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[2014] VSCA 100
Court of Appeal (Vic)
2014-05-27
Mr P, Priest JA, Gleeson CJ, Heydon J, Hayne JJ
Original judgment source is linked above.
CRIMINAL LAW - Admission - Evidence Act 2008 - Voice identification - Taped record of interview with police used for the purposes of voice comparison - Whether 'admission' for the purposes of s 90 of the Evidence Act 2008 - Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 - Whether any other power to exclude exists - Application for leave to appeal against conviction granted - Appeal dismissed.
EVIDENCE - Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a 'code' - Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused - Whether common law discretion survives the Evidence Act 2008 - Effect of s 56 of the Evidence Act 2008 - Sections 90, 136, 137 and 138 considered - Whether s 464J of the Crimes Act 1958 has been impliedly repealed - McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198, Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558, not followed.
1 We have had the advantage of reading in draft the reasons for judgment prepared by Priest JA. His Honour has dealt thoroughly with the facts in this case, and the issues as they were outlined below.
2 We agree with Priest JA that the evidence of the recording of the applicant's voice during his interview was not an 'admission' within the meaning of that term in s 90 of the Evidence Act 2008 (Vic) ('the Act'). The discretion under s 90 of the Act is confined to 'admissions.' Clearly enough, that represents the legislature's attempt to replicate what is commonly described as the 'common law fairness',[1] or the Lee[2] discretion. We agree with Priest JA's analysis of s 90.
3 As is the case in Lee itself,[3] s 90 is applicable only to admissions. In Em v The Queen,[4] Gleeson CJ and Heydon J referred to the origins of s 90, which lie in the Australian Law Reform Commission's Report on Evidence.[5] The joint judgment sets out that part of the report where the Commission recommends the introduction of a discretion corresponding to the Lee discretion to exclude otherwise admissible confessions on the ground that it would be unfair to use them against the accused.[6] Gummow and Hayne JJ also treated s 90 as generally similar to the common law discretion considered in Lee,[7] although it was a 'discretion that will fall to be considered only after applying the other, more specific, provisions of the Act'[8] - namely ss 84, 85, 86, 137, 138 and 139.
4 Neither s 137 of the Act (the Christie[9] discretion) nor s 138 (the Bunning v Cross[10] discretion) has any application to the facts in this case. Section 137 is, at best, tangential, and there is no suggestion that the police behaved illegally or improperly in recording the applicant's interview. Indeed any such suggestion was specifically eschewed.
5 There was no unfairness to the applicant in permitting the jury to listen to his voice, as recorded during the course of the record of interview. The tender by the prosecution of that recorded interview, for the limited purpose of enabling the jury to compare the applicant's voice with the recording on the co-accused's mobile telephone, did not give rise to any possible application of the 'fairness' discretion, as set out in s 90(b) of the Act. The 'fairness' discretion under s 90(b) incorporates, but also extends beyond, ensuring that an accused receives a fair trial. Moreover, one aspect of that 'fairness' discretion involves, as it always did at common law, the question of reliability.
6 The applicant has not demonstrated that the trial judge was in error in concluding that there was no unfairness to him in admitting the voice recording of the interview.
7 For the reasons given by Priest JA which amplify each of these points, we agree that leave to appeal should be granted and the appeal dismissed.
8 The applicant further called in aid the common law discretion to exclude evidence on the ground that its admission would be unfair to the accused and contended that on that basis the trial judge should have excluded the evidence. The applicant submitted that this general discretion survived the introduction of the Act. He further submitted that s 464J of the Crimes Act 1958 (Vic) preserves the common law discretion. These contentions were only the subject of considered argument in supplementary submissions which the parties were given leave to file.
9 The argument emerged because s 90 of the Act clearly represents a statutory re-enactment of the Lee discretion.[11] The Crown submitted that the applicant's argument that the trial judge should have excluded the recording of his police interview must be rejected because he falls between at least two, and probably three, stools. He cannot invoke s 90 because the evidence of the sound of his voice, in the course of the police interview, was not tendered to prove the truth of any of his answers. It was therefore not in the nature of an admission. He cannot invoke s 137 because there is no realistic basis for the suggestion that the probative value of this evidence is outweighed by the danger of its unfair prejudice.[12] He cannot invoke s 138 because there is no suggestion that this evidence was improperly or illegally obtained.
10 It is for these reasons that the Crown contends that the trial judge, though he erred in his approach to the question whether to allow this evidence to be led through the prism of s 90 of the Act, nonetheless came to the correct decision regarding that matter. The only discretion that it was said might arguably have been previously available to exclude such evidence was the common law 'fairness' discretion. Even if such a discretion does exist at common law, the Crown says that it has been statutorily abrogated by the enactment of the Act. This argument rests upon the propositions that Chapter 3 of the Act is in effect a code as to both admissibility and exclusion of evidence and that s 138 of the Act is intended to cover the field in relation to evidence unfairly obtained.
11 Priest JA, after detailed analysis, accepts the respondent's contentions that if any common law residual 'fairness' discretion existed outside the realm of confessions and admissions, and was applicable to real evidence, it was confined to evidence procured by unfair conduct. Second, he accepts that any such discretion has now been overtaken by the provisions of the Act, and is no longer extant. Finally, he also concludes that s 464J of the Crimes Act 1958 has been impliedly repealed so that the common law discretion does not survive.
12 We consider, for the reasons that follow, that the general common law discretion to exclude evidence, the admission of which would be unfair to the accused, has survived the Act and is not confined to evidence unfairly procured. Second, Chapter 3 is not to be treated as a code as to the exclusion of admissible evidence. Accordingly, we do not accept that s 464J has been impliedly repealed although we find it unnecessary to answer the question whether it owes its survival to s 8 or s 9 of the Act.
13 Although the common law discretion was in our opinion available, once it became clear that the applicant's voice came to be recorded in circumstances where he was treated perfectly fairly by the police, and was able to exercise a free choice as to whether or not to answer questions, there was little, if any, basis for the exercise of any common law 'fairness' discretion. The trial judge's reasoning, regarding these matters was, if we may respectfully say so, impeccable. The trial judge's findings on the question of unfairness, though wrongly directed towards s 90, would inevitably have led to the same conclusion if made in response to a request to exercise the general 'fairness' discretion to exclude the voice recording. The appeal must still fail.
Is there a general common law unfairness discretion available to exclude the voice recording?
14 We turn to the question whether there subsists a broad common law discretion to exclude evidence which is unfair to an accused. For almost half a century, three distinct and well defined common law discretions to exclude relevant and admissible evidence have been recognised:
(i) The first arises where the prejudicial effect of the evidence outweighs its probative value. This discretion became known as the Christie[13] discretion and was the subject of extensive consideration in the decision of this Court in Dupas v The Queen.[14] It is now reflected in the mandatory obligation to exclude such evidence under s 137 of the Act.
(ii) The second area of discretion arises where it would be unfair to use an admission or confession in evidence against the accused.[15] The discretion, known as the Lee discretion, is exercised where the reception of the evidence would be unfair to the accused.[16] The issue is not whether the accused was treated unfairly.[17] It will be unfair to the accused where the use of the admission or confession would result in an unfair trial.[18] Section 90 is generally similar to the common law discretion considered in Lee.
At common law, it was necessary, in considering the exercise of this particular discretion, to have regard to the means used to obtain the admission (namely whether there was illegal or improper conduct on the part of interrogating officials), the accused's own peculiar frailties (including his or her mental and emotional state, and condition of sobriety), factors that might make the admission unreliable (and therefore unfair to be used against the accused), and the effect that tender of the admission would have upon the legitimate exercise of the right to silence.
Typically, the common law 'fairness' discretion arose for consideration only in circumstances where a court had already determined that a confession was voluntary, but could nonetheless, if received, lead to an unfair trial.[19] The starting point concerns the existence of a common law 'fairness' discretion, operating outside the field of admissions and confessions. The Lee discretion,[20] which forms the basis of much of the learning in this area was, of course, coined in the context of confessional evidence and is now reflected in s 90.
No issue arose in Lee as to real evidence, or evidence tendered for a non-hearsay purpose. However, as we shall demonstrate, there is a large and respectable body of authority in support of the view that the 'fairness' discretion was never confined to confessional evidence and has been enlivened to exclude identification and real evidence.
(iii) The third area of discretion arises where, as distinct from questions of unfairness to the accused, the evidence was unlawfully or improperly obtained.[21] Bunning v Cross,[22] especially the joint judgment of Stephen and Aickin JJ, has always been accepted as establishing a separate 'public policy' discretion for the rejection of admissible evidence.
The scope of the common law discretion to exclude evidence which would be unfair to the accused
15 The scope of the second area of discretionary exclusion was considered by the New South Wales Court of Criminal Appeal in R v Edelsten.[23] After noting that this area of discretion had its genesis in the special tenderness which the common law had always displayed towards confessional material, the Court said:
However, if the discretion to reject evidence is to be founded on unfairness of the trial which would result from the reception of the evidence, the discretion
ought in principle to be available wherever such unfairness appears, and not only in the case of confessional evidence.[24]
After referring to unreported judgments at first instance in which it had been held that this area of discretion is not limited to confessional evidence, the Court[25] expressed its concurrence with the view that the discretion extended to evidence of identification and in appropriate circumstances to real evidence such as evidence of the results of search.
16 Whether or not the first and second discretions described above are better viewed as specific illustrations of a general discretion, we consider it to be clear that there is a general discretion which inheres in a trial judge to exclude admissible evidence in order that the accused receive a fair trial. That general discretion is an indispensible tool if a trial judge is to have the capacity in all circumstances to discharge their overriding duty of ensuring that the accused receives a fair trial. An examination of authority strongly supports this conclusion. Many of the authorities are the subject of careful consideration in the comprehensive reasons of Fitzgerald P in R v O'Neill.[26]
17 The observations of Lord Sumner in Ibrahim v The Queen[27] and Lord Moulton in Christie[28] are to the effect that the discretion to refuse to receive admissible evidence in criminal trials on the ground of unfairness is not confined to evidence of confessional statements, but is general. Viscount Simon, with whom Lords Porter, Morton of Henryton and Tucker agreed, speaking of the power of a trial judge to rule out the reception of evidence of prior similar offences, said in Harris v Director of Public Prosecutions,[29] after quoting from Noor Mohamed v The King:[30]
This second proposition flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused.[31]
18 In Kuruma v The Queen[32] Lord Goddard CJ, speaking for the Privy Council, said:
No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused ... If, for instance, some admission of some piece of evidence, eg, a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.[33]
19 The existence of such a general discretion was adverted to in Driscoll v The Queen by Gibbs J,[34] who said:
Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter. It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.[35]
20 In Lee[36] the Court (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ) identified the 'legal source' of the discretion to exclude confessional evidence in these terms:
[A] statutory power of the Court of Criminal Appeal to quash a conviction if 'on any ground there was a miscarriage of justice'. The trial judge would naturally, if he thought that the Court of Criminal Appeal would regard the admission of any particular evidence as constituting a miscarriage of justice, anticipate the Court of Criminal Appeal by rejecting that evidence himself.[37]
21 In MacPherson v The Queen[38] Gibbs CJ and Wilson J said:
[E]ven if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.[39]
22 In R v Ireland[40] Barwick CJ, with McTiernan, Windeyer, Owen and Walsh JJ concurring, referred to the general discretion which applies in all criminal cases in order to ensure fairness to an accused.[41] Stephen and Aickin JJ again made reference to that general discretion in Bunning v Cross.[42]
23 In Canada, before the enactment of the Canadian Charter of Rights and Freedoms,[43] the position at common law appears to have been similar to that expressed in Kuruma,[44] though perhaps less well disposed to the existence of the residual discretion.[45] In Cross on Evidence,[46] it is noted that courts in both New Zealand[47] and Northern Ireland[48] had long recognised a general discretion, at common law, to exclude unfairly obtained evidence.
24 Other High Court authority bears out the contention that at common law there exists a general discretion in a trial judge to exclude admissible evidence to ensure a fair trial. Its existence is illustrated in cases such as Donnini v The Queen;[49] Matusevich v The Queen;[50] Phillips v The Queen;[51] Alexander v The Queen;[52] Domican v The Queen;[53] Harriman v The Queen;[54] and Pfennig v The Queen.[55] In Harriman Brennan J said:
As the argument against admissibility in this case relied on the judicial discretion to reject evidence otherwise admissible when it is necessary to do so to secure a fair trial, it is necessary to say something about the scope of the discretion. Is there a residual judicial discretion to reject evidence revealing the commission of another offence or a predisposition to commit an offence on the ground that its prejudicial effect is disproportionate to its probative effect and the evidence is found to be admissible because its probative force clearly transcends its merely prejudicial effect? Obviously, the occasions for the exercise of such a discretion are hard to envisage, the evidence which satisfies the criterion of admissibility is unlikely to attract the exercise of the discretion. Nevertheless, one cannot exclude the possibility of a case where, despite the substantial probative force of the evidence, fairness dictates its exclusion. As against the prospect of such an exceptional case arising, the continued existence of the residual discretion should be admitted.[56]
25 Gaudron J, with whose reasons Toohey J agreed (although differing as to her conclusion), said:
As previously mentioned, counsel for the applicant objected that the letters were highly prejudicial and bore little probative value. By so doing, counsel invoked the discretion which inheres in a judge at a criminal trial to exclude evidence which is technically admissible but which would operate unfairly against an accused.[57]
26 The discretion to exclude evidence which is technically admissible but which would operate unfairly against an accused is an aspect of the trial judge's overriding duty to ensure the fairness of the trial.[58] McHugh J also had no doubt that in a criminal trial 'a judge always has the general discretion to exclude prejudicial evidence'.[59] In Pfennig v The Queen,[60] Toohey J, after referring to the joint judgment of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen[61] holding that the criterion for the admissibility of similar fact evidence is the strength of its probative force, said:
However, it remains with the trial judge to consider the prejudicial effect of the evidence and whether, in the circumstances, it is just to admit it. That is not precisely the same as saying that the evidence is admissible if its probative force exceeds its prejudicial effect. The probative force of the evidence, in accordance with the criterion discussed, is the basis for its admissibility; nevertheless, the trial judge may exclude it.[62]
27 There are a number of passages in the judgments in Ridgeway v The Queen[65] which refer to the discretion to reject admissible evidence on the grounds of unfairness as well as the discretion to reject admissible evidence that was illegally or improperly procured. Mason CJ, Deane and Dawson JJ in their joint judgment said:
[I]t has long been established that once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds ...[66]
In holding that the reception of the evidence was not unfair to the appellant because he had instigated the importation of the heroin and its supply to him,[67] their Honours also said:
When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.[68]
The purpose of the discretion to exclude evidence on the ground of unfairness is to ensure a fair trial for the accused; the purpose of the discretion to exclude evidence on the ground of unlawfulness is not to ensure a fair trial but to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of - if not reward for - illegal conduct on the part of the law enforcement agency.
However, there are likely to be few occasions for exercising the Bunning v Cross discretion (as I shall call the discretion to exclude evidence on the ground of unlawfulness) divorced from considerations of fairness to the accused. The unlawful conduct of a law enforcement officer which might call for an exercise of the discretion will ordinarily occur in the course of gathering evidence for the prosecution of an offence. It was in that context that Barwick CJ in Ireland's case spoke of 'the protection of the individual from unlawful and unfair treatment'. And in Bunning v Cross, Stephen and Aicken JJ noted that the rubric of unfairness as discussed in King v The Queen is a concept which 'closely approaches what was said in Ireland's case'. Of course, the same set of facts may enliven a discretion to exclude evidence on the grounds of both unlawfulness and unfairness. ...
Nevertheless, the Bunning v Cross discretion may be exercised - albeit only in rare cases - when an entrapped offender falls into the category of an 'unwary criminal'. There may be no unfairness to the accused in admitting the evidence but the illegality of the conduct engaged in by the law enforcement agency may be so grave that the conviction of the offender would be bought at 'too high a price' if the evidence obtained by the illegal conduct were admitted.
