The admissibility of Biddle's evidence
27 Shane Baker testified that, some months prior to the assaults, he had entered the Peacock home and had stolen a number of items, including a pound of marijuana, and some samurai swords. When he did this, he said, he was in company with Dale Biddle. Indeed, his evidence was that Biddle initiated the offence, by telephoning him and inviting him to join Biddle at the Peacock home. He gave some detail about what they had done while present in the apartment. He was cross-examined at some length on this issue.
28 Although it was common ground that there had been an occasion when the Peacock home was entered and property stolen, it was explicitly put to Baker in cross-examination that he had not been present on that occasion, a proposition that he rejected.
29 Baker's evidence was put in the Crown case as going to establishing that the appellants had a motive for the attack upon Baker and Isgro. It was also put as explaining some remarks that Baker said had been made to him by one or other of his attackers, and questions asked of him, during the course of the attack the subject of the trial.
30 It is in this context that the only ground of appeal arises: it was contended that the Crown ought to have called Biddle as a witness and that its failure to do so amounted to a miscarriage of justice.
31 For the purpose of evaluating this ground of appeal it must be assumed that Biddle, if called, would have given evidence in accordance with the statement annexed to his affidavit: that is, that he did not participate with Baker in the thefts at the Peacock home.
32 The questions which now arise are whether evidence to that effect by Biddle would have been admissible; and, if so, whether its absence from the trial caused a miscarriage of justice.
33 Nettle AJA considers that the evidence would not, by reason of s 102 of the Evidence Act 1995, have been admissible. That is because, in his view, the evidence is relevant only to Baker's credibility. It is with this view that I disagree.
34 S 102 is in the following terms:
"Evidence that is relevant only to a witness's credibility is not admissible."
35 S 102 perpetuates a distinction drawn by the common law between evidence relevant to a fact in issue and evidence relevant only to the credibility of a witness. Whether a particular tendered item of evidence "is relevant only to a witness's credibility" is not always easy to determine. Of the common law position, McHugh J has said, in Palmer v The Queen [1998] HCA 2; 193 CLR 1:
"52. The rationale behind the credit and facts in issue distinction does not depend on logic. It 'is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness'. It is rooted in the need for 'case management' rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that 'they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue'. It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner [[1965] AC 595 at 607] that '[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them.'
That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen 'as a well established guide to the exercise of judicial regulation of the litigation process' [ Natta v Canham (1991) 32 FCR 282.] This view is consistent with the statement of that formidable advocate and judge, Sir Hayden Starke …, where he accepted that the finality rule is 'a rule of convenience, and not of principle'. To elevate the finality rule and the prohibition on bolstering to fixed rules of law rather than rules of convenience would be a mistake, particularly as the finality rule has been strongly criticised." (italics in original; internal references omitted)
36 McHugh J went on to quote the English Court of Appeal in R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482, saying:
"The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor's and the court's sense of fair play rather than any philosophic or analytic process."
37 McHugh J also said:
"55. No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness's denials on matters going to credibility is not ordinarily admissible. In this, as in other areas of the law of evidence, a distinction exists between what is relevant and what is admissible. …" (italics added; internal reference omitted)
38 Two cautions need to be observed in applying his Honour's strong views in the present case. Firstly, the judgment was a dissenting one (although I do not understand the majority to have expressed views inconsistent with those of McHugh J on this subject); secondly, the remarks were made in the context of an appeal from the Supreme Court of Victoria, a state where the common law rules of evidence apply. In this state this Court must give full weight to the circumstance that the legislature has effectively re-enacted the common law rule. It is therefore necessary to give effect to the principle. But the practical difficulty in doing so to which McHugh J draws attention is not diminished by the terms of the legislation.
39 It is only evidence that is relevant solely to a witness's credibility that is excluded by s 102. Evidence that is otherwise relevant is not excluded by that section (although it may be excluded on some other basis).
40 In Adam v The Queen [2001] HCA 57; 207 CLR 96, the High Court rejected an argument that s 102 should not be read literally. The Court formulated the correct question (precisely in terms of the legislation) as:
"Is it [the evidence in question] relevant only to a witness's credibility?" (italics in original)
41 By s 56 of the Evidence Act, evidence that is relevant in a proceeding is admissible in that proceeding (except as otherwise provided). In s 55(1), relevant evidence is defined in the following terms:
"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."
42 Relevance does not depend upon weight, reliability, or the likelihood or otherwise that the evidence will be accepted. The assessment of relevance proceeds upon the assumption that the evidence will be accepted.
43 S 102 has been considered by this Court previously. In R v Chen [2002] NSWCCA 174 the Court, constituted by Heydon JA (as his Honour then was), Sully and Levine JJ, was considering whether evidence adduced by the prosecution that a prosecution witness had provided a written undertaking to co-operate with law enforcement authorities was admitted in breach of s 102, because it was tendered as evidence relevant only to that witness's credibility. The Court held that it was not, because it was tendered for another purpose: pursuant to the Crown's duty of fairness (in the disclosure of the status of the witness). In other words, as I read the judgment, the Court, in accordance with Adam, gave weight to the word "only" as it appears in s 102. (Interestingly, the Court did not distinguish between the purpose for which the evidence was tendered, and its relevance to a fact or facts in issue.)
44 S 102 is, as I have mentioned, a statutory formulation of a common law rule, for which the most commonly cited authority is Piddington v Bennett & Wood Pty Ltd [1940] HCA 2; 63 CLR 533.
