Dao v The Queen - [2011] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DAO v R [2011] NSWCCA 63
Hearing dates: 9 November 2010
Decision date: 01 April 2011
Before: Spigelman CJ at 1; Allsop P at 71; Simpson J at 108; Kirby J at 211; Schmidt J at 212
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - interlocutory orders - s 5F(3) Criminal Appeal Act 1912 - order for joint trial - sole issue determinative of appeal concerns admissibility of tendency evidence - whether leave ought to be granted - approach to judicial review of decisions on admissibility of evidence under s 97 Evidence Act - leave granted - appeal dismissed
CRIMINAL LAW - appeal - jurisdiction of the Court - ruling on admissibility of evidence not "interlocutory judgment or order" within s 5F - order for joint trial - jurisdiction established
CRIMINAL LAW - appeal - interlocutory orders - standard of appellate review of decisions on admissibility of evidence under s 97 Evidence Act - conflict of authority - whether reviewable under principles in House v The King [1936] HCA 40; 55 CLR 499 or Warren v Coombes [1979] HCA 9; 142 CLR 531 - characterisation of decision - practical considerations
CRIMINAL LAW - appeal - whether test applicable for review under s 5F different from test on appeal following conviction - whether a decision under s 5F precludes further consideration under s 5(1) and s 6(1) Criminal Appeal Act
EVIDENCE - tendency - s 97 and s 101 Evidence Act - whether a decision under s 101 is a "separate decision" - whether evidence of more serious conduct can support allegations of less serious conduct and vice versa - no misapplication of principle
EVIDENCE - tendency - sexual offences - pattern of behaviour - sexual interest - vulnerability of particular complainants - "grooming" for sexual exploitation - whether probative value "significant" - no unfair prejudice
WORDS AND PHRASES - "judgment" - "discretion"
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 7; 148 CLR 170
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alexandroaia v R (1995) 81 A Crim R 286
Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Antonovicv Volker (1986) 7 NSWLR 151
AW v R [2009] NSWCCA 1
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Buck v Bavone (1976) 135 CLR 110
Can v R [2007] NSWCCA 176
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93
Director of Public Prosecutions v MD [2010] VSCA 233
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124
EK v R [2009] NSWCCA 4; 75 NSWLR 302
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Fox v Percy [2003] HCA 22; 214 CLR 118
Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Gedeon v R [2009] NSWCCA 278
Golosky v Golosky (NSWCA, 5 October 1993, unreported)
Goodman v Windeyer [1980] HCA 31; 144 CLR 490
Guldur v R (1986) 8 NSWLR 12
House v The King [1936] HCA 40; 55 CLR 499
Hunter v Hunter (1987) 8 NSWLR 573
Ibrahim v Pham [2007] NSWCA 215
In re the Will of Gilbert (dec) (1946) 46 SR (NSW) 318
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51
JLS v R [2010] VSCA 209
Kitano Maru (Owners) v Otranto (Owners) [1931] AC 194
Kocer v R [2006] NSWCCA 328
L v Tasmania [2006] TASSC 59; 15 Tas R 381
MA v R [2011] VSCA 13
Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611
Norbis v Norbis [1986] HCA 17; 161 CLR 513
Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158
NSW Crime Commission v Vu [2009] NSWCA 349
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Pfennig v The Queen [1995] HCA 7; 182 CLR 461
PNJ v Director of Public Prosecutions [2010] VSCA 88
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529
R v Annakin (1989) 17 NSWLR 202
R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428
R v Batiste (1994) 35 NSWLR 437
R v Blick [2000] NSWCCA 61; 111 A Crim R 326
R v Bozatsis (1997) 97 A Crim R 296
R v BWM (1997) 91 A Crim R 260
R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428
R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492
R v Cook [2004] NSWCCA 52
R v Douglas [2000] NSWCCA 275
R v Edelsten (1989) 18 NSWLR 213
R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v F [2002] NSWCCA 125; 129 A Crim R 126
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Ford [2009] NSWCCA 306; 273 ALR 286
R v GAC [2007] NSWCCA 315; 178 A Crim R 408
R v Georgiou [1999] NSWCCA 125
R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317
R v Glossop [2001] NSWCCA 165
R v Gordon [2004] NSWCCA 45
R v Groves (NSWCCA, 2 April 1990, unreported)
R v Harker [2004] NSWCCA 427
R v Lavender [2002] NSWCCA 511; 37 MVR 491
R v Lock (1997) 91 A Crim R 356
R v Lockyer (1996) 89 A Crim 457
R v Marchione [2002] NSWCCA 131; 128 A Crim R 574
R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190
R v Matovski (1989) 15 NSWLR 720
R v Merritt and Roso (1985) 19 A Crim R 360
R v Milton [2004] NSWCCA 195
R v Nassif [2004] NSWCCA 433
R v O'Keefe [2009] NSWCCA 121
R v PJG [2005] NSWCCA 306
R v Powch (1988) 14 NSWLR 136
R v PWD [2010] NSWCCA 209
R v Rima [2003] NSWCCA 405; (2003) 145 A Crim R 27
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
R v Sood [2007] NSWCCA 214
R v SRJC [2007] NSWCCA 142
R v Steffan (1993) 30 NSWLR 633
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
R v Wright (1990) 90 Cr App R 325
R v Zhang [2005] NSWCCA 437; 158 A Crim R 504
Re DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; 28 FCR 597
Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318
Rex v Gibbins and Proctor (1918) 13 Cr App R 134
Rex v Grondkowski [1946] 1 KB 369
Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417; (1994) 68 ALJR 688; (1994) 74 A Crim R 462
Rogerson v R (1990) 45 A Crim R 253
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
Samadi and Djait v R [2008] NSWCCA 330; (2008) 192 A Crim R 251
Saunders v R (1994) 72 A Crim R 347
Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Smale v R [2007] NSWCCA 328
Steffan v R (1993) 30 NSWLR 633
THD v R [2010] VSCA 115; (2010) 200 A Crim R 106
The 'Karamea' [1921] P 76
The 'Peter Benoit' (1915) 84 LJ (P) 87
Townsend v Townsend [2001] NSWCA 136
Verma v R (1987) 30 A Crim R 441
Vickers v R [2006] NSWCCA 60; [2006] 160 A Crim R 195
Vines v Australian Securities and Investments Commission [2007] NSWCA 126; (2007) 63 ACSR 505
Warren v Coombes [1979] HCA 9; 142 CLR 531
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v Barron [1980] HCA 14; 144 CLR 431
Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; 61 FCR 171
Zhang v The Queen [2006] HCATrans 423
Texts Cited: F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368
F Bennion "Judgment and Discretion Revisited: Pedantry or Substance" [2005] Public Law 707
F C Hutley "Appeals within the Judicial Hierarchy and the Effect of Judicial Doctrine on Such Appeals in Australia and England" (1976) 7 Sydney Law Review 317
R Pattenden "The Judge, Discretion, and the Criminal Trial" (Oxford, Clarendon Press, 1982)
Category: Principal judgment
Parties: DAO (Applicant)
Regina (Respondent)
Representation: D Dalton SC/S Torpey (Applicant)
D Arnott SC/S Herbert (Respondent)
Mark Diggins Solicitor (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2009/60628
Publication restriction: Non publication of any information or material that may lead to the identification of the complainants (s 15A Children (Criminal Proceedings) Act 1987)
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-11-04 00:00:00

Before:

Bozic DCJ

File Number(s):

2009/60628

HEADNOTE

The applicant was charged with 18 counts of sexual offences against six complainants. The applicant sought orders for separate trials of the counts that related to each complainant. The Office of the Director of Public Prosecutions ("the DPP") gave notice under s 97 of the Evidence Act 1995 of its intention to adduce tendency evidence. Essentially, the DPP proposed to rely on the evidence of each complainant, as evidence of the stated tendencies, in respect of the counts relating to each other complainant. Bozic DCJ ordered that the counts in respect of three complainants be separated, but declined to do so in respect of the three remaining complainants ('MB', 'SM' and 'JC'), which he ordered to proceed as a joint trial. The basis for the order for a joint trial was that the evidence of each of those complainants would be admissible as evidence of tendency in the trial of the allegations of each other complainant.

Pursuant to s 5F(3) of the Criminal Appeal Act 1912 ("the Act"), the applicant sought leave to appeal against the decision of Bozic DCJ.

The issues raised by the application were:

whether the Court had jurisdiction to deal with the application;

whether the Court is bound to determine appeals that raise the correctness of a decision on the admissibility of evidence tendered under s 97 by reference to the principles stated in House v The King or Warren v Coombes ; and

whether leave to appeal ought to be granted.

The Court further considered the issue of the relationship between an appeal under s 5F, and the disposition of an appeal under s 5(1) and s 6(1) of the Act following conviction.

The Crown challenged the jurisdiction of the Court to hear the application for leave, on grounds that it did not involve "an interlocutory judgment or order", the foundation of jurisdiction under s 5F. Whilst no express ruling had been made as to the admissibility of the evidence, it was accepted on the hearing of the application that, in substance, the orders made incorporated a ruling that the evidence of the three complainants was admissible as tendency evidence in relation to the allegations of each other complainant.

The Court held, granting leave to appeal and dismissing the appeal:

On the issue of jurisdiction

(per curiam)

1. Section 5F is available to review an interlocutory judgment or order. A decision or ruling as to the admissibility of evidence is not an interlocutory judgment or order. Section 5F is therefore not available to review such a decision or ruling: [6], [74], [123].

R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633; R v Bozatsis (1997) 97 A Crim R 296; R v Glossop [2001] NSWCCA 165; R v F [2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491; Kocer v R [2006] NSWCCA 328; EK v R [2009] NSWCCA 4; 75 NSWLR 302; Gedeon v R [2009] NSWCCA 278 at [15] cited.

2. The refusal to order separate trials on the application of an accused is an interlocutory judgment within the meaning of s 5F. In this case, there was an application for an order for severance of counts on an indictment, and an order made. Therefore, this Court has jurisdiction: [2], [76], [125].

Saunders v R (1994) 72 A Crim R 347; R v Georgiou [1999] NSWCCA 125; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 cited.

(per Allsop P)

3. In applications under s 5F, substance, and not mere form, should prevail. The application for leave to appeal is in respect of, and against, the orders of the District Court, not its reasons. In form and substance, this is an appeal in respect of, and against, the refusal to make orders to separate certain trials. It is that failure to make an order for separation that must be examined: [75], [76].

Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323 cited.

On the issue of the correct approach to judicial review of s 97 decisions

(per Spigelman CJ, Kirby J agreeing)

4. A high degree of restraint has always been required with regard to an interlocutory decision on a matter of practice and procedure, as distinct from a decision determinative of legal rights. As a matter of principle, and on the basis of the case law concerned with separate trials, an appeal from an interlocutory judgment on an application for separate trials is subject to the degree of appellate restraint identified in House v The King . It is unnecessary to go further in this case: [55], [70].

Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 referred to.

Rogerson v R (1990) 45 A Crim R 253; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 cited.

5. It is strongly arguable that the test in s 97 is analogous to the various statutory formulations which require a decision-maker to be "satisfied" of a certain matter. The line of authority flowing from Singer v Berghouse suggests that a decision under s 97(1) is reviewable only on House v R grounds. However, the contrary view has been put forward with cogent reasoning: [28], [29], [34].

Buck v Bavone (1976) 135 CLR 110; Norbis v Norbis (1986) 161 CLR 513; Singer v Berghouse (No 2) (1994) 181 CLR 201; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194; Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643; Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93; Vines v Australian Securities and Investments Commission [2007] NSWCA 126; (2007) 63 ACSR 505; NSW Crime Commission v Vu [2009] NSWCA 349; R v Ford [2009] NSWCCA 306; 273 ALR 286 cited.

(per Allsop P, Kirby J agreeing)

6. The order made not to separate trials is a procedural question involving a true discretion in the sense of a power involving a choice for or in respect of its exercise. What occurred here can be viewed as a refusal to split the trials in question, with a body of reasons for such refusal. Viewed in this way, there is an order in the nature of practice and procedure, accompanied by reasons which, although also sufficient for a ruling on evidence, are reviewable by reference to House v The King principles . The question of the correct approach to review of s 97 decisions does not strictly arise in this case. This matter should be approached as a review under s 5F of a discretionary decision not to separate the trials in question: [77]-[80], [106].

Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 referred to.

R v Matovski (1989) 15 NSWLR 720 cited.

7. If it is necessary to review an effective ruling on evidence under s 97, review will be of a character analogous to that discussed in Shrimpton v The Commonwealth , and in practice there is likely to be little difference between this approach and the application of House v The King. As to review of a decision under s 101, the predominant view, at least in New South Wales, based on R v Blick , is to the effect that what is involved is a balancing exercise that is to be reviewed on the principles in House v The King : [82], [83], [84], [88], [100], [101], [104].

Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158; R v Ford [2009] NSWCCA 306; R v BWM (1997) 91 A Crim R 260; R v BWM (1997) 91 A Crim R 260; Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124; Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 referred to.

R v Ford [2009] NSWCCA 306; 273 ALR 286 (per Campbell JA) not followed.

(per Simpson J, Schmidt J agreeing)

8. Review by this Court of a decision under s 97 is governed by the principles stated in House v The King : [157], [178].

R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 followed.

9. There is no separate "decision" under s 101. The relevant "decision" is a decision under s 97. The effect of s 101 is to introduce into the s 97 decision, for criminal cases only, an additional consideration, which amounts to a further barrier or hurdle to admissibility. What is involved under s 101 is quintessentially a judgment, reviewable only on House v The King principles: [171].

R v Ford [2009] NSWCCA 306; 273 ALR 286 referred to.

R v Nassif [2004] NSWCCA 433; R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308; R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 cited.

On the issue of whether leave ought to be granted

10. Although the order sought to be appealed against was an order for joint trials, the correctness of the implicit ruling upon the admissibility of the evidence was a central issue. There had been a serious division of views expressed, both within this Court and amongst the other intermediate appellate courts, about the nature of appellate review of a decision under s 97 of the Evidence Act : [18], [120], [151].

(per curiam)

11. Whilst the application concerns an order for joint trials, the fact that the sole issue before the Court concerns a determination on the admissibility of evidence is highly relevant to whether or not leave ought to be granted. Given that this cases raises important questions concerning the approach to be taken to judicial review of a decision to admit or reject evidence under s 97 of the Evidence Act , leave to appeal should be granted: [5], [106], [126], [209].

(per Spigelman CJ)

12. The fact that what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave. However, the decision is a pre-trial ruling of potentially critical significance, and one that, if in error, would almost inevitably lead to a successful appeal and, probably, a new trial. It is because of the combined force of this consideration, and the conflict of authority on the appropriate test to apply to an appeal from a ruling on the admissibility of evidence pursuant to s 97 and s 102(1), that leave to appeal should be granted: [16]-[19].

(per Allsop P)

13. A five judge bench was assembled principally to deal with the conflict in appellate approach to review of s 97 decisions. That question does not strictly arise. Had a five judge bench had not been assembled, leave should not have been granted: [106].

R v Matovski (1989) 15 NSWLR 720 cited.

(per Simpson J)

14. (obiter) It has not been the practice of this Court to apply a two-step process to applications for leave to appeal under s 5F. In this case, the question of whether it may be appropriate to consider the adoption of such a procedure has real significance: [208].

R v Matovski (1989) 15 NSWLR 720 referred to.

R v Groves (NSWCCA, 2 April 1990, unreported) cited.

On the issue of the relationship between an appeal under s 5F, and the disposition of an appeal following conviction

(per Spigelman CJ)

15. Section 5F(6) specifies that, if leave is refused, the refusal does not preclude an appeal following conviction on the matter to which the application for leave related. A decision under s 5F does not preclude further consideration of the issue under s 5(1) and s 6(1) of the Act on appeal following conviction, if any. There is a substantial difference between a s 5F appeal and an appeal from conviction in relevant respects: [15], [45].

16. In an appeal following conviction, the degree of appellate restraint applicable to a reversible, interlocutory ruling does not apply. The terminology "miscarriage of justice" is broader than the House v The King terminology of "unreasonable or patent injustice": [61]

(per Allsop P, Kirby J agreeing)

17. The view taken in this case, as to the appropriate disposition of the appeal and the reasons given for dismissing the appeal, should not have any effect on the scope of any argument or issues in any appeal under s 5 and s 6 of the Act. It is however, unnecessary to consider the relationship, if any, between an appeal under s 5F and the disposition of any appeal following conviction: [107].

(per Simpson J)

18. Any difference in approach ought to be reflected in the decision to grant or refuse leave under s 5F(3). Once leave is granted, the Court has before it an appeal in the usual way. A real question exists as to whether, if leave is granted, and the appeal dismissed, that issue is foreclosed, in the event of a conviction, from any appeal against conviction: [206], [207].

(per Schmidt J)

19. Should the same issue as to the admissibility of evidence be raised in a post conviction appeal, as has already been determined in a s 5F appeal, considerations of the kind discussed in Rogers v R as to issue estoppel would appear to arise for consideration: [213].

Rogers v R [1994] HCA 42; (1994) 181 CLR 251 considered.

On the grounds of appeal: that his Honour erred in finding that the evidence with respect to each of the complainants was admissible as tendency evidence

(per curiam)

20. On the application of the principles in House v The King , the trial judge correctly weighed up the competing considerations and reached a view that the evidence of the three complainants could have interconnecting significant probative value. His Honour also correctly applied s 101. There was no misapplication of principle. The decision was one that was entirely open to the trial judge. An evaluation under Warren v Coombes leads to the same result: [105], [202]-[204].

House v The King [1936] HCA 40; 55 CLR 499 applied.

Warren v Coombes [1979] HCA 9; 142 CLR 531 considered.

R v O'Keefe [2009] NSWCCA 121 cited.

Judgment

SPIGELMAN CJ : I have had the advantage of reading the judgment of Simpson J in draft. Subject to the following observations, I agree with her Honour's analysis and conclusions. I wish to express my own views on the degree of restraint which an appellate court should exercise in the context of an appeal of the character presently before the Court.

The Application

The Crown challenges the jurisdiction of the Court to hear the application for leave on the grounds that it does not involve "an interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act 1912 ('the Act"). The refusal to order separate trials on the application of an accused is an interlocutory judgment within the section. (See Saunders v R (1994) 72 A Crim R 347; R v Georgiou [1999] NSWCCA 125 at [19]; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126.)

A power to order separate trials is found in s 21(2) of the Criminal Procedure Act 1986. Neither before Bozic DCJ, nor in this Court, was the test in s 21(2) invoked. In any event, by s 21(6) the power in s 21(2) is in addition to any other power of the Court for the same or similar purpose. The application in the District Court and in this Court proceeded on the basis that that issue would be determined by a pre-trial ruling on the admissibility of evidence.

With respect to the three cases which he determined could be jointly heard, his Honour's rejection of the application flowed naturally from his ruling that the evidence of the complainant in one case was admissible in the proceedings brought in respect of each of the other two complainants. There is, accordingly, force in the Crown's contention that, in substance, the s 5F(3) appeal is an appeal from an evidentiary ruling.

This is a matter entitled to considerable and, in the ordinary course, determinative weight, with respect to two distinct issues that arise in an appeal under s 5F(3). First, the decision as to whether or not the Court should grant leave to appeal pursuant to s 5F(3)(a). Secondly, if leave is granted for some other reason or is not required by reason of a certificate being granted under s 5F(3)(iii) by the trial judge, when determining whether or not to exercise the power under s 5F(5) to affirm or vacate the judgment, order, decision or ruling.

As I have indicated elsewhere, matters of this character must be determined as a question of substance and not of form. ( R v Cheikho [2008] NSWCCA 191; (2009) 75 NSWLR 323 at [25] and [33].) The Crown's contention that, in substance, this is an appeal from an evidentiary ruling invokes the well-established line of authority in this Court that a ruling on the admissibility of evidence is not "an interlocutory judgment or order" within s 5F. (See R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; R v Steffan (1993) 30 NSWLR 633; R v Bozatsis (1997) 97 A Crim R 296 at 302, 304; R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [10], [17].)

That case law is affirmed by the text of the statute which restricts the Crown's right to appeal without leave under s 5F(2) by inserting a specific requirement in s 5F(3A) that an appeal against a ruling on admissibility is subject to the restriction that the ruling "eliminates or substantially weakens the prosecutor's case". That restriction implicitly removes the possibility that the general words of s 5F(2) encompass a ruling on admissibility in a Crown appeal and, arguably in any appeal or application. (See the frequently cited observations in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550 and Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.)

The applicant seeks leave to appeal on the basis that his Honour erred in finding that the evidence of each complainant was admissible in the trials of each of the other two complainants as tendency evidence pursuant to ss 97(1)(b) and 101(2) of the Evidence Act 1995.

Section 97(1) provides, relevantly:

"97(1) Evidence of the ... conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency ... to act in a particular way, or to have a particular state of mind unless:

...

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."

With respect to criminal proceedings s 101(2) provides:

"101(2) Tendency evidence about a defendant ... that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

Notwithstanding its terminology, the view has been taken that s 101(2) is, like s 97, a rule of admissibility. (See R v Nassif [2004] NSWCCA 433 at [46]-[47].) There remain some difficulties with this approach, but the issue was not fully argued in this Court. (See R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [46]-[48]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [37]-[39], [125].)