When an exercise of the Bunning v Cross discretion involves no element of unfairness to the accused, the court must simply weigh 'against each other ... two competing requirements of public policy' ...[69]
McHugh J said that a trial judge has a discretion to exclude evidence obtained by unlawful or improper means irrespective of whether the admission of the evidence would be unfair to the accused:
Any unfairness to the accused in admitting such evidence is a factor which is relevant to the exercise of the discretion, but it is only a factor which might tilt the balance in a close case. Ordinarily, questions concerning unfairness to the accused in admitting evidence are dealt with under the general discretion of a judge in a criminal trial to exclude evidence whose probative value is outweighed by its prejudice to the accused's defence.[70]
28 The joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield[71] recognised that the concept of fairness within the discretion to exclude confessional statements was a vague concept of uncertainty because courts have failed to define the policy behind the discretion or considerations relevant to it.[72] Insofar as unfairness may focus upon the accused's right to a fair trial, the joint judgment noted that that is already required by the general law. As to the fairness that may be at issue in cases involving the exercise of a discretion to exclude unduly prejudicial evidence, the joint judgment also identified the fairness of the trial in the sense that it does not involve a perceptible risk of miscarriage of justice.[73] Their Honours considered the concept of unfairness to have been expressed in the widest possible form in s 90 of the Act and that s 138 expressed in the widest terms the policy discretion developed by the common law.[74]
29 The Full Court in Rozenes v Beljajev[75] rejected a challenge to the existence of the discretion in a criminal case to exclude any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. In that case, a County Court judge had given a ruling before trial excluding the evidence of a prosecution witness who was, on his own account, an accomplice of the defendants in relation to a major conspiracy to import cocaine. The judge concluded that the witness's account lacked any credibility, based upon his being an accomplice, his general bad character, and his motive to implicate others. The prosecution sought prerogative and declaratory relief against that ruling.
30 In granting declaratory relief, the Full Court (Brooking, McDonald and Hansen JJ) noted that the trial judge had referred to a number of decisions in support of the existence, at common law, of a general 'fairness' discretion.[76] The central issue was whether, as his Honour had held, there existed a discretion to exclude the evidence of an accomplice solely on the basis of its supposed unreliability.
31 After considering a number of authorities bearing directly upon that point,[77] the Full Court concluded that there was no example of which their Honours were aware of the actual exclusion of the evidence of an accomplice on that sole ground.
32 What is significant for present purposes, however, is the fact that the Full Court expressly accepted that there was a 'general or residual discretion to reject any evidence on the ground that its reception would be unfair to the accused'.[78] Faced with a direct challenge by the prosecution to the existence of any such discretion, the Full Court observed:
It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities. It would be wrong to regard as exhaustive the two particular discretions (that relating to probative value and prejudicial effect and that established by Bunning v Cross) put forward by the Attorney-General in McLean and Funk as the only discretions available for the exclusion of evidence other than confessional evidence. But while the existence of a residual discretion must be accepted, it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence - we are not speaking of confessions - which would not bring the case within the more specific principle whereby evidence is not to be admitted where its prejudicial effect is out of proportion to its probative value.[79]
33 R v Peirce confirms the existence at common law of a general discretion to exclude, in appropriate circumstances, 'virtually any piece of evidence in a criminal trial'.[80] That residual discretion represented 'the concern which has often been expressed that the rules of admissibility of evidence should not operate to produce unfairness to accused persons'.[81] More specifically, that 'fairness' discretion was broader in scope than the Lee discretion (which was, of course, confined to confessions and admissions). The 'fairness' discretion was considered to be separate and distinct from what had come to be known as the Christie[82] discretion (probative value versus likely prejudicial effect), and the 'public policy' discretion identified in Bunning v Cross[83] (illegally or improperly obtained evidence).
34 Although the Full Court went on to say that it was not easy to think of circumstances in which grounds might exist for the exercise of that residual 'fairness' discretion, there was no doubt, in their Honours' minds, that the discretion itself was well established.
35 The House of Lords in R v Sang,[84] whilst rejecting the existence of a discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper and unfair means,[85] also came to accept that notwithstanding the development of the common law discretions on a case by case basis, resulting in the identification of specific areas of exclusion, a general discretion to reject admissible evidence existed to ensure that the accused received a fair trial.
36 In R v Sang, Viscount Dilhorne referred to his speech in Selvey v DPP (No 1)[86] as to:
The overriding duty of the judge to ensure that a trial is fair. His discretion to control the use of relevant admissible evidence is exercised in the discharge of this duty. It is the use of the evidence, not, save in relation to confessions and admissions by the accused, the manner in which it has been obtained with which he is concerned.[87]
In my opinion, the decision as to whether evidence may be excluded depends entirely upon the particular facts of each case and the circumstances surrounding it - which are infinitely variable.
I consider that it is a clear principle of the law that a trial judge has the power and the duty to ensure that the accused has a fair trial. Accordingly, amongst other things, he has a discretion to exclude legally admissible evidence if justice so requires ...
The judge has a discretion to exclude evidence procured, after the commission of the alleged offence, which although technically admissible appears to the judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value ...
I recognise that there may have been no categories of cases, other than those to which I referred, in which technically admissible evidence proffered by the Crown has been rejected by the court on the ground that it would make the trial unfair. I cannot, however, accept that a judge's undoubted duty to ensure that the accused has a fair trial is confined to such cases. In my opinion the category of such cases is not and never can be closed except by statute.[88]
The certified question raises a much more general question as to what discretion to exclude legally admissible evidence is enjoyed by the judge at a criminal trial in England. The starting point is, in my opinion, that by the law of England all evidence which is relevant is also admissible ... Nevertheless evidence that is admissible in law may, in certain cases, be excluded by the judge in the exercise of a discretion which he undoubtedly possesses ...
These cases are in my opinion examples of the exercise of a single discretion founded upon the duty of the judge to ensure that every accused person has a fair trial.[89]
I recognise that there does not appear to be any decision by an appellate court in England clearly based upon an exercise of the discretion except when the excluded evidence either (1) is more prejudicial than probative or (2) relates to an admission or confession ... But notwithstanding the absence of direct decision on the point, the dicta are so numerous and so authoritative that I do not think that it would be right to disregard them, or to treat them as applicable only to cases where the prejudicial effect of the evidence would outweigh its probative value ...[90]
In my judgment, certain broad conclusions emerge from a study of the case law. They are:
(1) that there is one general discretion, not several specific or limited discretions;
(2) that the discretion now extends further than was contemplated by Lord Halsbury and Lord Moulton in Christie's case, or even by Lord Simon in Harris v Director of Public Prosecutions: it is now the law that 'a judge has a discretion to exclude legally admissible evidence if justice so requires' (Lord Reid in Myers v DPP);
(3) that the formula of prejudicial effect outweighing probative value, which has been developed in the 'similar fact' cases, is not a complete statement of the range or the principle of the discretion;
(4) that the discretion is, however, limited to what my noble and learned friend, Viscount Dilhorne, calls the 'unfair use' of evidence at trial: it does not confer any judicial power of veto upon the right of the prosecution to prosecute or to present in support of the prosecution's case admissible evidence, however obtained.
These broad conclusions leave unresolved the critical question as to the limits of the discretion and the principle upon which it is founded. It may be, as Lord MacDermott CJ said in R v Murphy, that unfairness which will be found to be its modern justification, cannot be closely defined. One must, however, emerge from the last refuge of legal thought - that each case depends on its facts - and attempt some analysis of principle.
It is tempting to accept that there are several discretions specific to certain situations. Certainly the law has developed by reference to specific situations in which admissible evidence has been either excluded or said to be liable, at the judge's discretion, to be excluded.
A discretion has been recognised to exclude 'similar fact' evidence where its prejudicial effect would outweigh its probative value. A discretion to refuse to permit a cross-examination of the accused to his record, though permissible under the Criminal Evidence Act 1898, was recognised by this House in R v Selvey. Other relevant evidence may also be excluded. Examples are: a voluntary confession obtained in breach of the Judge's Rules; evidence obtained where the defendant has been misled into providing it; evidence obtained illegally after the commission of the offence. The instances of actual exclusion are rare: but too many distinguished judges have said that the discretion exists for there to be any doubt that it does.
Notwithstanding its development case by case, I have no doubt that the discretion is now a general one in the sense that it is to be exercised whenever a judge considers it necessary in order to ensure the accused a fair trial. R v Selvey can be seen to be of critical importance ... Lord Hodson, Lord Guest and Lord Pearce, with whom Lord Wilberforce agreed, were clearly of the opinion that the discretion was a general one. Lord Hodson said at page 349: 'Discretion ought not to be confined save by the limits of fairness'. Lord Guest said, at p 352, that the discretion 'springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused': and Lord Pearce echoed his words at page 360F.
The review of the authorities by this House in Selvey's case reveals how comparatively recent a judicial development this discretion is.[91]
39 His Lordship then examined the historical reasons for the development of the discretion and referred to Christie[92] as a
staging-post in the development of the law. The modern discretion is a general one to be exercised where fairness to the accused requires its exercise.
Authority, therefore, strongly suggests that the discretion is based upon, and is co-extensive with, the judge's duty to ensure that the accused has a fair trial according to law.[93]
40 It is worth noting several other cases in which the general discretion has been successfully invoked. R v Payne[94] represents a rare example of the exercise of the discretion. The facts were as follows. The appellant was asked at a police station whether he was willing to be examined by a doctor. He was told that it would be no part of the doctor's duty to examine him in order to give an opinion as to whether he had been fit to drive. He consented to the examination. At his trial on a charge of driving whilst intoxicated, the doctor who had examined him gave evidence of the extent to which he was under the influence of alcohol. The appellant was convicted, and appealed. The Court of Criminal Appeal quashed his conviction, holding that the trial judge had erred, in the exercise of discretion, in allowing the evidence to be given.[95]
41 In Callis v Gunn,[96] the defendant had been taken to a police station and was there charged with stealing. While still in custody, he declined to make any statement, saying that he wished to have either his solicitor or an officer from his unit present before he did so. He was then asked to give his fingerprints. He was not cautioned that he might refuse to do so, and was not told that if he did give his fingerprints they might be used in evidence. He allowed his fingerprints to be taken. At his trial, the justices refused to permit the fingerprint evidence to be led. Without that evidence there was no case to answer.
42 On appeal by the prosecution, the Divisional Court held, in accordance with Kuruma,[97] that there did exist a residual discretion to exclude any evidence, whether confessional or real, if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, or anything of that sort. However, there being no such suggestion in this case, the justices had not exercised their 'fairness' discretion correctly. The matter was remitted to be dealt with according to law.
43 There are references in Barton v The Queen[98] consistent with a broad approach to the court's power to prevent an abuse of process as extending to a power to prevent unfairness generally.[99] In Jago v District Court (NSW),[100] Mason CJ referred with approval to the observation of Lord Devlin in Connelly v Director of Public Prosecutions that courts have 'an inescapable duty to secure fair treatment for those who come or are brought before them'.[101] Mason CJ said:
[O]bjections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences.[102]
44 Each of the judgments in Jago[103] emphasises the power invested in a trial judge to ensure a fair trial. Toohey J referred to the accused's right to a fair trial stating:
There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial.[104]
Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused ... The exercise of the power to reject evidence, either alone or in combination with the trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair.[105]
45 Mason CJ and McHugh J in their joint judgment in Dietrich v The Queen[106] said:
The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system ... [T]he right is manifested in rules of law and of practice designed to regulate the course of the trial.[107]
46 In Dietrich Gaudron J referred to the fundamental principle of the system of criminal justice that a person should not be convicted save after a fair trial according to law. Gaudron J said:
Speaking generally, the notion of 'fairness' is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted,[108] either because its weight and credibility cannot be effectively tested[109] or because it has more prejudicial than probative value and so may be misused by the jury.[110] In other cases, the procedures may be modified ... [T]he requirement of fairness is, and in various different contexts, has been recognised as, independent from and additional to the requirement that a trial be conducted in accordance with law.
The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case.[111] Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial ...[112]
The notion of a fair trial and the inherent powers which exist to serve that end do not permit of 'idiosyncratic notions of what is fair and just'[113] any more than do other general concepts which carry broad powers or remedies in their train. But what is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values. It is because of these matters that the inherent powers of the court to prevent injustice are not confined within closed categories.[114]
47 As Fitzgerald P observed in R v O'Neill:[115]
[T]he right not to be tried unfairly is a fundamental human right, as is recognised by Article 14(1) of the International Covenant on Civil and Political Rights, which has been ratified by Australia. Although Article 14(1) of the Covenant has not thereby become part of Australian law, statutes should be interpreted, as far as the language permits, in conformity with the terms of international instruments, which may also be used by the courts as a legitimate guide in developing the common law. While, as a matter of strict logic, that may leave the content of the right to a fair trial unresolved, its fundamental nature and its character as an individual right support a conclusion that it is absolute, and unqualified by other interests, or matters such as limits on the state's capacity to provide a trial which is fair.
48 It would be both artificial and inflexible to suggest that, where an accused is faced with the prospect of an unfair trial because the Crown wishes to lead particular evidence, the only recourse available at common law is to seek a stay on the basis of abuse of process, rather than the exclusion of that particular piece of evidence. The hurdle to be overcome in seeking a stay is obviously much greater than that to be overcome in seeking a favourable exercise of an exclusionary discretion.
49 There will undoubtedly be circumstances in which the common law will provide a basis for the exclusion of relevant evidence which works unfairness to the accused because there is no provision in the Act which renders it inadmissible and no provision enabling its exclusion.[116]
50 The position at common law, therefore, seems entirely clear. It was exactly as described by the Full Court in Rozenes v Beljajev.[117] The discretion to exclude any evidence, whether confessional or real, on the ground that to receive it would be unfair to the accused (in the sense that the trial would be unfair), was alive and well, both before and after Lee.[118] The Bunning v Cross[119] discretion was analytically, and practically, separate and distinct. The Christie[120] and Lee discretions were illustrative of that general unfairness discretion.
Has the common law general fairness discretion to exclude evidence which would be unfair to the accused survived the introduction of the Evidence Act?
51 We now turn to the Crown submission that the provisions of the Act have overtaken the general common law discretion to exclude evidence if its admission would be unfair to the accused. The Crown submitted that no common law exclusionary discretion survived the introduction of the Act. That contention accords with the view expressed by Stephen Odgers in the second edition of his Uniform Evidence Law in Victoria that, save for s 90 relating to admissions, there is no discretion otherwise to exclude prosecution evidence on the basis that, having regard to the circumstances in which the evidence was obtained, it would be unfair to a defendant to use the evidence - a position which the author acknowledges contrasts with the position at common law.[121] While Odgers suggests that unfairness in the manner in which evidence has been obtained is required to be dealt with under other provisions of the Act, in particular s 138, the Act confers no power on the court to otherwise exclude evidence that would be unfair to the defendant, and which would result in an unfair trial. As we explain, that contention cannot be sustained.
52 Conceptually, there is some potential overlap between the s 90 and the s 138 public policy discretions.[122] Notwithstanding that potential, the focus of each discretion is quite different. There are procedural and substantive differences between the two discretions. The s 90 discretion places the burden of persuasion upon the accused,[123] whereas the s 138 discretion places that burden upon the prosecution, once the accused has persuaded the court that a relevant impropriety or illegality has occurred. The s 90 discretion focuses upon the unfairness to the accused in using the admission arising from the circumstances in which the admission was made. The s 138 discretion treats the individual circumstances of the particular accused as very much a secondary factor.[124] Neither provision encompasses the breadth of the general unfairness discretion at common law.
53 Plainly, nothing in the Act impinges upon the obligation that rests upon every trial judge to ensure that the accused receives a fair trial. The Law Reform Commission itself said that this obligation was 'adequately enshrined in the common law' and that its inclusion in the Uniform Evidence Acts would be 'redundant and potentially counterproductive'.[125] One is thus driven to ask how the trial judge is to discharge that duty where evidence which would make the trial unfair cannot be excluded under any of the specific provisions in the Act.
54 Odgers accepts that common law evidentiary principles continue to apply in various areas that have not been carved out by the Act.[126] In that regard, he is at one with the Australian Law Reform Commission, which recognised that even after the Act was enacted there would continue to be significant scope for both statutory and common law rules of evidence to operate, particularly those evidentiary rules that could be classified as part of the substantive law, or closely linked thereto.
55 Some examples will suffice. The law relating to the incidence of the burden of proof, the parol evidence rule, the doctrines of res judicata and issue estoppel and the law relating to presumptions are all common law doctrines which, it is generally agreed, have survived the introduction of the Act. So too have a number of procedural rules that are closely linked to the law of evidence. These include the taking of evidence on commission, notice of alibi requirements, and the law relating to no-case submissions. In addition, the principles governing the admissibility of extrinsic evidence to assist in the interpretation of wills, deeds and other instruments all fall outside the scope of the Act.
