KMJ v Tasmania
[2011] TASCCA 7
•22 June 2011
[2011] TASCCA 7
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: K M J v Tasmania [2011] TASCCA 7
PARTIES: J, KM
v
STATE OF TASMANIA
FILE NO/S: 957/2010
DELIVERED ON: 22 June 2011
DELIVERED AT: Hobart
HEARING DATE: 30 May 2011
JUDGMENT OF: Evans, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Nature of discretion – Generally – Probative value – Relevance of reliability and credibility to probative value.
Evidence Act 2001 (Tas), ss135 and 137.
R v Shamouil (2006) 66 NSWLR 228; PG v R [2010] VSCA 289, followed.
AE v R [2008] NSWCCA 52; PNJ v DPP [2010] VSCA 88, referred to.
Director of Public Prosecutions v Lynch (2006) 16 Tas R 49, distinguished.
Aust Dig Criminal Law [2676]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Generally – Unfair prejudice arising from procedural considerations.
Evidence Act 2001 (Tas), ss135 and 137.
R v Cook [2004] NSWCCA 52; R v Mundine (2008) 182 A Crim R 302; R v Suteski (2002) 56 NSWLR 182; Galvin v R (2006) 161 A Crim R 449, referred to.
Aust Dig Criminal Law [2680]
REPRESENTATION:
Counsel:
Appellant: M L Doyle and A J Hall
Respondent: D G Coates SC and J Shapiro
Solicitors:
Appellant: Beeton & Mansell Lawyers
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASCCA 7
Number of paragraphs: 43
Serial No 7/2011
File No 957/2010
KMJ v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
BLOW J
TENNENT J
22 June 2011
Order of the Court
Appeal dismissed.
Serial No 7/2011
File No 957/2010
KMJ v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
22 June 2011
The appellant appeals against his conviction for aggravated armed robbery.
The evidence that identified the appellant as one of the two perpetrators of the crime is contained in two of three audio visual recordings of statements taken by police from three witnesses. According to the statements the witnesses were present when the crime was committed. When the witnesses were called to give evidence on the appellant's trial, each gave evidence to the effect that she had no recall of the events in question.
The appellant accepts the following:
·That a portion of the statement taken from each witness constituted a prior inconsistent statement by that witness.
·That the learned trial judge did not err in granting the prosecutor leave pursuant to Evidence Act 2001, s38(1)(c), to cross-examine each witness about her prior inconsistent statement.
·That the pre-conditions imposed by s43(2) on adducing evidence of a prior inconsistent statement were satisfied in relation to each witness.
·That the portion of the statement of each witness that was admitted into evidence as a prior inconsistent statement was evidence of the facts asserted therein.
The sole ground of appeal is that by reason of s137, the learned trial judge should have refused to allow these prior inconsistent statements to be put into evidence as their probative value was outweighed by the danger of unfair prejudice to the appellant. The outcome of this ground of appeal ultimately turns upon whether the admission of the statements resulted in a miscarriage of justice. This issue is to be determined on the evidence on the trial, there being no complaint about the learned trial judge's summation. For this reason, there is no occasion to review the learned trial judge's reasons for admitting the statements into evidence, and the evidence given on the voir dire referrable to their admission.
Section 137 provides that:
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
A related section dealt with in some of the authorities, to which I will refer, is s135(a), which provides that:
"The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –
(a) be unfairly prejudicial to a party…".
Before embarking on the exercise of balancing the probative value of the evidence in question against the danger of unfair prejudice to the appellant, I will canvas the relevant evidence.
The prosecution's case was that late in the evening of 1 February 2010, the appellant, another male and three females were travelling together in a vehicle in Mowbray Heights, Launceston. The appellant was driving. He was 17 years of age, and each of his companions was 15 years of age. As all those involved, including the victims, were youths, I will not use their correct names and will adopt pseudonyms for them. The names I adopt are:
· Kevin, for the appellant;
· Tom, for the other male;
· Mandy, Chloe and Tina for the three females; and
· Stewart and Alan for the victims.
Stewart and Alan gave uncontested evidence that at about 10.30pm on 1 February 2010, they were together, making their way home along Vermont Road, Mowbray Heights from their place of work, a Hungry Jack's restaurant. Stewart was riding a bike and Alan was walking. They were confronted by two young men who demanded their bags, phones and wallets. Stewart said that one of the young men was carrying a golf club and the other a pipe or something. Stewart handed them his backpack and Nokia phone. He did not have a wallet. His backpack contained his work clothes. Alan said that both of the young men were carrying golf clubs. Alan handed them his bag which was black and grey in colour, his wallet and his Nokia E51 mobile phone. His bag contained his work uniform. Stewart and Alan did not resist the robbers and the robbers did not strike them.
