to the occurrence of the event itself'- no direction given to jury as to limited use to be made of evidence.
Held: appeal allowed - failure to give direction to jury as to limited use of evidence crucial where dispute over shooting
Livingstone [2004] NSWCCA 122, 30.4.2004
 
Whyte
NSW CCA [75] 24.3.2006
Evidence Act 1995 (NSW) s 136 – detain with intent to obtain advantage – female complainant detained in toilet – Crown alleged intent to have sexual intercourse – on leaving toilets complainant told mother “a man tried to rape me” – whether evidence of complainant should be limited – whether expression of opinion only – whether jury can make own conclusion as to whether accused intended sex from description of attack
Held: appeal dismissed

 

 

Section 137: Exclusion of prejudicial evidence in criminal proceedings

Truong
(1996) 86 A Crim R 188; ACT SC 19.3.1996
Evidence Act 1995 (Cth) s.137 - armed robbery - covertly taped admissions made to friend - police officer failed to obtain warrant for listening device because of incorrect legal advice.
Held: admitted evidence of informer although evidence of police officer and recording inadmissible - probative value not outweighed by unfairness to accused - conduct not intended to be illegal - behaviour did not breach International Covenant on Civil and Political Rights.

Lockyer
(1996) 89 A Crim R 457; NSWSC (Hunt CJ at CL) 11.10.1996
Evidence Act 1995 (NSW) s.137 - murder of young child - accused sought to show reasonable possibility mother killed baby - sought to show reasonable possibility mother responsible for previous injuries to child.
Held: ss.101 and 137 inapplicable to evidence when led by accused.

Harvey
NSW CCA 11.12.1996
Evidence Act 1995 (NSW) s.137 - sexual offences by school teacher on female pupils - another teacher gave evidence of seeing appellant and child in office - appellant had look of 'sexual gratification' on face.
Held: evidence admissible as opinion evidence.

Pirrottina & Bickell
NSWSC (James J) 20.3.1997
Evidence Act 1995 (NSW) - s.29(4) admissibility of pictorial flow chart tendered by Crown - chart depicted alleged movements of two co-accused and Crown witness on date of alleged offences - Crown submitted chart admissible as aid to jury in their comprehension of Crown case - defendants objected to chart as one-sided and presenting Crown witness' version 'at its best'
Held: chart inadmissible - events not a complicated series of business transactions or matters likely to tax the comprehension of an ordinary juror - chart solely concerned with Crown's version of events - even if admissible under s.29(4) inadmissible pursuant to discretion under s.137

Lock
(1997) 91 A Crim R 356; NSWSC (Hunt CJ at CL) 25.3.1997
Evidence Act 1995 (NSW) s.137 - stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbings of victim by accused.
Held: excluded evidence of fears expressed by husband as to accused's use of knives - probative value slight - did little to assist in determining whether accused acted in self defence - admitted other evidence as relevant to relationship - onus on accused to show prejudice outweighed probative value - availability and effect of warnings relevant to balancing exercise.

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.137 - prior inconsistent statement by Crown witness - juvenile robbed and murdered adult victim - juvenile accomplices professed at trial to have no memory of statement made police about homicide - statement recorded on ERISP - leave granted to crown to cross-examine witness.
Held: judge correct in granting crown leave to cross-examine own witness - evidence satisfied exclusions to hearsay rule - trial judge took into consideration relevant factors weighing probative value versus unfair prejudice.

Singh-bal
(1997) 92 A Crim R 397 (NSW CCA)
Evidence Act 1995 (NSW) s.137 - disputed oral admission to police - no contemporaneous record - voir dire as to whether evidence admissible.
Held: danger of prejudice is that tribunal of fact will use evidence on basis logically unconnected with issues in case - in this case probative value outweighs any prejudice

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.137 - sexual assault - evidence of complainant's belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - admissible although does show tendency or credibility - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.137 - importation of commercial quantity of drugs from Bangkok - tendency and coincidence evidence challenged by defence - four previous consignments (possibly 'dry runs' by members of drug ring) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting presence of two co-accused in Sydney on previous four occasions.
Held: evidence admissible - 'significant' probative value considered.

Marks
NSW CCA 2.5.1997
Evidence Act 1995 (NSW) s.135 - attempted armed robbery - identified from photos at police station - details of each photo blackened with texta - by trial name of applicant visible through texta.
Held: cited with approval Carusi (1997) 92 A Crim R 52 - when considering probative and prejudicial value judge cannot consider whether jury should accept evidence or not - must only consider whether, taken at its highest, probative value of evidence is outweighed by prejudicial effect.

(Special leave to appeal refused: (1998) 72 ALJR 1134)

Fernando

NSWSC (Abadee J) 13.5.1997
Evidence Act 1995 (NSW) s.137 - Crown sought to lead evidence from witness who saw co-accused with machetes three weeks prior to murder - machetes used in homicide later found in dam - death of victim consistent with use of machete
Held: evidence allowed.

Fowler
NSWSC (Dowd J) 21.5.1997
Evidence Act 1995 (NSW) s.137 - murder - admissibility of Crown evidence in case in reply - accused made dock statement explaining he had concealed firearms from police for fear he would be convicted for not having licence - in previous trial had given similar evidence but expressed little concern about possible conviction - specific acts in issue going to credibility of accused
Held: evidence admissible but excluded pursuant to s.137 - lapse of time since previous trial taken into account.

Fernando
NSWSC (Abadee J) 23.5.1997
Evidence Act 1995 (NSW) s.137 - admissibility of photos of deceased
Held: photos highly probative to murder and sexual assault counts - admissible.

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.137 - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence - leave granted to Crown to cross-examine witness for inconsistent evidence.
Held: evidence allowed.

Velevski (No.3)
NSWSC (Dunford J) 12.6.1997
Evidence Act 1995 (NSW) s.137 - admissibility of expert opinion as to whether accused able to sleep for 14 to 16 hours on day of homicide
Held: evidence admissible - not excluded under s.137.

Yi
NSW CCA 27.2.1998
Evidence Act 1995 (NSW) s.137 - sexual assault charges - complainant gave statement through mandarin interpreter - s.38 application granted - Crown later unable to prove complainant said what was attributed to her.
Held: (per Simpson J in obiter) s.137 permits withdrawal of evidence after it has been admitted

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.137 - convicted of supply and possess pistol - during search on street asked police 'can we talk?'- in interview room refused interview and made comments about being setup - later offered assistance - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: probative value not outweighed by prejudice

Ford
NSWSC (Barr J) 22.4.1998
Evidence Act 1995 (NSW) s.135 & 137 - charged with stabbing murder of fellow prisoner in prison yard - evidence from two eye-witnesses to murder who recognised accused - both acquainted with accused from prison environment - no identification parade held or identification made from photographs - accused of distinctive appearance
Held: evidence highly prejudicial but not unfairly so - probative value of evidence of highest order.

Mankotia
NSWSC (Sperling J) 21.7.1998
Evidence Act 1995 (NSW) s.137 - stabbing murder of girlfriend - Crown sought to lead evidence of photos of deceased at flat and in mortuary after wounds cleaned showing wounds to neck and face, holes in clothing and pooled and splattered blood - also sought to lead evidence of video of deceased in flat - accused did not deny killing
Held: followed Milat NSWSC (Hunt CJ at CL) 5.6.1996 at p.28 - 'unfair prejudice' means 'real risk that it will be misused by the jury...'- horrific nature of photos not grounds for rejection (Allen NSW CCA 1.12.1992, Murdoch (1987) 37 A Crim R 118, Baraghith (1991) 54 A Crim R 240) - some photos allowed, some excluded on basis of, inter alia, duplication - video disallowed - duplicating images has dramatic quality which may heighten emotion.
 
Polkinghorne
(1999) 108 A Crim R 189; NSWSC [704] 13.7.1999
Evidence Act 1995 (NSW) s.137 - murder of de facto - immediately after stabbing victim went next door to mother and told her accused had stabbed her - whether evidence should be excluded as prejudicial.
Held: test for prejudice under s.137 is whether danger that tribunal of fact will use evidence upon basis logically unconnected with issue in case - evidence admitted.

Patsalis & Spathis [No.2]
NSWSC [719] (Kirby J) 15.7.1999
Evidence Act 1995 (NSW) s.137 - murder - admissibility of evidence that P had participated in recruitment program at Police Academy - sought to show P had training that would help in concealment of crime - P left after allegations made of misconduct although charges never laid
Held: evidence inadmissible - relevance slight - unfair prejudice great - jury may wonder why P left program so close to its conclusion.

FAP
NSW CCA [278] 6.9.1999
Evidence Act 1995 (NSW) s.135 & 137 - robbery - identification made from nine photographs including two of accused - unreasonable to hold identification parade in circumstances.
Held: absence of identification parade always relevant to exercise of discretion under s.135 & 137 - troubled by small number of photographs used and presence of two photos of accused - in circumstances, however, no error in discretion of judge in admitting evidence.

West [325]; Smith [317]; Morris [326]
NSW CCA 21.10.1999
Evidence Act 1995 (NSW) s.135 & 137 - armed robbery - accused recognised by police officers from photos taken by bank security cameras
Held: probative value outweighed danger of prejudice
(NB: High Court allowed appeal on basis evidence not relevant)

Lisoff
NSW CCA [364] 22.11.1999
Evidence Act 1995 (NSW) s.137 - maliciously inflict grievous bodily harm with intent - judge excluded DNA evidence - appeal against order pursuant to s.5F Criminal Appeal Act.
Held: (allowing appeal) - trial to proceed according to law - test under s.137 is whether there is real risk of unfair prejudice to accused - judge erred in stating test as 'mere possibility of prejudice'- fact that scientific evidence is complex does not mean unfair prejudice

Serratore
(1999) 48 NSWLR 101; NSW CCA [377] 26.11.1999
Evidence Act 1995 (NSW) s.137 - murder - Crown led evidence of statements made by deceased as to relationship with accused.
Held: only unfair prejudice relevant - evidence with slight probative value but which carries with it probability it will be used by tribunal of fact in a way which is logically unconnected with issues in case - probative is defined as rationally affecting assessment of probability of existence of particular fact in issue.

Taumaialo
NSW CCA [14] 18.2.2000
Evidence Act 1995 (NSW) s.137 - aggravated sexual assault on 14y female - forced intercourse while complainant at accused's home alone - complainant returned to house next day and second offence occurred - complainant gave evidence she had returned to house because accused threatened her and she had heard people say he had a gun and was not afraid to use it - jury directed as to limited use that could be made of evidence - directed it was evidence of complainant's state of mind not accused's behaviour.
Held: evidence technically admissible - affirmed guidelines provided in Preston - prejudicial effect extinguished by directions.

Blick
[2000] 111 A Crim R 326; NSW CCA [61] 14.3.2000
Evidence Act 1995 (NSW) s.137 - robbery - victim described assailant to police as man with goatee - victim identified appellant from photos - appellant only man shown in photos with goatee.
Held: under s.137 judge must consider probative and prejudicial effect of evidence - if probative value outweighed by prejudicial effect evidence inadmissible - evidence inadmissible.

Van Dyk
NSW CCA [67] 17.3.2000
Evidence Act 1995 (NSW) s137 - sexual assault - mother of complainant gave evidence that when appellant around girls he had 'look of wanting' on his face.
Held: followed Harvey - evidence admissible - should have been excluded under s.137 - transitory nature of a look - long delay.

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 (NSW) s.137 - attempt possess prohibited import - judge admission of evidence revealing appellant's status as a prisoner at time of offence.
Held: Judge erred in taking into account interest of community in seeing persons who commit serious offences brought to justice - no miscarriage despite error.

Smith
(2000) 116 A Crim R 1; NSW CCA [388] 10.5.2000
Evidence Act 1995 (NSW) s.137 - armed robbery - Crown case relied upon identification - appellant sought to tender report on appeal from Professor of Psychology expressing opinion that risk of false identification substantial.
Held: evidence prime facie admissible under s.79 - did not meet test of fresh evidence - need to consider exclusion under s.137 on basis of undue waste of time - in this case would have excluded because relevant weaknesses of evidence before jury.

Marshall
(2000) 113 A Crim R 190; NSW CCA [210] 15.5.2000
Evidence Act 1995 (NSW) s.137 - armed robbery - sole evidence was identification - witness in police station unable to identify appellant from police photos containing two photos of appellant - identified appellant being escorted into station with investigating officer obviously in custody.
Held: evidence too prejudicial - danger of unfair prejudice where person identified appears to be suspect exacerbated by displacement effect of having recently seen photographs of appellant.

Dann
NSW CCA [185] 19.5.2000
Evidence Act 1995 s.137 - sexual assault - paediatrician gave evidence that state of complainant's anus was consistent with sexual abuse or constipation - lengthy cross-examination - paediatrician agreed no medical evidence to support sexual abuse.
Held: despite unattractive nature of evidence no prejudice in its admission - mildly supportive of defence.

Moffatt [No.2]
NSWSC (Kirby J) [226] 18.3.1999 (upheld - (2000) 112 A Crim R 201; NSW CCA 23.5.2000)
Evidence Act 1995 - s 137 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: admissible - higher tolerance to alcohol because of long history of alcoholism - answers to ERISP appear consistent and lucid - corroborated in many aspects.

Rees
NSWSC (Bell J) [544] 16.6.2000
Evidence Act 1995 (NSW) s.137 - murder - admissibility of DNA evidence - conflict of expert evidence as to reliability of evidence - whether amount of DNA too small for reliable sample - whether jury have means to determine issue.
Held: evidence admissible - followed Lisoff - function of jury to decide between expert evidence - relevant and no unfair prejudice.

Leroy & Graham
NSW CCA [302] 17.8.2000
Evidence Act 1995 (NSW) s.137 - affray and malicious wounding causing GBH - fight broke out at club during football carnival - witnesses identified offenders from photos taken by another employee at football match next day - no description taken from witnesses prior to identification - L shown prominently in four photos - G only person with goatee beard - other evidence strongly supported crown case.
Held: probative value outweighed danger of prejudice despite deficiencies in evidence including failure to obtain description - situation different to Blick - casual photos and no suggestion to witness that a particular person should be chosen.

Kirby
NSW CCA [330] 13.9.2000
Evidence Act 1995 (NSW) s.137 - robbery - jury given photos from security camera to make comparison during trial to accused.
Held: no basis for exclusion of evidence under s.137.

OGD [No. 2]
(2000) 50 NSWLR 433; NSW CCA [404] 13.9.2000
Evidence Act 1995 (NSW) s.137 - sexual offences on nephew over 5 years - evidence led from three other boys that appellant had also sexually abused them - whether evidence should have been excluded on basis of possibility of concoction.
Held: s.135 and s.137 discretions - Judge made no error in allowing evidence in this case.

Burrell
NSWSC Sully J [120] 5.3.2001
Evidence Act 1995 (NSW) s.137 - murder - accused of kidnapping and murder - body never found - Crown case circumstantial - admissibility of various pieces of evidence.
Held: summary of relevant principles under s.137 & 138 - when considering probative value must first consider relevance under s.55 then extent or degree of relevance - when considering probative value of evidence in circumstantial case consider evidence in context of all other evidence in case - all other evidence includes all admissible evidence - followed Singh-Bal - can only exclude evidence when, taken at its highest, its probative value is outweighed by prejudicial effect - followed Polkinghorne - slight probative value not sufficient to exclude evidence - must be danger that tribunal of fact will use evidence upon basis logically unconnected with issues in case.
Held: two ambiguous documents found in accused's house Crown will allege summarise kidnapping plan - no unfairness - admissible.
Held: Business Review Weekly magazine found at house of accused - markings on article discussing wealthy people - no link to either accused or victim - excluded.
Held: security photographs of Pajero outside hotel at time victim disappeared - accused owned Pajero - poor quality meant no registration or other identifying features shown - probative value in light of other evidence - no unfair prejudice - admissible.
Held: seizure of firearms from property of accused both licensed and unlicensed - excluded.
Held: casual remarks to two acquaintances that he was familiar with his property and body could easily be hidden there - excluded
Held: phone call made to victims' husband's business making further demands in relation to kidnapping - receptionist who answered telephone attempted identification of recorded voices including accused - chose two voices as similar to voice on phone call - on scale of 1 - 10 voices identified were a 6 - not voice identification but voice similarity as part of circumstantial case - admissible.
Held: general inquiries by accused into setting up expensive farming venture in Tasmania - at time in serious financial difficulties - motive - excluded.
Held: possession of bottle with traces of chloroform at house - excluded.
Held: accused made surprise visit to victim prior to disappearance - victim asked nanny not to say anything about visit - heard victim mutter to herself 'That bastard, why did he do this to me'- comment admissible under s.72 - excluded under s.137 - too vague and obscure.

Ngo
(2001) 122 A Crim R 467; NSWSC [595] Dunford J 8.3.2001
Evidence Act 1995 (NSW) ss.135 & 137 - murder - technical evidence to be given in relation to murder weapon
Held: technicality of evidence no basis to exclude - responsibility of counsel to ensure evidence presented in way jury can understand

Glossop
NSW CCA [165] 4.5.2001
Evidence Act 1995 (NSW) s.137 - sexual offences against son over twenty years ago - failed to have evidence of complaint excluded.
Held: dismissing appeal - Judge correct in deciding could not exclude evidence under s 137 just because it was unsatisfactory.

