Director of Public Prosecutions (NSW) v RDT

Nature of appellate function

1. Different views have been expressed as to the nature of the Court's function in determining an appeal from a ruling on the admissibility of evidence. The two competing positions are identified in conventional terms by reference to the High Court judgments in Warren v Coombes [1] and House v The King [2] respectively. The standard identified in Warren v Coombes, applicable to a civil appeal by way of rehearing, included the following passage: [3] "The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment." This has been described as the "correctness" standard of review.
2. By contrast, in House v The King the High Court stated: [4] "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion." A finding applying this "deferential" standard is sometimes expressed as a conclusion that it was "open" to the primary judge to make the impugned determination.
3. The principle in Warren v Coombes was stated in relation to an appeal from a final judgment in civil proceedings; the standard identified in House v The King also related to a final judgment, but one involving the imposition of a sentence in a criminal matter. The present case does not involve a final judgment, but a preliminary determination of the admissibility of evidence made by a trial judge before the commencement of the trial.
4. These points of distinction are important because appellate courts exercise degrees of restraint, or intensity of review, depending upon different aspects of the proceedings before them. All appeals being based in statute, one common form of restraint is the imposition by the legislature of a requirement to obtain leave, that is permission of the court, to commence an appeal. In relation to interlocutory appeals in criminal trials on indictment, s 5F of the Criminal Appeal Act confers a right of appeal on the Attorney General and the Director of Public Prosecutions, but requires leave for a proposed appeal by any other party: s 5F(2) and (3). In the present case, the right conferred by s 5F with respect to a ruling on the admissibility of evidence was conditioned upon the ruling being one which "eliminates or substantially weakens the prosecution's case": s 5F(3A).
5. In civil matters, restraint is exercised with respect to interlocutory appeals involving issues of practice and procedure, partly for pragmatic reasons identified in well-known authorities, such as In Re the Will of Gilbert. [5] Such considerations can readily be justified in circumstances where the legislature has imposed a leave requirement and, further, requires a court to apply in civil proceedings the overriding purpose identified in Pt 6 of the Civil Procedure Act 2005 (NSW), "to facilitate the just, quick and cheap resolution of the real issues in the proceedings." [6] In the criminal jurisdiction different considerations arise. However, both in civil and criminal cases, different approaches will be taken depending upon whether the interlocutory judgment has the practical effect of ending the proceedings, or affecting the scope of the issues which may be raised and whether it is a decision which can be reviewed in the course of a trial.
6. It should be accepted that the rejection of the tendency evidence substantially weakened the prosecution's case and the prosecutor's right of appeal was therefore engaged; the question remains as to whether the nature of the appeal against the preliminary judgment allowed the same standard or intensity of review as required in relation to an appeal from a final judgment. In the criminal jurisdiction, issues as to the admissibility of evidence will usually be dealt with on an appeal against conviction. However, in a practical sense, final judgments are no more of a single kind than are preliminary or interlocutory judgments. For example, the grounds upon which a jury verdict can be reviewed are more limited than those upon which the judgment in a judge-only trial can be reviewed; the reasoning of a jury is opaque, whereas a judge is required to give reasons and the decision-making process should be transparent. Further, some judgments will depend, as Warren v Coombes recognised, on an assessment of oral testimony as to which the appellate court is limited to the review of a transcript. Assessment of error is more accessible where the appeal turns on the review of documentary material or questions of law.
7. Until recently, the standard of review to be adopted by this Court in relation to an appeal by an accused from a preliminary ruling as to the admissibility of tendency evidence was identified in DAO v The Queen. [7] That appeal, heard by a five-judge bench, was decided in April 2011. Spigelman CJ concluded: "[70] As a matter of principle, and on the basis of the case law concerned with separate trials, an appeal from an interlocutory judgment on an application for separate trials, is, in my opinion, subject to the degree of appellate restraint identified in House v The King. It is unnecessary to go further in this case." Other members of the Court agreed with this aspect of the Chief Justice's reasoning, although Allsop P was reluctant to adopt this labelling, or a strict dichotomy, to define the intensity of review, [8] and concluded that the choice did not affect the outcome. [9]
8. In KJM v The Queen (No 2), [10] decided some five months after DAO, a five-judge bench of the Victorian Court of Appeal determined that it should follow DAO, albeit with respect to an appeal from interlocutory decisions under the Criminal Procedure Act 2009 (Vic), s 295, the terminology of which differed in some respects from s 5F.