The indictment on which the appellant was tried included a second charge of attempting to commit aggravated robbery. He was acquitted on this charge. The alleged victim of that attempt, who I will refer to as Jack, gave evidence that at about 2am on the night in question he was walking in George Town Road, Mowbray Heights, with three female companions when a two-door blue or purple Hyundai Excel stopped nearby and two males and two females alighted. He knew the males, they were Kevin and Tom. He did not know the females. Kevin and Tom attempted to rob him. One of the females had a baseball bat. There was a third female in the car, who was yelling at the others to return to the car.
At about 4pm on 2 February 2010, police located Kevin, Mandy, Chloe and Tina in Room 17 at the North Lodge Hotel, Launceston. Property found in that room included five mobile phones, a number of bags and a number of items strewn throughout the room. The phones included a new and an old Nokia.
Chloe's prior statement
Chloe was interviewed by police at 6.38pm on 2 February 2010. In the course of a portion of her interview that was played to the jury she acknowledged that earlier that afternoon she had been located by police at the North Lodge Hotel. She said that she had only had one drink over the previous weekend and that it had not really affected her. She said that prior to going to the hotel, she and others had been driving about. She was asked whether she knew anything about an incident in Vermont Road where two males with an iron bar and a golf club had taken property that included backpacks from some people. She volunteered that they had seen two people in Vermont Road, one of whom was walking. As to what then ensued, the following is the transcript of the relevant portion of her interview that was played to the jury. I have not edited any of the transcripts I will quote from, save for making the name substitutions already mentioned.
"BK Okay. Who pointed them out?
Ch Everyone. Like everyone in the car.
BKAnd by pointing them out what, what was going to happen when they got pointed out?
Ch Get their bags and stuff like see what they have.
BK And what did happen.
Ch Um Kevin and Tom got out with weapons and I think
BK Now when you say weapons,
Ch The baseball bat and the golf club.
BK And the golf club. Okay. And who had the golf club.
Ch I don't know. I'm not sure.
BK And did Tina get of the car this time.
Ch No.
BK Any reason.
Ch I think Kevin and Tom told us to stay in the car.
BK And did you stay in the car.
Ch Yeah.
BK Right. And what did you see happen after they got out.
Ch I didn't see anything cause we were just looking straight away.
BK Did you know what was going to happen?
ChThat they were just going to get their bags, they didn't get hit. I didn't think they would hit them.
BK Did you see if they did get though or didn't get hit.
ChYeah cause Kevin and Tom come back and said they didn't hit them cause they didn't need to hit them.
BK Now what, did they bring anything back with them Kevin and Tom.
Ch Yeah a bag.
BK How many bags.
Ch Just one.
BK Just one. Okay. Can you describe the bag for me?
Ch It was a backpack a black one maybe."
She was also asked if she knew anything about an incident in George Town Road. The transcript of the only portion of her interview that was played to the jury referable to that incident is:
"Ch Is that with the three girls and the guy.
BK Yep.
ChYeah we were driving past and the girls yelled out something so we stopped, we turned, we got Kevin, us girls got Kevin to turn around and yeah we pulled up beside them and asked what their problem was and yeah and then the guy, Tom and Kevin recognised the guy, it was [Jack] or that's what his name was.
BKOkay.
ChSo they got out the car."
Chloe's evidence before the jury
When initially called to give evidence, Chloe agreed that she knew Kevin, Tina and Mandy and had known them in February 2010. She recalled being in a room at the North Lodge Hotel in February 2010 with them and Tom. She said she could not remember what she had been doing before she got to the hotel on that occasion because she had "heaps of drugs and alcohol in [her] system". She denied any recall of being in a motor vehicle with them. Following this evidence, the prosecutor applied for and obtained leave to cross-examine her. When cross-examined she agreed that police had come to the hotel room at the North Lodge Hotel where she had been with Kevin, Tom, Tina and Mandy, and that she had left the hotel with the police. She denied any recall of having been interviewed by police at 6:30pm that same day. She denied any recall of questions and answers put to her in the course of the police interview. Counsel for the appellant did not cross-examine her.
Mandy's prior statement
The police interview with Mandy commenced at 7pm on 2 February 2010. In the course of the portion of her interview that was played to the jury she agreed that at approximately 4.05pm that afternoon police had located her in room 17 at North Lodge where she was with Chloe, Tina, Kevin and Tom. She acknowledged that she could tell the police about an armed robbery that had occurred the previous night at about 10.30pm in Vermont Road. The transcript of the portion of her interview which followed that acknowledgment, and which was played to the jury, is:
"AM What can you tell me about it
MaUm they stopped their car, the car, they saw the two boys, Kevin and Tom got out, we all stayed in the car and just sat there an then they stole what they wanted and just run back to the car and drove off
AM Yep. Ok so prior to the car stopping, who were you with.
