R v Whyms [2010] ACTSC 91

Evidence Act 1995 (Cth) ss 97, 137

Court Procedures Rules 2006 (ACT) rule 4733

Clark v United States 61 F.2d 695 (5th Cir, 1932) affirmed [1933] USSC 52; 289 US 1

Doney v the Queen [1990] HCA 51; (1990) 171 CLR 207

R v Galbraith [1981] 1 WLR 1039

R v Shamouil [2006] NSWCCA 112

R v Cole (1810) noted [1946] 1 KB 544

R v Christie [1914] AC 545

Valenzuela v Bretherton [2001] ACTSC 9

R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227

R v Sood [2007] NSWCCA 214

Director of Public Prosecutions (Tasmania) v Lynch [2006] TASSC 89; (2006) 166 A Crim R 327

R v Joyce [2002] NTSC 70; (2002) 173 FLR 322

R v BD (1997) 94 A Crim R 131

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317

Williams [2000] FCA 1868; (2000) 119 A Crim R 490

Le [2002] NSWCCA 186; (2002) 130 A Crim R 44

Makin v Attorney General for New South Wales [1894] AC 57

Australian Law Reform Commission, Evidence (AGPS: Canberra, 1987) Report No. 38, volume 2.

1. The application by the Crown to tender a portion of a transcript of proceedings in the Magistrates Court is dismissed.

1. In the United States of America, appellate courts, in reviewing cases tried without a jury, will not ordinarily reverse a trial judge on the ground of the admission of incompetent evidence if there is competent evidence received sufficient to support the findings. The judge will be presumed to have disregarded the inadmissible and relied only on the competent evidence. See Clark v United States 61 F.2d 695 (5th Cir, 1932) affirmed [1933] USSC 52; 289 US 1.

2. Despite the existence of the proviso, this approach does not really pertain in Australia and so, even in criminal trials conducted by a judge sitting without a jury, it is necessary to ensure that only admissible evidence is before the judge, who is, of course, the tribunal of fact.

3. In criminal trials, this is made more technical because s 137 of the Evidence Act 1995 (Cth) (the Evidence Act) makes evidence inadmissible where the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused.

4. In this case, I am confronted with this issue and an interesting point of evidence and have been required to rule accordingly. This is my ruling and the reasons for it.

5. The accused, David Dennis Whyms, has been arraigned on an indictment containing two counts: that he entered certain residential premises in Fadden, a suburb in the district of Tuggeranong in the ACT, with intent to commit theft in them (burglary), and dishonestly appropriating property belonging to the owners with the intention of permanently depriving them of that property (theft). The offences are alleged to have been committed on 27 July 2008.

6. Mr Whyms made an election for trial by judge alone on 18 August 2009 and, on 27 October 2009, the trial was listed to commence on 21 June 2010. On 3 February 2010, that trial date was vacated and the trial re-listed to commence on 23 August 2010. It started on that day.

7. The Crown sought to tender a portion of the transcript of proceedings in the Magistrates Court in which Mr Whyms had given evidence about a burglary that was committed in Kaleen, ACT, also on 27 July 2008.

I'd like you to cast your mind back if you wouldn't mind to Sunday 27 July 2008 and I think that on that day in the afternoon you were in the company of the defendant in these proceedings, Michael Leslie Roberts?---Yes.

And a Katrina McDonald?---Yes.

And I think you drove out to a club - - -

MR LIVINGSTON: Well perhaps if my friend would not

MR MAWSON: What happened that afternoon?---We just went for a drive out at Belconnen to pick up some money and - and on the - an occurrence we broke into a house and I got arrested.

Who's we?---Me, McDonald and Leslie Roberts.

HIS HONOUR: Just before we go any further, even though I understand this witness is to appear in the Supreme Court tomorrow for certain proceedings I still think that it's important that he be warned in relation to his evidence.

MR MAWSON: Yes.

HIS HONOUR: Now Mr Whyms I have to warn you that you don't have to answer any question which is put to you if you believe that the answer to that question may tend to incriminate you with respect to any offence. Do you understand that?---Good, yes.

Right, thank you.

MR MAWSON: Sorry, I'll just go back a step. You say that you broke into a house at Belconnen?---Yes.

Do you know the address?---Somewhere in Fadden-in Kaleen, sorry.