56 Odgers recognises that the Act does not abrogate the underlying principle of the accusatory and adversarial system that forms the basis of our criminal justice system. He warns, however, of the dangers of failing to appreciate how much of the common law has been abrogated. He draws attention to Butcher v Lachlan Elder Realty Pty Ltd[127] where the New South Wales Court of Appeal concluded that s 9 of Evidence Act 1995 (NSW) operated to preserve the common law rule relating to an admission by a predecessor in title. He challenges the correctness of that decision, noting that Part 3.4 of the Evidence Act 1995 deals with admissions, and in his view, intends to 'cover the field' in doing so.[128]
57 Odgers[129] suggests that Chapter 3 of the Act constitutes a code for the rules relating to the admissibility of evidence - that common law rules relating to admissibility of evidence are abrogated.[130] Odgers relies, as support for that proposition, upon s 56 of the Act.[131] That section provides that 'except as provided by this Act' all relevant evidence is admissible. Odgers suggests that the Act does provide otherwise in respect of the area of admissibility of evidence. He relies upon the language of that provision as impliedly repealing all other statutes that deal with questions of admissibility on the basis that s 56 'covers the field' regarding those matters.[132]
58 Section 56 in part restates the most basic of common law rules regarding admissibility, namely that all evidence, in order to be admissible, must first pass the threshold of relevance. We do not need to consider whether the Act effectively operates as a 'code' and abrogates any common law rules as to the admissibility of evidence which are inconsistent with its provisions - a conclusion which arguably flows from the terms of s 56(1) which were described as 'typical provisions' by McClelland CJ in Eq in Telstra Corporation v Australis Media Holdings (No 2).[133] His Honour said that if the evidence is 'relevant' and is 'not excluded by any provision of the Act' it is 'admissible in the proceeding.'[134]
59 The issue here is what provisions of the Act provide otherwise. There are numerous provisions in the Act which declare particular evidence to be inadmissible. For example, evidence that is relevant may be rendered inadmissible, in the case of admissions, by virtue of provisions such as ss 84 and 85 of the Act. Likewise, evidence of 'tendency' or 'coincidence' that is relevant, but fails to meet the requirements of ss 97 and 98, will be inadmissible. This explains why the New South Wales Court of Criminal Appeal, in R v Ellis,[135] concluded that ss 97 and 98 'covered the field' in relation to tendency or coincidence evidence to the exclusion of common law principles governing the admissibility of similar fact evidence. Prior to Ellis,[136] there had been a preponderance of authority, some of it emanating from judges of great experience,[137] in favour of the continued application of the common law, as laid down by the High Court in Pfennig v The Queen.[138] No one today doubts that Ellis[139] was correctly decided insofar as it held that matters of tendency or coincidence were now to be dealt with strictly in accordance with the language of ss 97 and 98. Such evidence, if admissible, may be subject to exclusion.[140]
60 In the realm of discretionary or mandatory exclusion, s 56 is no longer relevant. It has always been understood that evidence that is relevant is admissible, subject to the possibility that it may have to be excluded pursuant to an exclusionary rule of evidence. Evidence that was admissible could, nonetheless, be excluded in the exercise of judicial discretion. Such evidence was never treated or described as 'inadmissible'.
61 We have already referred to passages from Harris,[141] Driscoll v The Queen,[142] Harriman[143] and Hoch v The Queen[144] which show that a discretionary exclusion has always arisen at common law upon the evidence being found to be admissible. Some further reference to authority serves to demonstrate that admissibility is an antecedent question to exclusion, the latter depending upon the admissibility of the evidence. In Ibrahim v The Queen[145] Lord Sumner, speaking then of more modern developments, observed that objections to the receipt of confessional statements went logically 'to the weight and not to the admissibility of the evidence'.[146] In Kuruma,[147] Lord Goddard CJ, in rejecting the submission that evidence obtained illegally was for that reason inadmissible, formulated the test 'whether evidence is admissible is whether it is relevant to the matters in issue'[148] - now to be found in s 56 of the Act. His Lordship then said in the passage we have earlier set out that in a criminal case, 'the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused'.[149]
62 In Lee,[150] reference was made to the judgment of Latham CJ in McDermott v The King.[151] It was there recognised that though an incriminating statement or confession 'could not be held to be inadmissible as evidence', there was a discretion to reject the confession if it would be unfair to use it in evidence against the accused. Gibbs CJ in Cleland v The Queen[152] stated that even though a statement was voluntary and therefore admissible, the trial judge had a discretion to reject it if it was obtained in circumstances that would render it unfair to use it against him. In R v Ireland Barwick CJ, [153] referring to the admission of photographs taken against the will of the accused, stated that evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. The judge had a discretion nonetheless to reject the evidence. Similarly, in Bunning v Cross,[154] the majority held that evidence of a breathalyser test administered in contravention of the requirements of the law was admissible but subject to the discretion to exclude it where the evidence was the product of unfair, unlawful or improper conduct. Although decisions of the House of Lords in Kuruma,[155] R v Sang,[156] and Morris v Beardmore[157] were at variance with Ireland[158] and Bunning v Cross[159] as to the existence of the discretion to refuse evidence obtained by improper or unfair means, it was recognised that the Christie[160] discretion operated in respect to relevant and admissible evidence.[161] Murphy J in Cleland v The Queen dealt with the 'general discretion to exclude admissible evidence'.[162] Deane J, in the same case, approved the remarks of Wells J in R v Barker,[163] in which the distinction was drawn between the fascicule of rules governing the admissibility of confessions and the discretionary power to exclude them.[164] In Em,[165] Gleeson CJ and Heydon J in their joint judgment referred to the passage from Lee in which the court had said that no question of discretionary exclusion arises where the statement in question is a voluntary statement as it is 'legally inadmissible'.[166] If it is voluntary the circumstances may be proved which call for an exercise of discretion.[167] As Fitzgerald P explained in R v O'Neill:[168]
Consistently with the right of an accused person not to be tried unfairly, admissible evidence should not be received in a criminal trial if its reception would be unfair to the accused. The power to reject such evidence is not concerned with inadmissible evidence - which must also be rejected - but with evidence which is admissible ...[169]
63 Thus, at least since Kuruma,[170] the common law has always articulated that evidence that is relevant to the matters in issue is admissible, and s 56 maintains that formulation. It speaks of evidence that is relevant being 'admissible', and evidence that is not relevant as being 'not admissible'. Section 56 does not dictate a different approach to the common law that once the evidence is found to be admissible under the Act, the exclusionary powers may then be engaged to exclude 'admissible' evidence. The scope of the trial judge's discretion or mandatory obligation to exclude evidence under the Act is not concerned with the legal admissibility of the evidence. The question of exclusion does not arise unless the evidence is admissible.
64 An examination of other aspects of the Act supports the conclusion that s 56 is not concerned with exclusionary principles but with what is legally admissible. At the commencement of Chapter 3, 'Admissibility of Evidence', there is an introductory note providing an outline of the Chapter. The note provides that Part 3.4 'is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule'. Part 3.11 'provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible'. This introductory note reflects the statutory scheme which contains a variety of provisions stipulating in explicit terms that certain types of evidence will not be admissible. It generally reflects the position as it pertained at common law. For example, in Em,[171] Gummow and Hayne JJ contrasted the form of s 90 with ss 84, 85 and 86 of the Act, the latter 'set[ting] out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted'. Most of the rules set out in Part 3.4 of Chapter 3 of the Act expressly state that evidence of a particular type is inadmissible. By contrast, s 90 confers a discretion where to use the evidence would be unfair to a defendant.
65 The words 'except as otherwise provided by this Act' in s 56(1) are to be understood as referring to these explicit provisions which declare particular categories of evidence to be inadmissible. It does not affect provisions that confer power to exclude evidence that is admissible - which is the area in which exclusionary discretions operate at common law. With respect to those who have suggested otherwise, we do not agree that the discretionary provisions of exclusion bear upon whether 'relevant' evidence is admissible. An examination of the text of the provisions in Chapter 3 indicates that the evidence, though admissible, may be excluded. Under ss 90, 137 and 138 of the Act, the language used is not that of inadmissibility as such, but rather 'may refuse to admit evidence' or 'is not to be admitted unless'. These provisions do not, in that sense, match the language of s 56. Contrary to the view expressed by Odgers,[172] the power to exclude is enlivened because the evidence is admissible but subject to exclusion.
66 There is some authority for the view that Chapter 3 of the Act is a 'mini-code' covering the field in relation to the admissibility of relevant evidence.[173] In Robertson v Woolworths Ltd,[174] the common law discretion discussed in Ridgeway[175] was said not to have survived the enactment of the Act, as it manifested a clear intention to replace the general law discretion to exclude such evidence.[176] Similarly, in R v Kovacs the New South Wales Court of Appeal stated that the Christie discretion had now been overtaken by s 137.[177]
67 However, Black CJ, Lander and Besanko JJ concluded in McNeill v The Queen[178] that while the Evidence Act of Norfolk Island was not a code in the 'wide sense', it covered the field of admissibility and was capable of impliedly repealing other legislation, specifically a provision of the Criminal Law Act 1960 (NIS) which excluded confessions obtained by untrue representations.[179] Those observations were referred to with approval by Emerton J in Director of Public Prosecutions v Gibson.[180] In McNeill,[181] the relevant provisions of the Criminal Law Act were said to be impliedly repealed because the same subjects were dealt with in ss 85 and 138 of the Act. Both of those provisions were considered 'wider' than the pre-existing rules. However, none of the exclusionary provisions of the Act are as wide as the general common law unfairness discretion.
68 The Court in McNeill also thought that the Act abrogated all of the common law rules relating to admissibility of evidence.[182] Certainly, identified common law discretions have been found to be supplanted by the Act. Thus, in Em[183] it was accepted that there was no longer a common law discretion to reject admissions on the basis of unfairness, there being no relevant distinction between s 90 and the common law as declared in Swaffield[184] in enacting s 90. But, with respect, the reasoning in McNeill also rested upon the erroneous assumption that s 56 governed exclusionary as well as admissibility provisions,[185] a matter to which we have already referred.
69 Other authority concludes that, by virtue of ss 8 and 9, common law rules of admissibility are unaffected, except where those rules are provided for expressly or by necessary intendment in Chapter 3.[186] The Act cannot function as a code as it contemplates the incorporation of external legislation by s 8. There is no room for implied repeal where there is an express provision in the Act to the effect that the Act is not intended to, and does not, affect other state or federal legislation making provision for the admission of evidence.[187] As such, it cannot be said that, as a matter of comity,[188] this Court is bound to accept the conclusions of either line of authority.[189]
70 On careful analysis, those cases which suggest that the Act is a code are authority only for the proposition that the exclusionary provision under the Act with which each of those cases was concerned related to a specific area in which a common law discretion had previously operated. Thus it may now be said that s 137 replaces the Christie[190] discretion, s 90 replaces the Lee[191] discretion and 138 replaces the Bunning v Cross[192] and Ridgeway[193] discretion. Beyond that, neither authority or principle constrains us to conclude that the Act precludes the application of the general common law discretion.
71 We are fortified in our views by the extracurial observations of Justice Heydon in his article 'The Non-Uniformity of the "Uniform" Evidence Acts and Their Effect on the General Law'.[194] He said of s 56 of the Act that the words 'except as otherwise provided by this Act' appear to apply only to the legislative provisions dealing with the rejection of relevant evidence so that courts are deprived of the power to develop new rules for the exclusion of relevant evidence. He rejected the wider view of s 56 expressed in McNeill[195] that Chapter 3 is 'intended to cover the field in relation to the admissibility of relevant evidence'.[196] He referred to the principle of legality that 'it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'[197] as a principled argument for the view that common law rules do survive various parts of the Act as a matter of statutory construction.[198] Justice Heydon identified fundamental principles of fairness that were likely to continue. One such rule was 'a general common law rule' permitting the court to exclude evidence if its reception would deny the accused a fair trial. He said that rule 'may operate more widely than the avenues for exclusion in ss 135 and 137'.[199] Another example was the rule in Browne v Dunn[200] which has been held to continue to exist despite the Act.[201] In his article, Justice Heydon concluded that where the court is considering whether a provision of the Act reflects previous law or changes it, or where it is assessing whether a gap exists in which the previous law survives, 'in all these enterprises the previous law will inevitably exert an influence'.[202]
72 Before leaving this question, we should refer to the observations of Gaudron J in Dietrich[203] which we have set out and which were referred to in Dupas v The Queen.[204] They suggest that the requirement of fairness transcends the requirement that the trial be 'conducted strictly in accordance with law' and is a requirement capable of impinging on evidentiary and procedural rules.[205] Whether these principles are beyond the reach of statute law to modify or abolish, or at least require an explicit and unmistakable legislative intent to do so, we do not stay to consider, but it may be that if the requirements of fairness can be traced to implicit guarantees in Chapter III of the Constitution, as her Honour suggests, any attempt to exclude the power of a judge to remedy unfairness by excluding evidence may also founder on constitutional grounds.
Does s 464J of the Crimes Act 1958 (Vic) preserve the common law discretion or has it been impliedly repealed?
73 We come next to s 464J(c) of the Crimes Act 1958, a provision upon which the
73 applicant placed some reliance. The section appears under the heading 'Right to remain silent etc not affected', and within sub-div (30A) which is entitled 'Custody and investigation'.
74 Section 464J provides as follows:
Nothing in this subdivision affects -
(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(ba) the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.
75 In considering whether the discretion to exclude unfairly obtained evidence survives the enactment of the Act, the following matters should be noted.
76 First, s 464J has been amended since the enactment of the Act.[206] The legislature, when it enacted s 464J(ba), could have, but chose not to, repeal any of the other paragraphs within s 464J. That, of itself, suggests that the legislature did not regard the discretion to exclude unfairly obtained evidence referred to in s 464J(c) as having been impliedly repealed by the Act.
77 Secondly, s 464J(c) provides that nothing in sub-div (30A) affects the discretion of a court to exclude unfairly obtained evidence. That provision, couched in those most general of terms, arguably reflects the existence of a discretion broader than that considered by the High Court in Lee.[207] On that basis, it can be said to extend beyond confessional evidence, and into the realm of real evidence.
78 Just why s 464J(c) was enacted is something of a mystery. There is nothing that we can see in sub-div (30A) that purports, in any way, to diminish the 'fairness' discretion at common law.[208] It may be that s 464J(c) was introduced for no better reason than to make it abundantly clear that the discretion continues to exist, in tandem with any other protections afforded by the Act to suspects when questioned by police.
79 It must be remembered that s 464J itself was one of a suite of provisions enacted for the sole purpose of providing greater protection to those who were in custody, and subjected to police questioning. It would have been remarkable, in those circumstances, if the overall effect of the legislative scheme had been to deprive an accused person of the potential benefit of a favourable exercise of an exclusionary discretion.
80 It is a nice question whether, by seeking to preserve the discretion to exclude unfairly obtained evidence, s 464J(c) has itself converted that discretion from one sourced at common law into one deriving its continued existence from statute.
81 The point may be of some importance because of the way in which the Act operates. Plainly it does not purport to codify the whole of the law of evidence.[209]
82 Section 8 of the Act makes it clear that the Act does not affect the operation of
82 the provisions of any other Act.[210] The main function of that section is to preserve
provisions in other Acts from being impliedly repealed.[211]
83 By reason of s 8, the position in this State is that various evidentiary provisions contained in other Acts, including for example the Evidence (Miscellaneous Provisions) Act 1958 (formerly the Evidence Act 1958), continue in force.[212] These provisions deal with topics as diverse as the examination of witnesses abroad and interstate, various forms of immunity from disclosure of information, certain confidential communications, proof of documents, judicial notice and oaths, affirmations, affidavits and declarations. There is obviously some overlap between a number of these provisions and those more generally expressed under the Act. There will inevitably be difficulties in working out whether s 8 operates to preserve the law as it once applied under what had previously been the Evidence Act 1958.
84 Likewise, the Criminal Procedure Act 2009 contains a number of quite specific evidentiary provisions, particularly those that relate to witnesses in cases involving sexual offences. Once again, it will often be necessary to work out whether those provisions, many of which, in their original form, were enacted before the introduction of the Act, but re-enacted when the Criminal Procedure Act 2009 came into force, continue to operate in the face of the more general evidentiary provisions contained within the Act.