Ma Just the same people in the car.
AMSame people being Tom, Tina, Kevin and Chloe and what car were you in.
Ma Um at that time, the purple one, the.
AM A maroon Hyundai
Ma Yep
AM Does that sound correct?
Ma Yep
AM Who was driving the vehicle?
Ma Kevin
AM Kevin.
Ma Yep.
AM Where was, where were you seated.
Ma In the back um behind the pass, behind the driver.
AM Behind the driver. Who was in the front seat?
Ma The two boy, Kevin and Tom.
AMSo Kevin was driving, Tom was in the passenger seat and who was in the back with you.
Ma There, Chloe and Tina.
AM Chloe and Tina. Was there anybody else in that car?
Ma No.
AM No. Was, where had you been prior to pulling up at Vermont Road.
Ma Just around.
AM Driving around.
Ma Yeah.
AMYep. Was there any conversation had by anybody in that vehicle about assaulting anybody, robbing anybody, getting any money, any sort of conversation whatsoever.
MaYeah like when they saw them they pull, like pull around and just jump out and go get whoever they saw.
AM Right so your driving along Vermont Road are you?
Ma Yeah, yep
AM Yep and two males have been seen walking. Is that correct
Ma Yeah on their bikes.
AM On their bikes. Who saw the males?
Ma Like Kevin and Tom.
AM Yeah and what did they say.
Ma Oh, I'm not sure but like, lets get their bags like.
AM Yep because you can't remember exact words.
Ma No.
AMWas there some sort of conversation about trying to get property off these two guys.
Ma Yes.
AM And you said before that the car was pulled over. Is that correct.
Ma Yep.
AM Where did it stop do you know.
Ma Off Vermont Road but I don't know what Street
AM Yep, it's reported to us as stopping in Murray Street off Vermont Road.
Ma Probably yeah.
AM Who got out of the vehicle.
Ma The boys.
AM Kevin and Tom.
Ma Yeah.
AMDid any, did you or any of the other two females get out of the vehicle at any stage.
Ma No.
AMWhen you saw Tom and Kevin get out of the vehicle were they carrying anything with them.
Ma Um, yeah. I think they did. They had the like whatever was in the car.
AM As in a weapon or.
Ma Yeah.
AMIt's been reported to police that an iron bar and a golf club was used. Did you seen an iron bar or a golf club?
Ma I seen the golf club but I don't know what the iron bar bit was.
AM So when the two boys have got out of the car
Ma The iron bar being the baseball bat.
AM Possibly.
Ma Yeah I think that's what it is.
AMYep. So Kevin and Tom have got out. Did they both have something in their hands or did one have something in their hands.
AMYep. Ok so they both got out, you believe Tom had something in his hands possibly the baseball bat and you, you're not too sure if Kevin had anything or not.
Ma Yeah.
AM Could you hear the boys say anything.
Ma No cause we, they parked like down a few houses and they ran up.
AM Yep. Did you see what happened.
MaUm oh well we stayed in the car and you can't really see much out of it through the back but I know that the boys just gave us the bags up. I don't, the boys didn't hit them.
AM Okay. What's happened next?
MaUm they've got in the car and just drove off like, just to go anywhere like away from there.
AM Yep.
Ma And they've just looked in the bags and found whatever they found.
AMSo when they've got back in the car how did they come back to the car, did they run, did they walk.
Ma Yeah they run.
AM Did they come back with the weapons that they'd taken.
Ma Yes.
AM And how many bags did they come back with.
Ma Two.
AM Two. What sort of bags were they.
Ma Ah just back packs.
AM Yep. Just like school bags.
Ma Yeah, yep."
Mandy's evidence before the jury
When Mandy was initially called to give evidence on the trial, she said that she had known Kevin since January 2010 and recalled being in his company in early February. She recalled having been in a room in the North Lodge Hotel in the late afternoon on 2 February, and that the others there were Kevin, Chloe, Tom and Tina. She denied any recall of having been in a Hyundai Excel with this group of people, or the events that led to her being with them in the hotel room. She said she could not remember whether she had been with them earlier in the day. She recalled leaving the hotel room with the police. Following this evidence, the prosecutor applied for and obtained leave to cross-examine her. When cross-examined she said that she could recall being interviewed by two female police officers and giving the police officers her name. She, in substance, denied any recall of questions and answers put to her during the police interview. When asked why her memory had faded she said, "it was a while ago". She was not cross-examined by the appellant's counsel.
