Whether an independent obligation to consider s 137
36The question which then arises is whether, because the appellant had objected to the evidence on the ground of relevance, the trial judge was obliged to undertake the balancing exercise set out in s 137 in the absence of any reliance by the defence on that section. The appellant contended that the "requirement to ensure a fair trial must include a consideration of section 137" (supplementary submissions at [12]).
37Whether there is a duty on a trial judge to consider excluding evidence pursuant to s 137 in the absence of an application to do so has been the subject of authority in this Court.
38The reasoning in this Court's earlier decision in Steve v R [2008] NSWCCA 231; 189 A Crim R 68 was disapproved in FDP v R [2008] NSWCCA 317; 74 NSWLR 645. In the latter case, the appellant had pleaded guilty to three counts of taking a child with intent to remove the child from the lawful control of the complainant (his wife) without her consent, and was convicted at trial of the further offence of wounding contrary to s 35 Crimes Act 1900 (NSW). On appeal, the appellant contended that the trial miscarried due to the reception of inadmissible or unfairly prejudicial evidence to which no objection was taken at trial - namely, evidence of the making of an Apprehended Domestic Violence Order against the appellant and of particular statements made by the appellant towards his wife during the course of an argument.
39This Court, constituted by McClellan CJ at CL, Grove and Howie JJ, held that a trial judge is not obliged by s 137 to reject evidence on his or her own motion in the absence of an objection based on that section.
40The Court adopted (at [28]) the following passage from the joint judgment of Gleeson CJ and Hayne J in Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1:
"[20] Sections 114 and 115 [concerning identification evidence], like many other provisions of the Evidence Act, declare that evidence of a certain kind is not admissible in certain circumstances, or unless certain conditions are fulfilled. Yet evidence of a kind to which those sections refer may not be the subject of objection. Counsel for an accused person may have any one of a number of reasons for not objecting. A trial judge ordinarily will not know why no objection is taken, and may have no right to enquire ... The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection ..."
41The Court in FDP v R continued:
"[28] With respect, we find the argument contained in paragraph 20 in the judgment of Dhanhoa set out above compelling in rejecting the notion that, generally speaking, a trial judge should take upon himself or herself the role of determining the admissibility or reception of evidence to which no objection is taken by a lawyer representing an accused person. There may be provisions that unambiguously impose such an obligation on a court by the wording of the section, for example s 275A [of the Criminal Procedure Act 1986 (NSW), now repealed], or by reason of its subject matter; for example provisions concerned with the exclusion of evidence in the public interest such as s 130. But we do not believe that s 137 falls into either of those categories and therefore, imposes an obligation on a trial judge to reject evidence of his or her own motion where no objection is taken and the accused is legally represented. There may be exceptional situations where a trial judge is compelled to intervene in order to prevent a miscarriage of justice, but there is in our opinion no provision of the Evidence Act that requires such intervention." (emphasis added)
[29] So far as s 137 is concerned, we do not understand how a trial judge could reliably undertake the balancing exercise that the section requires between the probative value of the evidence and the danger of unfair prejudice without a complete understanding of both the Crown and defence cases and the arguments to be addressed to the jury by the parties. Yet the section is engaged when the Crown first introduces the evidence that is later impugned in this Court. This difficulty is alone sufficient to lead us to the conclusion that s 137 cannot operate to oblige a judge to reject evidence that may later be seen in the context of the whole of the trial to have resulted in a miscarriage of justice."
42The Court found that no miscarriage of justice had occurred as a result of the admission of the evidence in question and dismissed the appeal against conviction. In that case, no objection at all had been taken at trial to the tender of the evidence. However, I consider the Court's reasoning to be equally applicable where, as here, an objection is taken to the evidence but on a basis other than s 137. This is arguably an a fortiori case because it is clear in such a situation that defence counsel (assuming that the accused is represented) has turned his or her mind to the admissibility of the evidence and, it can be inferred, has decided to confine the objection to one of relevance.