The Issue of Leave

The decision to admit tendency evidence is clearly of considerable significance for the trial. Nevertheless, it is an interlocutory ruling. The decision to reject the application for separate trials can be reversed by the trial judge. (See R v Wright (1990) 90 Cr App R 325 at 338-340; Saunders at 353-354.)

Notwithstanding the potential power of the evidence of each of the other two complainants in the third case, the impact on the fairness of the trial will be affected by the course of the trial. His Honour's ruling was necessarily made on the basis of an expectation as to what the evidence of each complainant will be. By reason of their evidence in chief, and perhaps particularly by reason of their cross-examination, the force and nature of the complainants' evidence may differ from that which can be anticipated at the present stage of proceedings. The course of the trial may lead to the decision being reopened.

Furthermore, the significance and weight to be attached to the evidence can be affected by the nature and strength of directions given by the trial judge to the jury. These are matters capable of further assessment on appeal if the applicant is convicted in relation to one or more of the complainants.

I note that s 5F(6) specifies that, if leave is refused, the refusal does not preclude an appeal following conviction on the matter to which the refused application for leave related. The Court has not been addressed on the issue as to the position where leave is granted. However, s 5F(6) should be regarded as having been introduced as a matter of caution. If leave is granted this Court is, nevertheless, hearing the appeal at an interlocutory stage. A decision under s 5F does not preclude further consideration of the issue under ss 5(1) and 6(1) of the Act on appeal following a conviction, if any.

The fact that what is involved is, in substance, an attempt to appeal from a preliminary ruling on evidence is a strong consideration against the grant of leave. There are two countervailing considerations.

First, the decision is a pre-trial ruling of potentially critical significance, in that it determines a fundamental aspect of the structure of the trial. This is not a case in which this Court is asked to micromanage the conduct of a trial, nor does it involve intervention in the course of a trial, nor is it an appeal which would lead to delay. Furthermore, if the ruling is in error, it is of a character which, assuming a conviction, would almost inevitably lead to a successful appeal and, probably, a new trial.

The second matter in favour of a grant of leave arises from the fact that there is a conflict of authority on the appropriate test to apply to an appeal from a ruling on the admissibility of tendency evidence pursuant to the combined effect of ss 97 and 101(2) of the Evidence Act . I will set out the extent of divergence in this respect in the next section of the judgment. It is substantial.

It is the combined force of these two considerations that lead me to agree with Simpson J that leave should be granted. Nevertheless, as noted above at [5], the issues that arise in this case which would usually be determinative at the leave stage, also impinge upon this Court's discretion to make an order under s 5F(5).

Conflicting Authority

Because of the divergence of views that have been expressed on the issue, the Court has sat a bench of five. Two judges, myself and the President of the Court of Appeal, were added to the original bench, with the concurrence of the parties, after oral submissions. The parties agreed that the additional judges could determine the matter on the papers.

In Fletcher , Simpson J, with whom McClellan CJ at CL agreed, concluded that the decision made by a trial judge under both ss 97(1) and 101(2) of the Evidence Act must be reviewed in accordance with the principles in House v R (1936) 55 CLR 499 (see Fletcher at [36] and [48]). A similar view was expressed with respect to s 101(2) in R v Milton [2004] NSWCCA 195 at [33]. In Zhang , Simpson J, with whom Buddin J agreed, affirmed at [104] that the House v R test was applicable to an appeal from a decision on admissibility under the cognate provision for coincidence evidence in s 98 of the Evidence Act.

To the same effect, in a civil case, where the focus was necessarily on s 97(1), the Full Federal Court expressed a clear view that this approach was correct, although the point was conceded by the parties in that case. (See Jacara v Perpetual Trustees [2000] FCA 1886; (2000) 106 FCR 51 at [74]-[75].)

On the other hand, in a dissenting judgment in Zhang , Basten JA came to the conclusion that the relevant approach was not that in House v R, but that in Warren v Coombes (1979) 142 CLR 531. (See Zhang at [45].)

Furthermore, in a detailed analysis of the relevant authorities by Campbell JA in R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, his Honour concluded that the applicable test under s 97(1) was the approach in Warren v Coombes (see at [101]-[107]). However, Campbell JA concluded, on the basis of authority, that the relevant standard under s 101(2) was that in House v R. (See Ford at [108]-[117].) Howie and Rothman JJ did not find it necessary to decide the issue, the former indicating doubts about Campbell JA's views with respect to s 97 ([145]-[146], [149], [157]-[158]).

The divergent approaches in this Court to these important issues were set out, but not resolved, in R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 at [70]-[78].

The approach of Basten JA has attracted support interstate, albeit in cases where it was not necessary to decide the point. In Tasmania, Underwood CJ reviewed the NSW cases and expressed his support for the dissenting approach of Basten JA. (See L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at [51]-[56], see also the analysis of Crawford J at [79]-[85].) The same view has been expressed in the Court of Appeal of the Supreme Court of Victoria. (See PNJ v Director of Public Prosecutions [2010] VSCA 88 at [15]-[16]; JLS v R [2010] VSCA 209 at [34]-[35].) Although the issue did not fall for decision, the reasoning in these cases is generally in support of the views of Basten JA in Zhang.

The focus of the disagreement has been on the appellate treatment of a trial judge's application of the test in s 97(1)(b). Paragraph 97(1)(b) begins with the words: "the court thinks that ...". In the absence of these words, it would be clear that what was involved was an objective standard as to whether or not the evidence will "have significant probative value". Those words introduce an element of subjectivity.

It is, in my opinion, strongly arguable that this test is analogous to the various statutory formulations which require a decision-maker, including a court, to be "satisfied" of a certain matter. (Cf Ford at [107].) As was stated in an administrative law context, the use of terminology of whether a decision-maker is "satisfied" confers "a very wide discretion". ( Buck v Bavone (1976) 135 CLR 110 at 119.)

In other contexts, including contexts involving decisions by a court, the use of the terminology of 'satisfaction' has led to the conclusion that the degree of restraint which an appellate court should manifest is of the same order as that applicable to a discretion in the strict sense of that word. (See Norbis v Norbis (1986) 161 CLR 513 esp at 517-518, 540; Singer v Berghouse (No 2) (1994) 181 CLR 201 esp at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 esp at [19], [27], [32]; Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27]; Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 at [3]-[4] and [64]-[70]; Vines v Australian Securities and Investments Commission [2007] NSWCA 126; (2007) 63 ACSR 505 at [8]-[9].) The word "consider" is equivalent to "satisfied" in this respect. (See NSW Crime Commission v Vu [2009] NSWCA 349 at [8]-[9].)

The line of authority flowing from Singer v Berghouse is instructive in this respect. That decision resolved a relevantly analogous divergence of views with respect to the appropriate principles applicable on an appeal from a judicial determination that a testator had not made adequate provision for a member of their family. The joint judgment clearly distinguished what it referred to as the "jurisdictional question" from a second stage of the exercise of the relevant statutory power. The second stage involved a discretion to make additional provision for the family member. The latter was clearly identified as the exercise of a discretion in the strict sense of the term (at 211).

The jurisdictional question was to the effect that the Court could not make an order:

" ... unless it is satisfied that ... the provision (if any) made in favour of the eligible person ... is ... inadequate for the proper maintenance, education and advancement in life of the eligible person." ( Family Provision Act 1982, s 9)

The divergence of views in pre-existing case law was with respect to whether or not the House v R principle was applicable to this "jurisdictional question". The Court held that it was applicable, even though, as the joint judgment put it at 211:

"Strictly speaking ... the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing."

Nevertheless, the Court held that the House v R test applied. The Singer v Berghouse approach has frequently been applied in cognate contexts. The conclusion turns, in my opinion, on the use of the word "satisfied" in the formulation of the "jurisdictional question".

This line of authority suggests that a decision under s 97(1) is reviewable only on House v R grounds. However, the contrary view has been put forward with cogent reasoning.

As I have noted, there is less divergence of authority on the application of s 101(2). This is in large measure based on the application of the case law on s 137 of the Evidence Act. Again, however, there is some conflict in judicial approach.

There is a close analogy between s 101(2), with its formulation that tendency evidence "cannot be used ... unless", and the relevant part of s 137 of the Evidence Act , with its terminology "the court must refuse to admit evidence". Furthermore, both provisions require the court to weigh in the balance "probative value" and "prejudice". For present purposes, there does not appear to me to be a distinction between "prejudicial effect" and "unfair prejudice".

The origins of contemporary jurisprudence in this Court on s 137 is found in R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326. It was on this judgment that Campbell JA relied for concluding that s 101(2) invoked the House v R test. ( Ford at [108]-[110].)

In his judgment in Blick, Sheller JA made it clear that s 137 does not involve the exercise of a "discretion". His Honour held that the evidence must be rejected if, as a result of the balancing exercise, the Court comes to the conclusion that the probative value of the evidence is outweighed by the danger of unfair prejudice. As his Honour put it at [20]: "there is no residual discretion". Nevertheless, his Honour also said that the "judgment", which is the end product of this balancing process "in terms of appellate review is analogous to the exercise of a judicial discretion" (at [19]).

It is pertinent to note that in Blick this last reference occurs in a sentence which commences: "It is probably correct to say ...". When dealing with the relevant ground of appeal at 333-335, Sheller JA did not invoke any part of the House v R formulation. His Honour's reasoning was directed to a reassessment of the balance between "probative value" and "unfair prejudice". However, Sheller JA concluded that "there could be only one conclusion" on where the balance lay (at [29]).

In subsequent judgments this Court has sometimes emphasised the proposition in Blick that what is involved in s 137 is a judgment rather than a discretion. (See, eg, R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190 at [21]; R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [95]; R v Sood [2007] NSWCCA 214 at [23]; R v PJG [2005] NSWCCA 306 at [139]; R v Gordon [2004] NSWCCA 45 at [39].)

As a result of this emphasis, on one occasion this Court has determined that the principles of House v R are not applicable to an appeal from a decision under s 137. (See R v Rima [2003] NSWCCA 405; (2003) 145 A Crim R 27 at [37]-[39]. See also R v Cook [2004] NSWCCA 52 at [38].)

However, on other occasions this Court emphasised that part of the judgment of Sheller JA in Blick which referred to the analogy between the particular judgment for which s 137 calls and a discretion, noting his Honour's indication that the principles in House v R are applicable to an appeal from a decision under s 137. (See Vickers v R [2006] NSWCCA 60; [2006] 160 A Crim R 195 at [76]; Smale v R [2007] NSWCCA 328 at [32]; R v SRJC [2007] NSWCCA 142 at [33]-[34]; Can v R [2007] NSWCCA 176 at [45]; R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428 at [27].)

As indicated above at [26], the Victorian Court of Appeal has indicated a preference for the application of the Warren v Coombes test to decisions on admissibility under s 97. However, with respect to s 137, and the similarly worded s 138, both of which are relevantly analogous to s 101(2), that Court has indicated a preference for the House v R approach. ( Director of Public Prosecutions v MD [2010] VSCA 233 at [27]-[31]; MA v R [2011] VSCA 13 at [7]-[13]; and see THD v R [2010] VSCA 115; (2010) 200 A Crim R 106 at [27]-[32].)