Tina's prior statement
The police interview with Tina commenced at 11.04pm. In the portion of her interview that was played to the jury, she agreed that earlier that afternoon police had located her, together with others at North Lodge. She said that over the previous weekend she had had a couple of drinks when at George Town but that this had not affected her in any way. She agreed that over the past few days she had been in a purple four-door Hyundai Excel, and that she had first been in it two days ago. The only portion of her interview played to the jury, which was directly referable to an incident that she was told had occurred in Vermont Road near the corner of Murray Street, was her acknowledgment that this was: "Just near um, Invermay and in between Mowbray there". She said that she had not seen a black backpack in the vehicle she had been in, but had seen one in the room at the Lodge when the police arrived. The following is the transcript of a portion of her interview that was played to the jury:
"BK… Alright. Now, other property stolen included a Nokia mobile phone, a Nokia E51. And I believe that phone was actually located in the room that police searched today.
Ti Which one, was that one?
BKIt was the one involving the 2 back packs stolen from 2 male people along Vermont Road.
Ti Aw
BK And some Hungry Jack's uniforms and some black leather
Ti I was using that phone actually, that Nokia one but the one, was it real flash?
BK I think it is and it is a newer one, yeah.
TiCan you get my SIM card and my memory card out of there, and just give it back to them.
BK Ok, so you've put your SIM card in there have you?
Ti Mm, I didn't know whose phone it was though, I just used it.
BK Where did that phone come from that you know?
Ti Aw, a friend
BK Is that a friend, another person that was in the car?
Ti Aw, nah, can't recall.
BKRight. Fair to say that's the same phone that was stolen from these people during the robbery?
Ti Could be I spose.
BK And have you made
Ti Sounds like it".
Tina's evidence before the jury
When initially called to give evidence, Tina said that she knew Kevin, Chloe, and Mandy and had known them in February 2010. She said that she had stayed at the North Lodge Hotel in a room with Chloe, Mandy and Kevin on about 2 February 2010. She said she could not remember when she got to the hotel but could recall leaving with the others when the police arrested them and took them to the police station. She denied any recall of what she had been doing prior to being at the hotel that day, or what had happened in the days leading up to her being there. She said she could not recall being in a motor vehicle with Kevin, Chloe and Mandy. She said she could not remember using a mobile phone or having a mobile phone when at the hotel. Following this evidence the prosecutor applied for and obtained leave to cross-examine her. When cross-examined she denied any recall of being interviewed by two male police officers. She denied any recall of questions and answers put to her during the course of the police interview. She said she could not recall because she had been intoxicated and on drugs. The only question asked of her by counsel for the appellant was whether she confirmed that she could not remember anything at all about February 2010. She gave that confirmation.
Chloe and Mandy's evidence
The evidence contained in the prior statements of Chloe and Mandy was the only direct evidence before the jury that identified the appellant and Tom as the two youths who carried out the robbery. The effect of Chloe and Mandy's evidence was as follows.
·That prior to the robbery they, together with the appellant, Tom and Tina, had been driving around together in a vehicle driven by the appellant. Mandy said it was a maroon Hyundai.
·That in Vermont Road the vehicle stopped, and the appellant and Tom alighted in order to take bags and stuff from "some people" (Chloe) or "two males" (Mandy).
·That when the appellant and Tom left the vehicle they took with them a baseball bat and a golf club.
·That the appellant and Tom returned to the vehicle with "a backpack a black one" (Chloe) or "two back packs" (Mandy).
· That the appellant and Tom said that they had not hit the victims.
Probative value
Section 3(1), provides that "probative value means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".
An issue that has emerged on a number of occasions in authorities dealing with the assessment of the probative value of evidence for the purposes of ss135 and 137, is whether it is appropriate for a judge making that assessment to consider the credibility and reliability of the evidence, or whether such an assessment is improper and the evidence must be accepted at its highest.
Counsel for the appellant submits that the reliability of the evidence of the three female witnesses in question is significantly reduced by reason of a number of factors, and that consistent with the approach taken by this Court in Director of Public Prosecutions v Lynch (2006) 16 Tas R 49, its unreliability impacts adversely on its probative value. Counsel for the respondent submits otherwise. He contends that Lynch did not directly address the issue of the propriety of considering the reliability and credibility of evidence when determining its probative value for the purposes of ss135 or 137, and that it is clear on the basis of recent authorities that have addressed this issue, that reliability and credibility are irrelevant to the assessment of probative value.