9. The question whether these decisions should be followed arises from a passage in the definitive judgment of the Full High Court dealing with tendency evidence, R v Bauer (a pseudonym). [11] The case involved an appeal from a decision of the Victorian Court of Appeal overturning convictions of an accused on 18 charges of sexual offences committed against a girl. The prosecutor appealed that judgment.
10. In upholding the appeal, the High Court stated: "[47] … previous decisions of this Court have left unclear when and if a complainant's evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. … The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject."
11. In dealing with the probative value of the tendency evidence of a complainant, the Court stated: "[61] The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. [12] "
12. This reasoning reflects the explanation of the different criteria engaging different standards of, or intensity of, review identified by Gageler J in Minister for Immigration and Border Protection v SZVFW: [13] "[36] In relation to an appeal from a final judgment of a primary judge sitting without a jury, essentially two standards of appellate review have come to be recognised in Australia. The present case provides no occasion to consider the 'added restraint' and 'particular caution' which an appellate court should exercise in reviewing a judgment on a matter of practice and procedure. [14] … [48] The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction. [49] The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable."
13. The difference is between a determination involving a binary choice (the evidence is either admissible or it is not) and a decision on a spectrum where the law tolerates a range of possible outcomes (such as the selection of a point within a permissible range for a sentence). The statement in Bauer that the question whether tendency evidence has significant probative value is one to which "there can only ever be one correct answer" reflects the "legal criterion" which demands "a unique outcome, in which the correctness standard applies".
14. If Bauer is applicable to an appeal from a preliminary judgment under s 5F of the Criminal Appeal Act, it is necessary for this Court to determine for itself whether the tendency evidence was admissible or inadmissible. There are two broad reasons (namely, authority and principle) which indicate that the correctness standard should apply.
15. So far as authority is concerned, it is significant that the footnote to [61] in Bauer referred to two passages in the judgment of Campbell JA in R v Ford [15] addressing the standard of review for appellate review of decisions about tendency evidence. Campbell JA adopted the same position, at [98] and [124] in Ford, as did the High Court in Bauer. Ford, however, was an appeal pursuant to s 5F(3A), a factor which Campbell JA expressly addressed at [98]. The reference to Ford in Bauer also included the more guarded expression of opinion by Howie J at [145]-[146], a passage focused explicitly upon the power conferred under s 5F. Although it may be said to be obiter, and there is a degree of ambiguity in the note, "see and compare McCartney v The Queen (2012) 38 VR 1 at [31]-[51]" (referred to below), it appears that the Full High Court in Bauer saw no reason to distinguish between the review of a judgment as to the probative value of tendency evidence on an appeal against a conviction and on an appeal from a preliminary judgment as to admissibility. [16] If that is correct, it is not open to this Court to ignore that authority.
16. Although addressing the question from the opposite standpoint in DAO, namely whether the principles established with respect to an appeal from a preliminary judgment would apply to a conviction appeal, Spigelman CJ (Kirby J agreeing) expressed the opinion that "there is a substantial difference between a s 5F appeal and an appeal from conviction in relevant respects", noting, however, that it was not necessary to determine the position with respect to an appeal after conviction. [17] Simpson J (Schmidt J agreeing) expressly disagreed with that approach; [18] Allsop P did not address this issue.