McDonald
NSW CCA [363] 14.9.2001
Evidence Act 1995 (NSW) s.137 - sexual offences - only issue identification - complainant and friend claim met accused prior to assaults - friend identified accused from photos on day of trial, three years after event - accused denied ever meeting complainant.
Held: allowing appeal - Judge wrongly reasoned that identification reliable because witness had picked out accused after thee years.

Fisher
NSW CCA [380] 11.10.2001
Evidence Act 1995 (NSW) s.137 - assault with intent to rob - picked from identification parade by two witnesses - previously described by one witness as aboriginal with shoulder length hair - only person in 6 man line up fitting that description
Held: evidence should have been excluded

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.137 - stalking - appellant convicted of harassing cousin who refused to marry him - Judge allowed evidence of threatening conduct of appellant towards complainant and family in preceding 5 years.
Held: evidence relevant to fact in issue namely whether appellant had intention to cause complainant to fear mental or physical harm - in circumstances of case evidence not too remote in time.

GK
(2001) 125 A Crim R 315; NSW CCA [413] 16.10.2001
Evidence Act 1995 (NSW) s.137 - sexual offences - Crown sought to rely upon DNA evidence that suggested accused was father of complainant's child - evidence excluded at first trial - jury failed to reach verdict - judge at second trial felt compelled to follow earlier ruling - evidence included Paternity Index statistics and Relative Chance of Paternity Index statistics
Held: decision under s.137 does not involve exercise of discretion - Judge must answer following questions: whether evidence relevant - whether evidence had probative value - whether danger of unfair prejudice - whether probative value outweighs danger of unfair prejudice - concluded Paternity Index statistics admissible but Relative Chance of Paternity Index statistics should be excluded.

Sing
(2002) 54 NSWLR 31; NSW CCA [20] 13.2.2002
Evidence Act 1995 (NSW) s.137 - DNA evidence - persons who carried out tests not called - expert analysis of DNA evidence - whether based on hearsay - whether should be excluded as prejudicial.
Held: evidence inadmissible - appeal allowed.

McIntyre
NSW CCA [29] 15.2.2002
Evidence Act 1995 (NSW) s.137 - murder of 14 year old boy - body of deceased sexually mutilated - evidence by mother of deceased of conversation between herself and deceased that appellant had made sexual suggestion to deceased - whether conversation evidence of relationship between deceased and appellant - whether relevant to proving appellant murdered deceased - whether probative value outweighs danger of unfair prejudice
Held: conversation admissible.

Melhuish
NSW CCA [85] 8.3.2002
Evidence Act 1995 (NSW) s.137 - firearm offence - judge declined to exclude evidence of gun holster found in appellant's bedroom
Held: as part of circumstantial case evidence capable of bearing directly upon issue

Suteski [No.4] (see also below CCA [509] 20.12.2002)
NSWSC [218] (Kirby J) 12.3.2002
Evidence Act 1995 (NSW) s.137 - murder - female accused arranged for bashing of employer - record of interview of accomplice tendered after accomplice refused to give evidence - which portions of interview should be excluded - accomplice asked if accused said 'stab him, bash him, kill him if you want...'- accomplice did not completely agree with proposition
Held: this portion of interview excluded - alleged words of accused too prejudicial, not from accomplice's own memory and not completely agreed with

TO
(2002) 131 A Crim R 264; NSW CCA [247] 26.6.2002
Evidence Act 1995 (NSW) 137 - sexual offences - Vietnamese offender placed in line up with other Asians - line up included several Koreans - one Asian victim said no trouble identifying offender - 2 non-Asian victims could not distinguish ethnic origin of persons in line up
Held: no error in holding presence of Koreans did not reduce probative value of evidence

Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) ss.135, 137 - admission of conversations between accused and police, particularly alleged admission.
Held: no error - no miscarriage of justice - appeal dismissed

Nguyen
NSW CCA [342] 21.8.2002
Evidence Act 1995, s.137 - robbery in company - identification evidence
Held: no error in failing to withdraw identification evidence - no unfair prejudice to accused - appeal dismissed

Glover
NSW CCA [376] 11.9.2002
Evidence Act 1995 (NSW) s.135, 137 - malicious damage by explosives - whether TJ erred in admitting evidence to that accused had sought immunity from prosecution in respect of offences in conversation with Federal Police
Held: request for immunity was highly probative - prejudice not unfair to accused and accordingly ss 135 and 137 had no application

Cohen
NSW CCA [339] 12.9.2002
Evidence Act 1995 (NSW) 135, 137 - aggravated break, enter/commit indecent assault - whether TJ erred in admitting evidence of alleged conversation by appellant on basis of its equivocality and inability to assess its probative value.
Held: appeal dismissed - although words were tendered as an admission, true import of words was a circumstantial fact for jury to consider in light of other facts found - could not be said that admission of statements could have prejudiced appellant unfairly

Coe
NSW CCA [385] 25.9.2002
Evidence Act 1995 (NSW) 137 - robbery with violence - identified by witness who knew appellant - whether prejudicial to lead evidence of witness selecting photo of appellant in photo line-up.
Held: no error in admitting evidence at trial

Ambrosoli
(2002) 55 NSWLR 603; (2002) 133 A Crim R 461; NSW CCA [386] 30.9.2002
Evidence Act 1995 (NSW) 137 - malicious wounding/assault - committal evidence and statement of Crown witness - evidence of Crown witness
Held: merely because evidence points overwhelmingly to guilt does not make it unfair to adduce it - probative value of evidence is always required to be assessed, even if it carries prejudicial overlay: GK [2001] - no error in failing to exclude evidence as it was not unfairly prejudicial

Nguyen
(2002) 133 A Crim R 547; NSW CCA [403] 3.10.2002
Evidence Act 1995 (NSW) s.137 - deemed supply of heroin - statutory defence - evidence of cash and gold bars at appellant's premises relevant and admissible to rebut the defence
Held: conviction appeal dismissed - no error in admitting evidence of gold and cash found at premises - relevant and admissible - fact that explanations consistent with innocence may be asserted does not make evidence inadmissible or require its exclusion
Suteski
(2002) 56 NSWLR 182;137 A Crim R 371; NSW CCA [509] 20.12.2002
Evidence Act 1995 (NSW) s.137 - murder - female arranged for bashing of employer - employer stabbed to death - killer gave evidence against accused - second person, S, convicted of 'procuring someone to commit gbh' but refused to give evidence - ERISP of S admitted into evidence - whether TJ properly considered defence application for exclusion of ERISP under s 137.
Held: TJ correctly considered nature of the weighing process analysed in R v Blick [2000] NSWCCA 61 - subject to excision of portions of ERISP involving second hand hearsay and leading questions by police in unduly emotive terms, TJ had concluded correctly ERISP of significant probative value.
Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s 137 - supply large commercial quantity prohibited drug (heroin) - admissibility of evidence of prior criminal conduct where not adduced for tendency purpose
Held: open to trial judge to allow evidence

Chai
NSW CCA [512] 20.12.2002
Evidence Act 1995 (NSW) 136, 137 - manslaughter - joint enterprise - two victims assaulted and later died in hospital - whether TJ erred in not excluding evidence by MK that SHL had told her appellant had told SHL to come and bash victims - SHL gave different account of conversation
[this matter remitted to NSWCCA from HC - [2002] HCA 12]
Held: not typical case for operation of ss 136 or 137 where generally evidence is both inessential to Crown case and liable to cause prejudice to accused because of its emotional impact - evidence not unfairly prejudicial - evidence properly admitted

Riscuta & Niga
NSW CCA [6] 6.2.2003
Evidence Act 1995 (NSW) s137 - supply drugs - admissibility of voice identification evidence - intercepted telephone conversations - relevance
Held: evidence properly admitted - under Evidence Act there are no preconditions for reception of voice identification evidence apart from requirement of relevance - if relevant evidence is admissible unless positive order is made excluding it under ss 135, 137 or 138: R v Adler (2001) 52 NSWLR 451

Harbulot
NSW CCA [141] 21.5.2003
Evidence Act 1995 (NSW) ss 137 - sexual intercourse without consent - complaint lacked detail
Held: prejudicial effect of complaint evidence did not outweigh probative value - complainant's distress as witnessed by flatmate and sister admissible.

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) ss 137, 138, 139 - murder - s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police - respondent indicated he did not wish to have any conversation with police recorded or written down - police took R to local park for chat - covertly wearing listening devices - police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station - partial caution given - did not warn R anything he said could be used against him - kept asking questions although R indicated he did not wish to talk about murder - whether TJ erred in excluding evidence
Held: allowing appeal against exclusion of evidence - cannot exclude evidence of admissions under s.137 because believe jury should not find admissions made - cannot exclude evidence because do not believe jury should act on admissions - if evidence relevant and no likelihood of misuse probative value of admissions matter for jury - do not exclude evidence where prejudice is that jury more likely to convict - must find some prejudice emanating from evidence that would cause jury to overreact in illogical or irrelevant manner.
'Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31] Papakosmas v R (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury. I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise.'[120-1]

Cook
NSW CCA [52] 12.3.2004
Evidence Act 1995 (NSW) s.137 'sexual offence - evidence of flight - evaded police on two occasions before being arrested and denying all involvement
Held: appeal allowed - failure to balance prejudicial effect of appellant's explanation for his flight (he was seeking to avoid police action for a breach of AVO) against probative value of evidence - no direction as to how jury entitled to use evidence of flight - failure to draw attention to possibility of alternative explanations for flight - where actual evidence of alternative explanation for flight evidence should be drawn to jury's attention and way it is to be assessed should be explained

Razzak
NSW CCA [62] 19.3.2004
Evidence Act 1995 (NSW) s.137 - malicious wounding with intent to do GBH - stabbed stranger in street at night - complainant identified appellant from photographs saying he was 'not 100% sure' and that hair was different - videotape from surveillance cameras showed appellant near scene of offence shortly after stabbing - only issue at trial was identity of assailant
Held: appeal dismissed - weak identification evidence is not inadmissible, although alone it could not support conviction: Pitkin (1995) 69 ALJR 612; Festa (2001) 208 CLR 593 at [51] - weaknesses in identification evidence appropriately emphasized by standard directions - evidence from videotape could not be used to bolster weak identification evidence, but was admissible and relevant to issue of whether appellant stabbed complainant
 
Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.135, 137, 138 - multiple sexual assault offences - complainant described co-accused, G as having ponytail - identified G from photo board - only 8 of 15 photos had long hair - no photos with ponytail - G had longest hair - whether evidence of identification unfair - whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed - no error in admission of evidence of identification - nothing distinctive about photo of G - process videotaped - directions as to identification evidence adequate - not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence

Buchanan, Smith and Thomas
NSWSC [815] 4.8.2004, Buddin J
Evidence 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 distinguished
Held: no basis for excluding evidence pursuant to s.137.

Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence 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.

Derbas
NSWSC [972] 23.8.2004, Dunford J
Evidence 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 Commission
Held: 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


Bullock
[2005] NSWSC 825, Buddin J, 19.8.2005
Evidence Act 1995 (NSW) s.137 - murder - spontaneous admission to police at scene of offence - conversation with police at scene recorded only in notebook - subsequently adopted in video-taped ROI - appellant injured and intoxicated at time of conversation
Held: allowing evidence - evidence allowed under s.90 - probative value - no unfair prejudice resulting from fact jury unable to view admissions as they were made
Grattan
[2005] NSW CCA 306, 2.9.2005
Evidence Act 1995 (NSW) s.137 – sexual offences
Held:
[144] There can be no doubt the evidence was prejudicial to the appellant. The prejudicial material was not limited to the references to them being naked in each other's presence. The reference to "stuff guys do together" and repeated references to the questioning of the complainant by his sister were capable of being understood to the prejudice of the appellant. However, the question which requires to be determined is not whether the appellant is prejudiced but whether the probative value is outweighed by the danger of unfair prejudice. Prejudice may be relevantly unfair for a number of reasons (see Papakosmas (1999) 196 CLR 297; GK [2001] NSWCCA 413) but this will not merely be because it makes it more likely that the defendant will be convicted. In general unfair prejudice will be present if there is a real risk that the evidence may be misused by the jury (BD (1997) 94 A Crim R 131) and may occur when there may be procedural difficulties which create problems for the defendant in responding to the evidence: (Sing [2002] NSWCCA 20 at [35]).

 

Taber and Styman
[2005] NSWSC 1035, Studdert J, 13.10.2005
Evidence Act 1995 (NSW) s 65(3), s.67, s.137 – manslaughter – retrial – third offender gave evidence at previous trial inculpating accused – refused to give evidence at retrial – whether transcript of evidence at previous trial should be admitted
Held: evidence admissible under s.65(3) – requirement to give notice under s.67 fulfilled – s.137 considered – dispute over whether acceptance of evidence should be assumed and left to jury
Per Studdert J – [37] Evidence could rationally affect the assessment of the probability of the existence of a fact in issue only if it was accepted, and whether or not evidence is accepted is essentially a jury issue. However, it seems to me that there may be occasions in which a judge, when required to consider the application of s 137, may regard evidence sought to be introduced as incredible and for this reason such as ought not to be introduced: see as to this Cook [2004] NSWCCA 52.
After consideration of balancing exercise evidence admitted

 

Galvin
(2006) 161 A Crim R 449 NSW CCA
Evidence Act 1995 (NSW) s.137 – Sexual assault of child – edited versions of interview between police and second complainant admitted at trial – second complainant committed suicide – interviews contained references to uncharged sexual misconduct by appellant.
Held: admissibility of evidence depends on purpose and nature of evidence – trial judge failed to properly consider admissibility of individual aspects of evidence contained in videotaped interview – at fresh trial judge must consider whether evidence constitutes context evidence, tendency evidence, complaint evidence, direct evidence of alleged offences etc – admissibility of evidence depends upon different principles

 

Shamouil
[2006] NSW CCA 112, 12.4.2006
Evidence Act 1995 (NSW) s.137 – interlocutory appeal – identification evidence excluded at trial – Crown appeal
Held: reference to differences of opinion as to assessment of probative value of evidence – narrow view requires taking evidence at its highest – alternative view allows some degree of assessment of evidence
[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.
[61] 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.
[62] This conclusion is reinforced by the test that evidence must “rationally affect” the assessment. As Gaudron J emphasised in Adam supra, a “test” of ‘rationality’ also directs attention to capability rather than weight.
[63] There will be circumstances, as envisaged by Simpson J in Cook supra, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J’s observations in Papakosmas that “considerations of reliability are necessarily involved” have application.
[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) 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 s137.
[65] This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that “probative value” falls to be assessed by the trial judge including: tendency and coincidence evidence (s97(1)(b), s98(1)( b), s101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and (c)); and the comparative weight with unfair prejudice (s135(a), s137).

 

Lodhi
[2006] NSWSC, 641 (Whealy J) 27.4.2006
Evidence Act 1995 (NSW) s.137 – terrorism offences – admissibility of evidence linking accused to known terrorist B – effect of publicity at time of arrest of B
Held: evidence admitted – length of time since arrest, no real publicity in relation to accused and effect of directions to jury

 

Sood (No.3)
[2006] NSWSC 762, Simpson J 15.9.2006
Evidence Act 1995 (NSW) s.137 - abortion offences – alleged to have given vaginal medication to patient in improper circumstances – subsequent death of baby born at 23 weeks – receptionist gave evidence accused told her she had “done something silly” upon police entering office to search pursuant to search warrant – whether evidence unfairly prejudicial where accused could have been referring to outstanding dishonesty offences
Held: evidence admitted – videotape of search showed police clearly indicate subject of search prior to comment – no possibility accused believed search related to other offences

 

Hannes v DPP (Cth) No.2
[2006] NSW CCA 373
Evidence Act 1995 (NSW) s.137 – insider trading and financial transaction offences – executive director of company used confidential information to purchase share options – whether unfair to use letter written by accused in gaol as part of comparison by handwriting expert
Held: appeal dismissed
[312] Before addressing the factual evaluation, it is convenient to identify the legal relevance of the objection, so identified. S.137 refers merely to “the danger of unfair prejudice” to the defendant. The section only refers to prosecution evidence and thus stands in contrast to s135 which makes similar provision in relation to evidence generally, including in civil proceedings and including with respect to defence evidence: see [330] below. That section requires that the probative value be substantially outweighed, and not by the danger of unfair prejudice to the defendant, but by the danger that “the evidence might … be unfairly prejudicial” to a party. Thus, in dealing with defence evidence, this Court held in Richards (2001) 123 A Crim R 14 at [39]:
“The power vested by s135 is to refuse to admit evidence when there is danger that the evidence (my emphasis) might be unfairly prejudicial to a party. The proposed evidence in this case was that Cluff received a non-custodial sentence and it was not of itself unfairly prejudicial to the Crown. It was the possible consequence of the response which the Crown wished to make to the evidence which may have been prejudicial and, in a general sense, could be perceived in the circumstances to be unfair.”
[313] In Papakosmas (1999) 196 CLR 297, McHugh J, in discussing the discretionary limitations on the use of evidence under s136 stated at [93]:
“Some recent decisions suggest that the term ‘unfair prejudice’ may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act.”
However, it is clear from what follows that his Honour was more concerned with the introduction of discretionary limits on the use of evidence which would formerly have been inadmissible hearsay. Nor, in the passage cited with approval from BD (1997) 94 A Crim R 131 at 139 was the point being made that procedural unfairness could not be relied on under s137.
[314] The form of ss 135, 136 and 137 differs. Just as s135 refers to the danger that the evidence might be unfairly prejudicial, s136 refers to the danger that a particular use of the evidence might be unfairly prejudicial. That language is not repeated in s137. This Court has dealt with the operation of s137 in Cook [2004] NSWCCA 52, in which Simpson J (Ipp JA and Adams J agreeing) stated at [36]-[37]:
“What s137 called for was a consideration of the probative value of the evidence of flight relative to its prejudicial effect to the extent that that could or would be unfair. …
The balancing exercising required by s137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. … What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant’s case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting – disclosing his history of violence and breach of the law. … The prejudicial effect of the explanation was what s137 required to be balanced against the probative value the Crown evidence would otherwise have had.”
[315] In our view, that approach should be followed. There is no reason to read an implied limitation into s137, based on the different language adopted in the two preceding sections, nor otherwise to limit it according to former general law principles. Care must, of course, be taken in identifying unfair prejudice resulting from the practical consequences for the accused of admitting the evidence. Thus, the mere fact that, as a practical matter, an accused might think it impossible to resist the prosecution case without taking the risk of giving evidence, would not constitute unfair prejudice. The unfair prejudice relied upon in the present case, however, would provide a legitimate source of complaint if made out, because it would require the Appellant to disclose information that he was entitled to have excluded from the trial, namely his prior conviction and sentence for the charges before the jury. The question is, accordingly, whether that danger outweighed the probative value of the material in the prosecution case.

