Conclusion
70As 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.
71ALLSOP 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.
72This 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.
73Nevertheless, 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.
74This 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].
75It 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].
76That 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.
77If, 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].
78As 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].)
79At 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 .
80This 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.
81On 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.
82If, 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.
83The 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 .
84An 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 .
85Thus, 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.
86The 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]).
87The 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.
88The 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).
89The 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.
90The 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.
91It 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.
92The 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".
93In 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.
94In 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."
95It 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.
96Other 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.
97Turning 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).
98The 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".
99That, 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.
100The words of the section are not "if the evidence has significant probative value"; they are, "unless ... the court thinks the evidence will ... have ... significant probative value". What is to be reviewed in the appellate process is the state of mind of the court about a future hypothesis based on logical processes, including weighing of evidence in a framework of proven or assumed evidence. The appeal court is not reviewing the fact of the probative effect of the evidence; it is reviewing what the court thinks that will be. That involves an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him or her to draw the (limited) evaluative conclusion that was drawn. Review will be of the character analogous to that discussed in Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 620, referred to in Dwyer v Calco Timbers at 138 [39]; and in Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at 651-654, though, importantly, recognising that the power the subject of review is judicial and not executive. In practice, there is likely to be little difference between this approach and the application of House v The King .
101Respectfully, I cannot agree with Campbell JA that the words "the court thinks ... will" are to be dealt with as his Honour did in Ford at [107]. There is, in my view, a real difference between the review of a statutory precondition of what the court thinks will be the probative value of evidence and the appellate review of the fact of the probative value. I am reinforced in this view by the clear expression of opinion by Sackville J (with whom Whitlam J and Mansfield J agreed) in Jacara at [74]. There his Honour (admittedly by way of obiter dicta) expressed his clear view, which, to his mind, explained what he saw as the correct concession of counsel.
102Approaching the matter in this way, I agree with the reasons of Simpson J that his Honour did not err in the way he approached s 97.
103Turning to s 101, the difficulty arising from the use of the word "adduced" has been discussed in R v Nassif [2004] NSWCCA 433 at [46]-[47], Fletcher and Zhang . Nevertheless, it has been approached as a rule of admissibility or exclusion: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 and I do not propose to approach it otherwise, it not being argued that we should.
104As the Chief Justice's reasons reveal, the approach to the Evidence Act, s 101 has not been entirely uniform. The reasons of Campbell JA in Ford reveal, however, that the predominant view, at least in New South Wales, that is based on R v Blick [2000] NSWCCA 61; 111 A Crim R 326 is to the effect that what is involved is a balancing exercise which involves an assessment of substantiality of probative weight over the prejudicial effect the evidence may have that should be reviewed under the principles of House v The King . This view is supported by the recognition that the assessment to be made under s 101 will, or may, involve, amongst other things, a consideration, in advance, of the utility of, and protection afforded by, directions that may be necessary or available as the evidence is given or in any summing up. Whilst in one sense a matter of balance on which an appellate court could reach its own view, I am unpersuaded that the cases that view the evaluative process as akin to a discretion and calling for appellate review on the basis of House v The King are wrong. This is especially so, here, where there has been no substantial challenge in the submissions by the appellant to the approach taken by Campbell JA in Ford as to s 101.
105In any event, as the reasons of Simpson J demonstrate, whether one approaches the element of the consideration concerned with s 101 by reference to House v The King or as evaluation under Warren v Coombes the same result obtains: the appeal should be dismissed.
106I said I would return to leave. If a five judge bench had not been assembled, I would have refused leave: cf R v Matovski (1989) 15 NSWLR 720 at 721-722. The 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 given my view as to how the matter should be approached as a review under s 5F of a discretionary decision not to separate the trials in question, though, I hope not inappropriately, I have addressed it. In the circumstances, and given the argument on s 97, I would grant leave and dismiss the appeal.
107The view that I have taken as to the appropriate perspective for the disposition of the s 5F appeal before the Court and my reasons for dismissing the appeal should not have an effect on the scope of any argument or issues in any appeal under the Criminal Appeal Act, ss 5 and 6, should there be a conviction. I leave open, however, as unnecessary to answer a consideration of the relationship, if any, between reasons in dismissing an appeal under s 5F and the disposition of any final appeal under ss 5 and 6.
SIMPSON J : Pursuant to s 5F(3) of the Criminal Appeal Act 1912, the applicant seeks leave to appeal against the decision of Bozic DCJ on 4 November 2010 refusing (in part) an application by the applicant for severance of certain counts on an indictment.