17. The Victorian Court of Appeal revisited this issue in 2012 in McCartney v The Queen. [19] Having noted the approach taken with respect to interlocutory appeals from preliminary rulings on the admissibility of evidence in DAO and KJM, the Court continued: "[49] The position of a court hearing an appeal against conviction is, of course, quite different from that of a court hearing an interlocutory appeal before the trial commences. Leaving aside the "unsafe and unsatisfactory" ground, an appeal against conviction will only succeed if it is established that: [20] '(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or (c) for any other reason there has been a substantial miscarriage of justice.' [50] On the appeal against conviction, the appeal court is able to review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence. The question is whether the decision of the trial judge not to exclude the evidence under s 137 was 'an error … in, or in relation to the trial' and, if so, whether it was productive of a substantial miscarriage of justice. That question can only be answered by considering the trial in its entirety. [51] Obviously enough, the legal character of a decision under s 137 remains the same whether the decision falls to be examined at the interlocutory appeal stage or after the trial is concluded. But that does not, in our view, preclude the adoption of a different standard of appellate review on a conviction appeal from that which applies to an interlocutory appeal. Such a difference of approach is to be explained by the different functions, and perspectives, of the appeal court at those different stages of the proceeding. It is also to be explained - perhaps decisively - by what the court in KJM identified as the clear intention of the Criminal Procedure Act that interlocutory appeals on questions of evidence 'should be strictly confined'. [21] No such constraint applies to appeals against conviction."
18. While it is true that the material to be considered will vary depending upon whether the appeal is brought before or after the trial, it is not clear why the standard of review should vary. Acceptance that "the legal character of a decision" under whichever provision of the Evidence Act is engaged remains the same whenever the decision falls to be reviewed, suggests that the standard of review should not vary. The conclusion that it does vary would appear to be inconsistent with the approach adopted by the High Court in the passages set out above.
19. As a matter of principle, that correctness approach is justified. It is no doubt true that post-conviction, the assessment as to admissibility will proceed upon a different evidential basis, than at the stage of the preliminary ruling. That is because witnesses may not give evidence precisely in the terms anticipated by the prosecutor, or may qualify their evidence in cross-examination, and the evidence will need to be assessed contextually having regard to other evidence. But it is not clear why the legal standard of review should vary.
20. An argument for a lower standard of scrutiny in relation to a preliminary decision is that, if the evidence is admitted, but later turns out not to have the significant probative value which was anticipated, the decision to admit the evidence may be reconsidered and may be reviewed on an appeal following conviction. Thus a lower level of scrutiny is appropriate with respect to preliminary rulings because they are not final. Whatever weight that argument may have in a case where evidence is admitted, it is not engaged if the evidence is rejected. In that circumstance, it is difficult to see why the decision of the trial judge, being a binary choice, should not be reviewed on the basis which generally applies in such circumstances.
21. Accordingly, as a matter of both authority and principle, this Court should review the decision of the trial judge to reject the tendency evidence according to a correctness standard.

The evidence and the judgment

1. The events the subject of the charges against the respondent were committed between 2006 and 2008. The conduct the subject of the application to admit tendency evidence occurred in 2015. In broad terms, the other conduct demonstrated an interest in gaining access to toddlers in nappies and pre-pubescent girls for sexual activity. The respondent also sent a photograph of a young girl in underwear, said by the trial judge to appear to be between two and four years with the respondent stating "Heres my ideal age though." The detail of the tendency evidence now relied on by the Director is set out in the schedule to these reasons.
2. This conduct led to the arrest of the respondent in October 2015. He participated in a record of interview in which he admitted that he had had a sexual interest in young children for some 20 years. The prosecution sought to admit this material on the basis that it demonstrated a sexual interest in very young female children, together with a willingness to make attempts to obtain access to a young baby for sexual purposes. The prosecution contended that such material would provide powerful support for what might otherwise seem to be implausible allegations that a man of mature years would interfere sexually with his own child under the age of five years.

Consideration of grounds

1. On the appeal, the Director focused upon three interrelated errors, namely: "(i) failing to apply the correct legal principles to the evidence in this case; … (ii) failing to consider the probative value of the tendency evidence as to state of mind; and the tendency evidence as to acts; … (iii) assessing the probative value of the tendency evidence by reference to his Honour's own assessment of the reliability of that evidence."