 

SJRC
[2007] NSW CCA 142, 22.5.2007
Evidence Act 1995 (NSW) s.137 – s.5F appeal by Crown - sexual offences – accused alleged to have sexually assaulted partner in hospital cubicle – admissibility of two text messages from accused to complainant apologizing – evidence ruled inadmissible by trial judge on basis of ambiguity
Held: appeal allowed – judge applied wrong principle in finding evidence inadmissible just because ambiguous

 

Can
[2007] NSW CCA 176, 27.6.2007
Evidence Act 1995 (NSW) s.137 – robbery in company with wounding – admissibility of photo identification evidence – complainant described offender as wearing black leather jacket – photo of appellant showed small section of black leather jacket around neck – inclusion of person known to complainant
Held: appeal dismissed – no error in admission of evidence

 

Sood
[2007] NSW CCA 214, 19.7.2007
Evidence Act 1995 (NSW) s.137 – dishonesty offences – s.5F appeal by Crown – medical practitioner charged with defrauding Medicare – Crown sought to lead evidence that receipt books found in disposal bins during exercise of search warrant – Crown claiming evidence of consciousness of guilt – respondent denied placing books in bins – evidence excluded on basis low probative value outweighed by prejudice – accepted argument that respondent feared books incriminating evidence for unrelated tax evasion offences
Held: appeal allowed – followed Shamouil – trial judge erred in considering weight of evidence in assessing probative value (at [38]) – erred in taking into account competing explanations for placing books in bins and choosing tax evasion explanation as more likely explanation – erred in assessing prejudice – accused denied placing books in bins – no alternative explanation for jury to consider raising prejudice

 

Nguyen
[2007] NSW CCA 249
Evidence Act 1995 (NSW) s 79, 137 – drug offences – evidence from police officer admitted giving opinion that words used in telephone transcripts referred to drugs
Held: appeal allowed – evidence should not have been admitted – police officer impermissibly gave opinion that conversation “in fact” referred to drugs, not could have referred to drugs – not opinion evidence based only on specialized knowledge – failed to disclose reasoning process behind opinion – evidence should have been excluded under s.137 as liable to distract jury

 

Jones [No.2]
[2007] NSWSC 770, Buddin J, 30.3.2007
Evidence Act 1995 (NSW) s 90, 137 138 – murder – two families involved in fight in caravan park – issue of self defence and provocation – police organised for wife of accused to talk to accused over telephone – admissibility of conversations – application to exclude based on following factors:
  • Wife lied to terminate conversation
  • Wife deliberately picked fight with accused to make him angry
  • Form of questioning would not be permitted if conducted by police officer
  • Wife determined to obtain incriminating evidence
  • Contrary to public policy
  • Conversation not subsequently adopted by accused
Held: evidence allowed – no unfairness in permitting evidence taking into account following matters:
  • Accused had not yet spoken to police and therefore had not refused to speak to them
  • Accused had left jurisdiction voluntarily and whereabouts was unknown
  • No suggestion conversation involuntary
  • Wife exercised degree of autonomy in questioning
  • Accused willingly spoke to police upon arrest
  • Freedom of accused not impugned by behaviour of wife
  • Rules about questioning applicable to police do not apply in same way to civilian
  • Conversation contained admissions consistent with plea to manslaughter
  • Conversation no different to other versions of evidence given by accused
 
Jones (No.4)
[2007] NSWSC 1154, Buddin J, 4.4.2007
Evidence Act 1995 (NSW) s.137 – murder – fight between two families in caravan park – accused pleaded guilty to manslaughter but plea rejected - police recorded telephone conversation between wife and accused – admissibility of comment to wife that he would receive 12 years for involvement in fight
Held: evidence excluded – no probative value as accused unlikely to have understanding of homicide sentence rates and comment ambiguous – prejudicial
 
Smale
[2007] NSW CCA 328, 29.11.2007
Evidence Act 1995 (NSW) s.137 – murder – felony murder – fatal shooting by co-offender during armed robbery – evidence led by Crown that accused involved in purchase of gun and part owner
Held: evidence not prejudicial – evidence not necessarily excluded just because incidentally reveal accused committed some other criminal act – not used as tendency evidence – in circumstances of case no error in admitting evidence
 
Mundine
[2008] NSW CCA 55, 18.3.2008
Evidence Act 1995 (NSW) s.137 – BES – accused charged with breaking into house and assaulting female occupants – both females identified accused from photographs – trial judge refused to admit evidence on basis of low probative value – inherent unreliability of photo id; weaknesses in cross-racial identification (white witness identifying aboriginal accused); unrepresentative nature of array - witness told by police officer photographs of some local offenders – also told not to assume all persons had criminal records – witness cross-examined on voir dire as to effects of comments – accused argued prejudiced by comment – if comments removed from evidence could not challenge reliability of identification – if did not remove comment would suggest accused had criminal record – cf Cook [2004] NSWCCA 52.
Held: interlocutory appeal allowed – trial judge erred in basing decision on assessment of reliability and credibility of evidence – usurped role of jury
[33] Although some contrary views have been expressed (see, for example Papakosmas [1999] HCA 37; 196 CLR 297, per McHugh J; Rahme [2004] NSWCCA 233, per Hulme J (dissenting), the prevailing wisdom is that it is not open to a trial judge, in assessing, for the purposes of s 137, the probative value of any piece of evidence, to take into account his/her evaluation of its reliability or of the credibility of the witness through whom it is tendered: Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [47]-[65], per Spigelman CJ; and see Adam [2001] HCA 57; 207 CLR 96, per Gaudron J. That is, “probative value” is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact – or the contribution it might, if accepted, make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.
[37] In my opinion, in taking this approach to the assessment of the probative value of the evidence his Honour fell into the error referred to in Shamouil. He took into account the reliability of the evidence, and the credibility or reliability of the witnesses through whom, it was proposed, the evidence would be given. As was pointed out in Shamouil ([64]-[65]) this trespassed upon the function of the jury.
Held: Comment would not cause prejudice and unfairness as argued by accused
 
Arvidson
[2008] NSW CCA 135, 2.6.2008
Evidence Act 1995 (NSW) s.137 – stealing from employer – respondent alleged to have stole $80,000 from e-satchel located on trolley in dispatch room – Crown sought to tender evidence of edited CCTV surveillance – surveillance edited from 72 hours to 1 hour – originals lost – TJ excluded on basis tapes edited to focus on activities of respondent and therefore distorted evidence
Held: Crown appeal allowed – decision of trial judge unreasonable in context of Crown case
 
Klein (No.1)
[2008] NSWSC 333, Buddin J, 31.3.2008
Evidence Act 1995 (NSW) ss. 135, 137 – murder – CCTV footage shows appellant short distance from murder – Crown seeking to tender reconstruction showing police officer
Held: evidence excluded – significant differences between CCTV footage and reconstruction in terms of clothes and actions / behavior – reconstruction misleading and confusing
 
Klein (No.2)
[2008] NSWSC 335, Buddin J, 2.4.2008
Evidence Act 1995 (NSW) s 137 – murder – in police record of interview accused attempting to explain frame of mind to provide reason for poor memory – refers to drinking and abusing drugs
Held: reference to drugs excluded – not necessary to issue and danger jury will consider reference to illegal drugs
 
Klein (No.3)
[2008] NSWSC 337, Buddin J, 2.4.2008
Evidence Act 1995 (NSW) s 137 – murder – Crown witness resiled from unfavourable evidence – Crown seeking to tendered prior inconsistent statements – counsel conceded witness could be cross-examined on prior inconsistent statements made about observed conduct of accused – objected to prior inconsistent statements as to alleged admissions made by accused
Held: prior inconsistent statements of alleged admissions excluded - inconsistent statements relevant only to credibility of witness (see Klein [2007] NSW CCA 206) – possible prejudice of alleged admissions outweighed probative value
 
Klein (No.4)
[2008] NSWSC 340, Buddin J, 2.4.2008
Evidence Act 1995 (NSW) s 137 – murder – Crown seeking to tender transcripts of telephone conversations between Crown witness and brother of accused made during first trial suggesting witness being instructed as to tailoring evidence – relevant to credibility of witness and explanation for resiling from original evidence – no suggestion accused linked to attempt by brother to influence witness
Held: high probative value – prejudice can be adequately dealt with by strong direction – evidence allowed
 
Klein (No.5)
[2008] NSWSC 336, Buddin J, 4.4.2008
Evidence Act 1995 (NSW) s 137 – murder – Crown seeking to tender evidence from ex de facto of accused regarding possession of accused of a gun – gave evidence she saw pouch she assumed contained a gun 7 months prior to murder
Held: propensity evidence only – evidence excluded
 
Irani
[2008] NSW CCA 217, 18.9.2008
Evidence Act 1995 (NSW) s 137 – supply cocaine – supplies to undercover informant with listening device – Det Robinson prepared transcript of tapes listening to them over several months and discussing with informant – identified voice of appellant when brought to police station as person heard on tapes – whether similar to dock identification – whether identification prejudiced by fact appellant arrested at time – whether jury in same position as Det to make comparison (Smith question)
Held: appeal dismissed – Det became ad hoc expert from months of listening to tapes – identification not similar to dock identification because of expertise – weaknesses in identification matter for jury – Det in better position than jury to make identification because of expertise
 
Qoro
[2008] NSW CCA 220, 26.9.2008
Evidence Act 1995 (NSW) s 137 – aggravated sexual assault – group detained female complainant at house and forced multiple acts of sexual intercourse with many men – appellant alleged to have forced oral sex in poorly lit room after complainant already sexually assaulted multiple times - several days after offence complainant identified appellant in the street – subsequently identified appellant from photo array – whether displacement effect caused unfairness – whether risk complainant identified man in street not person who assaulted her
Held: appeal dismissed – trial judge did not err in concluding no unfairness justifying rejection of evidence – danger of displacement could be explained to jury
 
Steve
[2008] NSW CCA 231, 8.10.2008
Evidence Act 1995 (NSW) s 137 – sexual assault – where failure of trial counsel to object to prejudicial material amounted to miscarriage of justice – whether trial judge erred in failing to apply s.137
Held: Conviction quashed. New trial ordered.
The failure of counsel to object to irrelevant and prejudicial evidence amounted to a miscarriage of justice. The provisions of the Evidence Act, s 137 are mandatory. The trial judge had an obligation not to admit the evidence in respect of which there was a danger of unfair prejudice to the appellant, which outweighed its probative value: [60]-[62], [66]-[69], [82]. Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 (applied)
 
FDP
[2008] NSW CCA 317, 18.12.2008
Evidence Act 1995 (NSW) s 137 – mal wound with intent – prejudicial evidence admitted at trial – no objection taken to material at trial
Held: appeal dismissed – Rule 4 applied – declined to follow Steve – s.137 not a mandatory provision requiring the TJ to reject prejudicial evidence where no objection taken by defence counsel at trial
 
Muldoon
[2087] NSW CCA 315, 18.12.2008
Evidence Act 1995 (NSW) s 79, 137 – BES – occupant returned home to see men running away from house and entering bush – tracking dog used – appellant and co-appellant found nearby in bush by dog
Held: appeal dismissed – evidence of dog trainer as expert admissible – weaknesses in ability of dog clearly before jury and caused no unfair prejudice
 
Louizos
[2009] NSW CCA [71], 20.3.2009
Evidence Act 1995 (NSW) s.55, 137 - solicit to murder – arranged for acquaintance to kill husband – admissibility of transcripts of telephone conversations – no direct admissions – defence claim conversations open to more than one interpretation
Held: appeal dismissed – fact that evidence ambiguous and capable of more than one interpretation does not make it irrelevant or prejudicial
 
Armstrong
[2010] NSWSC 801 Buddin J
Evidence Act 1995 (NSW) s.90, 137 - murder – telephone conversation with father from gaol recorded – discussion as to DNA evidence:
Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years.
Father Oh right, yeah they might had nothing on you then mater.
Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter.
Father You are not having that are you.
Accused Well we have not plead anything yet, because we do not know the strength of the DNA
Father You won’t plead guilty to nothing at the moment
Accused No
Held: comments to father that accused had not yet decided what plea to enter not easily reconcilable with innocence – constitutes admission – once establish conversation an admission cannot give rise to risk of unfair prejudice
 
Aytugrul
[2010] NSW CCA [272] 3.12.2010
Evidence Act 1995 (NSW) ss 135, 137 – murder – DNA evidence – hair under victim’s fingernail alleged to be accused’s - whether miscarriage of justice due to directions on DNA evidence – admissibility of DNA evidence – expert evidence that 99.9% of the world population could be excluded as having the DNA profile in issue – appellant submitted that DNA evidence being expressed as exclusion percentages should have been rejected and that when expressed as percentages of close to 100, the evidence was unfairly prejudicial and should have been rejected pursuant to s 135 or s 137.
Held: (per Simpson J; Fullerton J agreeing; McClellan CJ at CL dissenting on this point) There is nothing to suggest the evidence before the jury, framed as it was, was unduly or unfairly prejudicial, or confusing or misleading such as to raise for consideration either s 135 or s 137. No deficiency in the way in which the jury was directed in relation to the DNA evidence: at [198]-[199].
GK [2001] NSWCCA 413; 53 NSWLR 317 (‘relative chance of paternity’ evidence) is not binding authority that evidence of the kind there under consideration is never admissible; it is a conclusion that, on the facts of that case, either s 135 or s 137 could be invoked in order to exclude the relative chance of paternity evidence. Nor is Galli [2001] NSWCCA 504; 127 A Crim R 493 authority for the proposition. Neither is authority for the proposition that “exclusion percentage” evidence is never admissible, nor that such evidence, though admissible, must inevitably be excluded under either s 135 or s 137: at [196].
 
Kuehne
[2011] NSW CCA [101] 4.5.2011
Evidence Act 1995 (NSW) s 137 – BES - presence of A’s fingerprints at scene and failure to provide an explanation for their presence - Crown otherwise unable to establish A was at crime scene, evidence of high probative value - questions put to A - questions and answers put to A fundamental to Crown case – whether danger of unfair prejudice to A being danger jury would be made aware that A had prior criminal record because his fingerprints were being held by the police before his arrest on 7 December 2007.
Held: Appeal dismissed. Evidence properly admitted. Form of questions put to A was benign. They did not refer to any prior criminal record nor existence of fingerprints obtained prior to arrest. Possibility jury may infer the police had A’s fingerprints prior to arrest. However, there are various ways in which police can obtain fingerprints other than pursuant to a criminal conviction. Even if jury did so infer, it would tell the jury nothing as to nature of the offence for which A was convicted or when it occurred. It would require speculation by the jury for the danger of unfair prejudice to materialise. Such speculation would be contrary to her Honour's general direction that the jury should not draw any inference from the direct evidence unless it was the only rational inference to draw, and that suspicion must play no part in their function as judges of the facts. No reason to conclude jury would engage in such reasoning or that alleged danger was other than a remote possibility.
 