In the conflicting case law set out above, no distinction has been expressly drawn between an appeal under s 5F from an interlocutory judgment and an appeal under ss 5(1) and s 6(1) of the Act from a conviction. The conflict does extend to s 5F cases. (Both Rima and Arvidson were such.) Blick should be understood as authority on the "wrong decision on a question of law" limb of s 6(1). It was unnecessary for the Court to consider the "miscarriage of justice" limb.

In my opinion, there is a substantial difference between a s 5F appeal and an appeal from conviction in relevant respects. It will not be necessary to determine the position in an appeal after conviction. The Court has before it a s 5F appeal.

Judgment and Discretion

It is often useful to distinguish between a judgment and a discretion. (See in the context of administrative law, F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368; F Bennion "Judgment and Discretion Revisited: Pedantry or Substance" [2005] Public Law 707.) However, there is no simple duality applicable to every legal context. Whilst there is utility in such characterisation, it is important to bear in mind that the relevant legal incidents are properly regarded as constituting a spectrum, rather than a duality.

The protean word "discretion" is often deployed loosely in legal discourse. It is sometimes used to extend beyond decisions in which a choice must be made between alternatives, so as to encompass any decision involving a value judgment on which reasonable minds may differ. (See, eg, Coal and Allied Operations at [19]-[21]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [37]-[40]; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [34]-[40]; El Mawas at [64]-[70].)

Subject to the particular provisions creating a statutory right of appeal, there is a difference in principle between the application of a legal standard for which there ought to be a single correct answer, on the one hand, and the application of a standard or the exercise of a power for which there is no single correct answer, on the other hand. The fact that a standard of the former character involves making a judgment about which reasonable minds can differ does not make the decision a discretionary one, in the sense that a decision of the latter character is usually described.

There is a clearly established category of legal decision which is treated as a discretion in the strict sense of the term. The principle in House v R is applicable to any such decision. However, there is authority which applies analogous, indeed often the same, form of restraint to the exercise of an appellate jurisdiction even in the case of decisions which are not discretionary in the strict sense. (See, eg, Singer v Berghouse .)

I refer to this analogous authority in order to indicate that what is involved in the issue before the Court is not capable of being characterised as a simple duality. In all cases the particular power and, perhaps even more significantly, the particular appellate jurisdiction being exercised, must be analysed. The resulting degree of appellate restraint involves a spectrum rather than an on/off switch.

Labelling a particular statutory provision as involving either a "judgment" or a "discretion" carries with it the danger of applying the label, rather than conducting an analysis of the applicable statutory regime. As the High Court has emphasised on numerous occasions, in matters of this character it is always important to commence with the statute and not to substitute other words. (See, eg, Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [7]-[12]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [20]-[22], [57]-[58]; Coal and Allied Operations at [5]-[19]; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 at [9]-[12], [46]-[51]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [21]-[23]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [9]-[11], [31]-[40]; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [13]-[19]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [52]-[53]; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 at [16]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [123]-[126].)

As the High Court said in Dwyer v Calco Timber, immediately after referring to the House v R test (at [40]):

"Rather different is the situation where statute creates a legal norm, in this litigation that of a "serious injury", and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact-finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That inquiry is not advanced by describing the overall decision-making process of the primary judge as 'discretionary'."

The Appellate Jurisdiction

Accordingly, the analysis must commence with the fact that this Court has before it an appeal under s 5F from an interlocutory judgment or order. The Court is not required to determine the position with respect to an appeal after conviction, to which ss 5(1) and 6(1) of the Act would apply. Characterising a judgment under the combined effect of ss 97 and 101(2) for one purpose is not necessarily conclusive with respect to the other.

In the case of an appeal after conviction under s 5(1), this Court will focus on the terminology of "wrong decision on a question of law" and "miscarriage of justice", as s 6(1) provides. In the case of an appeal from an interlocutory judgment or order under s 5F, there is no express statutory standard or criterion. However, that does not mean that the jurisdiction is at large.

When enacting s 5F, the Parliament adopted terminology to which well established principles applied with respect to the degree of restraint that an appellate court should manifest. Relevantly, a high degree of restraint has always been required with regard to an interlocutory decision on a matter of practice and procedure, as distinct from a decision determinative of legal rights. The basal authorities are Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 322 and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The position is the same in criminal procedure. (See, eg, Rogerson v R (1990) 45 A Crim R 253 at 253-254; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599; R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 at [13].)

A decision to reject the application for separate trials is a decision on a matter of procedure. However, as I have noted above, in substance, the present case was a decision on the admissibility of evidence. Such a ruling, as I have also noted above, has been held not to constitute an interlocutory judgment or order within s 5F at all. For purposes of appellate restraint in a s 5F appeal, when made on a pre-trial basis, such a ruling is, at the least, the same as a ruling on a matter of procedure.

The relevant case law under s 5F has focussed on the leave requirement. However, this case law has adopted similar principles to those developed over many years with respect to appeals from interlocutory decisions in civil cases. The principles developed in that context are also applicable to a proceeding in which leave is not required under s 5F or when leave is granted.

In R v Matovski (1989) 15 NSWLR 720 at 723, Gleeson CJ said:

"For my part it seems to me that the reasons for the learned judge disclose no error of principle, assuming the view of the facts which he took to be correct. It has not been suggested that the view which the learned trial judge took of the facts is not one that was possibly open to him, the submission is simply that his Honour got the facts wrong.

I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made ... The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed."

This analysis is closely analogous to the House v R test. I include in that observation the last category in House v R, to the effect that a decision is "unreasonable or plainly unjust". The comparable terminology of Gleeson CJ in Matovski is "the interests of justice" which, in the context of his Honour's reasons, appears to me to be equivalent to the House v R test. (See also Alexandroaia v R (1995) 81 A Crim R 286 at 290.)

Although Matovski focuses on the grant of leave, in my opinion, the reasoning applies to the second matter to which I have referred at [5] above, namely the decision to exercise the power to interfere with the interlocutory decision. On this basis, the relevant degree of appellate restraint is at the House v R end of the spectrum, rather than at the Warren v Coombes end.

The position would be different in an appeal after conviction. As I have noted, that appellate jurisdiction encompasses an error of law and a miscarriage of justice. When applying such a standard, the degree of appellate restraint applicable to a reversible, interlocutory ruling does not apply. Specifically the terminology of "miscarriage of justice" is broader than the House v R terminology of "unreasonable or patent injustice".

The distinction between an interlocutory appeal and an appeal against conviction has frequently been referred to in case law on judicial decisions to order separate trials.

In Rex v Grondkowski [1946] 1 KB 369, Lord Goddard CJ said: "The law is, and always has been, that [separate trials] is a matter of discretion for the judge at the trial" (at 372). His Lordship approved a statement from Rex v Gibbins and Proctor (1918) 13 Cr App R 134 at 136, where Darling J had said:

"The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially. If he has done so this court will not interfere, but that is subject to this qualification. If it appeared to this court that a miscarriage of justice had resulted from the prisoners being tried together it would quash the conviction."

This line of authority has been applied in this Court. (See, eg, R v Annakin (1989) 17 NSWLR 202 at 206; R v Batiste (1994) 35 NSWLR 437 at 444; R v Merritt and Roso (1985) 19 A Crim R 360 at 364; and, recently, in Samadi and Djait v R [2008] NSWCCA 330; (2008) 192 A Crim R 251 at [108].)

The significance of the distinction between an interlocutory appeal and an appeal after conviction was emphasised in Guldur v R (1986) 8 NSWLR 12 (an appeal against conviction) where Street CJ, Maxwell and Campbell JJ agreeing, said (at 15):

"A particular ground of appeal has been taken and argued ... that the learned trial judge erred by not directing separate trials of the appellant and two co-accused. An application to this effect was made to his Honour at the outset of the trial. Indeed, similar applications had been made at interlocutory stages of the bringing forward of the present trial. All were unsuccessful.

It is, of course, always a difficult matter for a trial judge to be able at the outset of a trial to anticipate quite how the trial will unfold. He has a discretion in dealing with an application such as this and that discretion will not be lightly interfered with. At the same time, if it can be seen that the discretion, although properly exercised at the time, has in the way in which the trial unfolded brought about a situation where there is real concern regarding the fairness of the procedures of a joint trial, then at an appellate stage there is a power which is exercised in appropriate cases to rectify the position by quashing the conviction and ordering a new trial."

To similar effect is the judgment of Hunt J, with whom Wood and Campbell JJ agreed, in Verma v R (1987) 30 A Crim R 441 at 446-447, where his Honour said (without reference to Guldur ):

"It is, of course, for the accused in each case to demonstrate to the trial judge that there is a risk of impermissible prejudice by reason of a joint trial which cannot sufficiently be cured by a direction to the jury. The prospect that such prejudice may arise is essentially one for the trial judge to consider upon the material which the accused chooses to put before him (and that which the Crown may add to it), and in the light of the requirements of justice in the particular case. His exercise of discretion is one which well may be reviewed on appeal, but on the hearing of such an appeal this Court does, of course, have the benefit of the hindsight gained from knowing what later transpired at the trial; in the appropriate case it can and will take into account what did in fact happen at the trial. In some cases, that hindsight will reveal the existence of impermissible prejudice which could not, or at least was not, foreseen at the time when the application was made. In other cases, of which the present appears to me to be a good example, that hindsight will dispose of the complaint made in advance of the risk of prejudice by demonstrating that what might or might not have been foreseen simply did not occur. In that sense, the task of this Court is not the usual one of reviewing the exercise of a trial judge's discretion. But, whichever way this Court's task is described, I can see no basis in the present case for holding that his Honour's refusal to grant separate trials produced an injustice to the appellant at the joint trial itself."

Also to similar effect is the observation of Mason P, with whom Sully and Sperling JJ agreed, in R v Douglas [2000] NSWCCA 275, where the President said:

"[74] The discretion to order the separate trial of counts in an indictment ( Crimes Act 1900, s365: see now Criminal Procedure Act , 1986 s64) will not be lightly interfered with on appeal; and the appellate court will examine the impact of the decision upon the trial as it unfolded ( R v Guldur (1986) 8 NSWLR 12; R v Verma (1987) 30 A Crim R 441)."

Finally, in Milton, Hidden J, with whom Tobias JA and Greg James J agreed, said:

"[25] As far as the ground concerning the refusal to order separate trials is concerned, the real question on appeal is whether, in the event, it appears that the joint trial was unfair: R v Guldur (1986) 8 NSWLR 12, per Street CJ at 15; R v Verma (1987) 30 A Crim R 441, per Hunt J at 445. For present purposes, that requires an examination of the question raised by the second ground, that is, whether the evidence of the two complainants passed muster as tendency evidence."

