the voir dire judgment
33 The trial judge disbelieved the evidence of the appellant, which he described as "a tissue of self serving lies". He contrasted the position taken by the appellant in the interview of 11 April with the answers given by him in his evidence on the voir dire: the former being that he believed that the ADVO had expired and did not operate to bind him; and the latter that he fled from police, on each of the two occasions, because he believed that police were looking for him to arrest him for breach of a then current ADVO. The judge described the two sets of answers as "totally inconsistent".
34 Turning his mind then to s137, his Honour said:
"I am satisfied that s137 of the Evidence Act would be misapplied if I were to exclude the evidence of flight on either occasion.
To my mind any prejudice to him by the Crown adducing evidence of flight would be a very real risk. It is not in my view, however, unfair prejudice within the meaning of s137 of the Act.
… In this case the alleged offender concedes that he has 23 pages of prior convictions recorded against him and that the general nature of his bad character would be involved in him explaining his flight on either or both of the occasions sought to be relied upon by the Crown.
S137 operates to command me to reject the evidence if I am of the opinion that the probative value of the evidence of flight is outweighed by the danger of 'unfair prejudice' to the alleged offender. 'Unfair prejudice' is the subject of various judicial comments.
…
But to my mind the unfairness is not to be looked at from the point of view of the weight of the prejudice, but it is a procedural concept whether or not the jury would be likely to misuse the evidence. That is the sense in which 'unfair prejudice' is used. The flight, not once but twice on the same day, despite the fact that the explanation for the flight, even if it were to be believed, was merely from the consequences of keeping company with the lady that he spent the night with the night before, and on his own version of events with whom he had a standing arrangement to individually and serially attend [a pharmacy] so they could each pick up their methadone dose and meet together in a coffee shop afterwards, to my mind the risk that he claims to have been fleeing from, on his version of events, was a non-existent risk.
I refuse to exercise any jurisdiction under s137 of the Evidence Act . It would be totally inappropriate to do so."
35 On appeal, a challenge was made to the findings of fact contained within this judgment. It was put that the passage in which his Honour found inconsistency between the appellant's evidence at interview and his evidence on the voir dire was "at odds with the known facts" and therefore not open to his Honour. This may or may not be so. I am unable to see that that factual finding is or was a material consideration to the question for determination under s137. The exercise on the voir dire was to determine whether the evidence of flight, if permitted to go to the jury, would have had the unfairly prejudicial effect set out in s137. If the evidence were to be admitted, then the credibility of any explanation given by the appellant would be a matter for the jury. I am satisfied that the approach taken by the trial judge was erroneous.
36 What s137 called for was a consideration of the probative value of the evidence of flight relative to its prejudicial effect to the extent that that could or would be unfair. The probative value of the evidence can be assessed merely by examination of the evidence itself. In this case, that examination inevitably gives rise to a conclusion that the probative value to the Crown case was very high indeed. Within five days of the assault on the complainant, the appellant twice fled when police approached. The inferences available to a jury are obvious.
37 The balancing exercise required by s137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. That was the purpose of the evidence given by the appellant in the voir dire. The effect of his evidence there was to put before the judge evidence of the response that the appellant would make, if the Crown evidence were admitted. This meant that the evidence of flight could be seen in its complete context. What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant's case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting - disclosing his history of violence and breach of the law. The proposal by the Crown to adduce the evidence of flight presented to the appellant a dilemma. On the one hand, he could say nothing about the evidence, leaving the jury to draw the inevitable inference that he fled when the police approached because he was conscious of his guilt of the assault on the complainant; or he could explain it, which necessarily involved revealing prior criminality of a related kind. The prejudicial effect of the explanation was what s137 required to be balanced against the probative value the Crown evidence would otherwise have had. That exercise was not explicitly undertaken by the trial judge. The s137 exercise also called for consideration of directions that could be given to the jury in order to ameliorate the impact of the knowledge of the appellant's prior conduct.
38 As the judge pointed out, s137 is not a section that confers a discretion on the trial judge, although the balancing exercise has been said to be "akin" to the exercise of a discretion. S137 calls for the exercise, not of a discretion, but of judgement. It is in that sense that it is "akin" to the exercise of discretion; whilst there will be cases in which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ. The exercise of judgement is not, in my view, akin to the exercise of discretion in the sense that, if the exercise is not performed in accordance with the section, it cannot then be undertaken by an appellate court. This Court may, in my view, consider whether the result of the balancing exercise, even if performed having regard to irrelevant considerations, was correct.
39 Counsel for the appellant submitted that:
"Where the explanation involves revealing further offences generally the discretion should be exercised in favour of exclusion."