L’Strange
[2011] NSW CCA [89]
Evidence Act 1995 (NSW) s 137 – BES and Conspiracy – crown alleged accused joined conspiracy to rob house of drug dealer then joined in robbery of second house when initial plan abandoned – Crown led evidence that accused previously involved in plan to rob drug dealer although no charges laid – sought to use evidence to explain why accused joined agreement
Held: although evidence not tendered as tendency or co-incidence evidence trial judge failed to properly consider risk that jury would improperly use evidence as tendency evidence – evidence probably not admissible because prejudice outweighed probative value
 
Perish, Lawton and Perish
[2011] NSWSC 1112, Price J, 18.8.2011
Evidence Act 1995 (NSW) s.38, 137 – murder – application to cross-examine Witness E on meeting with offender and Witness B – Witness E claimed minimal memory of meeting – no prior statement to police but brief reference made at committal – no objection to putting to Witness E statement made at committal – objection made to putting to Witness E testimony of Witness B that offender made admission to murder at meeting
Held: leave to cross-examine on evidence of Witness B refused – extent to which response of Witness E to testimony of Witness B could affect assessment of probability of fact modest at best – real risk testimony of Witness B will be unfairly elevated and increased in credibility
 
Hawi (No.11)
[2011] NSWSC 1657 28.6.2011
Evidence Act 1995 (NSW) s.137 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – one witness gave description of male she saw assaulting victim with bollard – subsequently indicated she recognized male when saw photos of accused screened on television news reports – initial description did not completely match appearance of accused on day of offence – significant height difference – initial description more consistent with another accused
Held: evidence inadmissible – minimal probative value due to inconsistencies between initial description and appearance on accused on day of offence
 
Iskander
[2011] NSWSC 1324, Davies J
Evidence Act 1995 (NSW) s.137 – murder - admissibility of paper said by crown to be used to disguise number plates
Held: evidence admissible
Difference between definition of ‘probative value’ and s.55 test discussed in Shamoul (2006) 66 NSWLR 228 commencing at [47] - Chief Justice in that case refers to authority in Court in favour of restrictive approach to circumstances in which issues of reliability and credibility are taken into account when determining probative value of evidence for purposes of admissibility - evidence has probative value if it is capable of supporting a verdict of guilty - Festa (2001) 208 CLR 593 at [14] Gleeson CJ says if evidence is, albeit of slight probative value, it is nevertheless admissible unless some principle of exclusion comes into play to justify withholding it from jury's consideration - not enough to say evidence is weak to withhold it from jury.
In SJRC [2007] NSWCCA 142 at [38] and [39]:
Provided the evidence is capable of bearing the interpretation of, or of giving the inference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused, does not of itself show that any probative value the evidence has is outweighed by the danger of unfair prejudice. It is part of the function of the jury, as the judges of the facts, to determine what interpretation should be given to the evidence they accept and to determine what inferences should be drawn from the evidence that they accept.
Unfair prejudice is concerned with the possible misuse by jury of evidence:
Em [2003] NSWCCA 374; (2009) 194 A Crim R 223 at [120] per Howie J (with whom Ipp JA agreed), and Louizos [2009] NSWCCA 71 at [35] per Howie J
(with whom McClellan CJ at CL and Grove J agreed).
[14] No matter how one characterises the strength of the evidence, it is evidence which is relevant under the definition in the Evidence Act and has probative value as defined. How the jury uses it, and the inferences that the jury draws, are matters peculiarly for the jury. It is not for the judge to exclude such evidence on the basis of its weight.
 
Abbosh; Bene
[2011] NSW CCA 265
Evidence Act 1995 (NSW) s.137 – malicious wounding with intent – stabbing of male during altercation at markets – co-offender made threats in earlier confrontation – Victim’s father gave evidence that co-offender threatened ‘to fuck youse all up’ – security manager of markets gave hearsay evidence that father had told him co-offender threatened to ‘cut youse all up’ – whether evidence should not have been admitted
Held: appeal allowed – evidence from security manager admissible under s.66 but should have been excluded under s.137 – risk of unfair prejudice
 
Dupas
[2012] VSCA 328
Evidence Act 1995 (VIC) s.137
Held: five-judge bench of Victorian Court of Appeal rejected approach taken by NSWCCA in Shamouil to consideration of an application pursuant to s 137 - found Spigelman CJ correct in finding legislative intent behind s 137 was to replicate common law test ("Christie direction"; Christie [1914] AC 545), but that he erred in purporting to re-state what that test was when he said at para 49:
Before the Evidence Act the Christie discretion to exclude evidence at common law for which s137 is a replacement, did not involve considerations of reliability of the evidence.
Court of Appeal said:
[68] With great respect to Spigelman CJ, however, the analysis in Shamouil is founded on a misapprehension of the role of the judge under the common law test. From its inception as a discretionary rule, it has always been necessary when the Christie discretion was invoked for a trial judge to have regard to the reliability of the evidence. The judge was to assess what weight it might reasonably be given. As we shall seek to show, the approach adopted in Shamouil, and followed subsequently, has not preserved but has materially altered the relationship between trial judge and jury. By divesting the trial judge of a power that had previously existed, a safeguard was removed that is critical to the avoidance of miscarriages of justice and to ensuring that the accused has a fair trial. Hence it is to the common law that we first turn.
Earlier, the Court expressed the following conclusions (at para 63):
[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.
 
Maglovski
[2013] NSWSC 1378, Beech-Jones J
Evidence Act 1995 (NSW) s.137 – murder – husband accused of killing wife – claimed acted under provocation – Crown sought to lead evidence from daughter that mother had told her accused had tried to strangle her in her sleep – response to question as to why father sleeping in different bedroom – intended to be led to combat suggestion of provocation
Held –admissible under s.65(2)(c) – high prejudicial value – no probative value in view of lack of information as to the circumstances of the alleged attempt to strangle – attempt alone not inconsistent with accused later acting under provocation – evidence excluded
 
XY
[2013] NSWCCA 121 (Basten JA, Hoeben CJ at CL; Simpson J, Blanch J, Price J)
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=164880
Evidence Act 1995 (NSW) ss. 90, 137 – s.5F Crown appeal against exclusion of evidence of telephone conversation between complainant and accused in child sexual assault offences - Trial judge not satisfied accused ‘fully aware’ of identity of caller - not clear from the transcript the accused knew who he was talking to (had last spoken to the complainant 9 years earlier when she was 8 years old) - accused appeared distracted during conversation by background noise - allegations about sexual activity put by complainant vague - accused denied any sexual activity with complainant when she was 8 years (as alleged) but seemed to accept ‘some’ sexual activity with ‘someone’ of high school age – five judge bench convened to consider conflict between Shamouil and Dupas
Held: dismissing the appeal by majority
Basten JA (dissenting – allowing the appeal) - Failure of trial judge to consider possible prejudice and whether it could be dealt with by direction
(iii) In determining the probative value of the test should the court consider only the capacity of the evidence (Shamouil) or should an assessment be made of the reliability/weight/credibility of the evidence (Dupas)
In Dupas the Victoria Court of Appeal agreed with the trial judge that the identification evidence should not be excluded - Not clear Dupas adopted different approach to ShamouilDupas erroneously stated that Shamouil concluded inflexibly and without qualification, that the weight of evidence was irrelevant - also present case raises slightly different issues (not identification case) – therefore no compelling reason to depart from general approach of
Shamouil: [64-65]
Need to assess Crown evidence as to capacity to advance Crown case – consider any inference or direct support the evidence gives a fact in issue - no speculation as to whether jury would in fact accept the evidence or inference or give it weight [66]
Because no unfair prejudice from any inference (see note below) no occasion to address probative value of evidence – no need to decide between Dupas and Shamouil: [73]
(iv) Was the probative value of the evidence outweighed by the danger of unfair prejudice (test under s.137)
TJ needed to determine all inferences that could be taken from conversation, consider if any unfairness and then consider if could be dealt with by directions – failed to do this therefore an error: [68]
No unfair prejudice in circumstances of case – if jury drew inference from conversation that accused knew who he was talking to and was making admission then no unfair prejudice – if jury drew inference that accused talking about sexual activity with high school student no unfair prejudice because would have been directed as to how to use such evidence – no basis to exclude as prejudicial [72]
Hoeben CJ at CL (dismissing the appeal) - Significant prejudice outweighed probative value
(iii) In determining the probative value of the test should the court consider only the capacity of the evidence (Shamouil) or should an assessment be made of the reliability/weight/credibility of the evidence (Dupas)
When assessing probative value of evidence do not consider credibility, reliability or weight – specifically adopt what Basten JA says at [66]-[67] – court should follow Shamouil when applying s.137: [86]
(v) What account should the court take of the competing inferences available from the evidence (DJS)
But when assessing probative value of evidence can take into account fact of competing inferences that may be available on the evidence as distinct from determining which inference most likely to be preferred: DSJ [2012] NSWCCA 9: [88]
In this case need to consider competing inference, some of which inconsistent with Crown case: [89]
(iv) Was the probative value of the evidence outweighed by the danger of unfair prejudice (test under s.137)
After consideration of competing inferences agree with Blanch J - significant prejudice – real danger of tendency reasoning cannot be alleviated by directions: [90]
Simpson J (dissenting – allowing the appeal) - Trial judge erred in taking into account questions of reliability, credibility and weight, failing to make assessment of probative value of evidence on assumption jury accepted Crown inference, and failing to assess potential prejudice in light of appropriate directions to jury
(iii) In determining the probative value of the test should the court consider only the capacity of the evidence (Shamouil) or should an assessment be made of the reliability/weight/credibility of the evidence (Dupas)
Affirmed Shamouil – where sections of Evidence Act require assessment of probative value of evidence usually done before all evidence in trial finished – assessment should therefore be based upon capacity of jury to use evidence - credibility, reliability and weight play no part in assessment of probative value – actual probative value of evidence in context of all evidence at trial lies with jury: [167], [175]
This approach to assessment of probative value should probably apply to all sections in Evidence Act: [175]
(v) What account should the court take of the competing inferences available from the evidence (DJS)
Do not see need for trial judge to consider relative merits of competing explanations when considering probative value of tendency and co-incidence evidence under ss.97, 98 (DJS): [166]
Blanch J (allowing appeal) - Conversation too prejudicial in context of case
(iv) Was the probative value of the evidence outweighed by the danger of unfair prejudice (test under s.137)
Conversation highly prejudicial to accused in context of child sexual assault case – damage of tendency reasoning: [185], [193]
(iii) In determining the probative value of the test should the court consider only the capacity of the evidence (Shamouil) or should an assessment be made of the reliability/weight/credibility of the evidence (Dupas)
Shamouil emphasises not undertaking an investigation into the weight of evidence based upon credibility or reliability – in this case evidence is known and can be evaluated so no question of reliability or credibility: [197-198]
TJ consideration of matters such as accused not being expected to recognise voice after 9 years, background noise, element of confusion in responses, lack of clarity in allegation and denials all relevant to assessing capacity of evidence: [206-207]
(v) What account should the court take of the competing inferences available from the evidence (DJS)
Capacity of evidence compromised because of competing inferences – unfair prejudice high and could not be corrected by direction: [207]
Price J (allowing the appeal) - Not sufficient probative value to meet s.5F test
(iv) Was the probative value of the evidence outweighed by the danger of unfair prejudice (test under s.137)
Agree with Blanch J there is unfair prejudice, although do not need to consider competing explanations: [223]
(iii) In determining the probative value of the test should the court consider only the capacity of the evidence (Shamouil) or should an assessment be made of the reliability/weight/credibility of the evidence (Dupas)
[224] Whilst 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 [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.
[225] In 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.
 
Jacobs (No. 2) [2013] NSW SC 943, Button J, 12.6.2013
Evidence Act s 137 - evidence of presence of illicit substance in accused's body - opinion about effect of drug on accused - relevant to whether accused was person who committed the offence - whether danger of unfair prejudice outweighs probative value - evidence to be admitted.
Held: Evidence admissible.
“[28] The definition of "probative value" contained in the Dictionary of the Evidence Act is as follows:
"probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
[29] That definition speaks of "extent". As Basten JA said in R v XY at [66], it is appropriate to consider, in light of that definition, the capacity of the evidence to advance the Crown case.
[30] Hoeben CJ at CL expressly agreed with that approach.
[31] In determining the probative value of the evidence, I respectfully adopt the approach taken in R v XY of assessing the capacity of the evidence under objection to advance the Crown case. “
 
Jacobs (No. 6) [2013] NSW SC 947, Button J, 27.6.2013
Evidence Act s 137 - evidence of unfired cartridges located at home of accused - unfired cartridges found whilst accused in hospital - unfired cartridges of same calibre as ammunition found at scene - majority of unfired cartridges of same make as ammunition found at scene - whether evidence relevant - whether probative value of evidence outweighed by danger of unfair prejudice
Held: Evidence admissible. Section 137 not engaged. Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 distinguished.
 
Delle Vergin (No.2)
[2013] NSWSC 215, Colefax SC DCJ
Evidence Act s 90, 135(a), 137 – sexual offences against 15y victim – surveillance device warrant obtained – three telephone conversations recorded between victim and accused and victim’s father and accused – accused unaware at the time of allegations – no admissions but responses could be evidence of consciousness of guilt – upon arrest accused exercised right to silence
Held: Evidence excluded – considered purpose of surveillance warrants for serious offence difficult to investigate – this offence not extraordinary - purpose of conversations was to deprive accused of right to silence – extinguished right without clear and proper basis – distinguished Pavitt (2007) 169 A Crim R 452 – prejudice outweighed probative value
 
Phanekham (No.2) [2013] NSWSC 1738, Beech-Jones J
Evidence Act ss 55, 137 – murder - accused playing violent computer game before confrontation leading to death of deceased - whether evidence of nature of the computer game admissible - whether probative of state of mind of accused - whether probative value outweighed by prejudicial effect.
Held: Evidence not admissible. No probative effect under s 55. Not strictly necessary to consider s 137. However, for the sake of completeness, there is a very significant potential for prejudice to the accused if this evidence was adduced.
 
Burton
[2013] NSWCCA 335
Evidence Act 1995 (NSW) ss 90, 98, 137 – Crown appeal 5F(3A) Criminal Appeal Act - pre-trial evidentiary ruling - sexual assault - evidence of telephone conversation between A and complainant recorded pursuant to warrant - admissions - whether unfair to admit evidence - whether complainant acting as "agent of the State" - whether unfair derogation of A’s right to exercise free choice to speak or be silent - whether conversation "functional equivalent of an interrogation" - "eliciting behaviour" - whether admissions made voluntarily – whether error in excluding evidence under s 90, 137.
s. 137 - probative value of evidence - whether existence of alternative explanation relevant to assessment of probative value - facts in issue - s 137 contrasted with s 98 - whether credibility, reliability or weight of evidence relevant to assessment of probative value - R v XY [2012] NSWCCA 121
Held: Crown appeal allowed. Evidence should not have been excluded under
s 137 or s 90 (see case summary under s 90).
Simpson J: [182] As I have said above, the s 137 exercise consists of three steps. The first is the quantitative assessment of the probative value of the evidence. The second is the assessment of the danger of unfair prejudice. The third is the judgment whether the latter outweighs the former. It is a balancing exercise.
[183] The exercise required by s 98 is different. Section 98, like s 137, does not arise for consideration unless the evidence has been determined to be relevant. Section 98 calls upon the court to consider, not whether the evidence has the capacity rationally to effect the assessment of the probability of the existence of a fact in issue - that having already been determined - but to take the evidence, in conjunction with other evidence already adduced or to be adduced by the tendering party, and, in the light of all that evidence, to measure the significance of the (potential) probative value. It is in this respect that a possible alternative explanation becomes relevant. It is of significance that in para [78] Whealy JA referred to an alternative explanation "arising on the evidence". A possible "alternative explanation arising on the evidence" within s 98 is not the same as "a competing inference" to be drawn from the very evidence the admissibility of which is in question. Under s 98, the court looks at the whole of the case of the tendering party (so far as it is known) in order to assess the significance of the challenged evidence. Section 98 does not require the balancing of the (potential) probative value of the evidence as so measured against any other consideration. (In criminal proceedings, such a measure is required by s 101, but that is not presently material.)
[184] Accordingly, I am of the view that the manner in which this Court approached the assessment of probative value for the purposes of s 98 does not compel a similar approach in relation to s 137.
…………………….
[197] Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice.
[198] In my opinion, the decision to exclude the evidence based on s 137 of the Evidence Act resulted from an incorrect approach to the task required by the section. The starting point of the assessment is to assume that the inferences most favourable to the Crown will be drawn, and to assess the potential probative value on that basis, without regard to the availability of any competing inference.
[199] The only potential unfair prejudice to the respondent identified by the judge was the possible "conflation" of an explanation for his conduct that, while not criminal, might be seen as discreditable with the explanation proposed by the Crown. The judge effectively discarded any possibility that directions to the jury could and would ameliorate any such prejudice. That, in my opinion, was an incorrect approach. The criminal justice system proceeds on the foundation that juries can and do abide by the directions they are given (Lansdell).
[200] The probative value of the evidence, which was significant in the respects I have outlined above, was not outweighed by the danger of unfair prejudice.
[201] The evidence should not have been excluded under s 137.
 
Col
[2013] NSWCCA 302
Evidence Act 1995 (NSW) s.103 – cause grievous bodily harm with intent – alleged to have set fire to victim – victim retracted initial statement to police – cross-examined under s.38 – initial statement to police and retraction both admitted as evidence at trial – whether material should not have been admitted
Held: Appeal dismissed – material admissible under s.103 – adduced by Crown in cross-examination and substantially affected victim’s credibility – admissible under s.106 as prior inconsistent statement – once admitted became evidence of facts contained in representation under s.60 – no prejudice under s.137 given clear and unambiguous content of statement – not rendered inadmissible under s.43(2)
 
Carroll
[2013] NSWCCA 1031
Evidence Act 1995 (NSW) s 135, 137 - Application for exclusion of identification evidence - identification of A in an out-of-court identification by array of photographs - witness had previously given a description of A to police as having tattoos and tattoos up to the neck prior to formal identification process - witness observed and interacted with A for some time before and after participating in subject offences - witness observed and spoke with A on subsequent occasion whilst in custody - whether observation and interaction with A on second occasion resulted in "displacement effect" - conversation and meeting with A on second occasion is more accurately characterised as recognition of a person the witness was previously involved with capable of re-enforcing the original mental image of the person - array of photographs compiled by software which randomly selected photographs from a database that share "parameters of likeness" to photograph of A taken soon after date of offences - array of photographs included some photos exhibiting tattoos - a sound basis existed upon which the array of photographs was compiled - probative value of identification evidence not outweighed by the danger of unfair prejudice to the accused.
Held: Application for the exclusion of the identification evidence under ss 135 and 137 refused
 

Hunter (No.2)

[2013] 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

 

Poniris

[2014] 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 [2008] 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 [2011] NSWCCA 245; Penza and Di Maria v R [2013] NSWCCA 21. 