85 The Jury Directions Act 2013 contains a number of provisions that are squarely at odds with the Act. The same will be true of the second tranche of that reforming legislation, if and when it is ultimately enacted.[213] Section 8 of the Act will presumably make it clear that the new provisions are to take precedence over any parts of the Act that are inconsistent with them, without the need specifically to repeal those parts of the Act.
86 The effect of s 9 of the Act is to preserve the common law rules regarding matters of evidence except insofar as the Act 'provides otherwise expressly or by necessary intendment'.
87 The debate concerning the effect of the Act upon other Acts, and its effect upon common law principles of evidence, has not yet been definitively resolved. No less eminent a jurist than Justice Dyson Heydon has commented, in relation to s 9, and its attempt to preserve some common law rules of evidence:
Evaluating just what contrary provision is made by necessary intendment could, in particular circumstances, be difficult in practice ...[214]
88 If s 464J(c) is in truth a statutory rendition of the 'fairness' discretion, its survival will depend upon s 8 of the Act. If, however, it is nothing more than a statutory preservation of a purely common law doctrine, which is applicable only to matters otherwise falling within sub-div (30A) of the Crimes Act 1958, its continued survival will depend not so much upon s 8 as s 9. As we are of the view that the provisions of the Act do not support the conclusion that the general common law discretion has been overtaken by the Act, the contention that s 464J(c) has been impliedly repealed by the Act must be rejected. It is unnecessary that we resolve the question of the scope of s 464J(c) or whether it owes its survival to s 8 or s 9 of the Act.
89 At about 10.30pm on 6 June 2010, in Chambers Road, Altona North, six shots from a 9 mm semi-automatic pistol were fired from a Mitsubishi Lancer at a Holden Vectra. Sabet Haddara ('SH'), who was sitting in the driver's seat of the Vectra, was struck in the face by one of the fired rounds, shattering his right jaw and causing other serious injuries. Antonio Sawan ('AS'), who was in the front passenger seat, was fortunate enough to avoid being hit by a bullet. The prosecution case was that the applicant had fired the shots from the front passenger seat of the Lancer. He denied that this was so.
90 Following a 12 day trial in the Supreme Court, a jury found the applicant guilty of intentionally causing serious injury to SH (charge 2),[215] and of reckless conduct endangering a person, AS (charge 5).[216] He was sentenced to eight (8) years' imprisonment on the serious injury charge, and two (2) years and six (6) months' imprisonment for reckless endangerment. A measure of cumulation resulted in a total effective sentence of eight (8) years and six (6) months' imprisonment, on which a non-parole period of five (5) years and four (4) months' imprisonment was fixed.
91 The principal issue in the trial was the identity of the shooter. XY, the driver of the Lancer - an eyewitness - said that it was the applicant. He had recorded the shooting, and the events leading up to it, on his mobile telephone. His voice, and that of the applicant, could, he said, be heard on the recording, which became Exhibit C. The defence denied that it was the applicant's voice. Over objection by the defence, the prosecution was permitted to tender a record of interview conducted by police with the applicant on 18 March 2011, for the purposes of comparing the voice recorded on Exhibit C with that of the applicant in the record of interview.
92 At trial, the applicant claimed that the record of interview should be ruled to be inadmissible since, because the applicant had an IQ of 53, it would be unfair to admit it. Principally, s 90 and s 137 of the Evidence Act 2008 ('EA') were invoked. The trial judge ruled the record of interview to be admissible. At issue on this application for leave to appeal against conviction is whether the judge was correct to do so. In my opinion, the judge was correct not to exclude the record of interview (although, it must be said, not precisely for the reasons that the trial judge gave).
93 Although I have concluded that there has been an error of law on the part of the trial judge, for reasons that follow it cannot be said to have been productive of a substantial miscarriage of justice. Since I am of the view, however, that the application raises important questions - including the extent to which the EA abrogates the common law - I would grant leave, but dismiss the appeal.
94 In order to understand the case that the applicant seeks to make on appeal, it is necessary to say a little more of the evidence.
95 XY was a drug dealer. He sold methlyamphetamine, and was an enthusiastic user of his product. The applicant supplied XY with methlyamphetamine which he then on-sold. Several days before the shooting, the applicant and XY arranged to meet on 6 June 2010 so as to make an exchange of guns. The plan was for the applicant to exchange a Beretta 9 mm handgun for a .22 machine gun, which XY was to obtain through an acquaintance, Reid. XY was to pick the applicant up at his house at about 9.00pm, but the applicant was about 40 minutes late. When he collected the applicant, XY was driving a borrowed white Lancer. The applicant had with him the 9 mm Beretta handgun.
96 Evidence was given by XY that, when he met up with the applicant, because he was fearful of him, he activated the 'record' button on his mobile telephone and placed it on the dashboard. (As I have said, the recording from the mobile telephone became Exhibit C.) Whilst they were driving to an address in Altona, the applicant received a call on his mobile phone indicating that his wife was having trouble with someone at the McDonalds restaurant in Altona North. XY heard a mention of Matwali Chaouk. The applicant asked XY to drive to the McDonalds.
97 When they reached the McDonalds, a Holden Vectra was driving out of the car park and the applicant told XY to follow it. XY did as he was asked. After some time, the Vectra pulled into the driveway of a house in Chambers Road, Altona North. The applicant told XY 'to stop right up, like a T sort of thing, pull up right behind them, like lock them in'. XY stopped right behind the Vectra, so that the passenger side door of the Lancer was in line with where a tow bar on the Vectra would have been. The applicant then said, 'This is how you shoot', and pointed the barrel of the handgun out of the car. XY said he heard between six and eight shots. The shots went into the Vectra through the rear window.
98 After the shots were fired, XY drove off quickly. He dropped the applicant off at an address in Altona, and returned the borrowed Lancer to its owner. XY then telephoned Reid who came and collected him. He and Reid drove to South Melbourne and showed a man, Jackson, the handgun. Jackson in turn produced the .22 machine gun. XY took a photograph of it and sent it to the applicant using his mobile telephone. The applicant's reply was, 'Yes'. XY tested the machinegun by firing it into a garden bed. He and Reid then returned to Altona and XY gave the machinegun to the applicant, who later also fired it.
99 A few days later the applicant visited XY's house. XY was in his garage. The applicant said, 'We fucked up'. When XY asked him what he meant, the applicant said that he had shot his cousin and his father was going to the hospital to sort the matter out.
100 In cross-examination, XY said that when firing the shots, the applicant was pointing the Beretta at the men in the other car, sitting with his backside on the window sill of the passenger side car door, his left hand on the roof of the car, and with only his legs in the car cabin. XY also said that he was currently serving three consecutive suspended sentences at the time of giving evidence; that he was addicted to methylamphetamine at the time of the shooting; that his forearms were tattooed (which he showed); and that he hated the applicant and blamed him for introducing him to methlyamphetamine.
101 Dr Yuko Kinoshita is a lecturer at the University of Canberra and has a PhD in forensic speech identification. In December 2011, she was requested to perform an acoustic analysis of a number of telephone calls made by the applicant. She was also given the recording from XY's mobile telephone made in the car (Exhibit C). Dr Kinoshita only used the first six and a half minutes of the recording from the car, however, because after that the background noise made it difficult to undertake an acoustic analysis. She performed her analysis with Dr Wagner. They performed auditory and acoustic comparison of the data. After undertaking the acoustic measurements and analysis, they performed a statistical analysis. In performing the statistical analysis there was a problem because they did not have suitable background population data. When comparing voice samples, one individual voice never perfectly matches. In comparing two samples of voices, and determining whether the differences between them are likely to come from a single speaker or from two or more different speakers, they need to have a context. In this case, the speaker in the car recording seemed to speak with a Lebanese-Australian accent but they did not have a sufficient database for Lebanese-Australian accented English speakers. Consequently, Drs Kinoshita and Wagner had to compare the voice in the car recording against the mainstream Australian database. This created a problem because it would bias the result against the applicant. To compensate, they produced another analysis which shifted the data to the most favourable condition for the applicant, and, by using those two different points, they produced a result somewhere in the middle. In the end, however, their analysis using those techniques was not conclusive as to whether or not the voice in the telephone calls was the same voice as the car recording, Exhibit C.
102 In cross-examination, Dr Kinoshita agreed that she was also provided with the recorded police interview. She and Dr Wagner chose not to examine the police interview, however, because a voice can be affected by the circumstances, who the speaker is talking with and the speaker's psychological state. The speech of a person in a police interview would be much more removed from the situation of the recording of the unknown voice in the car, compared to the telephone conversations between the applicant and his friends. Dr Kinoshita agreed that the telephone conversations were a much more natural setting in which to examine the applicant's voice. For the purposes of comparison it was therefore fairer to use the telephone conversations rather than the recording of the police interview. In assessing the material one must assess it first for quantity and quality. One then undertakes an analysis of the auditory aspect, then an analysis of the acoustics and a statistical analysis. Importantly from the applicant's perspective, Dr Kinoshita said, 'When I am satisfied there is enough quantity and quality then I proceed to the acoustic analysis, but in this particular case my examination was inconclusive'.
103 In re-examination, Dr Kinoshita confirmed that she did listen to the police interview, but found it a very different speech style. She was not listening to whether it sounded similar to the applicant or the speaker in the car recording, but rather whether the speech style was suitable for comparison. As a result, she decided that the telephone conversation would be much more suitable for the purposes of comparison. The human voice is very flexible, so consciously and subconsciously it can be changed quite significantly. It is affected by who you are talking with, what sort of situation you are in and stress level. It also depends on matters such as background noise and health. Having radically different circumstances of speech thus makes the voices less comparable for the purposes of the forensic acoustic analysis.
104 A psychologist, Patrick Newton, gave evidence in the defence case. He gave evidence that the applicant had low intelligence - he assessed his IQ as 53 - and discussed its effect on his ability to understand and exercise his right to silence during the record of interview. Mr Newton was also permitted to give evidence that using drugs in the quantities that XY had said that he was using could lead to delusions and hallucinations, and could tend a person towards overt psychosis.
105 In oral argument there was a marked departure from the manner in which the applicant's submissions had been expressed in the written case. As originally formulated, the two grounds of appeal were:[217]
Particulars
(a) 'admission' and/or was led by the prosecution to prove a particular fact, namely identity.
(b) The prosecution did not rely on any words uttered in the record of interview as an otherwise relevant admission.
(c) The voice sample provided in the ROI is not admissible and/or it was unfair to admit the evidence for the following reasons:
(i) The evidence was otherwise inadmissible as it was not relevant;
(ii) [The applicant] is intellectually disabled such that the admission of a voice sample was not voluntary, in that he did not have the capacity to maintain his 'no comment' stance during a prolonged ROI and could not be taken to have understood he was obliterating his right against self incrimination by answering neutral questions;
(iii) [The applicant] was under a legal compulsion to answer his name and address (s 465AA Crimes Act 1958) and even those utterances were admitted into evidence; and
(iv) The quality of the recording (Exhibit C) for the purpose of a voice sample was too poor to be used for voice comparison. The recording of [the applicant] in the ROI was likewise of poor quality. The common ground in relation to both recordings was that it was extremely difficult to understand the speaker.
(d) Alternatively, the judge erred in applying section 90, as what was said in the ROI was not an admission.
(e) The judge failed to consider whether the evidence should have been excluded pursuant to s 137 of the Evidence Act.
106 The substance of the first ground is that the trial judge erred in admitting the record of interview 'for the sole purpose of voice comparison'. In support of that central contention, several distinct complaints seem to be made (some of them contradictory):
• First, the words uttered in the record of interview are an admission led to prove identity (although the prosecution did not rely on any of the words uttered as an 'otherwise relevant admission').
• Secondly, it was unfair to admit the evidence because it was 'not relevant'.
• Thirdly, it was unfair to admit the evidence because the 'admission' (provision?) of the voice sample was not voluntary, since, due to his intellectual disability, the applicant was incapable of appreciating that he was 'obliterating' his right not to incriminate himself.
• Fourthly, it was unfair to admit the evidence of the applicant's giving of his name and address, because the applicant was under a 'legal compulsion' to provide them.
• Fifthly, it was unfair to admit the evidence because the quality of the recording, Exhibit C, was too poor to be used for the purposes of voice comparison.
• Sixthly, and alternatively, the judge was in error to apply s 90 of the EA, because what was said in the record of interview was not an admission.
• Seventhly, the judge failed to consider whether the evidence should be excluded under s 137 of the EA.
Applicant's submissions on the application for leave to appeal
107 In his oral submissions relating to the first ground, counsel for the applicant argued that, despite counsel at trial submitting that the trial judge should decide on the admissibility of the record of interview by proceeding under s 90 of the EA, the trial judge was wrong to do so. Counsel contended that, in light of the applicant's intellectual disability, it was unfair to admit the record of interview. It was submitted that the applicant's intellectual disability was relevant to admissibility under s 135(a) and s 137 of the EA, upon which counsel placed reliance (although, it should be noted, any reliance on s 138 specifically was eschewed). The applicant's counsel put that the unfairness to the applicant flowed from the content of his answers to police (even though the prosecution did not rely upon any of the interview as containing admissions, or lies going to consciousness of guilt). This was so even though the record of interview contained a possible alibi, counsel contending that the jury might somehow have reasoned that the applicant's answers were false, thus leading the jury to use the answers in a manner adverse to him.
108 Counsel further submitted that the applicant, because of his disability, was in a position of disadvantage in determining whether to speak or remain silent; and, in any event, the effect of s 456AA of the Crimes Act 1958 was that the applicant had no choice but to give his name and address.
109 It was also contended that the interview should have been excluded because the jury might have attached too much weight to it for the purposes of comparison. Moreover, so it was submitted, the sound in Exhibit C was of such poor quality, no useful comparison of voices could be made (that being another reason why the record of interview should have been excluded). Indeed, despite no such submission having been made to the trial judge, or having been included in the applicant's written case in this Court, counsel for the applicant submitted that it had not been open to the judge to find that 'the quality and quantity' of the record of interview was 'such as to enable a useful comparison to be made between the two recordings'.
110 As to the second ground, which asserted that that the verdict is unsafe and unsatisfactory, the applicant's counsel ultimately conceded that, if the first ground did not succeed, he could not maintain that it was not open to the jury to convict on the evidence of XY alone. Ground 2 would thus fall away.
111 Having observed that the prosecution sought admission of the record of interview for the purposes of voice comparison, defence counsel at trial first sought exclusion of the record of interview relying on s 90 of the EA, since the 'way in which it is proposed to use the record of interview operates as an admission ... and s 90 is concerned with discretionary exclusion of admissions'. The unfairness of which s 90 speaks, it was argued, arises because of the applicant's intellectual disability, he having an IQ of 53. Counsel submitted that the applicant followed the legal advice he received to make 'no comment' answers until question 88, when 'the police then change their tack' (although counsel was at pains to make clear that no impropriety or illegality was alleged against the police). The judge queried with counsel 'whether this is a s 90 case or whether you need to rely on s 137', he being 'not too sure it is really an admission'. Counsel contended, however, the applicant providing his voice was 'an admission by way of self-incrimination'.
112 Reliance was also placed on s 137 of the EA, with particular reference to the kind of evidence that Dr Kinoshita and Dr Wagner could give. Lastly, counsel relied on s 138 of the EA, on the basis that, given the applicant's intellectual capacity, the record of interview should be viewed as non-voluntary (although, at the risk of repetition, counsel for the applicant before this Court categorically eschewed any reliance on s 138). The police did not anticipate that the record of interview would be used for the purposes of voice comparison. As a result, they did not inform the applicant that it might be so used, permitting him thereby to make an informed choice whether to risk incrimination by speaking.
113 On the voir dire, the defence called the psychologist, Mr Newton. He gave evidence of his testing of the applicant, which showed that he had a 'full scale IQ of 53'. The applicant's capacity to sift relevant material was, according to Mr Newton, relatively poor, as was his capacity to concentrate. Mr Newton thought the applicant to be severely impaired.
114 The prosecutor initially submitted that the admissibility of the record of interview 'turns on whether, in all the circumstances, it would be unfair to use this material and it comes down to an analysis of s 137 and the key word ... is "unfair" prejudice, the danger of unfair prejudice'. Later in discussion, however, when the judge remarked that, 'I don't know that s 137 is quite directed to this', and said to the prosecutor, 'If you're comfortable with me dealing with the case under s 90 it seems to me to be a more appropriate section', the prosecutor indicated that he would not seek to argue to the contrary. The thrust of the prosecutor's submissions was that there was no impropriety on the part of the police, and that there was nothing about the applicant's intellectual capacities which rendered the evidence of the record of interview unfair.