40 In favour of this proposition two authorities were cited: R v Power (1996) 87 A Crim R 407 (Court of Criminal Appeal, South Australia) and R v Taranto [1999] NSWCCA 396, unreported, 16 December 1999. In my opinion neither is authority for a proposition as broadly stated as that extracted above. In Power, two appellants had been told by police that they were under suspicion for a series of bank hold-ups. Each denied any involvement. Five days later the two appellants left Australia, travelled to the United Kingdom and there remained for some time. The appellants explained their departure from Australia (it seems that this explanation was given in the trial itself) and the other conduct referred to by saying that they panicked when told of the suspicion directed towards them. While away the appellants used false names, concealed their identities, took a close interest in the activities of police, and indicated, by various intercepted remarks, that they were not remaining in the United Kingdom out of their own free choice. They later returned to Australia and were eventually arrested and charged. Evidence of their departure from Australia was admitted in their trial. On appeal, Doyle CJ, with whom Millhouse and Williams JJ agreed, held that the evidence was admissible and constituted evidence, upon which, taken as a whole, the jury might conclude that the conduct of the appellants manifested a consciousness of guilt. The Court held that the mere fact that a credible explanation is advanced is not of itself sufficient to render the evidence inadmissible.
41 Having referred to R v Bridgman (1980) 24 SASR 278 and R v Melrose [1989] 1QdR 572; (1987) 30 A Crim R 332, Doyle CJ added:
"I should add that this was not evidence of conduct which should or could be put aside as the result of an unguarded moment or action … Nor could be the evidence which brought in its train other complications, such as the disclosure of other misconduct or the fact that the accused was under suspicion of having committed other offences: cf Melrose . When those problems arise there are various ways of dealing with them and they do not necessarily result in the evidence being inadmissible."
42 Bridgman was also a South Australian decision, this time in the Supreme Court. It was a decision given during the course of a criminal trial in which the accused was charged with robbery with violence and assault. The Crown sought to lead evidence that the accused had absconded from bail shortly after the events giving rise to the charges. The Crown sought to rely on the evidence as evidence of flight demonstrating a consciousness of guilt as well as for the additional purpose of providing an explanation for the faulty memories of some witnesses. Having conducted a voir dire, White J rejected the evidence. During the voir dire the accused gave evidence that at the time of the commission of the robbery with which he was charged he was on parole, having been released from prison a week or so earlier, and having served about eight months of an eighteen months term of imprisonment. Conviction for the robbery would almost certainly result in the revocation of parole. The reasons given by White J for rejecting the evidence are significant. His Honour said:
"I was satisfied that flight from the prospect of serving the ten months' balance of the original term of imprisonment was the more substantial reason for fleeing."
43 Whatever the prevailing regime was in South Australia in 1980, I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused's response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice.
44 In Taranto, which, as I understand it, is the authority principally relied upon on behalf of the appellant, the appellants were tried on charges of wounding with intent to murder, and, alternatively, malicious wounding with intent to do grievous bodily harm. The Crown tendered evidence that, after the commission of the offence, one of the appellants had stayed away from home for some time, and when police attended at his home he ran away and hid inside the roof space of a garage. This evidence was tendered as evidence demonstrating consciousness of guilt. In the absence of the jury the trial judge was told that the appellant faced unrelated charges of goods in custody, possession of a prohibited drug and possession of an unlicensed pistol. The evidence of his seeking to avoid apprehension was, nevertheless, admitted. In this Court, Hidden J held that it was open to the trial judge to admit the evidence.
45 Hidden J wrote:
"48 … His Honour admitted the evidence saying it was a matter for Mr Taranto how he dealt with it and intimating that, if he chose to reveal those outstanding charges, any prejudice would be remedied by appropriate direction.
49 I am not persuaded that his Honour fell into error in this regard. Mr Taranto gave evidence of other reasons for his flight. The situation is materially different from that considered by White J in The Queen v Bridgman … where the only explanation the accused could give for his flight was his fear that his parole in respect of another offence might be revoked if he were found guilty of the offence for which he stood trial. Similarly, there is no parallel between this case and the The Queen v Hartwick (Court of Appeal of Victoria, unreported, 20 December 1995). In that case, evidence of flight was held to have been wrongly admitted in the appellant's trial for armed robbery because the same evidence had been used in an earlier trial of the appellant for a different armed robbery, of which he had been convicted. Again, it seems that the only reason the appellant could have advanced for his conduct was his involvement in the other offence.
50 That evidence of flight may properly be admitted in circumstances such as the present case was recognised in R v Melrose . … If the same objection should be taken at the appellant's retrial, it would be a matter for the trial judge to determine in the light of the circumstances as he or she finds them. I say no more than that, on the material before him, it was open to his Honour to have admitted the evidence."
46 I see nothing in these passages, which represent the whole of the reasoning of Hidden J on this issue, to support any general statement concerning the admission or otherwise of evidence where admission might put the accused person in the position of explaining his conduct in such a manner as would disclose the commission of other offences.
47 In my opinion none of the authorities to which reference has been made support the proposition advanced on behalf of the appellant. There is no general principle that, when the explanation for flight involves revealing other offences, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct.
48 Here, however, there, was, as I have said above, an added poignancy. The admission of the evidence put the appellant in an awkward position. His response to the evidence not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear. The appellant's explanation, although disbelieved by the trial judge (and disbelieved in terms forcefully expressed) was not, in my view, incapable of belief by a jury. The appellant had gone to Ms Bruen's home in the early hours of the morning, while she was in bed, and joined her, uninvited, in her bed. Whatever he said to police about his state of mind with respect to the currency of the ADVO, it was then undoubtedly still current. His attendance at the house put him in breach of it, and having regard to the circumstances, in serious breach. It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not.
49 I am therefore satisfied that the evidence was wrongly admitted.