At [49]: In both Steve [2008] NSWCCA 231; 189 A Crim R 68 and Chand [2011] 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 [1971] HCA 20; 124 CLR 107 at 117-8 per Barwick CJ; James v R [2014] HCA 6; 88 ALJR 427 at [24]).

At [49]-[50]: 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 [2013] NSWCCA 46 at [27]. 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).

 

Bryce [No.1]

[2014] 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

 

Briggs

[2014] 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)

[2014] 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 [28]. 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.

 

Ryan

[2013] 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

 

Hunter (No.9)

[2014] 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

 

Sterling, McCook

[2014] 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

 

Lambaditis

[2015] 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)

[2015] 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 [2007] HCA 39; 231 CLR 396)

 

Miller

[2015] 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. [57]-[60], [100]-[108]. R v John [1975] Crim LR 456; R v Blick [2000] NSWCCA 61; 111 A Crim R 326; Alexander v The Queen [1981] HCA 17; 145 CLR 395.

 

Basanovic (No 4)

[2015] 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 [23]; Kazzi [2003] 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 [2006] NSWCCA 112; (2006) 66 NSWLR 228; BD (1997) 94 A Crim R 131; Papakosmos [1999] HCA 37; (1999) 196 CLR 297

 

Merrick (No.2)

[2016] 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

 

IMM

[2016] 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 [30], [50], [58]

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 [59]

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 [86] 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 [60] [139]-[140], [172]

 

Rogerson; McNamara (No 19)

[2016] NSWSC 74 (Bellew J)

Evidence Act 1995 (NSW) s 65, s 137 – murder - hearsay– Whether persons "not available" to give evidence where neither person could be positively identified - Crown further sought to lead evidence of representations made in conversation with a witness in language only partially familiar to witness – Whether probative value of the evidence outweighed by danger of unfair prejudice.

Held: Crown cannot rely on s 65 as witnesses could not be positively identified. Crown cannot assert that a person is not available unless and until that person is positively identified in first instance.  Evidence is rejected.

Not necessary to determine admissibility under s 137 of conversation in language witness did not understand, but had it been open to Crown to rely upon s. 65, evidence would have been excluded as witness not in position to understand majority of what was said.

Kimura; Swan (No 1)

[2016] NSWSC 568 (N Adams J)

Evidence Act 1995 (NSW)  s 137 – Photographs of shorts worn by accused S show several areas of staining –only one stain tested for blood or DNA – probative value of evidence of other similar stains where possibility of secondary transference raised – whether evidence unfairly prejudicial.

Held: (1) Photographs showing non-tested areas of staining on accused Swan's shorts admissible. (2) Evidence of crime scene officer's opinion that those areas of staining are blood is inadmissible. (3) Actual shorts admissible.

 

Rogerson; McNamara (No 41)

[2016] NSWSC 364 (Bellew J)

Evidence Act 1995 (NSW)  s 137 – Murder - Crown notified A's representatives of intention to lead evidence shortly before closure of Crown case –evidence had been in possession of police for significant period of time prior to trial –Crown on notice from A's opening address of basis upon which A's case would be conducted.

Held: Evidence sought to be adduced by Crown unfairly prejudicial. Evidence excluded.

 

Droudis (No.13)

[2016] NSWSC 1350 (Johnson J)

Evidence Act 1995 (NSW) ss.97, 55, 137, 135(c) – Murder – Judge alone trial - Crown case that A, at behest of M, stabbed V to death  - Crown sought to lead evidence of tendency on part of A that  A had a particular state of mind arising from her belief in M's spiritual superiority; because of this state of mind, A acted in a particular way, namely that she engaged in socially and morally reprehensible acts at behest of M -  Crown contends tendency evidence bears upon a fact in issue in the trial, namely, the identity of the person that murdered V – defence objection under s 135(c) that evidence might 'cause or result in undue waste of time.'

Held: Evidence admissible.

s 55:  relevant for the purposes of ss.55-56 to the resolution of the principal fact in issue in the trial - nature and dynamics of the relationship between M and A are relevant, being capable of shedding considerable light upon the alleged motive of A (and M) and the state of mind of A in acting in different ways at the behest of M. Evidence forms part of a multi-facetted circumstantial case which by Crown.

At [48]-[49]: The test of relevance - Enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. Possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at 538 [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at 537 [39]. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither s.55 nor s.56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at 537-538 [40].

s 97: evidence has "significant probative value" (referred to -  Elomar v R [2014] NSWCCA 303; 316 ALR 206; IMM v The Queen [2016] HCA 14; 90 ALJR 529; Hughes v R [2015] NSWCCA 330; BC v R [2015] NSWCCA 327)  - had regard to not only this tendered evidence, but also other evidence which Crown will adduce in in support of the circumstantial case against A.

s 137: At [52]-[55]:   Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at 534 [15]. Section 137 requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the Accused. This requires the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM at 538 [47].

 The danger of "unfair prejudice" in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (usually a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].

The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 280 [196].

s 135(c)  The tendered evidence to which objection is taken is almost entirely in the form of video, audio or documentary evidence. Time required for tender of the challenged evidence will not be excessive in the context of this trial - probative value of evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.

At [57]-[60]: s 135 is based upon assumption the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular statutory opinion is formed. A discretionary process is involved, with formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is "substantially outweighed" by a "danger" of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].

The apparent purpose of s.135(c) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue - "once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of 'undue waste of time'": Dyldam Developments Pty Limited v Jones at [93].

s.135(c) has equal application to a Judge-alone trial.

Derley (Restricted judgment – see JIRS)

[2016] NSWCCA 92

Evidence Act 1995 (NSW) s.66(2), 66(2A), 137 - sexual assault child – alleged offences committed 28 years ago – admissibility of evidence of complaint made to school friends 2-4 years after alleged offences – whether fresh – whether trial judge erred in excluding evidence

Held: appeal allowed – any disparity between complaint and statement to police goes to credibility not prejudice [72] – ambiguity in statement of complaint witness question for jury [73] – use of inferences from evidence – declined to follow Hoeben CJ at CL and Blanch J in XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 – followed IMM at [47] – competing inference drawn from evidence irrelevant – accept evidence on basis for which Crown contends [78]-[86]

Qaumi (No 61)

[2016] NSWSC 1192 (Hamill J)

Evidence Act – ss.110(2), (3), 135, 137 - admissibility – in evidence in chief Counsel asked accused if it was first time in custody – accused answered yes – co-offender sought to led evidence that accused had record for assault – also sought to lead CCTV footage of accused attacking co-offender in dock

Held:  application to admit evidence refused – both s.110(2) and (3) had been engaged – good character raised in evidence - mistake by counsel – probative value of evidence not great in rebutting limited evidence led as to first time in custody - showing of CCTV footage prejudicial to other accused and could mislead jury – exploration of incident would waste time – probative value outweighed by danger of unfair prejudice

Qaumi (No 6)

[2016] NSWSC 113 (Hamill J)

Evidence Act – s.137 - admissibility – Crown sought to lead evidence from witnesses that accused claimed to have been involved in three murders as means of intimidation and threat – accused has been acquitted at trial of two charges and had third charge not proceed with

Held:  application to admit evidence refused – evidence too prejudicial

Barakat (No.5)

[2016] NSWSC 1313 (N.Adams J)

Evidence Act – s.137 - murder – Crown sought to lead evidence of telephone conversations between accused and mistress after police spoke to mistress about the murder – no suggestion mistress involved in offence – competing inferences from conversations

Held: followed GM [2016] NSWCCA 78 post IMM can still consider competing inferences when considering probative value of evidence – in this case existence of multiple inferences significantly weakness probative value – also risk of prejudice high

 

 

 

 


 

Section 138: Discretion to exclude improperly or illegally obtained evidence

Truong

(1996) 86 A Crim R 188; ACT SC (Miles CJ) 19.3.1996
Evidence Act 1995 (Cth) s.138 - armed robbery - covertly taped admissions - false statement during course of questioning within s.138(2)(b) - improperly obtained in contravention of law - whether Crown discharged onus of establishing whether desirability of admission of evidence outweighs undesirability of admission
Held: deliberate conduct not intended to be illegal - Bunning v Cross (1978) 141 CLR 54 did not apply - s 138 may require exercise of discretion very similar to Bunning v Cross - Act not intended to reverse trend of sensitivity to admitting evidence of admissions - evidence admitted.

Fittler
NSWDC (Ducker DCJ) 19.4.1996
Evidence Act 1995 (NSW) s.138 - armed robbery - although arrest legal detention became illegal prior to admissions - first ERISP contained no admissions - spoke to de facto and then made admission prior to and during second ERISP - Judge accepted admission made in response to police threat that de facto would be charged and child placed into welfare
Held: unlawful detention not enough to exclude the admissions - offence too serious - s.138(1) replicates old Bunning v Cross discretion with certain factors to be considered under s.138(3) - threats by police so serious that evidence excluded (although admission probably true).

Mesiti aka Lewis
NSWDC (Ducker DCJ) 23.5.1996
Evidence Act 1995 (NSW) s.138 - 11y complainant identified accused from photos shown to her by police - police used photo of accused taken three weeks prior to arrest instead of at time of arrest
Held: Bunning v Cross discretion - case honest mistake of judgment - no impropriety - (evidence excluded under s.135).

Rooke
NSW CCA 2.9.1997
Evidence Act 1995 (NSW) s.138 - assault police and SMV - when police called to house found registration and compliance plates in garage - verbal admission at house and written record of interview made at police station - appellant argued did not make admissions and signed ROI because of violence and threats from police
Held: detention unlawful because police failed to take appellant before Justice - discretion has changed from common law - once illegal Crown, not defence, has burden of showing evidence should be admitted.

Salem
(1997) 96 A Crim R 421; NSW CCA 3.10.1997
Evidence Act 1995 (NSW) s.138 - supply prohibited drug - police agent involved in arranging supply - committed offence of solicit / incite supply - despite illegality judge allowed evidence of agent
Held: once illegality shown Crown must satisfy Court evidence should be allowed - question is whether desirability of admitting evidence outweighs undesirability of admitting evidence, given unlawful conduct of police - reviewed test for competing public interest under Ireland, Bunning v Cross and Ridgeway - judge correct in admitting evidence given the type of offence being investigated

Bozatsis & Spanakakis
(1997) 97 A Crim R 296 (NSW CCA)
Evidence Act 1995 (NSW) s.138 - manufacture prohibited drug - police told by informer that accused planning manufacturing operation - surveillance undertaken - police arranged for supply of acid after accused had difficulty obtaining it - at trial defendants claimed Crown evidence should be excluded under s.138 on basis police aided and abetted by providing acid and accused only involved because police informer lured them into operation for purpose of allowing police to make arrest - judge excluded all Crown evidence and granted stay of proceedings.
Held: judge failed to indicate basis for exclusion of all evidence - if only basis for exclusion was supply of acid this would not warrant exclusion of all evidence - case returned for judge to reconsider discretion

Clarke
(1997) 97 A Crim R 414; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.138 - AR - acquitted of use weapon to resist arrest - indicated to police did not want to talk about robbery - answered questions directed to second charge although not cautioned in relation to that charge - whether unfair to admit admission once person has purported to exercise right to silence
Held: (dismissing appeal) - declined to follow South Australian practice that police cannot continue questioning once accused has refused to answer and asked for a solicitor - protection offered by ss.85, 90 and 138 sufficient.

Haughbro
ACT SC (Miles CJ) 19.12.1997
Evidence Act 1995 (Cth) s.138 - drug offences - police guilty of offence
Held: discussed relationship between common law (Ridgeway) and Evidence Act - evidence admitted

Nabalarua
NSW CCA 19.12.1997
Evidence Act 1995 (NSW) s.138 - assisting escape of prisoner while on police escort to court - admission in signed notebook and in ERISP - arrest illegal.
Held: once arrest shown to be illegal Crown has burden of showing evidence should be admitted - failure of trial judge to properly consider the requirements of s.138(3) on admissibility of ERISP admissions as contrary to public policy - appeal allowed to reconsider s.138.

Coulstock
(1998) 99 A Crim R 143; NSW CCA 10.3.1998
Evidence Act 1995 (NSW) s.138 - supply prohibited drugs - police guilty of solicit / incite supply - rejected appellant's claim that police talked him up in amount.
Held: s.138 not discretion to exclude evidence but discretion to admit - onus on accused to show illegality - once illegality proved onus on Crown to show evidence should be admitted - court must consider nature of offence, gravity of illegality, deliberation with which impropriety was committed and whether evidence could have been obtained without illegality - judge correct in admitting evidence - appropriate method of investigation used.

Oinonen
NSWSC (Dunford J) 31.3.1998
Evidence Act 1995 (NSW) s.138 - murder - accused intoxicated when in contact with police - advised by solicitor not to speak to police until solicitor available later that day - solicitor and accused agreed to search by police of accused's camp with accused but in absence of solicitor - during search police questioned accused who made admissions.
Held: questions constituted -breach of 'tacit understanding' between solicitor and police - impropriety - considered seriousness of offence, importance of evidence, whether evidence could have been obtained otherwise, seriousness of breach - admission adopted during interview later that afternoon - breach was reckless not deliberate - evidence admitted.

Ho & Tam
(1998) 102 A Crim R 37; NSWSC (Ireland J) 15.5.1998
Evidence Act 1995 (NSW) s.138 - order sought by H to restrain Crown from calling T as witness at H's trial - T pleaded guilty and sentenced - T had agreed to give evidence against two other co-accused but always refused to give evidence against H - Crown sought to call T and cross-examine under s.38.
Held: prohibiting Crown from calling T - emergence of evidence of conversation with co-offenders being conditional upon T not having to give evidence against H taints evidence with impropriety if Crown should seek to adduce it by cross-examining T under s.38.

Mankotia
NSWSC (Sperling J) 30.7.1998
Evidence Act 1995 (NSW) s.138 - murder of girlfriend - at restaurant asked for police to be called - made spontaneous admission - not asked to adopt or refute admission in later ROI
Held: s.138 does not apply - spontaneous admissions made without any request or prompting cannot be said to have been 'obtained' - failure to ask accused to confirm or refute admission in subsequent ROI not improper or contravention of any law.

Wu
NSW CCA 12.11.1998
Evidence Act 1995 (NSW) s.138 - manslaughter - driver of vehicle for robbery - security guard shot - admissibility of ROI
Held: appellant must establish probability of improper obtaining of evidence - Crown must then establish desirability of admission outweighs undesirability.

Morgan
NSW DC (Howie DCJ) 26.2.1999
Evidence Act 1995 (NSW) s.138, s139 - accused made spontaneous statements to medical doctor about gunshot wound during examination under s.353A Crimes Act implicating him in commission of crime - doctor made further inquiries to ascertain if wound properly treated.
Held: evidence admissible - doctor not asking questions to investigate crime and no requirement to caution accused - doctor not an 'investigating official' within meaning of s.424A(4) Crimes Act.

Suckling
NSWCCA [36], 12.3.1999
Evidence Act 1995 (NSW) s.138 - murder - admissibility of conversations between appellant and prison informant.
Held: jury needed context of conversations to evaluate whether they contained admission - judge correct in admitting evidence of taped conversations.

Pimental
(1999) 110 A Crim R 30; NSW CCA [401] 10.12.1999
Evidence Act 1995 (NSW) s.138 - drug importation - crew member of ship importing cannabis resin - police boarded vessel prior to completion of importation - Crown relied on evidence of unloading of drugs by police officers to complete importation offence - no authority obtained under Part 1AB Crimes Act 1912 (Cth).
Held: evidence admissible - even if illegal in circumstances judge correct to admit evidence.

Helmhout / Helmhout
NSWSC [185] Bell J 23.2.2000; (2000) 112 A Crim R 10; NSWSC [208] Bell J 22.3.2000
Evidence Act 1995 - s138(1) - murder - separate trials - aboriginal accused - made admissions in police record of interview - duty officer failed to comply with cl 28 Crimes (Detention After Arrest) Act 1998 - failed to contact Aboriginal Legal Service.
Held: allowing evidence - probative value of evidence very high - charge very serious - oversight serious but not deliberate or reckless - desirability of admissions outweighed undesirability of admission.

Walker
NSW CCA [130] 23.3.2000
Evidence Act 1995 - s 138 - murder - admissions made to prison informer - prisoner approached police - no attempt made by prisoner to trap appellant with questions - police officer believed could not tape conversation by use of covert listening device - prisoner to receive assistance in own sentencing matter.
Held: no element of impropriety under s.138 - in any event desirability of admitting evidence outweighs undesirability of excluding evidence.

Toro-Martinez
(2000) 114 A Crim R 533; NSW CCA [216] 7.6.2000
Evidence Act 1995 (NSW) s.138 - drug importation - Ridgeway issue.
Held: no error in judge finding police involvement at low level and not illegal.