See also R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [28].

The reasoning in these cases is explicitly directed to the actual decision which is the subject of this appeal, ie, a decision as to whether to order separate trials. In my view, the reasoning is equally applicable to the ruling which underpinned the conclusion in the present case, ie, the decision on admissibility, insofar as it distinguishes the degree of appellate restraint applicable at an interlocutory stage from the position in an appeal against conviction.

Conclusion

As a matter of principle, and on the basis of the case law concerned with separate trials, an appeal from an interlocutory judgment on an application for separate trials, is, in my opinion, subject to the degree of appellate restraint identified in House v R. It is unnecessary to go further in this case.

ALLSOP P : I have read the reasons in draft of the Chief Justice and Simpson J. Their Honours' detailed reasons enable me to express my reasons without detailed recitation of the background. I agree with the orders proposed by their Honours and I agree with the analysis of the primary judge's reasons in the judgment of Simpson J and her Honour's conclusions as to lack of error displayed in them.

This is an application for leave to appeal under the Criminal Appeal Act 1912 (NSW), s 5F(3)(a) and the appeal thereunder should leave be granted, heard concurrently. The Chief Justice and I, with the consent of the parties, have been added to the members of the bench because of the serious division of views apparent within this Court, the Court of Appeal of New South Wales and other intermediate appellate courts of the Federation about the nature of appellate review of a decision under the Evidence Act 1995 (NSW), s 97 and similar provisions in other polities. The matter is of importance not only for the admissibility of evidence in the administration of the criminal law, but also the civil law, for those polities that have passed laws conformable with the Evidence Act . Ordinarily, one would need to say little more to justify a grant of leave to appeal in order that the bench of five judges could have the opportunity of clarifying law, at least insofar as it is administered in this State.

Nevertheless, the nature and context of the leave application and the proper approach to applications under s 5F warrants some consideration in order to decide whether leave should be granted. The nature and context of the leave application has been dealt with by Simpson J in her Honour's reasons. I do not repeat them.

This Court has expressed itself on a number of occasions about the extent of, and the proper approach to, applications under s 5F. Section 5F is not available to review a decision as to the admissibility of evidence, such not being "an interlocutory judgment or order": R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; Steffan v R (1993) 30 NSWLR 633 at 636 and 639; R v Bozatsis (1997) 97 A Crim R 296 at 302 and 304; R v Glossop [2001] NSWCCA 165 at [15]-[19]; R v F [2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15].

It is undoubted that in applications under s 5F substance, and not mere form, should prevail: Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323 at 329 [25]. This has been the foundation of the Court's approach, for instance, to applications for leave to appeal from orders in respect of stay applications that are founded significantly, or wholly, on contested rulings on evidence. The general (though not necessarily invariable) approach in such cases is to refuse leave to appeal: Steffan at 640-641; R v Marchione [2002] NSWCCA 131; 128 A Crim R 574 at 577 [18] (per Bell J, with whom Heydon JA and Dowd J agreed); and Gedeon at [24].

That the substance of the complaint about the ruling on the separation of the trials was directed to how the primary judge approached his task on the Evidence Act , in particular s 97 (though necessarily taking into account s 101), cannot be doubted. The reasoning of his Honour in relation to the evidence before him (being statements embodying expected evidence of the makers of the statements) was determinative of his Honour's conclusion in refusing to order separate trials in the three relevant matters and thus dismissing the motion in that respect. This consideration does not, and cannot, however, transform the legal form of the application before the Court. By using the word "legal", I should not be understood to be retreating into formalism. The application for leave to appeal (and any related appeal) is (and are) in respect of, and against, orders of the District Court, not its reasons. In form and in substance, this is an application for leave to appeal and an appeal in respect of, and against, the District Court's refusal to make orders to separate certain trials consequent upon hearing the notice of motion brought by the accused for separate trials. It is the failure to make an order for separation in relation to counts 3 to 7 inclusive and 9 to 18 inclusive that must be examined. The order involved a matter of procedure. That brings with it the well-known rules of restraint in interference: In re the Will of Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 7; 148 CLR 170 at 177. The considerations of restraint to which Sir Frederick Jordan adverted in In re the Will of Gilbert and to which Gibbs CJ, Aickin J, Wilson J and Brennan J referred in Adam P Brown Male Fashions at 177 will generally be relevant in the decision whether to grant leave to appeal. At that point, and for that purpose, one can approach the relevant issue by requiring not only the demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice. Leave can be refused even if an error of principle has been disclosed, because of the kinds of considerations referred to by Jordan CJ in In re the Will of Gilbert at 323 and by Gibbs CJ, Aickin J, Wilson J and Brennan J in Adam P Brown Male Fashions at 177.

If, however, leave is granted, what is then before the Court is moulded by the relevant statutory provisions by reference to which the judicial task is formed: here, the Criminal Appeal Act , s 5F. The nature of the interlocutory order that is the subject of appellate review will assist in the formulation of the approach of the appeal court by reference to its powers under the provision providing for appeal. Here, the order made not to separate trials is still a procedural question involving a true discretion in the sense of a power involving a choice for or in respect of its exercise even though the condition for its exercise may have been established: F C Hutley "Appeals within the Judicial Hierarchy and the Effect of Judicial Doctrine on Such Appeals in Australia and England" (1976) 7 Sydney Law Review 317; R Pattenden " The Judge, Discretion, and the Criminal Trial " (Oxford, Clarendon Press, 1982) at pp 3-6; and see Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at 138-139 [37]-[40].

As what might be termed an undoubted discretion, the grounds of appellate review (once leave has been granted) are governed by House v The King [1936] HCA 40; 55 CLR 499 at 504-505. There must be error shown in exercising the discretion: acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or, in circumstances where no specific error of such kind can be demonstrated, where the result is, upon the facts, unreasonable or plainly unjust such that it can be inferred that there has been some error or miscarriage in the exercise of the power. (It is unnecessary to explore the similarities in source and content of these principles of review of a "true" judicial discretion and judicial review of acts of executive power: see the comments in Dwyer v Calco Timbers at 138 [39].)

At one level of analysis, here, what has occurred can be viewed as a refusal to split the trials in question with a body of reasons for such refusal. Those reasons also amount to a body of reasons that may be sufficient for a ruling on evidence (although no express ruling on evidence was made). If the matter is viewed in this way, there is an order in the nature of a ruling on practice and procedure accompanied by reasons which are reviewable by reference to House v The King principles. On this basis, one would look at the reasons of the primary judge (which in another context would suffice for his reasons for admissibility) and ascertain whether there has been any error of principle or any other error contemplated by House v The King .

This way of approaching the matter does not require the venturing of an opinion on the proper standard of appellate review as to a ruling on evidence under s 97. The decision in question is discretionary; review of such is based on error of principle; and no such error of principle is shown in the reasons (which would be otherwise sufficient for the admission of certain tendency evidence). The reasons were directed to written statements, which were not tendered as exhibits in the trial; rather they contained a written record of evidence expected to be given by the makers of the statements. On the basis of considering that expected evidence to be given by the persons in question, the primary judge came to a view about the separation of the trials. If evidence is given in the trial in accordance with the record contained in the statements, it may be accepted for present purposes that the primary judge (or another judge) may well follow or adopt the reasons of the primary judge when the evidence comes to be given. That, however, does not change the nature of what is before the Court for review under s 5F.

On this basis, at this point in the resolution of the controversy, the decision not to order separate trials based on the reasons directed to expected evidence is reviewable on the grounds of House v The King . For the reasons given by Simpson J, there was no error displayed in the making of that discretionary decision.

If, contrary to this view, it is necessary to review an effective ruling on evidence under ss 97 and 101 as the central and determinative consideration leading to the orders, it is necessary to decide the correct standard of appellate review for this question.

The appeal under s 5F has been held to be an appeal by way of rehearing for the reasons discussed by Basten JA (with whom Grove J and Howie J agreed) in Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 at [11]-[13] and further discussed by Campbell JA in R v Ford [2009] NSWCCA 306 at [69]-[72]. A contrary view was expressed by Hunt CJ at CL in R v BWM (1997) 91 A Crim R 260 at 265. Neither the Chief Justice nor Hidden J agreed with that part of his Honour's reasons. Given the views that I have as to the proper standard of appellate review of the questions under s 97, a resolution of this important question is unnecessary, as it was for Gleeson CJ and Hidden J in BWM . For the purposes of analysis, I am prepared to assume the correctness of Norvenska .

An appeal by way of rehearing must be undertaken by reference to the subject decision. The character of that underlying decision will affect how the appeal court approaches its task. For instance, if the decision below is a discretion, there is no doubt that the appeal court (undertaking an appeal by way of rehearing) must approach the matter by applying House v The King. This, as I would apprehend it, was the Chief Justice's point in BWM .

Thus, on this hypothesis, this Court has to consider the correctness of the primary judge's approach to ss 97 and 101, by reference to the correct standard of appellate review for such questions. More particularly, on this hypothesis, one needs to ascertain whether, from the correct perspective of an appellate court, his Honour correctly concluded the question of admissibility.

The reasons of the Chief Justice identify the conflict between the two lines of authority in respect of s 97: one epitomised by R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 and R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 that the decision is reviewable on appeal only on the principles stated in House v The King (see also Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 at [74]-[75]; AW v R [2009] NSWCCA 1 at [45]); the other epitomised by the judgment of Campbell JA in Ford (see also L v Tasmania [2006] TASSC 59; 15 Tas R 381 (per Underwood CJ at [55], Crawford J at [79]-[85] and Tennent J at [86]-[87]) and PNJ v DPP (Vic) [2010] VSCA 88 at [16]).

The essence of the difference between the two lines of authority on s 97 (at the risk of oversimplification) is the extent to which the matter involved is one of degree and evaluation leaving room for legitimate differences of view (and thus akin to a type of discretion using that word in the sense discussed in Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 518) or is one of logic and evaluation as to the meeting of a legal standard.

The degree of intensity of review on appeal of any particular question depends upon a number of things - the terms of the statutory provision providing for appellate review, the nature of the question under review, the need to discern error, the respective advantages and disadvantages of the court below and the appeal court and, implicitly, a degree of legal policy (though the last matter is rarely explicated). I strongly agree with the Chief Justice that labels are apt to mislead in this context, most particularly the word "discretion" and the phrase " House v The King review" as an alternative to " Warren v Coombes review" as the exhaustive universe of alternatives (which they are not).

The law undoubtedly provides for a variety of levels or degrees of scrutiny for appellate review of different questions. A discussion of a number in respect of which there is no doubt about the relevant test is helpful in illuminating the relevant factors to take into account.