2. The first ground did not fully state the basis of the challenge to the legal principles applied by the trial judge. In the course of submissions before the trial judge reference had been made to the decision of this Court in McPhillamy v The Queen. [22] The judge noted that special leave to appeal had been granted on 20 April 2018 and the appeal heard on 9 August 2018. Orders made at the hearing of the appeal, approximately four weeks before the ruling in this case, resulted in the appeal being allowed and the orders of this Court in McPhillamy being set aside. Reasons were not then published and were not available to the trial judge. However, the judge stated that, having read the transcript of argument in the High Court, he considered that "the reasons for the dissenting judgment of Meagher JA [had] been accepted entirely, including matters which earlier decisions of the High Court in Hughes v The Queen [23] did not [determine?] in respect of s 101(2) Evidence Act."
3. As counsel for the Director submitted, this approach was wrong both in principle and having regard to the circumstances of the present case. Further, the judge may have misapprehended the fact that Meagher JA did not resolve the matter on the basis of the operation of s 101(2) of the Evidence Act 1995 (NSW) (that is a balancing exercise), but rather on the basis that the requirement in s 97(1) that the evidence have "significant probative value" was not satisfied. [24]
4. More importantly, the correct approach to the orders made by the High Court was not to seek to divine from the transcript the reasons which the Court would ultimately give in delivering judgment, nor to assume that the dissenting judgment in this Court was correct, but rather simply to disregard McPhillamy in this Court as authority for a legal principle. On that approach, the judge should have applied the principles in earlier High Court authority, including Hughes v The Queen. [25]
5. Most importantly for the materiality of the error, the judge was wrong to treat the reasoning in McPhillamy as determinative of the matter before him. This point can be explained by reference to the further reasoning of the trial judge.
6. It appears that the judge rejected the evidence on three bases, namely that the proposed evidence (i) did not satisfy the test of relevance under s 55 of the Evidence Act, (ii) did not, in any event, have "significant probative value" under s 97 of the Evidence Act and (iii) if it did satisfy those tests, the prejudicial effect of the material would nevertheless outweigh the probative value for the purposes of s 101(2) of the Evidence Act.
7. It is convenient to deal with the supposed relevance of the material and its probative value together. The problem in McPhillamy was that, to support charges involving masturbation with a schoolboy in a toilet, the prosecution sought to adduce evidence that some 10 years before the charged incidents, the accused had taken advantage of other schoolboys who had come to him for support. As is now understood from the reasons in McPhillamy v The Queen which have been delivered by the High Court, [26] the Court was willing to accept that proof of "sexual interest in young teenage boys may meet the basal test of relevance". [27] The joint reasons noted that it was the "tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value." [28] Thus, accepting that such a sexual interest may continue over a decade, the absence of any evidence of acting on that tendency during that lengthy period deprived the earlier events of their cogency in supporting the alleged later conduct.
8. The present case involved a number of factors to which the trial judge did not refer. First, there is a qualitative difference between a man having a sexual interest in teenage boys, examples of which are replete throughout recorded history, and a mature male having an interest in female toddlers in nappies. Secondly, the temporal connection was supplied by the accused's admission in the course of the record of interview that he had had such an interest "on and off for years", by which he meant "Oh, 10, 15 years. 20 years." This exchange with police in October 2015 was set out by the trial judge in his reasons but not otherwise addressed. Thirdly, in his evidence on the voir dire in the present matter, the respondent accepted that he had made the relevant admissions to police. Fourthly, the 2015 offending involved more than merely uncharged allegations; charges had been laid and the accused had entered guilty pleas to four significant charges.
9. On this basis, it is apparent that the focus on the reasoning of the dissenting judge in McPhillamy led the trial judge into error. The approach adopted was not consistent with that applied in Hughes v The Queen where the joint judgment stated: "[57] An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. … In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi - for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question. … [60] The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience."
10. The reasoning in particular cases will depend upon the nature of the alleged offending and the nature of the tendency evidence. Where the underlying propensity is accepted by the accused as operating over an extended period, its probative value is likely to be significant, even if the occasions upon which he acted upon the propensity were few and far between. The various factors set out above demonstrate that, in the present case, the tendency evidence had significant probative value.