Smith
NSW CCA 14.6.2000 [202]
Evidence Act 1995 (NSW) s.138 - murder - admissions made to registered police informer in prison cell.
Held: no impropriety in obtaining admissions - police did not set up meeting between informer and appellant nor use any subterfuge to induce admissions - appellant made spontaneous admissions - lawful listening device warrant - circumstances not same as Swaffield or Pavic

Fowler
NSW CCA [352] 7.9.2000
Evidence Act 1995 - s138 - assault with intent to rob - sister told by police she could be in serious trouble if she withheld information from police - husband advised her to similar effect.
Held: judge made no error in concluding evidence not obtained by improper conduct or that desirability of admitting evidence outweighed undesirability of admitting evidence

Eade
[2000] 118 A Crim R 449; NSW CCA [369] 15.11.2000
Evidence Act 1995 - s.138 - evidence of conversation illegally recorded under Listening Devices Act - warrant failed to specify date for removal.
Held: nature of illegality does not necessarily render evidence inadmissible - need to consider s.138 - matter remitted to reconsider test.

DPP v Farr
(2001) 118 A Crim R 399; NSWSC [3] Smart AJ 5.1.2001
Evidence Act 1995 - s.138 - claim of illegal search of car in relation to drug offences.
Held: onus on accused to establish illegality - once established Crown has onus to satisfy court to exercise discretion - do not need to consider s.90 as well.

Phung & Huynh
NSWSC [115] Wood CJ at CL 26.2.2001
Evidence Act 1995 - s.138 - murder and AR - 17y boy - two ROI - various breaches - delay in contacting support person - absence of support person during forensic tests - no opportunity for accused to make representation as to detention warrant - selection of support person by police without ascertaining wishes of accused - relative immaturity and inexperience of support person - no legal practitioner contacted - failure to allow accused to talk privately to support person - failure to properly explain role to support person - accused showing signs of fatigue and drug withdrawal - limited opportunity for accused to sleep - second interview conducted after accused already in custody - police selected unknown Salvation Army Officer as support person - no evidence accused properly advised as to rights - no opportunity to talk to support person - no effort to contact solicitor.
Held: breaches not deliberate, behaviour not oppressive and no reasons to suppose truth of what accused said was adversely affected - 'sufficient circumstances involving non compliance with the statutory regime so as to give rise to the serious concern as to whether the accused, a 17 year old boy with a somewhat disturbed background, had been sufficiently advised as to his rights and as to whether those rights were adequately protected to require exclusion under s.90 and s.138'.

Burrell
NSWSC Sully J [120] 5.3.2001
Evidence Act 1995 (NSW) s.138 - murder and kidnapping - body never found - Crown case circumstantial - police search and seizure of documents from accused's property illegal - search warrant did not conform to Act - documents seized not covered by description in warrant - documents not 'found' but included in wholesale seizure of documents from property - admissibility of various pieces of evidence.
Held: summary of relevant principles under s.137 & 138 - when considering probative value must first consider relevance under s.55 then extent or degree of relevance - when considering probative value of evidence in circumstantial case consider evidence in context of all other evidence in case - all other evidence includes all admissible evidence - followed Singh-Bal - can only exclude evidence when, taken at its highest, its probative value is outweighed by prejudicial effect - followed Polkinghorne - slight probative value not sufficient to exclude evidence - must be a danger that tribunal of fact will use evidence upon a basis logically unconnected with issues in case.
Held: unlawful conduct not deliberate but reckless - officer in charge ordered wholesale seizure of all documents from house without considering whether authorised by warrant - strongly disapprove of cavalier approach of police - powerful countervailing considerations including seriousness of offence and probative value of evidence - evidence of two ambiguous documents found in accused's house Crown will allege summarise kidnapping plan - no unfairness - admissible.

Sotheren
NSWSC [204] Dowd J 26.3.2001
Evidence Act 1995 - s.138 - murder and 4 x AR - accused refused video ROI and identification parade - police video recorded interview with accused in prison - used footage of interview for purpose of identification - judge found one of aims of police in recording interview was to obtain video footage for purpose of identification - s.115 does not apply because nothing about photos suggests accused in custody.
Held: evidence admissible - 'improper' and 'impropriety' to be given ordinary meaning - action of police not improper - similar to usage of covert listening device - no right not to be photographed - even if improper still admissible having considered probative value of evidence, seriousness of offence and fact that impropriety intentional but not grave - courts must have regard to all matters under s.138(3) although do not need to mechanically go through each one

Knight
(2001) 160 FLR 465; 120 A Crim R 381; NSW CCA [114] 30.3.2001
Evidence Act 1995 (NSW) s.138 - fraud offences - police documents filled out by appellant at prior arrests tendered by Crown as comparison for handwriting expert.
Held: no basis to exclude evidence under ss.138 or 139 - not improper or illegal - not admission requiring caution.
DPP v Leonard
(2001) 53 NSWLR 227; 127 A Crim R 381; NSWSC [797] (James J) 14.9.2001
Evidence Act 1995 (NSW) s.138 - magistrate ruled search of car illegal
Held: if magistrate not prepared to make finding that police officer consciously decided to act in knowledge he was breaching statutory duty cannot find breach was deliberate - if magistrate cannot find police officer acted in knowledge he may be acting in breach of statutory duty but nevertheless deliberately decided to proceed cannot find recklessness pursuant to s.138(3)(e) - conscious decision to instigate search does not make it a deliberate or reckless breach

Helmhout
(2001) 125 A Crim R 257; NSW CCA [372] 19.9.2001
Evidence Act 1995 (NSW) s.138 - murder - aboriginal accused - made admissions in police record of interview - duty officer failed to comply with cl 28 Crimes (Detention After Arrest) Act 1998 - failed to contact Aboriginal Legal Service - judge ruled evidence admissible despite breach
Held: dismissing appeal - no error in judge's decision to admit evidence - Ipp AJA and Hulme J both expressed opinion that in considering admissibility under s.138 judge must consider individual characteristics of accused person.

Dungay
(2001) 126 A Crim R 216; NSW CCA [443] 1.11.2001
Evidence Act 1995 (NSW) s.138 - sexual assault - illegal arrest because appellant arrested for sole purpose of investigation - no intent at time of arrest to take before magistrate - admissions in record of interview only evidence against appellant - complainant exculpated appellant
Held: evidence of record of interview should have been excluded - in favour of inclusion was strong probative value of admissions, seriousness of offence, fact that admissions were the only evidence, fairness of actual questioning and fact that police had reasonable cause to suspect appellant had committed offences - these factors outweighed by seriousness of illegality, fact that appellant falsely told complainant had made a complaint against him and was not told complainant had actually exculpated him - test for unfairness is that of Lee (1950) 82 CLR 133.

Pearce
NSW CCA [447] 7.11.2001
Evidence Act 1995 (NSW) s.138(1) - fraud - questioning by officials of ATO - admission of answers given to officials
Held: had to show at time of questioning officials had formed belief there was sufficient evidence to establish appellant had committed an offence - suspicion not sufficient - appeal dismissed

DPP v Carr
(2002) 127 A Crim R 151; NSWSC [194] (Smart AJ) 25.1.2002
Evidence Act 1995 (NSW) s.138 - resist arrest, assault police and intimidate police - police arrested accused in street when he became agitated and swore at police - accused walked away and subsequently charged - police aware of accused's address - magistrate excluded evidence on basis police should have proceeded by way of summons or Field Court Attendance Notice
Held: no error in excluding evidence of offences on basis it had been obtained by ill advised use of arrest powers in circumstances of case - appeal against decision allowed on other grounds

Nicola
NSW CCA [63] 11.3.2002
Evidence Act 1995 (NSW) s.138 - sexual offences - appellant declined to give DNA sample - DNA obtained from coffee cup appellant used at police station
Held: no illegality in obtaining of DNA evidence

Lamb & Thurston
NSWSC [357] (Dunford J) 24.4.2002
Evidence Act 1995 (NSW) s.138 - murder - breach of Part 10A - not given copy of Caution and Summary document and not requested to sign - failed to properly assist in relation to support person - offender could not read - no evidence he wanted support person
Held: evidence admissible - extremely high probative value - importance of evidence - serious offence - minor technical breaches - willing to answer questions

Dalley
(2002) 132 A Crim R 169; NSW CCA [284] 19.7.2002
Evidence Act 1995 (NSW) s.138 - murder - breach of requirement under Part 10A (s.356H(9)) to submit affidavit day after successful application for extension of investigation period - relevance of seriousness of offence when considering whether evidence should be excluded.
Held: breach of s.356H(9) not relevant to s.138 because evidence not obtained as a result of the contravention - (per Spigelman CJ and Blanch AJ, Simpson J disagreeing) the more serious an offence the more likely the public interest will be in favour of admitting evidence obtained in contravention of the law

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.135 - drug supply - improperly obtained admissions - discretion to admit ERISP - where answers obtained after accused claimed right to silence - where caution not given until part way through interview - whether cause to believe truth of answers adversely affected
Held: TJ adverted to ss 85, 90 and 138 of the Evidence Act - open to TJ to reach conclusions he did: R v Plevac (1995) 84 A Crim R 570 and R v Clarke (1997) A Crim R 41 applied.

Cornwell
(2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) [97] 20.2.2003
Evidence Act 1995 (NSW) s.138 - conspiracy to import - challenge to material obtained under listening device - whether misstatement of facts on application for warrant amounted to impropriety
Held: evidence admitted - when considering s.138(2) and s.139 court should consider facts of case and circumstances with due regard to seriousness of finding of impropriety and consequences of such finding - not every defect, inadequacy or failing should result in finding of impropriety - at same time failure need not be willful, committed in bad faith or an abuse of power - prepared to accept that misstatement in affidavit could be an impropriety - question of motive and intent goes to gravity of impropriety and exercise of discretion to admit - in this case not satisfied misstatement an impropriety and no causal connection between misstatement and issue of warrant - would exercise discretion in favour of admission

DPP v CAD
NSWSC (Barr J) [196] 26.3.2003
Evidence Act s.138 - Justices Act appeal - assaults - youthful offenders - whether improper conduct by police - whether evidence relied on by prosecution was obtained in consequence of unlawfulness or impropriety - whether evidence inadmissible
Held: arrest not improper in circumstances - evidence not improperly obtained - misapplication of s 138 - court's obligation to understand nature of evidence objected to - appeal allowed

Mehajer and Jacobs

NSWSC (Studdert J) [318] 17.4.2003
Evidence Act s.138 - murder during robbery - whether evidence improperly obtained and unbearable pressure placed on witness forcing him to give certain evidence.
Held - no impropriety in circumstances in which witness came to give evidence - plain that what was being sought from witness was truth - no impropriety in what witness was told concerning possibility of indemnity - "improperly" and "in consequence of an impropriety" in s 138 should not be narrowly construed - application dismissed

DPP v Coe

NSWSC (Adams J) [363] 1.5.2003
Evidence Act 1995 (NSW) s.138 - Crown appeal against dismissal of assault charges - evidence of victim excluded on basis it was improperly obtained - victim a police officer - victim approached injured male in street - verbally abused and rebuffed by male but continued approach seeking to ascertain what was going on and assist male - touched injured male on arm - punched and kicked in head by offender - magistrate ruled attempted unlawful arrest and excluded evidence of assault
Held: appeal allowed - discussion as to meaning of 'obtained by impropriety'- need more than causal link - unable to agree with Smart AJ in Carr that 'obtained' means 'caused' or 'stemmed from'- 'where real evidence is indeed obtained as a result of impugned conduct then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. Where however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been 'obtained' unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of 'obtained', almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences"[24] - in any event unreasonable decision that undesirability of admitting evidence outweighed desirability of admitting evidence

Phan
NSW CCA [205] 24.7.2003
Evidence Act 1995 (NSW) s.138 - drug offence - s.5F appeal against exclusion of illegally obtained evidence - police went to house occupied by respondent and estranged wife to investigate reports of illegal immigrants - made illegal search of appellant shortly before permission given by wife to search premises - incriminating material found on appellant - all evidence flowing from search excluded - included all crown case
Held: appeal allowed - TJ found police acting in good faith - in circumstances of case evidence should have been admitted.

Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) s.138 - drug importation - unlawfully obtained admissions - where extension of investigation period not properly obtained - discretion to admit ERISP - whether TJ failed to have regard to evidence of A's tiredness and to whether police made inducement that cooperation with police would be taken into account by sentencing court
Held: TJ properly found A had acted deliberately and no inducement by police - TJ correct in holding ERISP unlawfully obtained and did not err in exercise of discretion to admit evidence.

McKeough
NSW CCA [385] 3.12.2003
Evidence Act 1995 (NSW) s.138 - s.5F appeal by Crown against decision of trial judge to exclude police ERISP - police search of motor vehicle pursuant to s357E Crimes Act - finding of drugs - whether search illegal - whether trial judge in error in excluding ERISP under s.138
Held: evidence of search of motor vehicle and of electronically recorded interview admissible in trial of respondent - matter remitted to District Court.

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) ss 137, 138, 139 - murder - s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police - respondent indicated he did not wish to have any conversation with police recorded or written down - police took R to local park for chat - covertly wearing listening devices - police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station - partial caution given - did not warn R anything he said could be used against him - kept asking questions although R indicated he did not wish to talk about murder - whether TJ erred in excluding evidence
Held: appeal allowed - Judge erred in taking into account fairness of trial to accused when considering exercise of discretion under s.138 - s.138 refers only to public policy discretion - question of fairness irrelevant - also erred in considering whether admission of evidence would be oppressive or unfair to accused - discretion to reject because of unfairness found in s.90 - erred in excluding evidence on basis persistent questioning breached Police Code of Conduct - undue pressure - in view of finding that admissions reliable, electronically recorded and police behaved properly no basis for finding breach too great to permit conviction.

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.135, 137, 138 - multiple sexual assault offences - complainant described co-accused, G as having ponytail - identified G from photo board - only 8 of 15 photos had long hair - no photos with ponytail - G had longest hair - whether evidence of identification unfair - whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed - no error in admission of evidence of identification - nothing distinctive about photo of G - process videotaped - directions as to identification evidence adequate - not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence

Workman
(2004) 60 NSWLR 471; NSW CCA [213] 30.6.2004
Evidence Act 1995 (NSW) s.138 - sexual offences against stepdaughter - complainant reported conduct to Qld police - police arranged for recording of telephone conversation between appellant and complainant - recording legal in Qld but not NSW
Held: no error in admission of evidence - evidence not obtained illegally or improperly where obtained in different jurisdiction according to laws of that jurisdiction

Buchanan, Smith and Thomas
NSWSC [815] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) s137 - murder - prison inmate stabbed to death in showers by three inmates - murder witnessed by another inmate - accused identified by witness from video of photographs of 194 inmates of relevant section of gaol - Crown case 'bound to fail' without identification evidence - witness indicated some hesitation due to differences in hair between photo of accused and assailant at time of offence - accused relied upon several factors as undermining evidence: identification made by prison informer, made from photos, description given by witness of assailant matched photo in general terms only, witness in fear of life, limited opportunity to observe assailant, identification made 19 days after offence, three placed in first 16 photos of array
Held: application to exclude evidence refused - some criticisms of identification process valid - balancing exercise, taking into account appropriate directions warning as to inherent dangers of identification evidence

Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) s.137 - murder - prison inmate stabbed to death in showers by three inmates - murder witnessed by another inmate - accused identified by witness from video of photographs of 194 inmates of relevant section of gaol - three accused placed in first twenty photos of array amongst Aboriginal inmates - Crown case 'bound to fail' without the identification evidence
Held: application to exclude evidence refused - no error in failing to hold identification parade - not reasonable in circumstances of case - fact that witness recognized accused relevant - conduct of parade with inmates would have revealed identity of witness - logistical difficulties - complications if one or more suspects declined parade - probative value of evidence not outweighed by unfair prejudice

Ladocki
NSW CCA [336] 1.10.2004
Evidence Act 1995 (NSW) s.138 - ongoing supply heroin - controlled operation using civilian - authority to conduct controlled operation obtained under Law Enforcement (Controlled Operations) Act 1997 - failed in application for authority to indicate civilian informer a heroin addict - TJ found failure to reveal information was breach of Clause 1 in Code of Conduct that applicant act in good faith - declined to exercise discretion under s.138 to exclude evidence
Held: dismissing appeal - doubt whether evidence was illegally obtained - not every breach of Code of Conduct relating to controlled operations invalidates authority - in any case appeal nothing more than attempt to reconsider exercise of discretion - no error demonstrated in exercise of discretion

MM
NSWCCA [364] 25.10.2004
Evidence Act 1995 (NSW) s 138 - s.5F(3A) Crown appeal - sexual offences on young stepdaughter - admissibility of comments made by respondent to Probation and Parole officer - officer supervising respondent on bond imposed for offence involving child pornography - comments indicated sexual attraction to young girls, including step-daughter - excluded by TJ as improperly obtained - found officer misconceived role and commenced criminal interrogation
Held: evidence erroneously excluded - TJ erred in finding questioning outside proper role of officer - in circumstances of case officer acted in order to provide effective supervision and guidance to respondent - erroneously concluded gravity of offence not relevant to exercise of discretion under s.138 - (Dalley (2002) 132 A Crim R 169 applied)

Dalton
NSWSC [137] Adams J 15.12.2004
Evidence Act 1995 (NSW) s.138 - solicit to murder - accused discussed possibility of having two persons killed with undercover police officer - no authorisation obtained under Law Enforcement (Controlled Operations) Act 1997 because advised by Legal Services Branch undercover officer committing no offence
Held: authorisation should have been obtained as undercover officer guilty of offence when encouraged accused to solicit murder - wrongly advised - no deliberate attempt to avoid using Act - criminal conduct relatively slight - desirability of admitting evidence outweighed undesirability of admitting evidence
 
