K M J v Tasmania [2011] TASCCA 7

K M J v Tasmania [2011] TASCCA 7 - TASCCA 2011 case summary — Zoe

[80]

"60 The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

61 In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, 'the extent to which the evidence could rationally affect the assessment ...'. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has 'probative value', as defined, if it is capable of supporting a verdict of guilty.

62 This conclusion is reinforced by the test that evidence must 'rationally affect' the assessment. As Gaudron J emphasised in Adam , a 'test' of 'rationality' also directs attention to capability rather than weight.

63 There will be circumstances, as envisaged by Simpson J in R v Cook , where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J's observations in Papakosmas that 'considerations of reliability are necessarily involved' have application.

64 To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 215, this is not a permissible 'basis for enlarging the powers of a trial judge at the expense of the traditional jury function'. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s137.

65 This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that 'probative value' falls to be assessed by the trial judge including: tendency and coincidence evidence (ss97(1)(b), 98(1)(b), 101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and s135(c)); and the comparative weight with unfair prejudice (s135(a) and s137)."

[98]

34 For relevant purposes, the Evidence Act (Tas) is uniform with the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 is a unanimous decision of five members of the High Court. In that decision, at 492, it was observed that: "uniformity of decision in the interpretation of uniform national legislation ... is a sufficiently important consideration to require that an intermediate appellate court ... should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong." That observation applies to the present circumstances and, consistent with it, in my respectful view, this Court should adopt the effect given to the term "probative value" in Shamouil, pars[60] - [65], unless convinced that it is plainly wrong. I am not so convinced, although I confess that I have some difficulty in divorcing considerations of reliability and credibility from an assessment of the probative value of evidence. An aspect of my difficulty relates to the regard that should be had to the possibility of concoction when considering the admissibility of similar fact evidence from several witnesses. With reference to this question, in AE v R [2008] NSWCCA 52, Bell JA, Hume and Latham JJ, at par[44], said, "it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence". PNJ v DPP [2010] VSCA 88 is an authority to the same effect. In that case Maxwell P, Buchanan and Bongiorno JJA, at pars[24] to [29], addressed the proposition that it had been an error for the trial judge to consider the possibility of concoction when deciding whether evidence had significant probative value. They said at par[28], "It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the Court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide." It is not readily apparent to me why it is not improper to consider the possibility of concoction, a matter that goes to the credibility and reliability of evidence, when assessing its probative value or why, for some other reason, it is proper to do so. For present purposes I do not need to pursue this any further.

[103]

38 Cases such as the present must be determined on their own particular facts depending upon the probative value of the evidence in question and its prejudicial effect. The mere fact that it is not possible for an accused to cross-examine a witness (much less that it is difficult to cross-examine examine a witness), is not necessarily decisive; see R v Suteski (supra), pars[126] and [127], and Galvin (supra), par[40]. Speaking generally, unfair prejudice is unlikely where a witness is available to be cross-examined, but is difficult to cross-examine because of an inability to recall the events that are the subject of a prior inconsistent statement. In this case, consistent with his instructions, counsel for the appellant could have put to each witness any motive that she may have had to lie when she spoke to the police, and any reason why what she then said may have been unreliable. Questions along these lines would not necessarily have been evaded by an absence of recall. In fact, two of the witnesses had volunteered a basis for asserting that their statements would have been unreliable. Chloe said that she had had "heaps of drugs and alcohol in [her] system", and Tina said she had been "intoxicated on drugs". From a practical point of view, it is hard to see how the witnesses' asserted loss of memory disadvantaged the appellant. In response to an inquiry as to what he would have asked these witnesses had they recalled the events in question, counsel for the appellant said he would have explored their evidence. He did not identify any specific line of questioning that he would have pursued that may have benefited the appellant. He acknowledged that it had not been difficult to go along with the witnesses' inability to recall and not test it, and accepted that had the witnesses recalled the events in question, their cross-examination would have been much more difficult. It may be that each witness had denied any recall of the events in question in order to assist the appellant. Each witness may have considered that if she acknowledged that she could recall the events in question, she would have been unable to avoid confirming the accuracy of what she had said in her statement. Had each witness said that she recalled the events in question, and that what she said in her police statement was untrue, this may have been of some assistance to the appellant. Nonetheless, it would have remained open to the jury to conclude that what the witnesses had said to police shortly after the events in question in an audio visual recorded interview was more likely to be true than their contradictory evidence in the court. There was reason to conclude that their contradictory evidence was motivated by a desire to help their friend, the appellant.

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Judgment (107 paragraphs)

K M J v Tasmania [2011] TASCCA 7 (22 June 2011)

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