In R v Shamouil (2006) 66 NSWLR 228, the Court of Criminal Appeal (NSW) dealt with a trial judge's rejection of identification evidence pursuant to s137 for reasons that included the trial judge's view that it was abundantly clear that the witness had either lied or made inexplicable mistakes which reduced the probative value of the evidence to the point that its residual probative value was outweighed by unfair prejudice. Spigelman CJ, agreed with by Simpson and Adams JJ, held that the trial judge had erred. In the course of dealing with the relevance of reliability and credibility to an assessment of probative value, Spigelman CJ referred to a number of authorities that can be said to adopt a restrictive approach to this assessment. They are to the effect that in order to determine probative value, the evidence must be taken at its highest; R v Singh-Bal (1997) 92 A Crim R 397 and R v Yates [2002] NSWCCA 520, it must be assumed that the evidence would be accepted, Adam v R (2001) 207 CLR 96, at [60], Gaudron J, and it must be assumed to be true; R v AB [2001] NSWCCA 496, par[17]. A contrary view referred to by Spigelman CJ was that of McHugh J in Papakosmas v R (1999) 196 CLR 297, where, at [86], his Honour said that the assessment of probative value "would necessarily involve considerations of reliability." Spigelman CJ concluded at pars[60] – [65]:
"60 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.
61 In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, 'the extent to which the evidence could rationally affect the assessment …'. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has 'probative value', as defined, if it is capable of supporting a verdict of guilty.
62 This conclusion is reinforced by the test that evidence must 'rationally affect' the assessment. As Gaudron J emphasised in Adam , a 'test' of 'rationality' also directs attention to capability rather than weight.
63 There will be circumstances, as envisaged by Simpson J in R v Cook , where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J's observations in Papakosmas that 'considerations of reliability are necessarily involved' have application.
64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen(1990) 171 CLR 207 at 215, this is not a permissible 'basis for enlarging the powers of a trial judge at the expense of the traditional jury function'. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s137.
65 This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that 'probative value' falls to be assessed by the trial judge including: tendency and coincidence evidence (ss97(1)(b), 98(1)(b), 101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and s135(c)); and the comparative weight with unfair prejudice (s135(a) and s137)."
In R v Sood [2007] NSWCCA 214, the Court of Criminal Appeal (NSW) dealt with a trial judge's exclusion of evidence that the accused had disposed of records. The prosecution contended that this evidence supported an inference of the accused's consciousness of guilt. The judge's reasons included an assessment of the probative value of the evidence in the light of competing explanations for the disposal of the records. Latham J, agreed with by Ipp JA and Fulteron J, revisited a number of the authorities that had been considered by Spigelman CJ in Shamouil and concluded, consistent with Shamouil, that the probative value of evidence sought to be excluded under s137 is to be assessed by taking the evidence at its highest. Latham J did not however accept the qualification placed on this proposition in par[63] of Shamouil. That qualification was said in Shamouil to be consistent with Simpson J's judgment in R v Cook [2004] NSWCCA 52, the qualification being that there may be limited circumstances in which credibility and reliability will be taken into account when determining probative value.
The basis for that qualification is an aside, made by Simpson J in Cook, in the course of dealing with a problem for the accused in that case that arose from evidence of flight. The flight evidence put the accused in the invidious position of either not explaining his flight, or providing a highly prejudicial explanation for it. In these circumstances her Honour concluded that the balancing exercise required by s137, when determining whether the flight evidence was admissible, could not be undertaken without regard to the potential impact of the accused's explanation for it; see pars[37] and [48]. Her Honour's aside related to the possibility that an accused might conjure up a preposterous but prejudicial explanation for flight in order to invoke the benefit of s137. Having reiterated, at par[36], that the probative value of the evidence of flight "can be assessed merely by examination of the evidence itself", her Honour went on to say at par[43]:
" … I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused's response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice."
In the above passage Simpson J did not suggest that in some circumstances the probative value of the evidence of flight itself could be assessed in the light of its reliability or credibility. The possibility addressed by her Honour was that an accused might give evidence of a preposterous explanation for flight in order to raise unfair prejudice. The rejection of that evidence would not involve assessing the credibility or reliability of the evidence of flight, but would involve doing so in relation to the accused's explanation. If the explanation was preposterous and the flight evidence admitted, her Honour said that essentially this would be because any prejudice to the accused from putting forward a preposterous explanation to the jury would not be unfair prejudice.
In essence, as to the performance of the requisite balancing exercise, Simpson J distinguished between assessing the probative value of the flight evidence, which had to be determined without regard to its credibility or reliability, and considering the explanation proffered by the accused that was said to raise unfair prejudice. As to that explanation, in the circumstances postulated by her Honour, she accepted that questions of credibility and reliability might apply. This distinction was identified by Latham J in Sood at par[36]. It was because of this distinction that Latham J said in Sood at par[34], that the concession made by Spigelman CJ in par[63] in Shamouil "does not however warrant a departure from an unbroken line of authority on this issue in this State"; and Latham J went on to say, at par[38], that the line of authority was "that the probative value of the evidence sought to be excluded under s137 is to be assessed by taking the evidence at its highest."