Mallah
(2005) 154 A Crim R 150; NSWSC [150] (Wood CJ at CL), 11.2.2005
Evidence Act 1995 (NSW) s.90, 138 – terrorism offences – evidence of possible terrorist plan and offer to sell videotape collected by undercover police officer as journalist – evidence collected improperly because of misrepresentations made by officer and because actions constituted illegal involvement in offence (aiding and abetting)
Held: allowing evidence – no question of reliability of admissions – did not induce accused to embark on offence he would otherwise not have engaged in – no unfairness – applied EM - distinction made between evidence gathering during commission of offence and after commission of offence – no exclusion of evidence under s.138 – probative value of evidence very high – inadvertent and at worst negligent breach by police – failure to appreciate action involved offence

Harris
NSWDC Black DCJ 11.3.2005
Evidence Act 1995 (NSW) s.138 - possession prohibited drug - appellant sitting at table with friends - police sniffer dog touched appellant on jacket and groin and detected drugs - no reasonable suspicion prior to dog touching
Held: where sniffer dog touches a person prior to police being entitled to conduct a search evidence improperly obtained - conviction quashed
 
G
NSW CCA [291] 25.8.2005
Evidence Act 1995 (NSW) – s.138 - sexual offences – search warrant executed at home of 17y suspect – police indicated would like to talk to suspect – caution given in presence of older brother – some time later suspect posed for photograph to be used for identification outside house – evidence excluded on basis obtained in contravention of s.13 Children’s (Criminal Procedure) Act, Part 10A Crimes Act, s.139 Evidence Act and common law
Held: judge erred in finding breach of s.13, Part 10A and common law – error in exercise of discretion – Crown appeal allowed and matter remitted for reconsideration
 
Robinson v Woolworths
NSW CCA [426] 14.12.2005
Evidence Act 1995 (NSW) – s.138 – cigarette offences – Department of Health paid two 16y girls to purchase cigarettes from random retailer – no previous suspicion retailer selling to underage customers – cigarettes sold without requesting identification – whether evidence improperly obtained.
Held: magistrate erred in finding evidence improperly obtained – consideration of what constitutes impropriety under s.138 – useful discussion
 
Ibrahim
[2006] NSWDC 6, Finnane DCJ, 31.3.2006
Evidence Act 1995 (NSW) s.138 – threaten witness offence – accused suspected of being involved in assault on family – family reluctantly talked to police – police sought further evidence against accused – arranged for member of family to talk to accused with listening device – encouraged witness to tell lies about Crimes Commission summons – encouraged any other lies required to have accused make threats
Held: evidence obtained illegally – failure to obtain permission for controlled operation – police directly taking action to have crime committed that would not have otherwise been committed – offence not as serious as could be – not difficult to obtain evidence properly by obtaining permission for controlled operation – police not to be encouraged to obtain evidence in this way
 
DPP v AM
[2006] NSWSC 348, Hall J, (2006) 161 A Crim R 219
Evidence Act 1995 (NSW) s.138 – resist police officer / assault police officer – confrontation between police officers and group of persons – juvenile female swore aggressively at police – refused to move on – refused to provide identity – unknown to police – arrested – magistrate declared arrest unnecessary and improper and dismissed charges
Held: allowing Crown appeal against dismissal of charges – discussion as to meaning of ‘improper’ – not reliant upon intentional or conscious conduct although relevant to assessment – intent or purpose of police officer relevant – may refer to particular standards of law enforcement officers – in circumstances of case arrest not improper
Held: failure to consider factors under s.138(3)
Held: meaning of ‘obtained’ – disagreed with Adams J in DPP v Coe [2003] NSWSC 363 who concluded offences caused by improper or illegal conduct not covered by s.138:
[80] … I record the following propositions:-
(a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been “obtained” in relation to them.
(b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe, as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest.
(c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so “obtained” for the purposes of s.138. Carr is such a case.
[81] The reservation that I have expressed in the preceding paragraph relates to the observation of Adams, J., that in the context of offences that are said to stem as an unintended consequence from an arrest, that there is a need to establish “conduct that was intended or expected (to a greater or lesser extent) to achieve the commission of offences” as a necessary and separate element in order to satisfy the notion of “obtained” in that context.
 
Gorrick
[2006] NSW CCA 232, 3.8.2006
Evidence Act 1995 (NSW) s.138 – sexual offences – allegation that at time of ERISP police aware of correct age of complainant but withheld it from appellant
Held: no basis for finding ERISP obtained improperly - of case – police cannot engage in dishonesty or deception but not obliged to disclose all information
 
Sood (No.3)
[2006] NSWSC 762, Simpson J 15.9.2006
Evidence Act 1995 (NSW) s.138 – abortion offences – alleged to have given vaginal medication to patient in improper circumstances – subsequent death of baby born at 23 weeks – DPP sought to call evidence from Doctor who prepared report for NSW Health Care Complainants Commission against accused – report not admissible pursuant to legislation – Crown sought to adduce evidence from Doctor in accordance with contents of report – if inadmissible Crown sought to have Dr prepare second report for trial based on contents of first report
Held: evidence admitted – no evidence of improper disclosure of information – production of report under subpoena not illegal – in any event evidence should be admitted under balancing test under s.138
 
Olivieri; Norman
NSWSC [882] (Hidden J) 4.9.2006
Evidence Act 1995 (NSW) s.138 - murder – police published photo of accused, modified to appear computer generated, falsely claiming photo of gunman described by witness – authorized controlled operation – admissibility of telephone intercepts of reaction of accused to photo
Held: evidence admitted – even if evidence tainted by impropriety not so great as to outweigh probative value – not unfair to accused
 
Sepulveda
NSW CCA [379] 29.11.2006
Evidence Act 1995 (NSW) s.138 – sexual offences – complainants
sexually assaulted as young teenagers – complainant covertly recorded admissions by appellant many years later – illegal recording
Held: no error in admitting evidence in circumstances of case – highly probative and not unfairly prejudicial – serious offences – recording made by complainant
 
Petroulias (No.8)
[2007] NSWSC 82, Johnson J, 15.2.2007
Evidence Act 1995 (NSW) s.138 – fraud – application to exclude evidence under s.138
Held: Briginshaw v Briginshaw (1938) 60 CLR 336 principle applies to s.138 through s.142 - strength of evidence needed to establish a fact on balance of probabilities may vary according to the nature of what is being proved – particularly where contending person acted illegally or improperly
Held: meaning of “improperly” – apply principles in Ridgeway (1995) 184 CLR 19 and Robinson v Woolworths Ltd – imperfection or defect will not necessarily mean improper – not all inappropriate conduct will be improper – see DPP v AM – Accused must satisfy court of connection between impropriety and obtaining of evidence – see Dalley at [86] and Cornwell at [25] – connection may be indirect – impropriety does not have to be deliberate – in this case statements in affidavit factually inaccurate – inadvertent – no impropriety
 
Camilleri
(2007) 169 A Crim R 197
Evidence Act 1995 (NSW) s.138 – dangerous driving causing death – driver lost control of car – accompanied wife to hospital suffering critical injuries – refused treatment himself – nurse took blood sample believing she was required to do so – police failed to take sample believing hospital would do so – nurse no authority to take sample because driver refused treatment – TJ refused to admit evidence
Held: Crown appeal against decision allowed – TJ erred in finding grave impropriety – innocent breach and minor impropriety only – TJ erred in considering prejudice to accused of admitting evidence that would probably establish intoxication – followed EM – prejudice to accused rarely relevant under s.138 – question of balancing public interests – where innocent beach and serious offence must be strong countervailing factors against admission – high probative value of evidence factor in favour of admission of evidence
 
Almirol [No.1]
[2007] NSWSC 290, Kirby J, 21.2.2007
Evidence Act 1995 (NSW) – s90 / 138 – murder – accused allegedly involved in killing of male in house where accused living as guest – accused fled to Philippines - admissibility of recorded telephone conversation between female owner of house and accused – warrant obtained under Telephone (Interception) Act 1979 – Crown witness conducting conversation on behalf of police to clarify earlier admissions made by accused to witness - whether improperly obtained – whether improper use of Crown witness to avoid issuing caution - whether admission of evidence would be unfair
Held: evidence admitted – no error in police officer stating he had reasonable grounds for suspecting accused likely to use telephone service based on fact that Crown witness would ring accused using that phone – issue of warrant not vitiated by failure of police officer to advise arrest warrant had been issued for accused – no improper conduct in recording conversation where arrest warrant already issued – no improper conduct where seeking corroborating evidence of earlier admissions – followed reasoning of James J in dismissing application to exclude evidence at earlier trial – applied Swaffield – found Crown witness agent of state – conversation constituted interrogation – witness made misrepresentations to accused as to purpose of telephone call – no basis for finding unfairness – no refusal by accused to make police statement – accused had left Australia depriving police of opportunity to interrogate – accused already made admissions to Crown witness – no impact on reliability of admissions – Crown witness did not speak from prepared script – half truths part of conversations of this type – any prejudice could be dealt with by editing or directions – no unfairness arising from fact that accused was more than a suspect – no special relationship between accused and Crown witness causing will of accused to be overborne
 
Fleming
NSWSC [328], Studdert J, 11.4.2007
Evidence Act 1995 (NSW) s.138 – murder – offence committed in 1984 – police seeking DNA from suspect in Victoria – no legislative provisions governing collection of DNA in Victoria – Victorian police officer visited accused and asked for sketch in relation to unrelated matter – saliva from sketch analysed for DNA – subsequent to arrest second DNA procedure carried out – whether evidence of DNA should be refused
Held: DNA not collected in contravention of law – Crimes (Forensic Procedures) Act did not apply – accused tricked but actions did not pass over border to impropriety – even if improper desirability of admitting evidence outweighs undesirability of permitting impropriety – probative value of evidence high – evidence of vital importance – grave offence – impropriety not grave – deliberate conduct but not deliberate attempt to avoid legislative provisions – no other means of obtaining evidence
 
Jones [No.2]
[2007] NSWSC 770, Buddin J, 30.3.2007
Evidence Act 1995 (NSW) s 90, 137 138 – murder – two families involved in fight in caravan park – issue of self defence and provocation – police organised for wife of accused to talk to accused over telephone – admissibility of conversations – application to exclude based on following factors:
  • Wife lied to terminate conversation
  • Wife deliberately picked fight with accused to make him angry
  • Form of questioning would not be permitted if conducted by police officer
  • Wife determined to obtain incriminating evidence
  • Contrary to public policy
  • Conversation not subsequently adopted by accused
Held: evidence allowed – no unfairness in permitting evidence taking into account following matters:
  • Accused had not yet spoken to police and therefore had not refused to speak to them
  • Accused had left jurisdiction voluntarily and whereabouts was unknown
  • No suggestion conversation involuntary
  • Wife exercised degree of autonomy in questioning
  • Accused willingly spoke to police upon arrest
  • Freedom of accused not impugned by behaviour of wife
  • Rules about questioning applicable to police do not apply in same way to civilian
  • Conversation contained admissions consistent with plea to manslaughter
  • Conversation no different to other versions of evidence given by accused
 
Ul-Haque
NSWSC [1251], Adams J, 5.11.2007
Evidence Act 1995 (NSW) – ss.84, 85, 138 – terrorism offences – 21y male confronted by ASIO agents in car park of train station – taken to park for questioning – made to believe he was under compulsion to co-operate and answer questions – implicit threats – mode of questioning intimidating – not advised of rights – taken to family home where search being undertaken under warrant – interviewed in bedroom – not advised of rights – not allowed to communicate with brother – prompted answers – implicit threats – ‘gross breach of powers given to officers under search warrant’ – officers committed offences of false imprisonment and kidnapping – AFP officer present during interview
Subsequently sent to AFP for interview – inadequate caution given in view of oppressive conduct of, and implicit threats made by, ASIO officers – video tape suggested accused cowed – accused believed AFP working with ASIO – at end of interview advised AFP did not think accused had done anything wrong and was being treated as a witness – at second AFP interview required to provide more detail – between second and third interview had informal discussion with AFP officers urging better co-operation
Held: evidence of AFP interviews excluded – conduct of ASIO officers oppressive under s.84 – conduct continued during AFP interviews – presence of AFP officer at earlier interview with ASIO suggested link – message throughout all interviews was co-operate or else – interviews influenced by earlier ASIO conduct
Held: robust nature of questioning and considerable prompting in ASIO interview adversely affected likelihood of truth under s.85 – influenced AFP interviews also
Held: interviews excluded under s.138 – improper conduct – impropriety intentional and grave – conduct of accused of relatively minor criminality
 
Gilham
[2008] NSWSC 88, Hidden J, 18.2.2008
Evidence Act 1995 (NSW) s.138 – murder – accused found outside house in which brother and parents lay dead – agreed to record of interview – admitted killing brother after brother had killed parents – detention for interview illegal – police officer should have taken accused to magistrate for bail application – accused subsequently agreed to walk through at scene of offence – walk through held later in day when magistrate no longer available – family friend who attended police station advise accused did not need a solicitor
Held: application to exclude evidence of interview and walk through refused – breach technical – serious offences – police officer followed police instructions (unaware police instructions did not comply with law) – neither negligent nor reckless – accused agreed to both interview and walk through, anxious to have version of events recorded – exercise of discretion to admit evidence – although improper to advise friend accused did not need solicitor accused not aware of conversation and gave no indication he wished to contact solicitor
 
Campbell v DPP
[2008] NSWSC 1284, Hidden J, 3.12.2008
Evidence Act 1995 (NSW) s.138 – assault and affray – aboriginal accused attended police station outside hours for interviews – no fax sent to local ALS as required under cl 33(1) LEPRA Regulations 2005 – police aware no one would be in office to receive fax
Held: magistrate failed to properly consider deliberate nature of breach where police arranged for accused to attend for interview outside office hours knowing no one would be present at ALS office – also failure to advise accused ALS representative would be contacted – appeal allowed
 
Dowe
[2009] NSW CCA 23, 19.2.2009
Evidence Act 1995 (NSW) s.138 – knowingly take part in supply commercial quantity cocaine – police used registered informant to supply 1kg cocaine to appellant - authority obtained under LECO – appellant convicted at trial – post trial HCA ruled authority invalid because breached s.7(1)(b) – endangered other people – whether evidence should not have been admitted in view of invalidity
Held: appeal dismissed – distinguished Ridgeway – police acted with honest belief authorities valid – appellant had no defence except to argue evidence illegally obtained and should have been excluded – discretion to admit evidence exercised
 
RLP
NSW CCA [2009] NSW CCA 93, 8.4.2009
Evidence Act 1995 (NSW) s.126A, s.132, s.138 - sexual assault child aged 14 – appellant’s Doctor gave statement to police indicating appellant confessed to sexual assault of step-daughter – whether evidence a protected confidence under s.126A – whether failure to warn Doctor of right to object to evidence caused miscarriage – whether evidence obtained improperly because it breached Code of Conduct for Medical Practitioners and Article 17 International Covenant of Civil and Political Rights
Held: appeal allowed on other grounds – no error in admitting evidence – consideration given to effect of Children’s and Young Persons (Care and Protection) Act 1998 on evidence of doctor – failure to warn doctor about s.132 rights caused no miscarriage where appellant objected to evidence and doctor aware of objection – no breach of s.138
 
Fleming
NSW CCA [2009] NSW CCA 233, 11.9.2009
Evidence Act 1995 (NSW) s.138 – murder – DNA obtained from accused then living in Victoria – police obtained DNA by questioning accused in relation to unrelated matter – accused’s spit obtained from piece of paper unbeknownst to accused – whether DNA obtained “improperly” - whether TJ erred in admitting DNA profile into evidence.
Held: No error in admitting evidence. No unlawfulness in the conduct of the police officer. Onus on accused to establish impropriety: R v Coulstock (1998) 99 A Crim R 143 to 147.
 
Giannasca (No.2)
[2011] NSWSC 1681, Price J 6.5.2011
Evidence Act 1995 (NSW) s.138 – murder – accused of killing wife – body never found – police arranged for interviews of 10y step-daughter of accused over last night she saw mother – police initially believed witness coached or concealing something – whether impropriety in interview – no caution given – no support person provided – no solicitor to provide advice – male interviewer used – topics discussed included unrelated sexual abuse by Uncle and suggested sexual abuse by father of accused
Held: no impropriety established
 
Sibraa
[2012] NSWCCA 19, 1.2.12
Evidence Act 1995 (NSW) s.138 – undated defective search warrant – decision by TJ to exclude evidence obtained by AFP during execution of search warrant on A’s residence – Magistrate signed but did not date the warrant – whether TJ erred in finding AFP were ‘reckless’ within s 138(3)(e).
Held: Although the impropriety involved the execution of a defective search warrant, the defect was due to Magistrate not inserting date. The identification of the nature of this defect was an important consideration in balancing exercise under s 138. The finding of ‘recklessness’ on the part of police could not be made on the facts. Those facts could not sustain the proposition that it was necessarily unreasonable for the AFP to have expected the Magistrate would have dated the document at the time of signing. It was not necessarily unreasonable for AFP to have failed to scrutinise the document to check if there were any defect or omission. Appeal allowed.
 