45 Examination of the judgments in Piddington illustrates and highlights the difficulty that can be involved in determining whether a particular item of evidence is relevant only to the credibility of a witness, or has some broader relevance. The nearest to a general statement of the rule that emerges from that case is to be found in the (minority) judgment of Latham CJ, who said:
"Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness's answers cannot be contradicted by other evidence except in certain exceptional cases."
46 His Honour then set out some exceptions - that a party may, after cross-examination of the opponent's witnesses, give evidence to show that they are "notorious liars", or have given their testimony from a corrupt or other wrong motive, or have previously made statements inconsistent with the evidence they have given.
47 None of the other members of the court stated the principle; the case was no more than an application of what was recognised as an established rule, in circumstances where the questioned evidence sat near to the boundary, resulting in the differing views that can be found in the separate judgments. Latham CJ and Starke J thought that the evidence there in question was admissible; the remaining members of the court thought otherwise.
48 In certain passages some light on the different approaches is cast. Latham CJ held that it was always permissible to give evidence as to the facts in issue, and as to facts relevant to facts in issue. He considered that, where a witness had purported to give eye-witness evidence of events constituting the facts in issue, then the other party was entitled to call evidence to show that that witness was not present at the relevant time or place, or that, if he were, he could not have seen what he claimed to have seen.
49 Starke J agreed that such evidence would be admissible, and, on the facts of Piddington, felt that the evidence there in question was relevant to that fact.
50 Evatt J also dealt with the question, in part, with reference to the admissibility of evidence concerning the presence or otherwise at a relevant place or time of a witness who has given evidence of such presence. He appeared to accept that evidence that a particular witness had "garnished his account of the relevant facts with associated details designed to give verisimilitude" would be admissible. However, the real test for Evatt J depended upon remoteness. His Honour held that remoteness involves considerations of degree, and that a trial judge must exclude the evidence in contradiction of a witness's evidence "at the very point where the relationship has become too remote."
51 It was because the result in Piddington really depended upon an evaluation of how remote the evidence was from the facts in issue that different judges took different views. Whether a particular item of evidence is relevant only to the credibility of a witness or not will depend upon the facts and circumstances of each individual case.
52 Contrary to the views expressed by Nettle AJA, I have come to the conclusion that the relevance of the evidence Biddle could give was not confined to Baker's credibility. The "fact in issue" to which it was relevant was that the appellants were (or either of them was) the perpetrator(s) of the attacks on Baker and Isgro. The Crown sought to prove that fact by, inter alia, direct identification evidence of both complainants; and by proving, through Baker's evidence of the thefts, that each of the appellants had a motive to attack him.
53 Motive was certainly relevant to the identification of the appellants as the perpetrators. Baker's evidence went directly to that question.
54 Could, then, the evidence that Biddle would have given also go to that issue? In my opinion it could, although less directly.
55 The answer depends upon an analysis of the content of the evidence given by Baker. It was not merely an assertion that he had entered the Peacock home and stolen property. It went further than that, and gave colour to that evidence by the addition of supporting detail: one detail was that he was in company with Biddle, others were what each of them did, and stole, whilst in the premises.
56 Since (rather curiously) it was in the interests of the appellants to cast doubt upon Baker's evidence that he had been guilty of the thefts, it would have been open to them to call evidence, for example, that no thefts had occurred from the house at the relevant time, or that any thefts that had occurred had been committed by somebody else, or that property of the kind described by Baker had not been present in the premises. Evidence of that kind would have cast doubt upon Baker's evidence, and the Crown case on motive, and it can not be suggested that it would not have been admissible in the appellants' cases.
57 Biddle's evidence, in my opinion, would also have been capable of casting doubt on that evidence given by Baker. There is, in my opinion, a distinction to be drawn between evidence going to the credibility of a witness, and evidence going to the credibility of the evidence given by that witness (in this context it might be better to use the word "reliability"). Section 102 prohibits evidence going only to the former: it does not prohibit evidence going only to the latter of which an obvious example is evidence contradicting facts asserted by a witness. The reliability of evidence given by a witness might be challenged by evidence contradicting all, or part, of that witness's evidence. That contradictory evidence is not rendered inadmissible by s 102.
58 A classic example of evidence relevant to the credibility of a witness is evidence that, on another, unconnected, occasion, that witness had lied on oath. Subject to the restrictions imposed by s 103, and, in a criminal case, s 104, cross-examination of that witness on that subject is permissible; but what used to be called the collateral evidence rule, now s 102, precludes the adducing of such evidence from another source.
59 I make no comment on the weight that might be attributed to Biddle's evidence. Biddle's evidence, if accepted, would have been capable of casting doubt on Baker's account of the thefts in respect of the surrounding detail, and therefore upon the central fact that he alleged. It is true, as Nettle AJA says, that Biddle's evidence could not have established that Baker was not involved in the burglary. But that is not the question posed by s 102. That question is whether Biddle's evidence was relevant to some issue other than Baker's credibility. In my opinion it was. True it is that Biddle's evidence is more remote than that of Baker, and, therefore, has less probative value. But that does not mean that it was not relevant to a fact in issue.
60 The issue might be tested this way: could the appellants have called Biddle to deny that he was involved in the entry and theft? I find it difficult to imagine that any trial judge would reject, as evidence going only to the credibility of a Crown witness, evidence of a defence witness directly contradicting one significant aspect of the evidence of that Crown witness. This neatly illustrates the slipperiness of the distinction between "fact in issue evidence" and "credibility evidence".
61 If the appellants could have called him, the Crown could have called Biddle. I have come to the conclusion that Bidddle's evidence, had he been called, would not have been inadmissible by reason of s 102.