11. It remains to consider the operation of s 101(2) of the Evidence Act. This provision requires that the Court be affirmatively satisfied that "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." The judge's willingness to reject the evidence on this basis should be put to one side. First, having rejected the proposition that the evidence had significant probative value, it is difficult to know what hypothesis he was working on as to the extent of its probative value in balancing that value against the potential prejudicial effect.
12. Secondly, he did not identify the precise prejudicial effect to be placed on the other side of the balance. He stated that he lacked confidence that any relevant direction to a jury would "outweigh the prejudicial effect", apparently adopting the language of s 101(2) which is directed to another exercise. The importance of identifying the prejudicial effect in the present case was that it was quite likely that the conduct the subject of the charges would lead to revulsion on the part of the jury. It is necessary to consider how directions would operate in that context, before considering whether additional directions would be required with respect to the tendency evidence. Further, assuming that the further evidence was material and had significant probative value, the judge needed to explain why statements by the respondent providing graphic descriptions of what he wished to do to a toddler for his own sexual gratification might not be viewed as powerful probative evidence, rather than being regarded as prejudicial.
13. In these circumstances, what the trial judge described as his "second finding", namely that "the prejudicial effect, in any event, does substantially outweigh the probative value" should be put to one side. This Court must decide for itself whether, in the terms of the section, "the probative value of the evidence substantially outweighs any prejudicial effect".
14. There are a number of reasons for concluding that the tendency evidence proffered by the Crown has significant probative value. First, the issue is whether the accused in fact committed acts on his own daughter between the ages of three and five years involving digital penetration of her genitals for his own sexual gratification. Ordinary human experience suggests that such conduct is most unusual and far more unusual than conduct involving a homosexual interest in teenage boys or a heterosexual interest in girls over 10 years. Evidence which demonstrated that the respondent had such a proclivity, namely deriving sexual gratification from activity with very young children, would provide powerful support for the evidence of the complainant.
15. While it is true that the respondent's admissions and conduct in 2015 included fantasising about such activities and drawing some form of titillation from pictures of very young children, the activities were not so limited. They extended to active pursuit of opportunities to obtain access to such young children. While it is also true that there was a gap of some eight years between the alleged conduct with the complainant and the conduct which occurred in 2015, the accused's own admission to having had such a sexual interest over that period renders the temporal gap largely immaterial.
16. In my view the proposed tendency evidence had significant probative value.
17. Applying the test under s 101(2), it is difficult to identify the prejudicial effect which should be ascribed to the tendency material. As already noted, the charges themselves may give rise to feelings of revulsion in a jury. Such circumstances routinely arise when juries are required to consider guilt of undoubtedly horrific offending. Such offending may well lead to a desire to punish the person charged without giving careful attention to the essential elements of the crime, including the identity of the offender. In this case, the possibility that the crimes occurred will be apt to lead some jurors to assume the worst without careful attention to satisfaction beyond reasonable doubt that the events occurred. These considerations will require firm directions from the judge in any event.
18. Evidence that the accused has willingly expressed the satisfaction he gains from engaging in such activities, or at least thinking about them, would allow the jury to accept as reliable the allegations of the complainant. That permissible use of the material is not a form of prejudice. While the evidence will require directions to ensure it is not misused, so will the evidence of the complainant.
19. Two further points should be noted. First, although the complainant's account is derived from her statements and thus may not be adduced precisely as expected by the prosecution, the same uncertainty does not arise with respect to the tendency evidence, all of which is recorded in some form, and the general accuracy of which has already been accepted by the accused.
20. Secondly, although of less importance given the last point, it is necessary for this Court to remind itself that it is not concerned with the reliability of the evidence, or the possible explanations which may be given by the accused. The trial judge noted that the accused had given evidence on the voir dire and said: "that he was suffering, in later years at the time of the offences to which he has pleaded guilty, great stress through work changes and other matters. That was confirmed by his mother who also gave evidence. What was clear is that the accused indicated that he did not, in respect of matters pleaded, intend to commit an actual assault upon the child." The thrust of this passage is by no means clear, but, to the extent that it cast doubt on the reliability of the tendency evidence, it is not a factor properly taken into account in assessing admissibility.