The apportionment between a plaintiff and a defendant of their respective shares in the responsibility for damage under apportionment legislation concerned with what is "just and equitable" is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and of relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 532 quoting from the speech of Lord Wright in British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. The High Court in Podrebersek then said: "Such a finding, if made by a judge, is not lightly reviewed". Thus, for the High Court it was the nuanced choice involved in the weighing and balancing of factors which effectively gave a choice to the judge from a legitimate range of possibilities, none of which could be said to be legally wrong.

It is of interest to recognise that British Fame was a collision case in Admiralty where the kind of question in issue - the assessment of fault of the masters and ships involved was entrusted to (generally) highly experienced Admiralty judges routinely (if not invariably) assisted by experienced seafarers and pilots in the form of Elder Brethren of Trinity House in the making of such value judgments. Their expertise in making such judgments was to be relied on in the encouragement of prompt and reliable decision-making for the benefit of an important Imperial and international industry and its insurance market. In the two sentences immediately prior to those quoted by the High Court in Podrebersek Lord Wright said (at 201):

"[I]t would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense."

See also The 'Peter Benoit ' (1915) 84 LJ (P) 87; The 'Karamea ' [1921] P 76 at 78; Kitano Maru (Owners) v Otranto (Owners) [1931] AC 194 at 204.

The policy questions that may be seen to lie behind this approach to the adjudication of collision cases in Admiralty are not relevant here and need not be discussed. Nor were they relevant to the High Court's statement of approach in an ordinary contributory negligence decision in personal injuries claims in Podrebersek . Though, it is to be noted that their Honours in the High Court qualified what they said by the phrase "if made by a judge".

In Singer v Berghouse [1994] HCA 40; 181 CLR 201, in dealing with the first stage of the analysis of the task under the Family Provision Act 1982 (NSW), ss 7 and 9 (being the preconditional satisfaction of the Court of the state of affairs set out in s 9(2)(a): "satisfied that ... the provision (if any) made in favour of the eligible person by the deceased is ... inadequate for the proper maintenance, education and advancement in life of the eligible person") the plurality (Mason CJ, Deane J and McHugh J) referred to the Privy Council decision in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 and the evaluative character of "proper" and "adequate", especially the former. Their Honours expressed the view at 210-211 that the question is "strictly one of fact, notwithstanding that it involves the exercise of value judgments". The reference to "strictly one of fact" can be seen by reference to the judgment of Mason J in White v Barron [1980] HCA 14; 144 CLR 431 at 441-443 to be in contradistinction to a "discretionary judgment". (See the contrary in the view of the Privy Council in Bosch at 480 and see also Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 502 and 509.) Nevertheless, despite the contradistinction, the plurality in Singer v Berghouse accepted that the value judgment was of much the same kind as a sound discretionary judgment for decisions such as concerned the assessment of pain and suffering or loss of amenities of life in general damages. What was important was the relativity of the standard for assessing "adequate" and "proper", leaving the court "to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards" (per Gibbs J in Goodman v Windeyer at 502). The plurality continued, "strictly speaking ... the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge ...": Singer v Berghouse at 211. The correct approach for appellate review was, however, that stated by Kirby P in Hunter v Hunter (1987) 8 NSWLR 573 at 576; Golosky v Golosky unreported Court of Appeal 5 October 1993 and in Singer v Berghouse unreported Court of Appeal 24 July 1992, being the principles that govern the review of discretionary decisions.

In Norbis v Norbis [1986] HCA 17; 161 CLR 513 the High Court concluded that the proper approach to appellate review of a decision by a judge under the Family Law Act 1975 (Cth), s 79 was by reference to the principles in House v The King . Mason J and Deane J said at 518:

"Here the order is discretionary because it depends on the application of a very general standard - what is 'just and equitable' - which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends."

It was not irrelevant in Norbis v Norbis that the order under s 79 was one that the judge considered in all the circumstances to be "fit", which could be made if the judge was "satisfied" that it was "just and equitable" to do so.

Other subjects of appellate review sometimes involve evaluation and judgment yet are not approached by an application of House v The King. Whether a contract is unjust for the operation of the Contracts Review Act 1980 (NSW), s 7 is a finding of fact by reference to a broad standard. As such, the decision is one open to review under Warren v Coombes [1979] HCA 9; 142 CLR 531. That does not mean, however, that error will be easily revealed or a conclusion of a primary judge lightly overturned: Antonovicv Volker (1986) 7 NSWLR 151 at 154-156; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 at 261 and 270-271 and Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [38] and [107]. The appeal court must conclude that the primary judge's conclusion (the finding called for by s 7) about injustice was wrong. That process involves an appeal by way of rehearing or review of the facts (subject to usual limitations discussed in cases such as Fox v Percy [2003] HCA 22; 214 CLR 118). The nature of the evaluation (as to injustice) is partly intuitive and not necessarily amenable to crisp identification, even to the degree that other general standards are, such as negligence. Nevertheless, it is a legal standard (together with fairness) which is immanent in the fabric of the law. The demonstration of error and the substitution of the view of the appellate court may both require, in any given case, a degree of persuasion of clarity. That said, the policy behind the Contracts Review Act and the elemental importance of the conclusion of the presence of injustice both to it and the administration of the law, might make it rare that the appeal court would conclude for itself that the contract was unjust, but not overturn a conclusion by the primary judge that it was not unjust because of considerations such as lack of force of persuasion or comity or respect. The contract is either unjust or not. That is a central consideration to the operation of the Act in the administration of the law.

Turning to the Evidence Act s 97, it is important to have regard to the text of the provision. Tendency evidence (to use a shorthand) is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind unless two preconditions are satisfied. The first is that a notice must be given in accordance with s 97(1)(a). The second is that the court "thinks that the evidence will ... have significant probative value" in accordance with s 97(1)(b).

The question of probative value is a question of relevance: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This is a matter of logical analysis in the light of the balance of posited evidence. It is a judgment or evaluation, but one by reference to a fixed clear legal standard and is not an evaluation of the kind the subject of consideration in Podrebersek, Norbis v Norbis, Singer v Berghouse or even s 7 of the Contracts Review Act. This is the case even with the addition of a qualifying adjective "significant".

That, however, is not the end of the enquiry. A statutory precondition is provided for in s 97(1)(b) that the court (that is the judge ruling on the admissibility) thinks something. That something is that the evidence "will", that is looking forward, have the required quality. I do not think that that requires predicting how a jury will react to the evidence (if there is a jury), other than through the logical assessment called for by the definition of "probative value". What is required however, as a precondition, is that the court thinks that it will have that effect in the body of anticipated or expected evidence. In the ordinary course this is a quintessential task of a trial judge dealing with the living fabric of the trial and the evidence unfolding before him or her.

In [74] of Jacara , Sackville J said:

"Moreover, the statutory language incorporates a test which, although it will normally be applied before facts have been found, involves 'a degree and value judgment' having regard both to the evidence to be adduced and other evidence adduced or to be adduced."

When recording the concession at [75], his Honour said:

"Doubtless it was for these reasons that the appellant accepted that an appellate court reviewing a decision to exclude evidence under s97(1) of the Evidence Act is to be exercised in accordance with the principles applicable to a discretionary judgment ..."

I read each of these as separate indications that his Honour was of the view that I attributed to him in Fletcher . Whitlam and Mansfield JJ agreed. In my opinion, this is substantial authority for the proposition I previously expressed. I am heartened by the endorsement of this view by both the Chief Justice and the President.

Significantly, in my opinion, Campbell JA went on, in Ford , to accept, on the basis of established authority, that "a decision" under s 101 is reviewable only on House v The King principles (at [108]-[110]). In my respectful opinion, there is, under s 101, no separate "decision". The relevant "decision" is a decision, under s 97, after the relevant tests have been applied, that the tendered evidence is, or is not, admissible. Accepting, as I reluctantly have in the past ( R v Nassif [2004] NSWCCA 433 at [46]-[47]; Fletcher at [46]-[48]; Zhang at [125]), that s 101 is a provision directed to the admission (more accurately the exclusion) of evidence, the effect of s 101 is to introduce into the s 97 decision, for criminal cases only, an additional consideration, which amounts to a further barrier or hurdle to admissibility. What is involved under s 101 is quintessentially a judgment - a judgment as to the probative value of the evidence relative to any potential prejudicial effect. That, no doubt, is why it is established that a so called "decision" (read judgment) under s 101 is reviewable only on House v The King principles.

In making that judgment, it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect. That arises from the words:

"... substantially outweighs any prejudicial effect it may have on the defendant." (bold added)

I am unable to see that the reasoning in Warren v Coombes is applicable to a decision under s 97(1). What was here done did not involve the drawing of inferences from primary facts. It involved an evaluative process.

Moreover, as the High Court emphasised (at p 537), the appeal there in question was to a court that operated under the regime provided by s 75A of the Supreme Court Act 1970, which, by sub-s (6), expressly conferred upon the appellate court the powers and duties, including the drawing of inferences and the making of findings of fact, of the primary court. There is no express equivalent power conferred on the Court of Criminal Appeal.

The decision that was reviewed in Warren v Coombes could properly be characterised as an ultimate decision. While I appreciate that the reasoning is also applicable to some interlocutory decisions, there is here no ultimate conclusion comparable with a finding of negligence, a finding that a contract is unjust, or a decision to extend (or not extend) a limitation period (see Ford , [101]). The decision to admit, or not admit, evidence is essentially procedural.

There are very good practical reasons for concluding that the legislature did not intend s 97 decisions to be reconsidered by this Court. If that were to happen, the trial process would become well-nigh unworkable. Anytime this Court took a different view from the trial judge and exercised an independent judgment, there would, without error on the part of the trial judge, have to be a new trial. That would be so where the appeal followed conviction.

Finally, it is important to recognise the respective functions of the trial judge and the appellate court. This is not just a question of respecting the trial judge's view. It is a question of recognising the allocation of functions. It is the trial judge's function to make rulings on evidence. Those rulings ought not be reviewed unless they are erroneous - not because another court is in as good a position to make the decision, and takes a different view.

Accordingly, I am of the firm view that the determination of the correctness or otherwise of the decision by Bozic DCJ that the evidence was admissible ought to be reviewed in this Court on the application of the principles stated in House v The King.

However, since there is clearly a difference of opinion, I will also express my views on the alternative scenario, review in accordance with Warren v Coombes .

In my opinion, the first question posed for himself by Bozic DCJ is somewhat superfluous. As defined in the Dictionary to the Evidence Act , tendency evidence is evidence of a kind referred to in s 97(1) which is tendered for the purpose referred to in that sub-section - that is, evidence that is tendered to prove that a person had a specified tendency. Whether it is capable of establishing such a tendency, and whether it does establish such a tendency, are different issues that do not raise questions of admissibility (other than, perhaps in the case of incapacity to establish tendency, of relevance). I have previously ( Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233; R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 ) expressed the view (to which I adhere) that tendency evidence is no more than a building block or stepping stone to provide the foundation for an inference that, on an occasion relevant to the proceedings, a person behaved in a particular way or had a particular state of mind. If it is not a species of circumstantial evidence, it is analogous thereto (see Re DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; 28 FCR 597 predating the Evidence Act and in the context of what was then known as "similar fact" evidence, per Gummow J). The foundation provided by the tendency evidence may be strong or weak, depending upon the nature of the evidence. The only qualification is that, to be admissible, its probative value must not be so weak as to be bereft of "significance". The level of generality of the evidence may affect the significance of its probative value: Townsend v Townsend [2001] NSWCA 136; Ibrahim v Pham [2007] NSWCA 215; Ford at [53].