115 Before turning to the trial judge's ruling, it should be noted that, in anticipation that the judge might not exclude the whole of the record of interview, various excisions from it were agreed between the parties in the event that it survived the defence challenge. Ultimately, the judge having concluded that the record of interview should not be excluded in its totality, there was but one disputed question and answer that the judge was required to rule on. He did so favourably to the defence.
116 In a detailed ruling, the judge observed that, although counsel for the applicant relied on both s 90 and s 137 of the EA, it was 'common ground' that s 90 was 'more applicable to the objection'. The prosecutor conceded - a concession that his Honour thought correct - that if the judge concluded that it would be unfair to the applicant to use the evidence, then he would have power to exclude it under s 90. His Honour observed that the objection made was 'somewhat unusual', because ordinarily where an accused person suffers from an intellectual impairment, objection is made to admissions contained in the record of interview being adduced as evidence of the truth of the facts stated due to the accused's incapacity to understand and answer the questions asked. But in the present case, the objection was made 'on the basis it would be unfair to admit the record of interview as a record of the accused man's voice for the principal purpose of comparing it with the voice contained in the recording made by XY in his motor vehicle on 6 June 2010'.
117 The trial judge observed that there was no reason for the police to suspect that the applicant had an intellectual disability, and said:[218]
As I noted in the course of argument, having listened to and watched the record of interview myself, I do not consider it is apparent from the accused man's demeanour, or the manner in which he answered questions in that interview, that he did in fact have an IQ as low as 53. The accused man clearly understood all the questions put to him. With a few exceptions, his answers were relevant and addressed the questions. It is evident that he does have a limited vocabulary, but he certainly did not lack the verbal skills to make appropriate answer to the questions put to him. Thus, to the untrained observer, it would not appear that the accused man was suffering any relevant impairment, which would have impacted on his capacity both to make proper answers in the interview, and to avail himself of his right to not answer questions.
Further, I should say that I consider that the nature and content of the questions put to the accused man by the police was quite appropriate. ...
Indeed, I interpolate that if those aspects of the interview were admitted, they would probably reflect well on the accused man.
Overall, I do not gain the impression that he was overborne in the course of the interview. Rather, he well understood what to answer and when to answer it.
Having myself had the opportunity of viewing the record of interview, I agree with the learned trial judge's assessment. The police questioning was proper. To my observation, the applicant seemed to understand the questions put to him. He did not appear to be in any way impaired when answering. And indeed, parts of the interview would have reflected well on the applicant's case.
118 The judge then expressed the view that it would not be wrong to use the record of interview for the purposes of voice comparison rather than as evidence of admissions. He stated the 'critical issue' as being whether the applicant's mental impairment affected his capacity to exercise his privilege against self-incrimination. After restating some basic principles (including that a person does not have to take part in an interview, identification parade, or the like), his Honour observed that, so long as an accused person is properly cautioned, and understands his or her rights, then (subject to any other questions of admissibility), admissions made by an accused person in an interview may be used against him or her. Moreover, provided that an interview is 'properly conducted', a record of interview may be used for other purposes, such as providing a voice sample for the purposes of comparison. The trial judge set out the issue as he saw it as follows:
Ultimately, as I say, the question of fairness under s 90 must depend on whether in this case the accused man was able to properly exercise his right not to incriminate himself. Ordinarily, the exercise of that right in an interview is directed to protecting a suspect from making incriminating admissions. In my view, in this case, the question, whether it would be unfair to the accused person to permit the interview to be used for the purposes of comparing his voice with one of the voices on XY's recording, must ultimately depend on whether the accused was able to properly exercise his right not to answer the questions in the interview. Thus, as I say, the critical question is whether the accused man's intellectual impairment so compromised his proper exercise of his right not to answer questions that it would be unfair to him to admit the answers in evidence for the purpose of comparing his voice with the voice which is contained in the recording made by XY.
To answer that question, it is necessary to consider the interview in some detail. I do so, bearing in mind the evidence given by Mr Newton as to the gross impairment of Mr Haddara's intellectual capacity, and I particularly bear in mind Mr Newton's evidence relating to the effects of that incapacity on his concentration and on his ability to adhere to a pre-planned course of action.
119 The trial judge said that he had listened carefully to the record of interview on a number of occasions, and had read and re-read the transcript of it. He looked at the surrounding circumstances, and comprehensively analysed the record of interview - virtually question by question - including the supposed 'change of tack' by police pressed by defence counsel. Significantly, having carried out that onerous and careful exercise, the judge said:
First, as I have already stated, it is clear that the accused man fully understood his right to make a no comment answer where he saw necessary and he exercised that right on a number of occasions.
Secondly, it is clear that he listened to, and understood, and was able to answer, all the questions put to him.
Thirdly, it would seem to me, with a couple of exceptions, the accused man adopted what might be described as a system or a strategy by which he exercised the right to silence. In particular, he consistently exercised the right when allegations were put to him, or he was asked, about the incident in which Sabet Haddara was shot. Clearly, he had an approach to the interview whereby he would invoke the right not to answer questions when the questions touched on the particular incident, with which this case is concerned, and he implemented that approach or strategy on a number of occasions throughout the interview.
I accept that the accused man does have a significant intellectual impairment, but, as was pointed out in the course of argument, and indeed by Mr Newton, he is not naïve or a novice in the interview process. He was indeed well practised in the exercise of making a no comment answer, and, when he perceived the occasion arose for him to do so, he was quite quick to make such an answer. In other words, there was little delay between the question and the answer. He seemed to be able to perceive fairly quickly when questions would touch on the offending itself, and when, therefore, he ought to adopt or adhere to his right to silence.
In particular, as I stated, it is clear that he had an approach whereby he would exercise his privilege against self-incrimination, when he perceived that the questions touched on the offending itself, and he demonstrated a clear capacity to detect those questions and to answer them.
That approach or strategy itself did demonstrate, in my view, a degree of insight by the accused man into the purpose of the existence of the right not to incriminate himself, and into the importance of exercising it.
I do not consider that the strategy or approach adopted by the accused man was misconceived, nor in my view could it be fairly concluded that, if he did not have an intellectual impairment, he might not have adopted such a similar approach or strategy.
Ultimately, as I have observed, he did not make any admissions against interest, and, indeed, he was careful not to answer questions which touched on the offending in this case.
In those circumstances, I am satisfied that the accused man not only understood his right, but demonstrated a capacity to exercise it effectively. I am satisfied that, notwithstanding his intellectual impairment, which is severe, he was able to consistently exercise his right in a meaningful manner and in a relatively consistent manner.
Further, I do not consider his impairment compromised his capacity to exercise his right in answer to questions, which were directed to the particular event in this case. Thus, in my view, it would not be unfair to the accused man to admit the evidence against him in this case.
120 Turning to another aspect of the submissions seeking exclusion of the interview, the judge noted that defence counsel had sought its exclusion on the further basis that Dr Kinoshita, 'the expert', was unable to express a concluded view as to whether 'the voice contained in XY's recording is, or is not, the voice of the accused man'. Rejecting this further submission, the judge said:
In my view, it would not be unfair or inappropriate to admit that evidence. No doubt, I would permit the jury to be informed appropriately that an expert commissioned by the Crown had been unable to express a concluded view about the comparison of the telephone calls made by the accused man and the voice contained in XY's recording. That matter would of course be relevant to the weight and effect of any comparison between the voice on XY's recording and the voice of the accused man in the record of interview.
However, the jury would not be thereby invited to substitute their own view for that of an expert. Rather, they would be undertaking a different comparison which I do not consider would be unfair. I will of course give to the jury appropriate directions relating to the special care which they will need to undertake in such a comparison for themselves.
In those circumstances, I reject the application made on behalf of the accused man to exclude the whole of the interview.
Admissibility was not governed by s 90 of the EA
121 Although it was 'common ground' at trial that s 90 was applicable to the applicant's objection to admissibility of the record of interview, the applicant conceded before this Court that it was 'common ground' that 'the use of the applicant's voice in the record of interview as a comparator with Exhibit C was not an "admission" in the terms in which that word is defined under the Evidence Act'. The applicant's concession was, in my view, properly made.
122 Section 90 of the EA is in the following terms:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if -
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
123 The effect of s 90 is that a court may refuse to admit evidence of an admission adduced by the prosecution, or refuse to admit the admission to prove a particular fact, if, having regard to the circumstances in which it was made, it would be unfair to the accused to use the admission. Plainly, s 90 only extends to evidence of an admission. Attention is thus invited of what constitutes an admission for the purposes of the EA.
admission means a previous representation that is -
(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the proceeding; ...
125 Thus, in context, an admission for the purposes of s 90 is a previous representation made by the accused which is adverse to his interest in achieving a verdict of not guilty (or, perhaps, conviction on a lesser alternative offence).
126 The Dictionary also defines previous representation:
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced; ...
An inclusive definition of representation is provided:
representation includes -
(a) an express or implied representation (whether oral or in writing); or
(b) a representation to be inferred from conduct; or
(c) a representation not intended by its maker to be communicated to or seen by another person; or
(d) a representation that for any reason is not communicated; ...
127 Arriving at an all-encompassing definition of representation for the purposes of s 90 of the EA proves to be somewhat elusive. Although the use of the word 'includes' in a statutory definition often is intended to give an extended meaning to the ordinary meaning of a word,[219] apart from any extension of meaning given to it by the statutory definition, representation must otherwise be given its ordinary meaning. Bryson J in Re A (a Child)[220] expressed the view that, 'The word "representation" in ordinary usage is in my understanding capable of several shades of meaning; it can refer to a narration of some fact, case or argument, to an assertion that some state of fact is correct, and it can also refer to the depiction, it may be in words, of something which stands in the place of but is known not to be the original state of fact'. And in Leonard,[221] James J, having noted that representation is not defined in the Act, save in a 'circular way', observed that 'in ordinary usage the word "representation", even if it is not limited to an assertion of fact, nevertheless has an indirect quality; a representation is an assertion, stating, alleging, picturing or portraying of some matter other than itself'.
128 Contenting myself with the view that representation evokes notions of an assertion, a statement, an allegation, a depiction or a portrayal of some fact, matter or state of affairs (or the like), it cannot reasonably be argued, in my opinion, that the record of interview contained any representation within the meaning of the EA. Hence there was no admission, the admissibility of which might have fallen for determination under s 90. The record of interview was not introduced in order to rely on the content of any of the applicant's statements, but simply so as to compare his voice as it could be heard on that recording with the voice in Exhibit C.
129 My opinion is fortified by other authorities in which courts have grappled with the kinds of things which might constitute a representation. An example is provided by Knight,[222] in which Greg James J (with whom Heydon JA and Studdert J agreed) held that a handwriting sample, that is to be used for the purposes of comparison, is not a representation within the meaning of the Evidence Act 1995 (NSW). His Honour said:[223]
Under the Evidence Act the provisions as to admissions contained in Part 3.4 and s 139 apply only to matters caught by the statutory definition of that term and its essential element 'representation' as contained in the dictionary. I would not consider the handwriting to be a representation nor could I see any of the provisions of that part as applicable to lawfully obtained evidence where the particular enabling statute negates any requirement for consent.
That he may not have given his informed consent to doing so and that it proved to be adverse to his interest in the outcome of the proceedings does not alter the fact that it cannot be characterised as an admission.
131 Moreover, in Gao,[226] a case which bears some parallels to the present, a detective had asked the appellant a number of questions about his background. At trial, the detective was permitted to give evidence of voice identification based on a comparison of the appellant's voice when answering his questions with a voice heard in incriminating taped telephone conversations. It was argued on appeal that the identification of the appellant's voice by the detective was inadmissible, since what was said in answer to the questions as to the appellant's background 'was a representation and hence an admission'. Greg James J (Sully and Adams JJ concurring) observed:[227]
What was heard was not a representation, but it was material from which an identification could occur. Representation is defined by the dictionary to the Evidence Act 1995 as referring to an express or implied representation, a representation to be inferred from conduct or a representation not intended by its maker to be communicated or seen by another person or a representation that for any reason is not communicated. What was said no doubt contained representations but it was not itself a representation. It was sought to tender the content as relevant but the evidence as to the correspondence of the sounds used by the applicant with the sounds used by the person who had spoken on the telephone.
132 It is clear, in my opinion, that the trial judge was wrong to determine the question of admissibility pursuant to s 90. The source of the error was, I think, the failure of counsel to draw his Honour's attention to authorities such as Knight, G and Gao. Had his attention been drawn to these cases, it is likely that his Honour would have approached the question of admissibility in a different fashion.
133 That his Honour was wrong to determine the issue of the admissibility of the record of interview under s 90 does not, however, lead inevitably to the conclusion that the judge's error was productive of a substantial miscarriage of justice. Indeed, as I will endeavour to explain, the approach taken by the trial judge was perhaps more generous to the applicant than was justified.
Danger of unfair prejudice did not outweigh probative value
134 Notwithstanding that the applicant's counsel, in seeking exclusion of the record of interview, sought to rely on both s 90 and s 137 of the EA, the judge does not seem distinctly to have addressed s 137 in his ruling. That is undoubtedly because it was common ground that s 90 'is more applicable to the objection'; and because the prosecutor accepted that, were the judge 'to conclude that it would be unfair to [the applicant] to use the evidence in the case, then [he] would have the power to exclude it under s 90'. As I have said, the judge ultimately was of the view that 'it would not be unfair to [the applicant] to admit the evidence against him in the case'.
135 In my opinion, even had the judge distinctly considered the issue of exclusion under s 137 of the EA, from the thorough reasons he assigned for concluding that admission of the record of interview was not unfair, it may readily be inferred that he would not have excluded the evidence because its probative value was outweighed by the risk of unfair prejudice.
136 Section 137 of the EA is a statutory embodiment of the common law Christie[228] discretion.[229] It provides:
137 Exclusion of prejudicial evidence in criminal proceedings
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 accused.
137 When called upon to consider the exclusion of evidence under s 137, the trial judge, in assessing probative value, must evaluate the weight that the jury rationally could attach to the impugned evidence. In undertaking the requisite balancing task, the trial judge is not required to assume that its reliability will be accepted. In determining the capacity of the evidence rationally to affect the determination of a fact in issue, the judge must make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it is contended that the quality (or frailties) of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is required to assess the extent of the risk. The trial judge is not required, however, to gauge the weight that the jury will or would give to the evidence. Rather, the judge is obliged to assess what probative value the jury could give to the evidence, and balance against it the risk that the jury will give it disproportionate weight.[230]
138 In my opinion, the evidence of the record of interview was, quite plainly, probative of a fact in issue. XY testified that the applicant had fired the shots that wounded SH. The applicant claimed that he was not present in the car with XY when the shots were fired. Thus the identity of the speaker (other than XY) whose voice could be heard on Exhibit C was directly probative of whether the applicant had fired the shots. So long as the quality of the recording, Exhibit C, was sufficient to render a proper comparison to be made of the voice recorded on it with the applicant's voice as recorded in the police interview, the evidence of the record of interview was highly probative of the applicant's guilt.
139 Counsel for the applicant was pressed to articulate the unfair prejudice suffered by the applicant from the admission of the record of interview into evidence. He put that the unfair prejudice is 'what was let in' and 'the use the jury might make of it'. The applicant's counsel submitted that the content of the answers were unfair (including a suggested attempt to set up and alibi); that the jury might have attached too much weight to the interview for the purposes of comparison; and that, as a result of his intellectual incapacity, the applicant was in 'a disadvantaged position'. Moreover, counsel raised a new argument - one not put to the trial judge, or contained in the written case for the purposes of this Court - that the 'quality' of what was recorded in Exhibit C was so poor that no useful voice comparison could have been made.
140 Dealing first with the last of the matters raised by counsel, the trial judge had taken it upon himself - quite properly - to listen to the record of interview and to Exhibit C, so that he could satisfy himself in accordance with Korgbara[231] that the quality and quantity of the material was sufficient to enable a useful comparison to be made.[232] His Honour was 'satisfied that, if the record of interview were admitted into evidence, the quality and quantity of it, and of the conversation which was recorded by XY on his mobile phone, is such as to enable a useful comparison to be made between the two recordings'. Accordingly, apart from the other objection that it would be unfair to admit the evidence (for the reasons already discussed), 'the evidence of the record of interview would otherwise be admissible, for the purpose of enabling the jury to compare the [applicant's] voice on it with the voice which was captured on the recording made by XY on his telephone'.