DPP v Langford
[2012] NSWSC 310, Fullerton J, 4.4.2012
Evidence Act 1995 (NSW) s.138 – police officer detained driver of vehicle after accident, conveyed her to hospital and had blood and urine samples taken – actions not authorized by statutory provisions – magistrate declined to exercise discretion to admit certificate of analysis
Held – allowing appeal – undue emphasis on matters of policy at expense of other relevant factors
 
Ryan (No.2)
[2012] NSWSC 1034, SG Campbell J
Evidence Act 1995 (NSW) s.138 – manslaughter – victim killed in brawl outside hotel – Crown witness made signed statement to police indicating he found the victim after the assault – witness warned by senior police that he was not telling the truth, should consider the seriousness of the matter and advised as to the offence of concealing a serious offence – victim subsequently gave record of interview describing the assault – earlier statement not served on Crown or defence counsel
Held: application by defence counsel to exclude evidence refused – no impropriety under s.138 – summary of cases on the finding of impropriety under s.138 – not improper to indicate to an unco-operative witness that he was not believed and reminding him of legal consequences of concealing a serious offence – not undue pressure – found statement had been carelessly, not deliberately misplaced – if found deliberately misplaced would still have admitted statement
 
Tamcelik
[2012] NSWSC 1008, Garling J
Evidence Act 1995 (NSW) s.138 – T acquitted of possession of steroids – police called to apartment by grandfather in relation to domestic violence incident – T left before police arrived – police invited in by complainant and took statement on balcony – after statement completed police re-entered apartment – police entered bedroom of T and found drugs common law doctrines replaced by Part 6 LEPRA – under Part 6 police may only do what is ‘reasonably necessary” in relation to the domestic violence incident – in this case investigation concluded once statement taken - no further action required in relation to DV incident – police not authorised to search bedroom – search illegal – evidence of drugs excluded
Held: no procedural unfairness in determination of magistrate that evidence excluded
[108] The proper application of s 138 of the Evidence Act was considered by the High Court of Australia in Parker v Comptroller General of Customs [2009] HCA 7; (2009) ALJR 494. French CJ traced the history of s 138, and said at [28] this:
"The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two-stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained."
[110] Whilst there are two separate issues to be determined, the decisions to which I have referred and as well the judgment of Basten JA in the Court of Appeal in Parker v Comptroller General of Customs [2007] NSWCA 348; (2007) 243 ALR 574, do not mandate a two-step procedure for a court considering this question. It is not necessary, and ordinarily would not be the position, that a court would proceed first to hear evidence and argument on the first step, that is, a determination of illegality or impropriety, then deliver a decision which is followed by a second and separate hearing including separate submissions on whether the evidence ought nonetheless be admitted. Whilst, in exceptional cases, such an approach may happen, it is not the norm. Ordinarily, it would be expected that there would be one occasion for the adducing of all the necessary evidence, and one occasion for submissions by counsel to the Court. The submissions would ordinarily be expected to cover the alternative results, of whether the evidence is, or is not, found to be illegally or improperly obtained.
 
Meyn (No 1)
[2012] NSWSC 1441, Beech-Jones J
Evidence Act 1995 (NSW) s.138 - application on voir dire to exclude improperly obtained evidence - domestic homicide - ERISP with accused - whether improperly obtained - whether police reckless as to accused's physical state at time of interview - intoxication - fatigue - failure of interviewing officers to inspect custody management records noting accused's intoxication.
Held: Application rejected. Police conduct does not justify a conclusion that overall there was any impropriety. The accused was repeatedly cautioned, and bona fide assessments of his physical and mental competence to undertake the interview were made. The accused was given and took the opportunity to sleep. Whenever a doubt was raised by him as to his ability or willingness to continue with the interview, the interview was suspended. The questioning did not proceed in the face of any manifest deficiency in the accused affecting his ability to participate.
“[6] The onus of establishing impropriety under s 138(1) rests upon the party seeking the exclusion, which in this case is the accused. If impropriety is established, the burden of persuasion then falls upon the party seeking the admission of the evidence, which in this case is the Crown (see Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 at [33] per Basten JA; and Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ).
[7] In discussing the concept of impropriety in Robinson, Basten JA at [28] stated three propositions, the first two of which were:
"It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as the 'minimum standards which a society such as ours should expect and require of those entrusted with powers of w enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respects; it must be 'quite inconsistent with' or 'clearly inconsistent' with those standards."
[8] Later, at [36] his Honour stated:
"In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct would not be sufficient to demonstrate impropriety."
Then his Honour continued at [37]:
"Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion."
 
Pitts (No 1)
[2013] NSWSC 1652, Adamson J
Evidence Act 1995 (NSW) ss.138, 139 - application exclude improperly obtained evidence - statement by A - A cautioned by police - caution expressed to be subject to unstated conditions, failure to comply with which may result in the commission of an offence - whether statement properly obtained: s 139 - whether to exclude evidence: s 138 - privilege against self incrimination.
Facts: In an initial interview (prior to a formal ERISP) the police officer mistakenly referred to “compliance with conditions”: "Q3 You're not obliged to say or do anything. Anything you say or do will be recorded and can later be used in evidence in court. Now you understand I'm going to ask you to comply with some conditions?
A Yes.
Q4 If you fail to comply with some of those conditions you may be committing an offence….. .
The Crown relied on the following as an admission: "The knife was on the ground. I had to go out there and defend myself. They kicked my door in."
Held: Evidence improperly obtained. Evidence excluded. The caution was not given in accordance with s 139(1). The reference to “compliance with conditions” followed immediately thereafter, giving A the impression that there was some obligation to answer questions and that if he did not he may be guilty of an offence. It was misleading and confusing for the police officer to refer to conditions with which A was obliged to comply, when there were no such conditions: at [14].. The privilege against self-incrimination is a fundamental right. The giving of a caution is an important mechanism for the protection of the right. The effect of the caution was substantially undermined by the reference to compliance with conditions: at [24].
 
Gedeon
[2013] NSWCCA 257; 12.11.2013
Evidence Act 1995 (NSW) s.138 - A convicted as a result of a NSW Crime Commission operation for supply drugs based on information supplied by an informer - authorities issued pursuant to the Law Enforcement (Controlled Operations) Act 1997, which authorised certain conduct including that informer possess and supply cocaine to A - Informer supplied A on two occasions – A challenged validity of authorities successfully in High Court: Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120 – A subsequently made application that all evidence sought to be relied on by the Crown be excluded pursuant to s 138. Whether trial judge: (i) erred by applying the wrong test under s 138 by assessing the gravity of the impropriety or contravention by reference to, or comparison with, the offences with which A was charged; (ii) erred by applying wrong test under s 138 by balancing the overall risk of harm to the public caused by the Commission supplying cocaine against bringing the drug network to an end, and further, by finding that the risk of adverse health consequences to end users was not high; (iii) erred by failing to exclude certain evidence under s by finding that it had not been obtained as a consequence of a breach of s 233B Customs Act as the participants had a 'reasonable excuse'; (iv) in determining that the desirability of admitting evidence of the supplies to the appellant outweighed the undesirability of doing so, erred by failing to give weight to the harm to the public interest, affording too much weight to the beliefs of law enforcement officers that they were acting under a valid authority, and by failing to take into account further improprieties by law enforcement authorities.
Held: Appeal dismissed. (i): The nature of the offence and the gravity of the impropriety are two factors to be taken into account pursuant to s 138(3). The approach of the trial judge did not demonstrate error; the fact that her Honour compared the appellant's conduct to that of the law enforcement officers does not mean that she failed to properly consider the matters in that subsection: [179]-[181]. (ii): There was no evidence to justify the conclusion that the risk in releasing a significant amount of cocaine into the community was not high. However, the law enforcement officers' opinions were not irrelevant and the trial judge was entitled to accept their evidence that they believed the risk in distributing the drugs was outweighed by the risk in permitting the syndicate to continue: [182]-[186]. The trial judge otherwise considered each of the matters referred to in s 138(3) which informed her ultimate conclusion: [187]-[189]. (iii): The fact that the law enforcement officers committed the acts with a view to investigating and prosecuting serious drug offences did not constitute a reasonable excuse. The Customs Act creates a scheme for the forfeiture of prohibited imports that leaves no room for goods to be used in an unauthorised operation, while the Crimes Act (Cth) makes limited provision for controlled operations: [190]-[198]. (iv) As a result of the errors found in relation to (ii) and (iii), it was necessary to consider the desirability of admitting the evidence illegally or improperly obtained against its undesirability. Having regard to the matters in s 138(3), the trial judge was correct in admitting the evidence: [216]-[228].
 
FE
[2013] NSWSC 1692 Adamson J
Evidence Act 1995 (NSW) – s.90, 138, 139 – Stabbing murder of male in street confrontation – 15y female alleged to have pointed out victim to person who did stabbing – attended police station unexpectedly in response to news report – interviewed in presence of mother but no caution given – several days later arrested for affray and taken to police station – accused spoke to solicitor on phone and advised not to give interview – solicitor communicated refusal to give interview to Detective and faxed written instructions – communication with solicitor not passed on to interviewing police officers – accused taken to interview room and gave interview
Held: evidence of both interviews excluded – police had sufficient information at time accused first attended police station to treat her as a suspect under s.139(5)(a) – accused given reasonable grounds to believe she could not leave the station under s.139(5)(c) – no caution meant s.138 applied – improprieties very grave – vulnerable young girl deprived of right to silence – should also be excluded under s.90 – second interview also excluded under s.139 and 90 – police ignored right to silence
 
 

Simmons & Moore (No 2)

[2015] 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 [2007] HCA 39; 231 CLR 396)

 

Gallagher; Burridge

[2015] 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 [210]

 

Varty v DPP (NSW)

[2015] NSWSC 304 per Adamson J

Evidence Act 1995 (NSW) s 138 – drug offence – car driven by offender pulled over – search of car found drugs – magistrate found search illegal – no grounds for reasonable suspicion - admitted evidence in exercise of discretion

Held: no error in application of test – section does not limit what can be taken into account when considering whether to admit illegally obtained evidence

 

Barakat; Younes (No.2)

[2016] NSWSC 1255 (N.Adams J)

Evidence Act 1995 (NSW) s 138 – accessory after fact to murder – prior to being a suspect accused asked by police to nominate driver and passenger in car on day of alleged murder – request made under LEPRA s.14(1)(c) – multiple questions asked when accused unable to immediately give answer – whether asking multiple questions beyond scope of s.14 and made request improper

Held: no indication s.14 restricted to only one question – in this case follow up questions all related to original inquiry as to identity of driver

 

 

 
 
Section 139: Cautioning of persons.
 
Morgan
NSWDC (Howie DCJ) 26.2.1999
Evidence Act 1995 (NSW) s.138, s139 - accused made spontaneous statements to medical doctor about gunshot wound during examination under s.353A Crimes Act implicating him in commission of crime - doctor made further inquiries to ascertain if wound properly treated.
Held: evidence admissible - no requirement to caution accused - s.139 did not apply - doctor no power to arrest accused and no belief accused had committed an offence - asking medical questions.
 
Patsalis & Spathis [No.3]
NSWSC (Kirby J) 20.7.1999
Evidence Act 1995 (NSW) s.139 - murder - accused voluntarily gave handwritten statement to police detailing involvement in offence - sought to show present at offence but unaware of intentions of co-offender - no caution given prior to handing over of statement.
Held: evidence admissible - no impropriety under s.139.
 
Downes v DPP
NSWSC (Studdert J) [1054] 16.11.2000
Evidence Act 1995 (NSW) s.139 - traffic offences - no caution given to appellant prior to making admissions.
Held: once impropriety established evidence must be excluded unless court persuaded desirability of admitting evidence outweighed undesirability of admitting it - accused does not have to justify exclusion, just prove impropriety - magistrate applied wrong test
 
Knight
(2001) 160 FLR 465; 120 A Crim R 381; NSW CCA [114] 30.3.2001
Evidence Act 1995 (NSW) s.139 - fraud offences - police documents filled out by appellant at prior arrests tendered by Crown as comparison for handwriting expert.
Held: no basis to exclude evidence under ss.138 or 139 - not improper or illegal - not admission requiring caution.
 
Deng
NSW CCA [153] 20.4.2001
Evidence Act 1995 (NSW) s.139(3) - drug offences - police cautioned appellant in English - judge concluded evidence of conversations at time of arrest showed appellant had reasonable fluency in English.
Held: section does not deal with general language ability but ability to understand concept underlying caution and function of caution - overwhelming evidence that accused understood caution.

Cornwell
(2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) [97] 20.2.2003
Evidence Act 1995 (NSW) s.139 - conspiracy to import - challenge to material obtained under listening device - whether misstatement of facts on application for warrant amounted to impropriety
Held: evidence admitted - when considering s.138(2) and s.139 court should consider facts of case and circumstances with due regard to seriousness of finding of impropriety and consequences of such finding - not every defect, inadequacy or failing should result in finding of impropriety - at same time failure need not be wilful, committed in bad faith or an abuse of power - prepared to accept that misstatement in affidavit could be an impropriety - question of motive and intent goes to gravity of impropriety and exercise of discretion to admit - in this case not satisfied misstatement an impropriety and no causal connection between misstatement and issue of warrant - would exercise discretion in favour of admission

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) ss 137, 138, 139 - murder - s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police - respondent indicated he did not wish to have any conversation with police recorded or written down - police took R to local park for chat - covertly wearing listening devices - police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station - partial caution given - did not warn R anything he said could be used against him - kept asking questions although R indicated he did not wish to talk about murder - whether TJ erred in excluding evidence
Held: appeal allowed - trial judge erred in excluding evidence - judge erred in finding failure to give caution meant breach of s.139 - failure to make finding that R under arrest at time of conversation.
 
G
NSW CCA [291] 25.8.2005
Evidence Act 1995 (NSW) – s.139 - sexual offences – search warrant executed at home of 17y suspect – police indicated would like to talk to suspect – caution given in presence of older brother – some time later suspect posed for photograph to be used for identification outside house
Held: agreement to be photographed not done during questioning by police officer – s.139 did not apply
 
NAA
[2009] NSWSC [851] Howie J, 26.8.2009
Evidence Act 1995 (NSW) – s.139 – Stabbing murder of partner – stand off with police outside house for several hours while armed with knife – made several admissions both spontaneously and in response to questioning – no caution given – conversation recorded in notebook by one police officer and partially and poorly recorded by audio – during subsequent ERISP conversation not put to accused after he obtained legal advice and declined to discuss matter
Held: evidence admissible – considered meaning of ‘questioning’ at [98] – means interrogation not just conversation in which questions asked – section does not apply to siege type situation – even if caution should have been given would have exercised discretion under s.138 to admit evidence
 
Pitts (No 1)
[2013] NSWSC 1652, Adamson J
Evidence Act 1995 (NSW) ss.138, 139 - application exclude improperly obtained evidence - statement by A - A cautioned by police - caution expressed to be subject to unstated conditions, failure to comply with which may result in the commission of an offence - whether statement properly obtained: s 139 - whether to exclude evidence: s 138 - privilege against self incrimination.
Facts: In an initial interview (prior to a formal ERISP) the police officer mistakenly referred to “compliance with conditions”: "Q3 You're not obliged to say or do anything. Anything you say or do will be recorded and can later be used in evidence in court. Now you understand I'm going to ask you to comply with some conditions?
A Yes.
Q4 If you fail to comply with some of those conditions you may be committing an offence….. .
The Crown relied on the following as an admission: "The knife was on the ground. I had to go out there and defend myself. They kicked my door in."
Held: Evidence improperly obtained. Evidence excluded. The caution was not given in accordance with s 139(1). The reference to “compliance with conditions” followed immediately thereafter, giving A the impression that there was some obligation to answer questions and that if he did not he may be guilty of an offence. It was misleading and confusing for the police officer to refer to conditions with which A was obliged to comply, when there were no such conditions: at [14].. The privilege against self-incrimination is a fundamental right. The giving of a caution is an important mechanism for the protection of the right. The effect of the caution was substantially undermined by the reference to compliance with conditions: at [24].
 
FE
[2013] NSWSC 1692 Adamson J
Evidence Act 1995 (NSW) – s.90, 138, 139 – Stabbing murder of male in street confrontation – 15y female alleged to have pointed out victim to person who did stabbing – attended police station unexpectedly in response to news report – interviewed in presence of mother but no caution given – several days later arrested for affray and taken to police station – accused spoke to solicitor on phone and advised not to give interview – solicitor communicated refusal to give interview to Detective and faxed written instructions – communication with solicitor not passed on to interviewing police officers – accused taken to interview room and gave interview
Held: evidence of both interviews excluded – police had sufficient information at time accused first attended police station to treat her as a suspect under s.139(5)(a) – accused given reasonable grounds to believe she could not leave the station under s.139(5)(c) – no caution meant s.138 applied – improprieties very grave – vulnerable young girl deprived of right to silence – should also be excluded under s.90 – second interview also excluded under s.139 and 90 – police ignored right to silence
 
Sulaeman
[2013] NSWCCA 283
Evidence Act 1995 (NSW) ss 85, 90 139– people smuggling – Indonesian found captaining boatload of people off Christmas Island – interviewed by naval officer using translation cards – cards included caution – naval officer gave evidence appellant understood questions and gave responsive answers
Held: appeal dismissed – rejected argument that admissions inadmissible because of lack caution and inadequacy of caution – no error in findings of fact