43Furthermore, contrary to the appellant's contention, I do not consider the reasoning in FDP to be inapplicable where, as in the present case, the evidence is tendered late in a Crown case which concludes the evidence at the trial because the accused does not call evidence. Although the Court in FDP remarked on the difficulty of applying s 137 where the trial judge has less than complete knowledge of the parties' cases, this was not the basis, or at least not the only basis, of the Court's decision. In any event, in the situation postulated by counsel for the appellant in this case, whilst the evidence might be near completion, closing addresses are yet to be made.
44In Potts v R and Shepherd v R [2011] NSWCCA 245, the Court affirmed the decision in FDP that s 137 of the Evidence Act does not impose an obligation on a trial judge to reject evidence to which no objection under s 137 has been taken at trial by defence counsel (at [66] and [30] respectively). In the latter decision, the Court stated that it "should be careful in the assessment of submissions made by reference to provisions of the [Evidence] Act which are said to apply, when no argument to that effect was made to the trial judge (in particular by experienced counsel)" ([30]).
45Finally, in Penza and Di Maria v R [2013] NSWCCA 21, Hoeben JA reviewed the reasoning in Steve v R, FDP v R and Chand v R [2011] NSWCCA 53 in respect of s 137. In relation to Chand, his Honour noted (at [197]) that:
" ... with the concurrence of McClellan CJ at CL and Blanch J, I upheld a ground of appeal based on s 137 Evidence Act, even though objection had not [been] taken to the evidence at trial. I did so because the Court was referred to the decision in Steve v R but was not referred to FDP. Having now had the opportunity of reading both those decisions, I have no doubt as to the correctness of the reasoning in FDP and that on this issue, Le and Steve should not be followed."
46At [226] of Penza and Di Maria Campbell J, with whom Button J agreed on this point, preferred to reserve his position in relation to s 137 since
" ... strictly, this aspect does not arise for the reasons expressed by [Hoeben JA] at [192]-[193]. And, as the differences were not identified by counsel nor addressed by them, I would prefer to leave the resolution of the question to an appropriate case where the Court has had the benefit of full argument."
47In both Steve and Chand, where the Court found that the trial judge ought to have considered s 137 independently of any objection by trial counsel, the danger of unfair prejudice arising from the evidence in question was plain. In Steve, the material included evidence of "extreme bad character" (being that the appellant was a sexual predator, a child molester and a person of violent disposition towards women), and tendency or propensity evidence in respect of which no notice had been served on the accused (see ss 97, 100 Evidence Act; Steve at [61]-[62], [64], [66]-[67], [69], [81]). Moreover, that material was either irrelevant or bore "no probative value" at all (at [58], [60], [64], [66], [69]).
48Likewise in Chand, the evidence consisted of 20 COPS entries detailing complaints made by the appellant to the police in relation to alleged conduct on the part of his neighbours, problems with the CIA, and planes flying over his house in order to spy on him and his family (see [80]). In the context of an allegation that the appellant had intentionally driven his vehicle at a motorbike ridden by a neighbour, that evidence clearly posed a danger of unfair prejudice to him.
49Where, as in those cases, the danger of unfair prejudice is manifest, an obligation to exclude the evidence under s 137 may arise in accordance with the trial judge's overriding obligation to ensure a fair trial according to law (Pemble v R [1971] HCA 20; 124 CLR 107 at 117-8 per Barwick CJ; James v R [2014] HCA 6; 88 ALJR 427 at [24]). However, any risk of undue prejudice arising from the exhibits impugned in the present case cannot be characterised as so obvious or self-evident that the trial judge was obliged to intervene to ensure that the appellant was not denied a fair trial by reason of their reception into evidence. The decision of counsel for the appellant at trial to refrain from invoking s 137 for the trial judge's consideration and to object instead to the admission of the evidence on the basis of relevance tends to confirm this to have been the case: see Ward v R [2013] NSWCCA 46 at [27].
50Accordingly, I consider that the trial judge did not err in failing to consider s 137 of his own motion. The question then arises of whether the appellant can rely on s 137 for the first time on appeal, either as of right or pursuant to r 4 of the Criminal Appeal Rules (NSW).