141 In this Court the applicant's counsel sought to impugn the trial judge's conclusion that the quality and quantity of the material was such as to enable a useful comparison to be made between the two recordings. When asked by a member of the Court whether we should ourselves listen to the recordings, counsel urged that we needed to do so. Having performed that exercise for myself, and exercising my own judgment, I agree with the trial judge's assessment. There is no gainsaying that the quality of Exhibit C is variable, and in part poor. A deal of background noise on occasion makes it quite difficult to make out the voices of the speakers (although one may readily distinguish one speaker from another). Yet despite the aspects which make listening to Exhibit C a challenge, there is sufficient quality in the recording, and enough of the spoken voices, to enable a useful comparison to be made with the record of interview. Given that this is so, it cannot realistically be contended that there is any unfair prejudice flowing from the quality (and quantity) of the recorded material such that its probative value is outweighed. Thus the applicant's attack on admissibility based on the quality of Exhibit C cannot be upheld.
142 Before leaving this aspect, I should refer to one further matter. Counsel drew attention to the evidence of Dr Kinoshita, and to the fact that she had testified that in Exhibit C she had not had material of sufficient quality or quantity to carry out an acoustic analysis. As I understood the submission, because Dr Kinoshita had insufficient material to carry out an acoustic analysis, ipso facto there must have been insufficient material available for the jury properly to make a comparison. The short answer to that submission is that the exercise undertaken by Dr Kinoshita was a scientific test designed to produce acoustic measurements and an acoustic analysis from which a statistical analysis might be performed comparing the results against a speech database. It was, as Dr Kinoshita herself acknowledged, a different exercise to trying to recognise a voice. As she said, 'we can recognise people's voices pretty well, especially the familiar voice'. Hence, in my view, there could be nothing unfairly prejudicial to the applicant in admitting Exhibit C for the purposes of voice comparison.
143 Once it is determined that the evidence is sufficient in quantity and quality to make a voice comparison, it is difficult to see how - as the applicant's counsel submitted - the evidence falls to be excluded under s 137 because the jury might have attached too much weight to the interview for the purposes of comparison. So long as the jury were given adequate directions as to the use of the material, there is no reason to think that the jury would afford the interview too much weight. Thus this facet of the applicant's submissions under the general rubric of s 137 cannot be upheld. I should, however, mention one further matter. The judge's directions on the topic of voice identification were detailed and careful. Indeed he gave what was, on one view, an overly favourable direction to the jury, when he instructed them that before they could convict the applicant on the basis of a 'match' between the voices on the record of interview and Exhibit C, then they 'would have to be satisfied of that identification or that match, beyond reasonable doubt'.[233]
144 There are two final aspects of the applicant's submissions under s 137 with which I must deal. First is the contention that the admission into evidence of the applicant's answers in the record of interview was unfair since there was potential for the jury to misuse the evidence. Given that the jury were directed that the record of interview was admitted for the purposes of voice comparison, it is, in my view, unlikely that there was a risk that the jury might give it disproportionate weight. Indeed, to my way of thinking, there is nothing in the content of the record of interview (including the applicant's suggestion that he was probably at home when the shooting took place) that had the capacity to be unfairly prejudicial to the applicant. My opinion is fortified by the failure of very experienced trial counsel - who distinctly argued for the exclusion of specific questions and answers - to seek exclusion of the contents now said to raise the spectre of possible misuse. There is no merit in this aspect of the applicant's submissions.
145 Secondly, counsel for the applicant submitted that it was unfair to the applicant to admit the record of interview since s 456AA of the Crimes Act 1958 meant that he could not choose to remain silent without exposing himself to criminal sanctions. The short answer to that submission, however, is that s 456AA requires a 'request' to be made pursuant to sub-s (1) before any of the compulsive aspects of the section are enlivened. No such 'request' was made in this case. The lack of merit in the point may be gauged by the fact that very experienced counsel at trial did not seek to rely on any argument revolving around the operation of the section.
146 For the sake of completeness, I should refer to the fact that the applicant's counsel also placed reliance on the hearing of this application on s 135(a) of the EA. For the immediately foregoing reasons, however, in my opinion it cannot be said that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial to the applicant.
Does any common law 'unfairness' discretion survive?
147 Counsel for the applicant argued that, quite apart from the provisions of the EA, a common law discretion to exclude evidence where its reception would be unfair to the accused survived the promulgation of the EA. Thus, if s 90 did not extend to evidence beyond admissions (which was common ground), then nonetheless a common law discretion to exclude evidence - 'the Lee discretion'[234] - survived, and could be called in aid in seeking exclusion of the record of interview. Since this submission raised questions important to the daily conduct of criminal trials, at the conclusion of oral argument further written submissions were sought - and later received - from the parties.
148 The respondent contended that the 'key provision' of the EA is s 56, which makes relevant evidence admissible '[e]xcept as otherwise provided by this Act'. In other words, all relevant evidence is admissible unless it is the subject of an exclusionary rule provided for in the Act. Section 56 'indicates a clear and express legislative intention' that the provisions of Chapter 3 of the Act 'operate as a legislative scheme or a code', in the sense that the provisions governing admissibility of evidence displace common law rules relating to admissibility. Although it is true that s 9(1) of Act preserves 'all evidentiary principles or rules of common law', it only does so except where the Act provides otherwise (either expressly or by necessary intendment). Section 56(1) provides otherwise 'with respect to the admissibility of evidence and thus with respect to exclusionary rules and discretions'. It is submitted that 'the extensive regime of exclusionary provisions found in Chapter 3 - specific and general, discretionary and mandatory - is consistent with the view that the legislature intended to lay down a set of exclusionary principles to the exclusion of the common law principles previously applicable'. Section 90 only applies to admissions, and by 'necessary intendment' the legislature - through the enactment of s 90 - 'has displaced the operation of the general common law Lee fairness principle'. Finally, the respondent submits that if there is a residual common law discretion which survives the enactment of the EA, by impermissibly extending the operation of s 90 beyond admissions to identification or real evidence, in practical terms the trial judge exercised the common law discretion. Thus, the trial judge 'afforded to the applicant the benefit of exercising the widest possible fairness discretion, and concluded, correctly, not to exclude the evidence'.
149 In his further written submissions, counsel for the applicant submitted that the EA 'does not create a code in relation to the law of evidence'. By virtue of s 8, 'rules of admissibility in other legislation' continue to apply, one such 'rule' being found in s 464J(c) of the Crimes Act 1958. Section 90 of the EA 'employs the Lee discretion as the test for admissibility in so far as "admissions" are concerned'. It is, it is submitted, 'common ground that in the present case the use of the applicant's voice in the record of interview as a comparator with Exhibit C was not an "admission" in the terms in which that word is defined' in the Act, the applicant's voice being 'a piece of real evidence, a testimonial disclosure captured by virtue of the applicant engaging in a record of interview with police'. The applicant submits that, absent s 90, 'the Lee discretion would also govern the reception of this piece of real evidence'. Support is drawn from the continued existence of s 464J(c), which, it is said, 'preserves the discretion'. It is contended that 'the common law discretion to reject evidence (whether real or confessional) for want of fairness continues to apply'. Ultimately, it was submitted that the trial judge 'largely perceived of the fairness discretion within the prism of section 90' and 'within the framework of answering the question of whether the applicant understood that he did not have to answer questions put to him by the police'. That approach unduly restricted the operation of the Lee discretion which was applicable pursuant to s 464J(c), 'irrespective' of the provisions of the Act.
150 If, by the adoption of the expression 'Lee discretion', the applicant assumes that the discretion reposed in a court to reject evidence for unfairness was recognised by the Court in Lee to extend to evidence other than admissions, I am not sure that such an assumption is justified. An examination of the High Court's reasons demonstrates that the court was concerned primarily with confessions - that is, statements which amount to admissions of guilt of the actual crime in question[235] - and admissions, rather than any other species of evidence. In Lee the High Court did recognise, however, the existence of a discretion to reject evidence of admissions if its reception would be unfair, the relevant question being 'whether, having regard to the conduct of the police, and all the circumstances of the case, it would be unfair to use his own statement against the accused'.[236]
151 Prior to the EA coming into operation, when exclusion of a confession was sought, the first issue to be determined by the judge on voir dire was whether it was
151 voluntary; that is, 'made in the exercise of a free choice to speak or be silent'.[237] The prosecution bore the onus of establishing voluntariness on the balance of probabilities.[238] Resolution of the issue of voluntariness was also affected by s 149[239] of the Evidence Act 1958,[240] which saved from rejection confessions where there had been 'a promise or threat ... held out to the person confessing', unless the trial judge was of the opinion 'that the inducement was really calculated to cause an untrue admission of guilt to be made'.[241] But even if the statement was voluntary the trial judge had a discretion to reject it if he or she considered that it was obtained in circumstances that would render it unfair to use it against the accused.[242] The question was not whether the police had acted unfairly; rather the question was whether it would be unfair to the accused to use his statement against him. Unfairness, in that sense, 'was concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement'.[243] On the question whether the admission of evidence of the alleged confession would be unfair to the accused, the onus lay on the accused to persuade the trial judge on the balance of probabilities that it would be.[244]
152 Whatever the reach of the discretion to reject evidence for unfairness at the time Lee was decided, however, later cases recognised the existence of a more general discretion to reject evidence if it would be unfair to the accused to admit it because of impropriety or illegality, this more general discretion extending to evidence other than confessions and admissions. This discretion did not only apply to evidence obtained in breach of the law, but also applied to evidence obtained by some underhanded or 'sharp' practice. It seems that the discretion was first isolated in cases of real evidence, such as photographs taken against the accused's will[245] and breathalyser results obtained in breach of statutory requirements[246] (although it was also held to extend to illegally or improperly obtained confessions[247]). Aspects of the general discretion to exclude evidence procured by unlawful and improper conduct, and its rationale, were described by Deane J in Cleland:[248]
Apart from the particular discretion to exclude evidence of a voluntary confessional statement, a trial judge has a more general discretion to exclude evidence of relevant facts or things ascertained or procured by unlawful or improper conduct on the part of those whose task it is to enforce the law (see Reg. v. Ireland[249]; Bunning v. Cross[250]). The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law. The question whether evidence should be allowed of relevant facts or things so ascertained or procured is, once again, a question to be determined by the trial judge on the voir dire. Once it appears that the evidence is relevant and otherwise admissible, the onus of persuading the trial judge that it should, as a matter of discretion, be rejected, lies on the accused.
Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. ... On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality if the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
154 Moreover, although of little relevance to the resolution of the present case, the common law also seemed to recognise a further discretion reposing in a trial judge to exclude, on public policy grounds, evidence of an offence (or of an element of an offence) where the commission of the offence was brought about by unlawful (or, perhaps, improper) conduct on the part of law enforcement officers. This further discretion was distinct from - although, it might be thought, closely related to - the general discretion to exclude evidence obtained by unlawful or improper conduct. In Ridgeway,[253] Mason CJ, Deane and Dawson JJ observed:[254]
Clearly enough, in a criminal trial there is a distinction between a discretion to exclude particular evidence and a discretion to exclude any evidence at all which tends to establish the accused's guilt of the alleged crime or of an element of it. Nonetheless, the existence of the discretion to exclude evidence procured by unlawful conduct on the part of law enforcement officers provides strong support, by way of analogy, for the recognition of a discretion to exclude evidence of the accused's guilt either of an alleged crime or of an element of it in circumstances where the actual commission of the crime was procured by such unlawful conduct. Indeed, the distinction between the two discretions can, in some circumstances, be of theoretical rather than practical importance. Thus, in a case where a course of unlawful conduct on the part of the police has procured both the commission of the offence and evidence of it, there will be little practical significance in the distinction between an exclusion of that particular evidence on the ground that it was procured by the illegal conduct and the exclusion of all evidence on the ground that the commission of the offence was itself procured by that conduct if the only evidence against the accused is that which was unlawfully procured.
More importantly, the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be 'demeaned by the uncontrolled use of the fruits of illegality in the judicial process'.[255] Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
155 The discretion recognised in Ridgeway to exclude evidence of an offence extended beyond unlawful conduct to 'clearly improper conduct', but would 'only arise if the conduct has procured the commission of the offence with which the accused is charged'.[256]
156 To summarise - and putting to one side the Christie discretion[257] - at common law there was a cascade of discretions that might be called in aid by the accused in order to exclude evidence. First, confessions and admissions might fall to be excluded if obtained in circumstances rendering it unfair to use them against the accused. Secondly, for reasons of public policy, evidence - whether of admissions or confessions, or of other species of evidence - obtained unfairly or illegally might be excluded in the exercise of discretion. Thirdly, and closely allied to the second discretion, evidence of an offence (or of an element) might be excluded on public policy grounds where the commission of the offence was brought about by unlawful or improper conduct on the part of law enforcement officers.
157 For present purposes, I take the applicant's reference to the 'Lee discretion' to be a reference to the general discretion to reject evidence procured by unfair conduct which, the applicant contends, s 464J(c) of the Crimes Act 1958 'preserves'. It is convenient to refer to it as the 'unfairness discretion'.
The unfairness discretion at common law is abrogated by s 138 of the EA
This Act does not affect the operation of the provisions of any other Act.
...
(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following -
(a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court;
(b) the operation of a legal or evidential presumption that is not inconsistent with this Act;
(c) a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.
159 It may be assumed that the operation of the unfairness discretion is the operation of a principle of the common law. The EA does not expressly provide that it is no longer to operate. Does it do so by necessary intendment? The answer to that question requires examination of the statutory scheme in order to determine whether a legislative intention to oust the unfairness discretion may be discerned. Part of the answer to that question also requires scrutiny of whether the continued existence of s 464J(c) of the Crimes Act 1958 points to the survival of the common law discretion.
160 The applicant submits that the EA 'does not create a code in relation to the law of evidence'. If, by use of the word 'code', the applicant means an exhaustive statement of all law pertaining to evidence, taken without qualification that submission is correct. Thus, a number of topics often associated with the laws of evidence are not dealt with in the EA;[259] and, for the purposes of criminal proceedings, other pieces of legislation dealing with evidence - principally the Evidence (Miscellaneous Provisions) Act 1958 and the Criminal Procedure Act 2009 - continue to have operation.[260] That said, however, in my opinion Chapter 3 of the EA - which embraces Part 3.1 to Part 3.11 - is, in effect, a code with respect to the admissibility of evidence and exclusions.
161 Chapter 3 of the EA is headed Admissibility of Evidence. Section 55(1) and s 56, in Part 3.1, Relevance, provide:[261]
(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.
...
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
162 The plain meaning of s 56(1) is that relevant evidence is admissible except as otherwise provided by the EA.[262] Section 56(1) is expressed in unequivocal terms, and does not give room for exclusionary rules - including common law exclusions - save as provided by the EA. Where relevant evidence - otherwise admissible - is subject to exclusion provided for in the EA, it ceases to be admissible. The evidence loses its admissible character, because it is 'otherwise provided by [the] Act'. In practical effect, the evidence becomes inadmissible in the proceeding.
163 A variety of sections provide for the exclusion of otherwise relevant evidence. Many pertinent to this case are found in Part 3.4, headed Admissions. As the heading implies, Part 3.4 is limited in its operation to evidence of admissions. Important provisions include:
• Section 84, which provides that evidence of an admission is not admissible, unless the court is satisfied that the admission, and the making of it, were not influenced by (or by the threat of) violent, oppressive inhuman or degrading conduct;
• Section 85, which makes an admission inadmissible unless the circumstances in which it was made make it unlikely that the truth of the admission was adversely affected;
• Section 86, which deals with oral admissions, provides that a document prepared by an investigating official is not admissible to prove the contents of a question, representation or response, unless acknowledged;[263]
• Section 89, which provides that an unfavourable inference cannot be drawn from the failure or refusal to answer questions put by an investigating official performing functions in connection with the possible commission of an offence; and
• Section 90 - earlier discussed in some detail - which provides for the exclusion of evidence of an admission if it would be unfair to use the evidence having regard to the circumstances in which the admission was made.
164 Part 3.11, headed Discretionary and Mandatory Exclusions, is not limited solely to evidence of admissions. Relevant provisions include:
• Section 135, which contains a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing, or might cause or result in undue waste of time;
• Section 136, which allows a court to limit the use to be made of evidence if there is a danger that particular use of evidence might be unfairly prejudicial to a party, or misleading or confusing;
• Section 137 - again earlier discussed - which provides for the mandatory exclusion of evidence if its probative value is outweighed by the risk of unfair prejudice to the accused;
• Section 138, which deals with the exclusion of illegally or improperly obtained evidence; and
• Section 139, which deals with the need for investigating officials to caution those under arrest before questioning them.