I respectfully take issue with the statement by Howie J in R v Harker [2004] NSWCCA 427 at [57]:

"... tendency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion." (bold added)

My difficulty with that formulation lies in the words "in the same way". Evidence of a tendency may cast light on the conduct or state of mind of a person without being evidence of conduct of the same kind: see Fletcher at [67], Ford at [38] and [41]-[44]. Similarity or dissimilarity in the nature of the conduct alleged is relevant to the assessment of both whether the evidence has probative value, and, if so, whether it is significant. If the evidence has significant probative value (and, in a criminal case, subject to s 101) it is admissible.

In R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228, Spigelman CJ pointed out that, by reason of the terminology of the Dictionary definition of "probative value", the focus is on the capacity of the evidence to have the effect specified. Assessment of the probative value of the evidence does not depend upon any assessment of its credibility or reliability, nor on any prediction of the likelihood that a jury would accept it.

It is to be borne in mind that a decision to admit evidence as tendency evidence is not the final step in the process. Such a decision merely opens a gate to enable the tribunal of fact to consider the import of the evidence. The actual probative value ultimately to be ascribed to the evidence lies within the province of the jury ( Fletcher , at [33]).

For the purpose of s 97, the real question is whether the evidence is capable, to a significant degree, of rationally affecting the assessment (by the jury) of the probability of the existence of a fact in issue.

That naturally calls for identification of the "fact in issue", the assessment of the probability of the existence of which is said to be affected by the evidence.

In respect of each allegation, two facts can be postulated as relevant facts in issue: first, that the applicant conducted himself as alleged; secondly, that, in doing so, he acted with a sexual purpose or motivation.

It could scarcely be contested that evidence that showed that the applicant had a sexual interest in, and attraction to, adolescent boys had probative value in respect of an allegation that he had sexually abused another adolescent boy. Probative value is established. The next question is whether that value was sufficient to qualify as "significant".

In written submissions, senior counsel for the applicant identified as "the primary submission":

"7. ... that his Honour erred in applying R v PWD by a comparative analysis ... rather than R v Barton [[2004] NSWCCA 229]."

It is necessary, therefore, to turn to each of those decisions.

PWD involved allegations by four students at a private school of sexual offences by the music teacher, later principal. The sexual misconduct alleged took different forms, including rubbing the thighs of one complainant while playing the piano, touching another while lying with him on a bed, fully clothed, and, with another complainant, mutual fellatio. The Crown proposed to adduce, as tendency evidence, the evidence of each complainant in the trials of each other allegation, and also evidence of two other witnesses in respect of whom no charges were laid. The tendency relied upon by the Crown was:

"... to have a sexual interest in young male students, to engage in sexual activities with young male students, and use his position of authority to obtain access to young male students so that he could engage in sexual activity with them. ([34])

As in the present case, the Crown did not rely upon "striking similarities" but upon pattern.

The trial judge, having determined that the evidence would not be admitted as tendency evidence, ordered separate trials of each complainant's allegations. The reason for the rejection of the evidence was a finding that the evidence did not have significant probative value. (The trial judge also would have rejected the evidence under s 101.) In short, it seems, the trial judge reached this conclusion because of the divergent nature of the conduct alleged by the various complainants.

This Court upheld a Crown appeal under s 5F(3A) of the Criminal Appeal Act against that decision. Beazley JA reviewed the authorities in relation to tendency evidence in cases of a similar nature. She then said:

"88 In my opinion, the evidence of the four complainants and the other two tendency witnesses is capable of rationally affecting the assessment of the probability of the respondent having engaged in the conduct alleged and had a sexual interest in doing so. So much was found by the trial judge. That evidence has significant probative value in the determination of the question whether the individual allegations should be accepted. The likelihood that such conduct occurred in relation to the other complainants and tendency witnesses would make it more likely that the respondent acted in the way alleged in respect of each particular complainant. It is evidence which also has significant probative value in rebutting the suggestion that the respondent's relationship with each of the complainants was innocent."

It was this reasoning which Bozic DCJ adopted in his decision.

Barton was an appeal against conviction. The appellant was a youth worker at a juvenile institution. In early 2000 he was charged with sexual offences against seven inmates, said to have been committed over a period spanning 1985 to 1991. The trial judge refused an application for separate trials. He allowed the evidence of each complainant to be used as tendency evidence in respect of the allegations by each other complainant. The jury convicted on all counts.

This Court (Grove J, with whom Dunford and Kirby JJ agreed) upheld the appeal and ordered a new trial. It is to be noted that, in opening his judgment, Grove J observed that the appellant had been custody since the jury verdict almost two years earlier, and that, as he had concluded that there should be a new trial, he proposed to record his reasons "without dilating upon every facet of argument canvassed at the hearing in order to avoid the delay which elaboration would entail" (at [1]).

His Honour posed the question to be answered as follows:

"10 On the issue of tendency, it was in this case necessary to ask whether allegations of conduct of a lesser degree of seriousness ... such as watching the boys whilst they showered, being alone in their cabins with them, touching their bodies including genitals whilst applying lotions for skin disorders or, on one occasion, examining an anus for haemorrhoids ... should be admitted as probative of allegations of masturbation, fellatio and anal intercourse ..."

He said:

"14 The learned trial judge did not discriminate between the actions of lesser and those of greater degree of seriousness. Between the two assemblages of described conduct, there was no discernible pattern or 'signature'. There must have been a real risk that the jury would conclude guilt on the basis of a general impression that the appellant had some sexual interest in the complainants rather than focussing upon the necessity for proof of the actual offences charged. Whilst evidence of such an interest could well be probative in the sense of rebutting suggestions of misapprehension on the part of the complainants or of accidental touching, it could not have that quality when considering the very serious allegations concerning [he named two complainants]. The same conclusion is reached whether the evidence is looked at in terms of tendency or coincidence."

Notwithstanding the penultimate sentence, it seems to me that his Honour reached his decision on the basis of s 101, and not of s 97. At [11] he said:

"The evidence of acts of the lesser degree of seriousness can only be admissible as tendency evidence in proof of the more serious acts if they have probative value substantially outweighing their prejudicial effect."

That is an application of the s 101 test. Section 101 arises only if the s 97(1) hurdle has been cleared by the party tendering the evidence - in a criminal case, the Crown. Grove J then referred to Pfennig v The Queen [1995] HCA 7; 182 CLR 461.

Each of these cases was decided by the Court on the application of stated principle to its own facts. The question posed by Grove J in [10] of Barton is one of, firstly, the capacity of the less serious allegations to prove the more serious, and, secondly, if that capacity were established, the significance of the evidence.

The passage relied upon in PWD is merely the application to the facts of that case of the principles Beazley JA had already expounded. There is nothing in either case that bound Bozic DCJ to reach the same result. Barton and PWD are illustrative of the divergence of facts and circumstances that will inevitably result in different outcomes without any misapplication of principle.

The salient feature in Barton was the wide diversity in the seriousness of the allegations made. It was that that moved Grove J to apprehend a risk of misuse of evidence by the jury. That is what distinguishes Barton from PWD . The conduct the subject of the charges in PWD is set out at [7]-[33]. In my opinion, it, too, displays significant differences in the level of gravity. A number of charges alleged rubbing and touching; the most serious alleged mutual fellatio. Yet that does not appear to have been the basis of the argument put on appeal, which concentrated, rather, upon the nature of the sexual activity alleged rather than its relative seriousness: see [54].

There is no substance in the complaint that the decision in Barton , rather than that in PWD , ought to have dictated the result.

In the present case, although the precise nature of the conduct alleged by SM and JC was different (in particular, the spitting incident), it does not display a glaring difference in seriousness. As was argued on behalf of the applicant in support of his alternative contention (that the trial of MB's allegations ought to be separated from the trial of the allegations of SM and JC), the conduct of which MB accuses the applicant is of a markedly more serious order - masturbation and fellatio.

On one reading of paragraph [11] of Barton , Grove J may be taken as suggesting that acts of "the lesser degree of seriousness" can, if they meet the s 101 test, establish probative value, but (by implication from omission) acts of a greater degree of seriousness do not go to establish proof of acts of a lesser degree of seriousness. I do not believe that his Honour intended to draw that distinction. Evidence of more serious conduct may support allegations of less serious conduct just as evidence of less serious conduct may support allegations of more serious conduct. Each case will depend upon its own facts; the probative value of the evidence in each case will be determined after assessment by the trial judge.

In my opinion Bozic DCJ correctly weighed up the competing considerations, and reached the view that the evidence of SM, JC and MB could have interconnecting significant probative value.

Similarly, his Honour correctly applied s 101. This was a classic balancing exercise (see R v O'Keefe [2009] NSWCCA 121 at 46 per Howie J).

There is no misapplication of principle. There is no basis for concluding that Bozic DCJ was influenced by extraneous or irrelevant matters, mistook the facts, or failed to take into account any material consideration. The decision is not unreasonable or plainly unjust. I appreciate that, with respect to the applicant's alternative position (that the trial of MB's allegations be separated from the trial of the allegations of SM and JC), the gravity of the allegations and of the resultant charges, the case is potentially stronger. However, Bozic DCJ took into account all relevant circumstances, and his decision is one that was entirely open to him.

I turn now to consider the position if I were exercising an independent consideration of the admissibility of the evidence. I see no reason to come to any different decision. In my opinion, as I have set out above, the evidence showing that the applicant had sexual attraction to one adolescent boy had probative value in relation to allegations by each of two other adolescent boys of sexual misconduct towards them. I am satisfied that that evidence that probative value is significant. I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have. I accept that there will be some prejudicial effect. It is not unfair prejudice, and is perfectly capable of being ameliorated by appropriate directions which the trial judge will give to the jury.

Since initially preparing my reasons, I have been able to read in draft the judgment of the Chief Justice. I regret that I am unable to agree that the test that applies where the review takes place under s 5F is different from that which applies on appeal after conviction. In my opinion, any difference in approach ought to be reflected in the decision to grant or refuse leave under s 5F(3). Once leave is granted, the Court has before it an appeal in the usual way.