In R v Mundine (2008) 182 A Crim R 302, the Court of Criminal Appeal (NSW) dealt with the trial judge's rejection, pursuant to s137, of identification evidence for reasons which included an assessment of the reliability of the evidence. The court held that the trial judge had erred. Simpson J, agreed with by McClellan CJ at CL, and Grove J, said, at [33]:
"Although some contrary views have been expressed (see, for example Papakosmas vThe Queen (1999) 196 CLR 297 per McHugh J; R v Rahme [2004] NSWCCA 233 per Hulme J (dissenting), the prevailing wisdom is that it is not open to a trial judge, in assessing, for the purposes of s 137, the probative value of any piece of evidence, to take into account his/her evaluation of its reliability or of the credibility of the witness through whom it is tendered: R v Shamouil (2006) 66 NSWLR 228 at [47]-[65] per Spigelman CJ; and see Adam v The Queen (2001) 207 CLR 96, 123 A Crim R 280 per Gaudron J. That is, 'probative value' is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact — or the contribution it might, if accepted, make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete."
In PG v R [2010] VSCA 289, the Court of Appeal (Victoria) dealt with a number of challenges to rulings on the admissibility of tendency or coincidence evidence on the trial of an accused for a range of sexual offences. In a segment of the decision that was delivered by Nettle JA, agreed with by Neave and Harper JJA, reference was made to the decision in Shamouil. At par[62], Nettle JA gave Shamouil, par[63], as authority for his statement that:
" … the assessment of reliability is predominantly a question for the jury, except in cases where the circumstances are such that the issues of credit and reliability are so fraught that it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally effect the assessment of the probability of the existence of the fact in issue."
With reference to the same citation, his Honour said, at par[77], that: "as at present advised, I take the law to be as stated by Spigelman CJ in Shamouil". It is apparent from what Nettle JA said at pars[75] and [76], that, whilst the above citations refer only to par[63] of Shamouil, his Honour embraced the substance of that decision. In those paragraphs Nettle JA said:
"75 Finally, there was a question of whether s101 requires an assessment of the credibility and reliability of tendency or coincidence evidence before it may be admitted under s96 or 97.
76 As has already been noted, the assessment of reliability and credibility of evidence is pre-eminently a question for the jury. Thus, in applying s101 (or s137) one would ordinarily approach the matter on the basis that the probative value of the evidence is to be assessed assuming that the evidence would be accepted by the jury. As was earlier remarked, however, there are sometimes circumstances in which it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue, and in those circumstances it is open to conclude that the probative value is so minimal, if non-existent, as to be outweighed by prejudicial effect."
These authorities show that, subject to the qualification referred to in Shamouil, par[63], counsel for the respondent is correct in submitting that recent authorities which have addressed the issue of the propriety of considering the reliability and credibility of evidence when determining its probative value for the purposes of ss135 or 137 (as well as ss97(1)(b), 98(1)(b), and 101(2)), have concluded that these considerations are irrelevant to that assessment. As mentioned, counsel for the appellant contends that contrary to these authorities, it is generally open to a judge assessing the probative value of evidence for the purposes of s137 to take into account the reliability and credibility of the evidence. In support of this contention counsel for the appellant relies on the decision of this Court in Director of Public Prosecutions v Lynch (supra).
Lynch was a Crown appeal against the trial judge's refusal to admit identification evidence on the basis that its prejudicial effect outweighed its probative value. In so ruling, the trial judge relied on matters which included the unreliability of the evidence. The identification in question had been made from a photoboard. In the course of explaining his reasons for the refusal, the trial judge commented that an identification parade was a safer and more verifiable procedure for the identification of a person, and said that a photoboard identification was the least preferred method. In pressing the appeal, the Crown's principal complaint was that the trial judge had misunderstood the nature of the prejudice, or potential prejudice, with which ss135 and 137 are concerned, and, for this reason, his Honour erred in the performance of the weighing exercise that he undertook. The Crown did not complain that the trial judge had erred by taking into account evidence of the reliability of the identification evidence when undertaking the requisite weighing exercise, and no reference was made to the then recent decision in Shamouil. The Crown's approach to the appeal framed the manner with which it was dealt.