Kaleen was it, or Fadden?---Kaleen

9. The transcript that was tendered was redacted. Although Mr S Gill, who appeared for Mr Whyms, objected to the tender, it was not clear to me whether the redaction was nevertheless a result of discussions between the Crown prosecutor, Mr M Thomas, and Mr Gill or not.

10. I make that comment because some of the material that was redacted was then relied on by Mr Gill in his argument before me. I was able to read it, in fact, because of the way some of the redacting had been done, and one small portion which seems to help the passage make sense was, in part, repeated later in the unredacted portion and, in part, the subject of later unchallenged evidence.

11. The purpose of the tender was said to be that the Crown proposed to rely on the reference to Fadden in the second last answer in the passage cited above (at [8]) as an admission. The Crown submitted that in answering the question asked, Mr Whyms was effectively admitting that he had committed a burglary in Fadden as well as the one in Kaleen, a suburb in the ACT district of Belconnen, which was the subject of the questioning.

12. Mr Gill pointed out that Mr Whyms was to appear in the Supreme Court following his committal to this court for the usual post committal directions (see rule 4733 of the Court Procedures Rules 2006 (ACT)), in respect of these charges for which he is now on trial, namely the burglary of premises in Fadden and theft from those premises.

13. Mr Gill objected to the tender on two grounds. In the first place, he submitted that the answer was not an admission and so was inadmissible. Secondly, he submitted that if it was an admission, then its probative value was outweighed by the unfair prejudice of it to Mr Whyms.

14. As to the first issue, the Crown's position is that the reference to Fadden was clearly a slip of the tongue based on a guilty mind by Mr Whyms because he had committed a burglary in Fadden, as well as at Kaleen, on 27 July 2008 and thus an admission. Neither is the word "Fadden" similar to the word "Kaleen", nor are the suburbs close to each other or otherwise likely to be confused. The only relevant connection is the two burglaries committed at residential premises in those two suburbs on 27 July 2008.

15. Mr Gill pointed to a completely innocent explanation, namely that the reference to the Supreme Court proceedings, immediately prior to the question, involving the Fadden burglary, to which Mr Whyms pleaded not guilty, has caused the slip. He further noted that the learned Magistrate had given Mr Whyms a careful warning about not incriminating himself which would tend to suggest that he was not intending to make an admission that was contrary to the position he was taking in this court.

16. I reject Mr Gill's submission on this ground. It seemed to me that the answer is capable of being construed as an admission. Whether the tribunal of fact will do so is another question, but the fact that there is a construction of the answer which means it could be used as an admission means that I should not reject it.

17. In Doney v the Queen [1990] HCA 51; (1990) 171 CLR 207, the Court approved the following proposition from the UK decision of R v Galbraith [1981] 1 WLR 1039 (at 1042):

Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

See also R v Shamouil [2006] NSWCCA 112 (at [64]).

18. It seems to me that, having come to the conclusion that the statement is capable of being an admission, though, no doubt, as a slip and unintentional by Mr Whyms, this proposition applies and it is within the province of the jury to determine whether it is or not.

19. Accordingly, I reject Mr Gill's submission that the answer is inadmissible as not being or not being capable of being an admission.

20. The second challenge was based on s 137 of the Evidence Act, which makes inadmissible in a criminal trial, evidence of which the probative value is outweighed by the unfair prejudice of it to the accused.

21. At common law, there has long been a discretion in a trial judge to exclude evidence of the unfair prejudice which the judge considers outweighs the probative value. It seems to have had its genesis in the exclusion of similar fact evidence which appeared in the beginning of the 19th century: see R v Cole (1810) noted [1946] 1 KB 544.

22. As long ago as 1914, Lord Moulton said in R v Christie [1914] AC 545 (at 560)

[I] am of opinion that the evidential value of the behaviour of the accused where he denies the charge is very small either for or against him, whereas the effect on the minds of the jury of his being publicly or repeatedly charged to his face with the crime might seriously prejudice the fairness of his trial. In my opinion, therefore, a judge would in most cases be acting in accordance with the best traditions of our criminal procedure if he exercised the influence which he rightly possesses over the conduct of a prosecution in order to prevent such evidence being given in cases where it would have very little or no evidentiary value.

There have been many formulations of the test. See Australian Law Reform Commission, Evidence (AGPS: Canberra, 1987) Report No. 38, volume 2 [259].

23. The principle is now statutory, however, and the discretion of the court is now, in criminal cases, a mandatory exclusion where the balancing exercise shows the probative value is outweighed by the unfair prejudice.