Conclusions

1. For the reasons set out above, it is apparent that the trial judge led himself into error by applying the reasoning of the dissenting judge in this Court in McPhillamy, in circumstances where not only was that an incorrect approach as a matter of law, but the circumstances of the case bore little relationship to the circumstances in McPhillamy. Further, the judge failed to address the importance of the tendency evidence, if accepted by the jury, in bolstering the prosecution case.
2. The rejection of the evidence satisfied the requirement that the ruling substantially weakened the prosecution's case for the purposes of s 5F(3A) of the Criminal Appeal Act. That was because, properly understood, the evidence had significant probative value. Finally, the probative value of the evidence substantially outweighed any prejudicial effect that might flow from the prosecutor relying upon the evidence at trial.
3. In written submissions in this Court counsel for the Director acknowledged that the entirety of the material served as tendency evidence might not be relied on at a future trial. Having summarised the key elements in four paragraphs of her written submissions, she accepted that that material might suffice. The recorded conversations included transcripts of (i) a "Skype chat" dated 21 August 2015, and (ii) a recorded conversation with an undercover police officer dated 18 September 2015. Much of that material has no direct bearing upon the pleaded tendency. Although it is not prejudicial, nevertheless it may form a distraction and should be excluded on that basis, if the accused takes such an objection. The orders should limit the admissible material to reflect the Director's acknowledgement.
4. In these circumstances, the following orders should be made: 1. Set aside the ruling of the trial judge made on 12 September 2018 rejecting the tendency evidence proffered by the prosecutor. 2. Direct that, subject to order (3), so much of the tendency evidence itemised in the notice dated 16 August 2018, together with additional material served on the day before the hearing in the District Court, is admissible on the trial of the accused on the charges set out in the indictment dated 10 September 2018. 3. The admissible material is limited to that described by counsel for the Director in pars 13-16 of the submissions in this court, as set out in Part B of the schedule to these reasons.

Suitors' Fund Act certificate

1. As an addendum, it may be noted that after judgment was reserved the Court received notice from the respondent that, if the appeal were upheld, an application would be made for a certificate under the Suitors' Fund Act 1951 (NSW). If necessary the Court will entertain such an application, but would need to be satisfied that the Act applies to proceedings in this Court.
2. Whether the Court has power to grant a certificate has been considered in a handful of cases, which do not speak with one voice: see, eg, R v AB (No 2); [29] Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos; [30] R v Gilfillan [31] and R v King. [32] Certificates have been granted in a number of cases where the power to grant a certificate has not been challenged or has simply been assumed. [33]
3. It should be borne in mind that s 6(2) of the Suitors' Fund Act provides for an unsuccessful respondent to an appeal to obtain reimbursement of (i) payments made pursuant to an adverse costs order and (ii) a portion of the respondent's own legal costs. With respect to (i), s 17 of the Criminal Appeal Act provides that no costs shall be awarded by this Court, so there can be no adverse costs order. With respect to (ii), the first hearing date had to be vacated because Legal Aid had not made a decision to fund the respondent who was, as a result, unrepresented. [34] The Court was later advised by trial counsel for the accused that he would appear pro bono at the hearing of the appeal, and did so. It is by no means clear there would be any utility in granting a certificate.
4. JOHNSON J: I have had the advantage of considering the judgments of Basten JA and R A Hulme J.
5. Like R A Hulme J, I do not join in agreement with the reasons of Basten JA (at [4]-[24]) concerning the nature of an appeal under s.5F Criminal Appeal Act 1912 against a ruling on admissibility of evidence. Counsel appearing at the hearing of the appeal did not address this issue. Further, as R A Hulme J observes, the error established by the Crown in this case would satisfy both formulations of the test explained by Basten JA.
6. Determination of the nature of an appeal of this type should await an appeal where the Court has the benefit of submissions from counsel on the topic.