The judgment of the court in Lynch was delivered by Blow J, agreed with by Crawford J (as he then was) and Tennent J. In par[14], his Honour cited the decision of the Court of Criminal Appeal (NSW) in R v Blick (2000) 111 A Crim R 326, as authority for the proposition that s137 does not confer a discretion, but requires an evaluation and comparison of the probative value of the evidence and the danger of unfair prejudice. His Honour adopted that proposition. In the light of the contention now under consideration, I note that his Honour made no reference to the fact that in Blick pars[24] and [25], the probative value of the photoboard identification evidence under consideration in that case was assessed on the basis of its lack of reliability. The matters addressed in Blick included:
·the likelihood that when the identifying witness was shown the photoboard, he had been alerted to the possibility that the offender had been apprehended; and
·the inadequacy of the photoboard used. The known recollection of the identifying witness was that the offender had a goatee. The only photograph in the photoboard of a person with a goatee was that of the offender.
In Blick, the court concluded that the method of obtaining the identification evidence greatly diminished its probative value.
In Lynch, at par[18], Blow J referred to a number of matters which went to the reliability of the photo identification evidence in question, and said that they were relevant to the assessment of its probative value. Patently this was done without express regard to the issue of the relevance of the reliability or credibility of evidence to its probative value for the purposes of s137, that issue not having been raised before the Court. Of course, the fact that the members of the Court proceeded on the assumption that the evidence was relevant, is indicative of their thinking. However, this is a far cry from a considered decision that focused on the issue of the relevance of reliability or credibility to probative value. In my respectful view, the decision in Lynch is not a considered decision on this issue and should not be taken as authority for the proposition advanced by counsel for the appellant.
For relevant purposes, the Evidence Act (Tas) is uniform with the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 is a unanimous decision of five members of the High Court. In that decision, at 492, it was observed that: "uniformity of decision in the interpretation of uniform national legislation … is a sufficiently important consideration to require that an intermediate appellate court … should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong." That observation applies to the present circumstances and, consistent with it, in my respectful view, this Court should adopt the effect given to the term "probative value" in Shamouil, pars[60] – [65], unless convinced that it is plainly wrong. I am not so convinced, although I confess that I have some difficulty in divorcing considerations of reliability and credibility from an assessment of the probative value of evidence. An aspect of my difficulty relates to the regard that should be had to the possibility of concoction when considering the admissibility of similar fact evidence from several witnesses. With reference to this question, in AE v R [2008] NSWCCA 52, Bell JA, Hume and Latham JJ, at par[44], said, "it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence". PNJ v DPP [2010] VSCA 88 is an authority to the same effect. In that case Maxwell P, Buchanan and Bongiorno JJA, at pars[24] to [29], addressed the proposition that it had been an error for the trial judge to consider the possibility of concoction when deciding whether evidence had significant probative value. They said at par[28], "It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the Court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide." It is not readily apparent to me why it is not improper to consider the possibility of concoction, a matter that goes to the credibility and reliability of evidence, when assessing its probative value or why, for some other reason, it is proper to do so. For present purposes I do not need to pursue this any further.
Probative value of Chloe and Mandy's prior statements
There is no question that the probative value of the prior statements of Chloe and Mandy was extremely high. Whilst neither of them purported to see the robbery carried out, what they said about the circumstances in which the appellant and Tom left the vehicle and returned to the vehicle, fully complemented the evidence of the victims. As Tina's evidence was of little consequence, I pay no regard to it.
Unfair prejudice to the appellant
I turn to unfair prejudice. Evidence is not unfairly prejudicial to an accused for the purposes of s137 merely because it makes it more likely that the accused will be convicted. In this context, the prejudice referred to is unfair where there is a real risk that the evidence will be misused by the jury in some unfair way: Papakosmas v R (supra), McHugh J, par[91], Festa v R (2001) 208 CLR 593, Gleeson CJ, par[20], and McHugh J, par[51]. In a different context, there is considerable authority that an unfair prejudice may arise from procedural considerations. Instances of this include prejudice that may flow from admitting evidence that an accused can only test or contest by advancing a prejudicial explanation; see R v Cook (supra) and R v Mundine (supra). More pertinently, for relevant purposes, there is authority that unfair prejudice may arise from the absence of an opportunity to cross-examine the primary witness to the evidence in question, or indeed the difficulty of cross-examining that witness.
Authorities that have addressed unfair prejudice under s135(a), or s137, when considering the contention that the evidence of an unavailable or deceased witness should not be admitted, as they cannot be cross-examined, include: R v Clark (2001) 123 A Crim R 506, R v Suteski (2002) 56 NSWLR 182, at par[126], Galvin v R (2006) 161 A Crim R 449, par[36], Puchalski v R [2007] NSWCCA 220, par[95]. Authorities that have dealt with the difficulty of cross-examining a witness about a prior inconsistent statement, as to which that witness says that he or she has no recall of the events that are the subject of the statement, or of having made it, include, R v GAC, a decision of the Court of Criminal Appeal (NSW), dated 1 April 1997, Butterworths Report BC 9701000, Tasmania v Mayne [2009] TASSC 82, and Director of Public Prosecutions v Finnegan [2011] TASCCA 3, par[47].