165 The unfairness discretion at common law operated to protect the accused from the reception of evidence procured by unfair conduct. In my opinion, when regard is had to the terms of s 138 of the EA, read in conjunction with s 56(1), it is plain that s 138 is intended to cover the field previously falling with the common law unfairness discretion. Section 138 provides:[264]
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained -
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law -
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
166 Several observations might be made about s 138. First, although s 138(2) is directed specifically to admissions, the general exclusionary rule provided for in s 138(1) is not. Secondly, evidence obtained improperly or in consequence of an impropriety is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained. Thirdly, s 138(3) spells out a variety of factors that a court may take into account in determining whether 'the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained', including the probative value of the evidence; its importance to the proceeding; the nature of the offence; and the gravity of the impropriety, and whether it was deliberate or reckless. Fourthly, in determining whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence, s 138(1) does not refer expressly to any 'unfairness' to the accused.
167 Notwithstanding that unfairness to the accused is not referred to specifically in s 138(3), in my opinion it remains a factor which may be taken into account when deciding whether to admit evidence obtained improperly or in consequence of some impropriety.
168 Although, perhaps, parts of what they had to say strictly were dicta, in Swaffield[265] Toohey, Gaudron and Gummow JJ observed of the equivalents of s 138 of the EA:
'In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.'
court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained
'(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
... unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained'.
This expresses in the widest terms the policy discretion developed by the common law. ...
169 Further, there is, in my opinion, much to be said for the view expressed by Smart AJ in Farr.[266] His Honour was dealing with, among other things, evidence improperly obtained from search of a car. Having discussed a number of authorities dealing with illegally or improperly obtained evidence at common law, including Pollard,[267] he said:[268]
Sections 90 and 138 cover the two discretions which existed at common law to reject evidence on the unfairness and public policy grounds, although s 138 would seem to go further than the common law. Although unfairness to the accused is not listed in s 138(3) as one of the factors to be taken into account that does not mean it should not be taken into account. The introductory words of s 138(3) make it clear that the list in that sub-section is not exhaustive. In Pollard, Deane J indicated the approach which should usually be taken to the exercise of the public policy discretion.[269]
170 An examination of the statutory scheme reveals, in my view, that Smart AJ was correct when he held that s 90 and s 138 cover the two discretions which existed at common law to reject evidence on the unfairness and public policy grounds. Since s 138 is intended to cover the field previously falling within the ambit of the common law unfairness discretion, by 'necessary intendment' the unfairness discretion at common law is, in my view, abrogated.
171 As I have said, however, the applicant sought to support the continued existence of the common law discretion by reliance on s 464J(c) of the Crimes Act 1958, which provides that nothing in the subdivision of the Act in which the section falls - (30A) Custody and investigation - affects 'the discretion of a court to exclude unfairly obtained evidence'. Section 464J(c) is found within a suite of sections dealing with the rights of persons in custody, including the rights of those who are to be interviewed by investigating officials. Thus s 464H, with specified exceptions, renders inadmissible any confession or admission unless it was recorded by audio recording or audiovisual recording.[270] The clear intent of s 464J, however, was to make clear that other rules touching the admissibility of confessions or admissions were not affected by the inclusion within the subdivision of particular exclusionary rules (such as are found in s 464H).
172 But as I have endeavoured to convey, in my view s 138 deals comprehensively and exclusively with the admissibility and inadmissibility of evidence falling under the general umbrella of 'unfairly obtained evidence'. In so far as s 464J(c) may be considered as referring to the common law unfairness discretion it is redundant, and ought to be considered to be impliedly repealed.[271] It has been retained in the section out of an excess of caution. My view is fortified by an examination of the whole of s 464J, which provides:
464J Right to remain silent etc. not affected
Nothing in this subdivision affects -
(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b) the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(ba) the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence.
173 It will be seen that s 464J(b) refers to 'the onus on the prosecution to establish the voluntariness of an admission or confession'. Voluntariness, however, which was a common law concept, no longer has any part to play in determining the admissibility of an admission or confession. In so far as s 464J(b) refers to 'voluntariness', it does not revive the defunct common law concept. On any practical level, s 464J(b) has no work to do; but, as is the case with s 464J(c), has been left in the section, it might be thought, out of an abundance of caution. Impliedly, however, it is repealed.
174 Further, it should be noted that s 464J(ba) was inserted into the section by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, and came into operation at the same time as the EA. The reference to 'the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected', is a clear reference to the requirements of s 85 of the EA. Plainly its inclusion in s 464J is intended to make clear that, questions of the admissibility and inadmissibility of admissions and confessions is not the sole province of the Crimes Act provisions to which reference has been made.
175 For these reasons, the submission that s 464J(c) preserves the common law unfairness discretion cannot be accepted.
176 My conclusions concerning the operation of Chapter 3 of the EA are based on my endeavour to construe the Act as a whole, the provisions of Chapter 3 being analysed contextually.[272] It is not lost on me that judicial support for my view - that the provisions of Chapter 3 of the EA operate as a code - is scant. But there is some - albeit limited - support.
177 Thus, writing extra-curially, McDougall J has expressed the opinion that Chapter 3 is a code. He said:[273]
Another thing to understand about the Act, is that it is not a complete code of the law of evidence. There are a number of topics that are associated with evidence, but are not dealt with in the Act - the attribution of the burden of proof and the doctrines of res judicata and issue estoppel are just a few examples. That being said, Chapter 3 (which contains the rules on admissibility) is to be read as a complete code ...
178 And in Telstra Corporation v Australis Media Holdings and Ors (No 2),[274] although McClelland CJ in Eq did not distinctly answer the question whether Chapter 3 is a code, his judgment does, in my view, lend support for the position that some parts of Chapter 3 of the EA do indeed represent a complete code. In the litigation before him the defendants sought orders that the plaintiffs produce for inspection specified discovered documents in respect of which legal professional privilege had been claimed. The plaintiffs relied on common law principles relating to imputed waiver of legal professional privilege - in the context of a common interest between the maker and the receiver of a relevant disclosure - to contend that disclosure of a privileged document to another person with a sufficient common interest to attract 'common interest' privilege does not constitute a waiver of the privilege and that the persons to whom the subject documents were communicated had such an interest; that disclosure of a privileged document to another person on a limited and confidential basis does not constitute a waiver of the privilege as against other persons and that the disclosure of the subject documents was made on such a basis; and that there could be no unfairness in maintaining the privilege having regard to the limited nature and the purpose of the disclosure. On the other hand, one of the defendants contended that the common law principles relied on by the plaintiffs had been displaced by s 122 of the Evidence Act 1995 and that, by virtue of s 122(4), the communication to the respective recipients of all the documents in question constituted disclosures depriving those documents of any privilege they might otherwise have had. The plaintiffs responded that the provisions of the Evidence Act 1995 relating to client legal privilege are not a code and have not displaced the common law principles which they invoke.
179 With respect to the suite of provisions dealing with what had hitherto been referred to as legal professional privilege, McClelland CJ in Eq offered the view:[275]
Whether or not it is technically accurate to describe the Evidence Act 1995 as a code is not important. What is I think important is that the provisions of the Act which are relevant for present purposes are inconsistent with the principles on which the plaintiffs seek to rely. The pivotal provision is s 56(1) which states: 'Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.'
The only part of the Act which otherwise provides in relation to what has hitherto been known as legal professional privilege (in the Act called client legal privilege) is Div 1 of Pt 3.10. In that Division, ss 118-120 operate to prohibit the adducing of evidence resulting in the disclosure of certain confidential material on the ground of client legal privilege, if certain conditions are fulfilled. Sections 121-126 operate to remove evidence from the prohibitions in ss 118-120 if certain further conditions are fulfilled. Conditions of the latter kind relating to prior disclosure of the confidential material are contained in subs (2)-(5) of s 122. ...
His Honour went on to observe[276] that if there has been a disclosure of the kind to which ss 122(2) or (4) applies, and therefore a fulfilment of conditions sufficient to remove the evidence from the prohibitions in ss 118 to 120, then 'there is no room for the operation of common law principles which would, in the absence of the Act, have prevented such a disclosure from removing legal professional privilege'.
The provisions of Pt 3.10, Div 1, differ from the pre-existing common law and the Evidence Act 1958. In Telstra Corporation v Australis Media Holdings, McClelland CJ in Eq concluded that the provisions of the New South Wales Uniform Evidence Act 1995 were inconsistent with the previous law concerning legal professional privilege so that the previous law did not apply to the trial before the court. I would respectfully adopt his Honour's observations which are equally applicable to the Victorian Evidence Act 2008.
181 Before departing judicial statements on the topic, if only for the sake of completeness I should note that, although in Lee[279] the High Court observed that s 60 of the Act - dealing with hearsay - was 'intended to work a considerable change to the common law', the Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) offered no view as to whether or not Chapter 3 of the EA was to be regarded as a complete code.
182 Finally, although I do not derive much comfort from it, I note that in the Explanatory Statement accompanying the introduction of the Evidence (National Uniform Legislation) Act (NT) (intended to bring the Northern Territory into line with uniform evidence laws of the Commonwealth, ACT, NSW, Norfolk Island, Victoria and Tasmania), it is said:[280]
The UEA is not technically a code of the law of evidence. It does not affect the operation of other legislation, or consistent common law and equitable rules of evidence. Some topics, which are so linked to the substantive law that they can only be considered in that context, are left out. For example it does not deal with the legal and evidential burden of proof, the parole evidence rule, issue estoppel, res judicata, notice of alibi provisions, vulnerable witnesses, the standard of proof and allocation of the burden of proof, or presumptions.
Chapter 3 of the UEA, however, does cover the field of admissibility of evidence, and abrogates the common law rules, by stating in s56(1) 'Except as otherwise provided in this Act, evidence that is relevant in a proceeding is admissible in the proceeding.'
Survival of the common law unfairness discretion would lead to no different result
183 As a Parthian shot, I observe that, even if the unfairness discretion were to be regarded as having survived the enactment of the EA, it could have made no difference to the result in this case. In his careful ruling - albeit concerned with s 90 - the judge took into account and analysed the same kinds of considerations that would have animated the exercise of the unfairness discretion at common law, and found that it would not be unfair to admit the record of interview for the purposes of voice comparison. The result was, in my view, correct, and could have been no different had the judge purported to exercise the common law discretion.
184 The first ground cannot be upheld. Since success on the second ground required success on the first, it too must fail.
185 In light of the foregoing, I would grant leave to appeal, but would dismiss the appeal.
[1] Jill Anderson, Neil Williams and Louise Clegg_, The New Law of Evidence_ - Annotation and Commentary on the Uniform Evidence Acts (LexisNexis Butterworths, 2nd ed, 2009) 348.
[2] See R v Lee [1950] HCA 25; (1950) 82 CLR 133 ('Lee'). In R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, 193 [66] ('Swaffield') it was said (by Toohey, Gaudron and Gummow JJ) of this discretion that 'fairness is a vague concept ... the very nature of the concept inhibits great precision'.
[4] [2007] HCA 46; (2007) 232 CLR 67 ('Em').
[5] Australian Law Reform Commission, Evidence, Report No 38 (1987).
[6] Em [2007] HCA 46; (2007) 232 CLR 67, 87 [51].
[8] Em [2007] HCA 46; (2007) 232 CLR 67, 104 [109].
[9] R v Christie [1914] AC 545 ('Christie').
[12] The trial judge was conscious of the possible application of s 137. However, having regard to the stringent directions given by his Honour to the jury on the dangers associated with voice identification, and the considerable benefit that the applicant derived from having the expert's view that she could not reliably make use of the recorded interview for her purposes, there was no basis, in our view, for thinking that this evidence was relevantly 'prejudicial'.
[13] Christie [1914] AC 545.
[15] McDermott v The Queen (1948) 76 CLR 501, 506-7, 513; Lee [1950] HCA 25; (1950) 82 CLR 133, 150-1; MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 519-20.
[17] Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 18, 33.
[19] See Swaffield [1998] HCA 1; (1998) 192 CLR 159.
[21] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 334-5; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 74-5.
[25] Carruthers, Allen and Badgery-Parker JJ.
[27] [1914] AC 599, 609-10, 614.
[28] [1914] AC 545, 559.
[29] [1952] AC 694 ('Harris').
[31] Harris [1952] AC 694, 707.
[32] [1955] AC 197 ('Kuruma').
[33] Ibid 204 (emphasis added). The cases cited in support of the discretion referred to in that passage, Noor Mohamed v The King [1949] AC 182 and Harris [1952] AC 694, were similar fact cases. Nonetheless, the existence of the exception has been reiterated on a number of occasions in subsequent statements of principle.
[34] [1977] HCA 43; (1977) 137 CLR 517 (with whom Mason and Jacobs JJ agreed).
[35] Ibid 541, citing Christie [1914] AC 545, 560; Noor Mohamed v The King [1949] AC 182, 192; Harris [1952] AC 694, 707; Kuruma [1955] AC 197, 204.
[42] (1978) 142 CLR 54, 69.
[43] Canada Act 1982 (UK) c 11, sch B pt I ('Canadian Charter of Rights and Freedoms').
[45] R v Wray [1971] SCR 272. Note, however, that three members of the Canadian Supreme Court would have excluded the evidence in question in that case purely because it would have been unfair to receive it. See generally M S Weinberg, 'The Judicial Discretion to Exclude Relevant Evidence' (1975) 21 McGill Law Journal 1.
[46] JD Heydon, Cross on Evidence (Butterworths, 6th Australian ed, 2000), 795 [27245].
[47] R v Capner [1975] 1 NZLR 411; R v Pethig [1977] 1 NZLR 448; R v Loughlin [1982] NZCA 1; [1982] 1 NZLR 236, 238.
[48] R v Murphy [1965] NI 138.
[54] [1989] HCA 50; (1989) 167 CLR 590 ('Harriman').
[56] Harriman [1989] HCA 50; (1989) 167 CLR 590, 594-5.
[58] Harris [1952] AC 694, 707 (Viscount Simon); cited in Harriman [1989] HCA 50; (1989) 167 CLR 590, 619.
[59] Harriman [1989] HCA 50; (1989) 167 CLR 590, 633.
[61] [1988] HCA 50; (1988) 165 CLR 292, 294-5.
[62] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 507.
[65] [1995] HCA 66; (1995) 184 CLR 19 ('Ridgeway').
[66] Ibid 33. See, for example, when the prejudicial effect of evidence outweighs its probative value: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 523, 541_; Alexander v The Queen_ [1981] HCA 17; (1981) 145 CLR 395, 402-3, 417-8, 428-30, 435_; Sutton v The Queen_ [1984] HCA 5; (1984) 152 CLR 528, 534, 558-9, 565; Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 212_._
[67] Ridgeway [1995] HCA 66; (1995) 184 CLR 19, 41.
[71] [1998] HCA 1; (1998) 192 CLR 159, 192.
[72] See Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) vol 2, 208-10.
[73] Swaffield [1998] HCA 1; (1998) 192 CLR 159, 193.
[76] The judge had referred, in particular, to R v McLean and Funk; Ex Parte Attorney-General [1991] 1 Qd R 231 (Carter J); R v Chai (1992) 27 NSWLR 153; R v Peirce [1992] VicRp 17; [1992] 1 VR 273, 274 (Vincent J).
[77] R v Pipe (1966) 51 Cr App R 17; R v Turner (1975) 61 Cr App R 67; R v Thorne (1978) 66 Cr App R 6; R v McDonald [1980] 2 NZLR 102; McDonald v The Queen (1983) 77 Cr App R 196; R v Brown (1983) 21 NTR 6; (1983) 8 A Crim R 320; R v Falzon [1990] 2 Qd R 436; R v Peirce [1992] VicRp 17; [1992] 1 VR 273, 275 (Vincent J).
[78] Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 548, citing R v Edelsten (1990) 21 NSWLR 542, 552-4; R v Chai (1992) 27 NSWLR 153 ('Chai'). In Chai the Court of Criminal Appeal was greatly influenced in its reasoning by the judgment of Carter J in R v McLean and Funk; Ex Parte Attorney-General [1991] 1 Qd R 231.
[79] Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 549 (emphasis added, citations omitted).