That may have potential consequences for those who seek leave to appeal under s 5F. In my opinion a real question exists as to whether, if leave is granted, and the appeal dismissed, that issue is foreclosed, in the event of conviction, from any appeal against that conviction. That is because the very issue has been determined. That is not to say that, if circumstances change, and the evidence elicited is not that which was anticipated at the time of the interlocutory ruling, and the basis on which that judgment was made, the applicant would be deprived of any appellate review. But the appellate review would be on the basis of a miscarriage of justice (see s 6 Criminal Appeal Act ) and not on the basis of this Court reconsidering its own decision. It would be invidious if a second bench of this Court were to rule upon the correctness of a decision of an earlier bench.

Should leave to appeal be granted?

It has not been the practice of this Court to apply a two-step process to applications for leave to appeal under s 5F of the Criminal Appeal Act . As long ago as 1989 Gleeson CJ suggested that it may be appropriate to consider the adoption of such a procedure: see R v Matovski (1989) 15 NSWLR 720 at 721-722. This is a case in which, in my opinion, the question has real significance. In part, that is because the real issue litigated on the application is a question concerning the admissibility of evidence, a question in which this Court will not ordinarily engage on such an application: see R v Groves (NSWCCA, 2 April 1990, unreported). In part, it is because insufficient basis has been shown to question the correctness of the ruling.

Because of the importance of the question concerning the approach to be taken in judicial review of a decision to admit (or, indeed, reject) evidence tendered under s 97, and for that reason only, I would grant leave to appeal. It should not be thought that, in future cases, where the substance of an application to this Court under s 5F(3) is an appeal against an evidentiary ruling, leave will readily be granted.

I propose that leave to appeal be granted but that the appeal be dismissed.

KIRBY J : I have had the advantage of reading the reasons for judgment in draft of the Chief Justice, the President and Simpson J. I agree with the orders proposed by their Honours. I also agree with the analysis of the primary Judge's reasons in the judgment of Simpson J and her Honour's conclusions as to the absence of error displayed by such reasons. In addition I respectfully agree with the comments made by the Chief Justice and Allsop P concerning the nature of the appeal.

SCHMIDT J : I have had the advantage of reading the judgments of Spigelman CJ, Allsop P and Simpson J in draft. I agree with the orders which they propose. I, too, agree with Simpson J's analysis and the conclusions on which the proposed orders rest . It is unnecessary that I add to the reasons which have been given for those conclusions.

As to the possibility of another appeal after conviction, I wish to make only this observation. The trial judge's ruling rested on views reached pursuant to ss 97(1)(b) and 101 of the Evidence Act as to the probative value of anticipated evidence. As the Chief Justice observes, that is a ruling which may be revisited during the course of the trial, as the evidence unfolds. Any post conviction appeal brought under ss 5(1) and 6(1) of the Criminal Appeal Act , if that results, would arise to be determined on the basis of the evidence received at trial. It is unnecessary to deal with that possibility on this appeal, other than to observe that should the same issue as to admissibility of evidence be raised in a post conviction appeal, as has already been determined in a s 5F appeal, considerations of the kind discussed in Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417; (1994) 68 ALJR 688; (1994) 74 A Crim R 462 as to issue estoppel would appear to arise for consideration.

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Amendments

01 February 2013 - corrected date of decision under appeal

Amended paragraphs: coversheet

11 July 2012 - corrected date of decision under appeal

Amended paragraphs: coversheet

Decision last updated: 01 February 2013

Medium Neutral Citation:	DAO v R [2011] NSWCCA 63
Hearing dates:	9 November 2010
Decision date:	01 April 2011
Before:	Spigelman CJ at 1; Allsop P at 71; Simpson J at 108; Kirby J at 211; Schmidt J at 212
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal - interlocutory orders - s 5F(3) Criminal Appeal Act 1912 - order for joint trial - sole issue determinative of appeal concerns admissibility of tendency evidence - whether leave ought to be granted - approach to judicial review of decisions on admissibility of evidence under s 97 Evidence Act - leave granted - appeal dismissed CRIMINAL LAW - appeal - jurisdiction of the Court - ruling on admissibility of evidence not "interlocutory judgment or order" within s 5F - order for joint trial - jurisdiction established CRIMINAL LAW - appeal - interlocutory orders - standard of appellate review of decisions on admissibility of evidence under s 97 Evidence Act - conflict of authority - whether reviewable under principles in House v The King [1936] HCA 40; 55 CLR 499 or Warren v Coombes [1979] HCA 9; 142 CLR 531 - characterisation of decision - practical considerations CRIMINAL LAW - appeal - whether test applicable for review under s 5F different from test on appeal following conviction - whether a decision under s 5F precludes further consideration under s 5(1) and s 6(1) Criminal Appeal Act EVIDENCE - tendency - s 97 and s 101 Evidence Act - whether a decision under s 101 is a "separate decision" - whether evidence of more serious conduct can support allegations of less serious conduct and vice versa - no misapplication of principle EVIDENCE - tendency - sexual offences - pattern of behaviour - sexual interest - vulnerability of particular complainants - "grooming" for sexual exploitation - whether probative value "significant" - no unfair prejudice WORDS AND PHRASES - "judgment" - "discretion"
Legislation Cited:	Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 7; 148 CLR 170 AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Alexandroaia v R (1995) 81 A Crim R 286 Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Antonovicv Volker (1986) 7 NSWLR 151 AW v R [2009] NSWCCA 1 Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 Buck v Bavone (1976) 135 CLR 110 Can v R [2007] NSWCCA 176 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 Director of Public Prosecutions v MD [2010] VSCA 233 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 EK v R [2009] NSWCCA 4; 75 NSWLR 302 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Fox v Percy [2003] HCA 22; 214 CLR 118 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Gedeon v R [2009] NSWCCA 278 Golosky v Golosky (NSWCA, 5 October 1993, unreported) Goodman v Windeyer [1980] HCA 31; 144 CLR 490 Guldur v R (1986) 8 NSWLR 12 House v The King [1936] HCA 40; 55 CLR 499 Hunter v Hunter (1987) 8 NSWLR 573 Ibrahim v Pham [2007] NSWCA 215 In re the Will of Gilbert (dec) (1946) 46 SR (NSW) 318 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 JLS v R [2010] VSCA 209 Kitano Maru (Owners) v Otranto (Owners) [1931] AC 194 Kocer v R [2006] NSWCCA 328 L v Tasmania [2006] TASSC 59; 15 Tas R 381 MA v R [2011] VSCA 13 Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 Norbis v Norbis [1986] HCA 17; 161 CLR 513 Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 NSW Crime Commission v Vu [2009] NSWCA 349 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Pfennig v The Queen [1995] HCA 7; 182 CLR 461 PNJ v Director of Public Prosecutions [2010] VSCA 88 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 R v Annakin (1989) 17 NSWLR 202 R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428 R v Batiste (1994) 35 NSWLR 437 R v Blick [2000] NSWCCA 61; 111 A Crim R 326 R v Bozatsis (1997) 97 A Crim R 296 R v BWM (1997) 91 A Crim R 260 R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428 R v Cittadini [2008] NSWCCA 256; 189 A Crim R 492 R v Cook [2004] NSWCCA 52 R v Douglas [2000] NSWCCA 275 R v Edelsten (1989) 18 NSWLR 213 R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 R v F [2002] NSWCCA 125; 129 A Crim R 126 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Ford [2009] NSWCCA 306; 273 ALR 286 R v GAC [2007] NSWCCA 315; 178 A Crim R 408 R v Georgiou [1999] NSWCCA 125 R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 R v Glossop [2001] NSWCCA 165 R v Gordon [2004] NSWCCA 45 R v Groves (NSWCCA, 2 April 1990, unreported) R v Harker [2004] NSWCCA 427 R v Lavender [2002] NSWCCA 511; 37 MVR 491 R v Lock (1997) 91 A Crim R 356 R v Lockyer (1996) 89 A Crim 457 R v Marchione [2002] NSWCCA 131; 128 A Crim R 574 R v Marshall [2000] NSWCCA 210; (2000) 113 A Crim R 190 R v Matovski (1989) 15 NSWLR 720 R v Merritt and Roso (1985) 19 A Crim R 360 R v Milton [2004] NSWCCA 195 R v Nassif [2004] NSWCCA 433 R v O'Keefe [2009] NSWCCA 121 R v PJG [2005] NSWCCA 306 R v Powch (1988) 14 NSWLR 136 R v PWD [2010] NSWCCA 209 R v Rima [2003] NSWCCA 405; (2003) 145 A Crim R 27 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Sood [2007] NSWCCA 214 R v SRJC [2007] NSWCCA 142 R v Steffan (1993) 30 NSWLR 633 R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 R v Wright (1990) 90 Cr App R 325 R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 Re DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; 28 FCR 597 Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 Rex v Gibbins and Proctor (1918) 13 Cr App R 134 Rex v Grondkowski [1946] 1 KB 369 Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417; (1994) 68 ALJR 688; (1994) 74 A Crim R 462 Rogerson v R (1990) 45 A Crim R 253 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49; (2001) 207 CLR 72 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Samadi and Djait v R [2008] NSWCCA 330; (2008) 192 A Crim R 251 Saunders v R (1994) 72 A Crim R 347 Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 Singer v Berghouse [1994] HCA 40; 181 CLR 201 Smale v R [2007] NSWCCA 328 Steffan v R (1993) 30 NSWLR 633 THD v R [2010] VSCA 115; (2010) 200 A Crim R 106 The 'Karamea' [1921] P 76 The 'Peter Benoit' (1915) 84 LJ (P) 87 Townsend v Townsend [2001] NSWCA 136 Verma v R (1987) 30 A Crim R 441 Vickers v R [2006] NSWCCA 60; [2006] 160 A Crim R 195 Vines v Australian Securities and Investments Commission [2007] NSWCA 126; (2007) 63 ACSR 505 Warren v Coombes [1979] HCA 9; 142 CLR 531 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 White v Barron [1980] HCA 14; 144 CLR 431 Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; 61 FCR 171 Zhang v The Queen [2006] HCATrans 423
Texts Cited:	F Bennion "Distinguishing Judgment and Discretion" [2000] Public Law 368 F Bennion "Judgment and Discretion Revisited: Pedantry or Substance" [2005] Public Law 707 F C Hutley "Appeals within the Judicial Hierarchy and the Effect of Judicial Doctrine on Such Appeals in Australia and England" (1976) 7 Sydney Law Review 317 R Pattenden "The Judge, Discretion, and the Criminal Trial" (Oxford, Clarendon Press, 1982)
Category:	Principal judgment
Parties:	DAO (Applicant) Regina (Respondent)
Representation:	D Dalton SC/S Torpey (Applicant) D Arnott SC/S Herbert (Respondent) Mark Diggins Solicitor (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
File Number(s):	2009/60628
Publication restriction:	Non publication of any information or material that may lead to the identification of the complainants (s 15A Children (Criminal Proceedings) Act 1987)
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-11-04 00:00:00 Before: Bozic DCJ File Number(s): 2009/60628