Cases such as the present must be determined on their own particular facts depending upon the probative value of the evidence in question and its prejudicial effect. The mere fact that it is not possible for an accused to cross-examine a witness (much less that it is difficult to cross-examine examine a witness), is not necessarily decisive; see R v Suteski (supra), pars[126] and [127], and Galvin (supra), par[40]. Speaking generally, unfair prejudice is unlikely where a witness is available to be cross-examined, but is difficult to cross-examine because of an inability to recall the events that are the subject of a prior inconsistent statement. In this case, consistent with his instructions, counsel for the appellant could have put to each witness any motive that she may have had to lie when she spoke to the police, and any reason why what she then said may have been unreliable. Questions along these lines would not necessarily have been evaded by an absence of recall. In fact, two of the witnesses had volunteered a basis for asserting that their statements would have been unreliable. Chloe said that she had had "heaps of drugs and alcohol in [her] system", and Tina said she had been "intoxicated on drugs". From a practical point of view, it is hard to see how the witnesses' asserted loss of memory disadvantaged the appellant. In response to an inquiry as to what he would have asked these witnesses had they recalled the events in question, counsel for the appellant said he would have explored their evidence. He did not identify any specific line of questioning that he would have pursued that may have benefited the appellant. He acknowledged that it had not been difficult to go along with the witnesses' inability to recall and not test it, and accepted that had the witnesses recalled the events in question, their cross-examination would have been much more difficult. It may be that each witness had denied any recall of the events in question in order to assist the appellant. Each witness may have considered that if she acknowledged that she could recall the events in question, she would have been unable to avoid confirming the accuracy of what she had said in her statement. Had each witness said that she recalled the events in question, and that what she said in her police statement was untrue, this may have been of some assistance to the appellant. Nonetheless, it would have remained open to the jury to conclude that what the witnesses had said to police shortly after the events in question in an audio visual recorded interview was more likely to be true than their contradictory evidence in the court. There was reason to conclude that their contradictory evidence was motivated by a desire to help their friend, the appellant.
I have no hesitation in finding that the probative value of the prior statements in question was not outweighed by unfair prejudice to the appellant, and that their admission into evidence did not give rise to a miscarriage of justice. The learned trial judge did not err in allowing their admission.
I would dismiss the appeal.
File No 957/2010
KMJ v STATE OF TASMANIA
REASONS FOR JUDGMENT BLOW J
22 June 2011
I agree that this appeal should be dismissed. I fully agree with the reasons of Evans J.
I can confirm that in Director of Public Prosecutions v Lynch (2006) 16 Tas R 49, no submissions were made as to whether or not the reliability or credibility of evidence was relevant to the assessment of its probative value for the purpose of the Evidence Act 2001, ss135 and 137, and that this Court was not referred to R v Shamouil (2006) 66 NSWLR 228 or any other authority suggesting that reliability and credibility were irrelevant to such an assessment. Support for the view that reliability and credibility are, or should be, relevant to such an assessment can be found in a number of places: Papakosmas v R (1999) 196 CLR 297 per McHugh J (obiter) at par[86]; R v Rahme [2004] NSWCCA 233 per Hulme J (dissenting) at pars[216] – [225]; R v Whyms [2010] ACTSC 91 at par[29] (Refshauge J); Australian Law Reform Commission Report No 38, Evidence (1987), par[146]; T Smith and S Odgers, "Determining 'probative value' for the purposes of section 137 in the uniform evidence law", (2010) 34 Crim LJ 292; S Odgers, Uniform Evidence Law, 9th ed (2010) par[1.3.14760]. In Lynch, this Court proceeded on the basis that credibility and reliability were relevant to the assessment of probative value but, since the point was not argued, that case does not have the same precedential status as Shamouil. It cannot be said that Shamouil is plainly wrong, and we must therefore now follow that case: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say Dee Pty Ltd (2007) 230 CLR 89 at par[135]. It may be necessary to consider on another occasion what impact this conclusion has in relation to the cases in which, when assessing the probative value of evidence pursuant to the uniform evidence legislation, courts have taken into account the fact that the possibility of concoction has affected the reliability of such evidence.
File No 957/2010
KMJ v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
22 June 2011
I have had the advantage of reading the draft reasons of Evans J. I agree with those reasons. I would also dismiss the appeal.
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