[80] R v Peirce [1992] VicRp 17; [1992] 1 VR 273, 274 (Vincent J).
[82] Christie [1914] AC 545.
[87] [1979] UKHL 3; [1980] AC 402, 439.
[93] [1979] UKHL 3; [1980] AC 402, 454.
[94] [1963] 1 WLR 637; 1 All ER 848.
[95] To the same effect was R v Court [1962] Crim LR 697.
[99] Ibid 104-5 (Stephen J); 107 (Murphy J); 111, 115-7 (Wilson J).
[100] [1989] HCA 46; (1989) 168 CLR 23, 29 ('Jago').
[101] [1964] AC 1254, 1354.
[102] Jago [1989] HCA 46; (1989) 168 CLR 23, 29.
[106] [1992] HCA 57; (1992) 177 CLR 292 ('Dietrich').
[107] Ibid 299-300 (citations omitted).
[108] Citing McDermott v The King (1948) 76 CLR 501, 511-15 (Dixon J); Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 541 (Gibbs J).
[109] Citing McDermott v The King (1948) 76 CLR 501, 511-15, (Dixon J); Lee [1950] HCA 25; (1950) 82 CLR 133, 144.
[110] Citing Christie [1914] AC 545, 560; Harris [1952] AC 694, 707; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 541 (Gibbs J).
[111] Citing Cocker v Tempest [1841] 7 M & W 501, 503-4; [1841] EngR 242; (1841) 151 ER 864, 865; Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, 270; Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239, 252-3.
[112] Citing Connolley v Director of Public Prosecutions [1964] AC 1254, 1301-2, 1347; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 96, 107; Jago [1989] HCA 46; (1989) 168 CLR 23, 75.
[113] Citing Pavey and Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221, 256 (Deane J).
[114] [1992] HCA 57; (1992) 177 CLR 292, 363-5 (remaining citations omitted).
[115] [1995] QCA 331; [1996] 2 Qd R 326, 415 (citations omitted).
[116] For example, where evidence may controvert an acquittal: see, eg, Carroll v The Queen (2002) 213 CLR 635; Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, 508-9 [37].
[121] Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2nd ed, 2013), 10-11 [1.1.40]. Compare R v Edelsten (1990) 51 A Crim R 397; R v Pearsall (1990) 49 A Crim R 439; Police v Jervis; Police v Holland (1998) 70 SASR 429; R v Schuurs [1999] QSC 176; R v Grant [2001] NSWCCA 486; (2001) 127 A Crim R 124.
[122] In Swaffield [1998] HCA 1; (1998) 192 CLR 159, 178, Brennan CJ suggested that the public policy discretion should deal with discretionary exclusion arising from police impropriety or illegality whereas the Lee discretion should focus on unfairness to the accused arising from unreliability. Of course, questions of unreliability are far less likely to arise when dealing with real evidence, as distinct from confessions or admissions.
[124] Foster v The Queen [1993] HCA 80; (1993) 113 ALR 1.
[125] Australian Law Reform Commission, Review of the Uniform Evidence Acts, Discussion Paper No 69 (2005), 68 [2.99].
[126] Odgers, above n 121, 10 [1.1.40].
[128] Odgers, above n 121, 54 [1.1.1110].
[131] Odgers' analysis is supported by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346.
[133] (1997) 41 NSWLR 346, 349.
[135] [2003] NSWCCA 319; (2003) 58 NSWLR 700 ('Ellis').
[137] See, for example, R v Lock (1997) 91 A Crim R 356 (Hunt CJ at CL); R v AH (1997) 42 NSWLR 702 (Hunt CJ at CL, Ireland and Levine JJ); R v Fordham (1997) 98 A Crim R 359 (Hunt CJ at CL and Smart J, Howie AJ expressing doubts).
[150] [1950] HCA 25; (1950) 82 CLR 133, 150-1.
[151] (1948) 76 CLR 501, 506-7.
[153] [1970] HCA 21; (1970) 126 CLR 321 ('Ireland'), 334-5.
[161] R v Sang [1979] UKHL 3; [1980] AC 402, 437.
[162] Cleland v The Queen, [1982] HCA 67; (1982) 151 CLR 1, 15.
[166] [1950] HCA 25; (1950) 82 CLR 133, 150-1.
[167] Em [2007] HCA 46; (2007) 232 CLR 67, 88 [54].
[171] [2007] HCA 46; (2007) 232 CLR 67, 101 [94].
[172] Odgers, above n 121, 10-11 [1.1.40].
[173] Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346, 349-50; McNeill [2008] FCAFC 80; (2008) 168 FCR 198; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1077; (2000) 50 NSWLR 640; El Dupont de Nemours & Co v Imperial Chemical Industries plc [2002] FCA 230; (2002) 54 IPR 304.
[176] Robertson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612, 619 [24] (Basten JA), 630 [94] (Hall J).
[177] [2000] NSWCCA 74; (2000) 111 A Crim R 374, 380 [23]-[24].
[178] [2008] FCAFC 80; (2008) 168 FCR 198 ('McNeill').
[184] [1998] HCA 1; (1998) 192 CLR 159. See also R v Em [2003] NSWCCA 374, [107].
[185] McNeill [2008] FCAFC 80; (2008) 168 FCR 198, 209 [60]-[62].
[186] Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36; Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558. See also Pepsi Seven-Up Bottlers Perth Pty Ltd v Federal Commissioner of Taxation [1995] FCA 1655; (1995) 62 FCR 289, 301; Newcastle Wallsend Coal Co Pty Ltd v Court of Coal Mines Regulation; Alston v Court of Coal Mines Regulation (1997) 42 NSWLR 351, 392.
[187] R v Gover [2000] NSWCCA 303; (2000) 118 A Crim R 8, 14 [21]; see also Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521, 540 [65] (Kirby J), 575 [195], 587 [224] (Heydon J); McNeill [2008] FCAFC 80; (2008) 168 FCR 198, 208 [57].
[188] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492.
[189] There is also conflict among academic writings as to whether Chapter 3 covers the field: see Odgers, above n 121, 10 [1.1.40]; JD Heydon, 'The Non-Uniformity of the "Uniform" Evidence Acts and Their Effect on the General Law' (2013) 2 Journal of Civil Litigation and Practice 169, 176.
[197] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18, citing Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304.
[201] West v Mead (2003) 13 BPR 24, 431 [94] (Campbell J).
[205] Dietrich [1992] HCA 57; (1992) 177 CLR 292, 363.
[206] Section 464J(ba) of the Crimes Act 1958 was inserted by Act No 69 of 2009, presumably to bring the section into line with the terminology used in s 85(2) of the Act_,_ which together with s 84 replaced the common law relating to voluntariness as the basis for admissibility of confessions or admissions_._
[208] Subdivision (30A) consists of essentially one section, s 464, with a number of additional provisions alphabetically added to it. Thus the subdivision ends with s 464ZL and extends over 147 pages of the Crimes Act 1958.
[209] It may be noted that the term 'code' is not used to describe the Act. That term tends to be interpreted as meaning comprehensive legislation expressed in the broadest of language, like some civil codes. The Act does not attempt an exhaustive statement of the rules of evidence. For example, it says very little about the rules relating to the questioning of witnesses: Australian Law Reform Commission, Evidence, Interim Report No 26 (1985), [214].
[210] The reference to 'any other Act' is a reference to an Act of the Victorian Parliament. See generally Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 205 FLR 217.
[211] In McNeill [2008] FCAFC 80; (2008) 168 FCR 198, the Full Federal Court held that, notwithstanding s 8, ss 85 and 138 of the Norfolk Island Evidence Act 2004 impliedly repealed s 410(1) of the Criminal Law Act 1960 (NI). Cf R v McNeill (Ruling No 1) [2007] NFSC 2; (2007) 209 FLR 124, 132-4 [38]-[57] (Weinberg CJ). A contrary approach had also earlier been taken by Finn J in Re Schofield; Ex parte Rangott v P & B Barron Pty Ltd (1997) 72 FCR 280 where his Honour held that the specific provisions of the Bankruptcy Act 1966 (Cth) dealing with the admissibility of transcripts were not impliedly repealed by the later and more general provisions of the Act.
[212] In the same way, s 8 of the Evidence Act 1995 (NSW) provides that that Act does not affect the operation of the provisions of any other New South Wales Act. It took a special piece of legislation, the Evidence (Consequential and Other Provisions) Act 1995 (NSW) to repeal or amend many other pieces of legislation, most notably the Evidence Act 1898 (NSW).
[213] Victoria, Parliamentary Debates, Assembly, 12 December 2013, 70-3 (Robert Clark, Attorney-General, Minister for Finance and Minister for Industrial Relations).
[214] JD Heydon, Cross on Evidence (Butterworths, 6th Australian ed, 2000) 115, [1750]. It should, however, be recognised that in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 324 [89], McHugh J observed, in the context of complaint evidence, that 'reference to pre-existing common law concepts will often be unhelpful'.
[215] This was an alternative to attempted murder (charge 1), upon which the applicant was acquitted. No verdict was taken on the alternative charge of recklessly causing serious injury (charge 3).
[216] This was an alternative to reckless conduct endangering life (charge 4), which resulted in acquittal.
[219] Zickar v MGH Plastic Industries Limited (1995) 187 CLR 310, 329-30 (Toohey, McHugh and Gummow JJ); compare Sherritt Gordon Mines Ltd v Commissioner of Taxation (Cth) [1977] VicRp 42; [1977] VR 342, 353 (McInerney J).
[220] Re A (a Child) [2000] NSWSC 627; (2005) 115 A Crim R 1, 9 [28].
[221] DPP v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227, 247 [93].
[222] R v Knight [2001] NSWCCA 114; (2001) 160 FLR 465.
[224] R v G [2005] NSWCCA 291.
[226] R v Gao [2003] NSWCCA 390.
[228] R v Christie [1914] AC 545.
[229] Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, 524 [63], 525 [65]-[67].
[231] R v Korgbara [2007] NSWCCA 84; (2007) 71 NSWLR 187.
[232] Ibid 208 [79] (McColl JA). See also Bulejcik v The Queen (1996) 185 CLR 375, 394-5 (Toohey and Gaudron JJ).
[233] On detailed analysis, it may be that the voice identification evidence was a piece of circumstantial evidence not requiring of itself proof beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579. Given that nothing turns on the judge's directions, however, this aspect need not be further considered.
[234] R v Lee [1950] HCA 25; (1950) 82 CLR 133.
[237] Ibid 149. See also McDermott v The King (1948) 76 CLR 501; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 5; Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10; (1988) 62 ALJR 656; ( at ALR) 16, 26; R v Thomas [2006] VSCA 165; (2006) 14 VR 475, 497 [66].
[238] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, 565; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 310, 318; MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 519-22; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 12, 19; R v Thomas [2006] VSCA 165; (2006) 14 VR 475, 498 [68].
[239] Section 149 was repealed as of 1 January 2010, the same day that the Evidence Act 2008 came into operation.
[240] Now renamed the Evidence (Miscellaneous Provisions) Act 1958.
[241] The forerunner to s 149 was considered in Lee and Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235. See also R v Hearst [1958] VicRp 63; [1958] VR 396.
[242] Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 5. See also Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 197, 201-2, 204-5; R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 422-3 [65]-[69] (Gummow and Hayne JJ), 469-70 [246]-[248] (Callinan, Heydon and Crennan JJ)..
[243] Van Der Meer v The Queen [1988] HCA 56; (1988) 82 ALR 10; (1988) 62 ALJR 656; (ALR) 26 (Wilson, Dawson and Toohey JJ). See also Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 200-1, 203-4 (Deane J).
[244] Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, 19.
[245] R v Ireland [1970] HCA 21; (1970) 126 CLR 321.
[246] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
[247] Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1.
[249] [1970] HCA 21; (1970) 126 CLR 321, 334-5.
[250] [1978] HCA 22; (1978) 141 CLR 54, 64-5, 72, 74-5.
[251] R v Ireland [1970] HCA 21; (1970) 126 CLR 321.
[253] Ridgeway [1995] HCA 66; (1995) 184 CLR 19.
[254] Ibid 31-2 (emphasis added). See also R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, 189-91 [53]-[61] (Toohey, Gaudron and Gummow JJ), 212 [133] (Kirby J);
[255] Pollard v The Queen (1992) 176 CLR, 203.
[256] Ridgeway [1995] HCA 66; (1995) 184 CLR 19, 37 (Mason CJ, Deane and Dawson JJ).
[259] Australian Law Reform Commission, Evidence (Interim) No 26, [46]; Odgers, S, Uniform Evidence Law in Victoria, (2nd ed), [1.1.40].
[260] For example, s 48(1A) of the Road Safety Act 1986, which requires certain evidence to be corroborated, notwithstanding s 164 of the EA (which abolishes corroboration requirements) continues to have effect: DPP v Gibson (2012) 61 MVR 261; [2012] VSC 297 (Emerton J).
[262] See Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 307 [23]-[24] (Gleeson CJ and Hayne J), 311-2 [45]-[46] (Gaudron and Kirby JJ), 320-1 [75]-[76] (McHugh J).
[263] See also Crimes Act 1958, ss 464 to 464J.
[265] R v Swaffield; Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159, 193-5 [67]-[68] (citations omitted; emphasis added).
[266] DPP v Farr [2001] NSWSC 3; (2001) 118 A Crim R 399 (emphasis added).
[267] Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177.
[269] See also R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257, 259 [11] (Ipp AJA).
[270] See Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177; Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370.
[272] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69].
[273] The Hon Justice Robert McDougall, An Overview of the Evidence Act, Keynote address prepared for the Young Lawyers Annual One Day CLE Seminar 2011: Evidence Act, 1-2 (emphasis added).
[279] Lee v The Queen (1998) 195 CLR 594, 604 [40]. See also the Hon. Justice R W White, Overview of the Evidence Act, paper delivered 30 October 2010.
[280] Department of the Attorney General and Justice (NT), Evidence Law in the Northern Territory from 1 January 2013: Part E - Merged copy of the Evidence (National Uniform Legislation) Act and the Explanatory Statement, 9 (emphasis added).
# Haddara
The Queen \[2014\] VSCA 100
(2008) 168 FCR 198
(1948) 76 CLR 501
(1981) 147 CLR 512
(1982) 151 CLR 1
(1977) 137 CLR 633
(1995) 182 CLR 461
(1988) 165 CLR 292
(1987) 162 CLR 221
(1993) 113 ALR 1
(2003) 58 NSWLR 700
(2005) 64 NSWLR 612
(2007) 235 CLR 521
(1990) 171 CLR 1
(2006) 205 FLR 217
(2007) 209 FLR 124
(1999) 196 CLR 297
(2001) 53 NSWLR 227
(1996) 185 CLR 375
(1988) 62 ALJR 656
(1980) 31 ALR 257
(1994) 179 CLR 370
(1998) 194 CLR 355
(2005) 65 NSWLR 36
(1978) 142 CLR 54
(1972) 128 CLR 114
(1981) 145 CLR 395
(1995) 184 CLR 19
(1992) 27 NSWLR 153
(1980) 147 CLR 75
(2002) 213 CLR 635
(1997) 42 NSWLR 702
(2012) 61 MVR 261
(1995) 62 FCR 289
(1997) 42 NSWLR 351
(2007) 230 CLR 89
(1993) 177 CLR 485
(1997) 72 FCR 280
(2001) 160 FLR 465
(1990) 170 CLR 573
(2006) 14 VR 475
(1963) 109 CLR 559
(2007) 231 CLR 396
(2008) 248 ALR 710
(2012) 62 MVR 261
(1998) 195 CLR 594
(1984) 152 CLR 528
(1992) 177 CLR 292
(1992) 176 CLR 239
(2007) 234 CLR 492
(1998) 70 SASR 429
(1997) 41 NSWLR 346
(2002) 55 NSWLR 558
(1998) 192 CLR 159
(1970) 126 CLR 321
(1990) 21 NSWLR 542
(1977) 137 CLR 517
(1992) 173 CLR 555
(1989) 167 CLR 590
(1990) 171 CLR 207
(1950) 82 CLR 133
(2007) 232 CLR 67
(1978) 141 CLR 54
(1985) 159 CLR 45
(1989) 168 CLR 23
(1978) 19 SASR 448
(2000) 50 NSWLR 640
(2002) 54 IPR 304
(1908) 7 CLR 277
(1995) 187 CLR 310
(2007) 71 NSWLR 187
(1988) 82 ALR 10
(1936) 55 CLR 235
(1992) 176 CLR 177