The discretion to exclude evidence under s.137
67 At the conclusion of submissions made by senior counsel for the accused, I enquired of Mr. Terracini as to whether he relied upon any other provision of the Evidence Act including, in particular, the provisions of s.137. He indicated that he would rely upon the latter provision.
68 Section 137 provides:-
" 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 defendant."
69 The application of s.137 requires a balancing, by the trial judge, of the probative value of the evidence against the danger of unfair prejudice to the defendant. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion arises: Regina v. Cook [2004] NSWCCA 52 per Simpson, J. at [27].
70 In Festa (supra), McHugh, J. at 614 stated:-
"… because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasion for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence."
71 The Crown in its submissions contended that the opinion evidence of Dr. Sutisno had probative value in establishing similarities relevant to the question of identity. The Crown further submitted that admission of the evidence could not be unfair, having regard to the fact that it related to similarities and is not relied upon as positive identification evidence. The Crown relied upon the judgment of the Court of Criminal Appeal in Regina v. Shamouil [2006] NSWCCA 112.
72 In Shamouil, Spigelman, CJ. examined the provisions of s.137 of the Evidence Act. The words "probative value", as the Chief Justice observed, are defined in the dictionary as follows:-
"Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue."
73 The Chief Justice also observed that before the Evidence Act the Christie direction to exclude evidence at common law for which s.137 is a replacement, did not involve considerations of reliability of the evidence. The Chief Justice further observed at [56]:-
"That there may be some, albeit, limited, circumstances in which credibility and reliability will be taken into account when determining probative value was indicated by Simpson, J. in Regina v. Cook [2004] NSWCCA 52 in which evidence of flight was sought to be excluded under s.137."
74 The Chief Justice further observed at [60] and [61]:-
"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.
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 limit 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."
75 Spigelman, CJ. noted that there will be circumstances 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 (paragraph [63]).
76 In the present matter, evidence is not evidence as to observation by a lay observer as to identity or similarity. The context in which the present matter is being considered is one in which there is a disputed question of expert opinion evidence in which there is likely to be a divergence of views on the expert analysis of morphological features. The question of reliability or credibility is to be evaluated in that context.
77 Accordingly, in undertaking the balancing exercise required by s.137, it is not appropriate for the purposes of the present application, for a determination to be made as to the quality or reliability of the evidence as those are matters for jury determination.
78 The probative value of the opinion evidence of Dr. Sutisno, if accepted, would be as relevant circumstantial evidence of similarities relevant to the question of identity. If the jury were to accept Dr. Sutisno's analysis and opinion based on it, then it would constitute important evidence in the Crown case.
79 In Cook (supra), Simpson, J. at [38] observed that s.137 calls for the exercise, not of a discretion, but of judgment. Her Honour observed that in that sense it is akin to the exercise of discretion and that whilst there will be cases which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ.
80 I have, in considering the application of s.137, also had regard to the judgment of the Court of Criminal Appeal in Regina v. Blick (2002) 111 A. Crim. R. 326, in particular, at 333.
81 In determining the question of unfair prejudice under s.137, the Court of Criminal Appeal in Regina v. Yates [2002] NSWCCA 520 at [252] observed:-
"Prejudice argues for the exclusion only if there is a real risk of danger of it being unfair … This may arise in a variety of ways, a typical example being, where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight."
82 The accused led evidence from two expert witnesses to whom I have already referred, namely, Mr. Porter and Dr. Doran. It is not irrelevant in the balancing exercise under s.137 in relation to the issue of unfair prejudice for some account to be taken of the fact that the accused has available to him such expert evidence which bears directly upon the analysis undertaken by Dr. Sutisno.
83 In Regina v. Lisoff [1999] NSWCCA 364 at [60], the Court of Criminal Appeal (Spigelman, CJ., Newman and Sully, JJ.) stated that s.137 requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. The court there stated that it was not sufficient to establish that the complexity or nature of the evidence was such that it created a mere possibility that the jury could act in a particular way. The court referred to the test referred to in that case that a jury "might be unduly swayed by the 'scientific' nature of the evidence to make a decision on an improper basis" as having been derived from judgments where the references were concerned with undue weight that may be given to scientific evidence by reason of its very concreteness, adding:-
"… they were not concerned with a situation such as that presented to his Honour where there was a real conflict of scientific evidence. That is quintessentially a jury question.
It is not, in our opinion, appropriate to infer that a jury even 'might' be affected in a prejudicial way by reason of the 'scientific' nature of the evidence, where such evidence is contradicted by other 'scientific' evidence."
84 The court in that case concluded that there was nothing so extraordinary about the conflict in the evidence presented which would justify the conclusion that a careful and sensible jury, properly directed as to the relevant law and as to the relevant evidence, could not decide in a reasoned and a responsible way whether or not the Crown had demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence.
85 Similarly, in the present case, I do not consider, on balance, that it can be said that there is a real risk of unfair prejudice based upon what was asserted by senior counsel for the accused, namely, that there may be undue reliance by the jury on the expert evidence of Dr. Sutisno and that there may be difficulty in them comprehending and giving effect to the evidence as to the significance of perspectives, angles, distances and other matters relevant to photograph images.
86 I am of the opinion that the probative value of Dr. Sutisno's evidence is not outweighed by the danger of unfair prejudice to the accused and I, accordingly, decline to exclude the evidence pursuant to s.137.
87 I, accordingly, am of the opinion that the opinion evidence of Dr. Sutisno is otherwise admissible as opinion evidence as to similarities under s.79 of the Evidence Act 1995 (NSW) and I so rule.
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