24. The Dictionary of the Evidence Act defines "probative value" as, "the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Of course, an admission can be powerful evidence which can rationally affect the probability that a fact in issue exists. Not all admissions are so powerful.

25. I need then to perform the well-known balancing act required of judges by s 137 of the Evidence Act and determine the probative value and the unfair prejudice.

26. To look first at the probative value, it seems to me that it is, despite being an admission, not very great. That it is an admission does not exclude the operation of s 137: see Valenzuela v Bretherton [2001] ACTSC 9 (at [172]).

27. In the first place, it is akin to disputed evidence for Mr Whyms says that it is a completely innocuous slip of the tongue, possibly encouraged by the reference to the other proceedings. As Howie J noted in R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 (at 238 [45]):

The fact that a piece of evidence is in dispute might be a relevant consideration in determining whether or not to reject the evidence in the exercise of a discretion that for some reason or other arises. This is because the fact that the evidence is disputed affects its weight: see Pfennig [1995] HCA 7; (1995) 182 CLR 461 at 482.

28. I am aware that the Court of Criminal Appeal in New South Wales has since then taken a somewhat more restrictive line. Thus, in R v Sood [2007] NSWCCA 214 (at [40]):

It is no part of the trial judge's function in assessing probative value under s 137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied.

29. I confess, I prefer the approach of the Tasmanian Court of Criminal Appeal where in Director of Public Prosecutions (Tasmania) v Lynch [2006] TASSC 89; (2006) 166 A Crim R 327, it was held (at 338 [39]), "The probative value of the evidence was adversely affected by a number of factors."

30. Having not seen or heard Mr Whyms give the evidence, it is difficult to see a strong basis other than speculation on which the jury might decide how to deal with it: R v Joyce [2002] NTSC 70; (2002) 173 FLR 322 (at 324).

31. Thus, I am satisfied that, while on the Crown case, the reference to Fadden is an admission, it seems to me the probative value is not high. The admission, if such it is, will be damaging to the case Mr Whyms seeks to make out, but that is not, of course, the prejudice to which the section refers. It refers to "a real risk that the evidence will be misused by the jury in some unfair way", see: R v BD (1997) 94 A Crim R 131 (at 139 and 151). See also Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 (at 325 [91]) and R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317 (at 324 [30]) and Williams [2000] FCA 1868; (2000) 119 A Crim R 490 (at 505 [63])

32. I asked Mr Gill to articulate the unfair prejudice that he submitted would outweigh the probative value. He articulated it in this way, namely that there would be a danger that, if the jury concluded that it was not an admission at all, they may nevertheless be affected by it and use it consciously or subconsciously as a "make weight". That is, it may assume a significance it does not have.

33. I am not particularly persuaded by that argument. It is true, of course, that, having been said, there is a risk of the jury misusing the reference to "Fadden" in that way, but it does seem to me that proper directions to the jury will cure the prejudice.

34. Associated with that, however, is the fact that the reference to "Fadden" requires for its understanding, the reference to the burglary at Kaleen. Indeed, without that, the reference is meaningless.

35. While this was not directly raised by Mr Gill, it seems to me that I have an obligation to consider it. In Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 Heydon JA, (as his Honour then was), and with whom Dunford and Buddin JJ, agreed, said (at 65 [47]): "The terms of ss 137 and 192 are mandatory. They must be complied with, whether or not a party who might gain from their invocation actually invokes them."

36. The admission into evidence of previous convictions or offences is, of course, ordinarily prohibited. It has a danger that it will be misused as tendency evidence, which is protected by strict requirements prior to admission (s 97 of the Evidence Act). That is not to say it cannot be admitted. Lord Herschell Lord Chancellor, said in Makin v Attorney General for New South Wales [1894] AC 57 (at 65)

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he has been tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

37. It seems to me that the introduction of the evidence of the burglary of Kaleen risks a jury reasoning impermissibly. It has been committed on the same day and by the accused. This is particularly relevant since the Crown did make the application at the start of the trial for leave to adduce evidence of that burglary as tendency evidence, an application I refused.

38. Accordingly, I consider that acceptance of the tender of the transcript into evidence would mean that evidence, the probative value of which is outweighed by the unfair prejudice to Mr Whyms, has been admitted but which is, accordingly, inadmissible under s 137 of the Evidence Act.

39. The tender is accordingly rejected and I hand the transcript back.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Applicant: Director of Public Prosecutions (ACT)