7. I agree with R A Hulme J (at [60]) that the power of this Court to determine the question of admissibility arises from s.5F(5)(b) Criminal Appeal Act 1912.
8. Subject to these matters, I agree with the reasons and proposed orders of Basten JA.
9. R A HULME J: Basten JA has discussed the two possible bases upon which appellate review might proceed in an appeal concerned with the admissibility of evidence under s 5F(3A) of the Criminal Appeal Act. This is a subject upon which the Court did not have the benefit of submissions by counsel. I am of the view that it is a matter that is unnecessary to decide in the circumstances because I am satisfied on either of these bases that the trial judge erred in his consideration and determination of the question of admissibility of the evidence.
10. I also note that upon setting aside the decision of the primary judge, the power of the Court itself to determine the question of admissibility is not dependent upon Bauer. Such power is available pursuant to s 5F(5)(b) of the Criminal Appeal Act.
11. Aside from these matters, I agree with the reasons of Basten JA and the orders he proposes.

Endnotes

1. (1979) 142 CLR 531; [1979] HCA 9.
2. (1936) 55 CLR 499 at 504-505; [1936] HCA 40.
3. Warren v Coombes at 552.
4. House v The King at 504-505.
5. (1946) 46 SR (NSW) 318.
6. Civil Procedure Act, s 56(1).
7. (2011) 81 NSWLR 568; [2011] NSWCCA 63 (Spigelman CJ, Allsop P, Simpson, Kirby and Schmidt JJ).
8. DAO at [88], [96].
9. DAO at [105].
10. (2011) 33 VR 11; [2011] VSCA 268 (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA).
11. (2018) 92 ALJR 846; [2018] HCA 40.
12. R v Zhang (2005) 158 A Crim R 504 at 514-515 [45] per Basten JA in diss; L v Tasmania (2006) 15 Tas R 381 at 402 [55] per Underwood CJ (Tennent J agreeing at 408 [86]); R v Ford (2009) 273 ALR 286 at 311-314 [93]-[107], 316 [124] per Campbell JA, cf at 320 [145]-[146] per Howie J (Rothman J agreeing at 322 [157]-[158]); Dibbs v The Queen (2012) 225 A Crim R 195 at 211-212 [78]-[80] per Harper JA (Weinberg JA and T Forrest AJA agreeing at 197 [1], 216 [105]); Odgers, Uniform Evidence Law, 13th ed (2018) at 802-805 [EA.101.450]. See and compare McCartney v The Queen (2012) 38 VR 1 at 7-12 [31]-[51].
13. (2018) 92 ALJR 713; [2018] HCA 30.
14. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-177; [1981] HCA 39, citing In re the Will of Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323. See also Hogan v Australian Crime Commission (2010) 240 CLR 651 at 655 [34]; [2010] HCA 21.
15. [2009] NSWCCA 306; 201 A Crim R 451.
16. Although
17. DAO at [45].
18. DAO at [206].
19. (2012) 38 VR 1; [2012] VSCA 268.
20. Criminal Procedure Act 2009 s 276(1)(b) and (c).
21. See also R v DG (2010) 28 VR 127 at 132-3, [32]-[36].
22. [2017] NSWCCA 130 (Harrison and R A Hulme JJ; Meagher JA dissenting).
23. (2017) 92 ALJR 52; [2017] HCA 20.
24. McPhillamy v The Queen [2017] NSWCCA 130 at [68], [116]-[117]; cf [121].
25. (2017) 92 ALJR 52; [2017] HCA 20.
26. [2018] HCA 52; 92 ALJR 1045 (8 November 2018).
27. McPhillamy at [27].
28. Ibid (emphasis in original).
29. [2018] NSWCCA 148 at [45], [54]-[55].
30. [2010] NSWCCA 27 at [4]-[12].
31. [2003] NSWCCA 102; 139 A Crim R 460 at [87]-[92].
32. (2003) 59 NSWLR 472; [2003] NSWCCA 399 at [98]-[104].
33. See eg Webb v R [2012] NSWCCA 216; R v Aubrey [2012] NSWCCA 254.
34. See Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2018