R v XY

Jurisdiction - Criminal Appeal Act, s 5F(3A) 118As I have indicated above, an appeal by the Director under s 5F(3A) lies in two circumstances - (i) where the exclusion of the evidence "eliminates" the prosecution case; (ii) where the exclusion of the evidence "substantially weakens" the prosecution case. Here, it is not, and could not be, suggested that the exclusion of the evidence of the respondent's response to the complainant's telephone call eliminates the prosecution case. The question is whether its exclusion "substantially weakens" the prosecution case. That calls for examination of the whole of the evidence in the prosecution case, and the relative importance of the evidence in question in that context. It is for that reason that I have outlined above the other evidence proposed to be adduced. 119Ironically enough, the evaluation of the importance of the evidence in question in the prosecution case involves a question similar to one which will be raised by the substantive appeal, should jurisdiction be established - to what extent, if at all, does this Court consider questions of the credibility, reliability, or weight of the evidence the subject of the appeal? In that context, in Shamouil, Spigelman CJ said: "39. The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s 137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to 'the prosecution's case', to be considered as a 'case'. This section is not concerned with the weight of the Crown's evidence. 40 This Court should determine whether or not a ruling on the admissibility of evidence 'substantially weakens' the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations." 120This is, however, not a simple instance of such an evaluation. In one sense, no serious question of credibility or reliability arises. The tape recording of the respondent's conversation with the complainant is clear, and the transcription of what he said is not in dispute. The prosecution will seek to rely upon the respondent's responses to the complainant as admissions - that is, as previous representations made by the respondent that are adverse to his interest in the outcome of the proceeding (Evidence Act, Dictionary). In particular the prosecution will rely upon the respondent's answer: "Yeah, fuckin oath and I wouldn't mind doing it again ... ha ha" as an admission that he had sexually interfered with the complainant. The answer is far from an unequivocal or explicit acknowledgement to that effect. It was made in response to the complainant's question: "Yeah, do you remember what you used to do me[?]" That, itself, was far from an unequivocal or explicit accusation. And the question and answer followed an introduction in which, it might be thought, the respondent had to be reminded of who the complainant was. Further, as Price J has pointed out, the answer ought not to be seen in isolation from the whole of the conversation, including what followed - the respondent's insistence that whatever engagement he had had with the complainant occurred when she was in high school. That, in itself, has to be seen in the context of his assertion that he remembered the complainant at high school "wearing a maroon jacket". "Maroon jacket" is broadly consistent with the evidence of Ms O'Neill, the primary school administrator, that the complainant's primary school uniform included a "burgundy jumper". (There is no evidence of the complainant's uniform when she was at high school, and no evidence of the high school she attended.) 121However, it is not unimportant that the complainant's mother's evidence is that, in September 2002, the family moved from where they were living to a location some distance away, and had no further contact with the respondent (except for the occasion, in about 2006, when she picked up RB from the respondent's home while the complainant was in the back seat of the car). 122Just what is to be read into the respondent's conversation with the complainant is a matter for determination by the jury. Plainly, a variety of inferences are available. The conversation is capable of interpretation, as the Director would have it, as an acknowledgement that the respondent had engaged in conduct of the kind of which the complainant complains. Taking into account the evidence of the colour of her primary school uniform, and the dates on which the family were in contact with the respondent, it is capable of being related to the period of the alleged offending. 123It would also be open to the jury to take an adverse view of the respondent's subsequent denials, and his reference to having "a QC barrister" available. 124At the other end of the spectrum, his answers are capable of the interpretation that, whatever engagement with the complainant the respondent acknowledged, it took place at a significantly later time, when the complainant was in high school (although, having regard to the evidence of when the complainant was in contact with the respondent, that might be a difficult proposition). If the jury were to take that view, relatively benign to the respondent, then the evidence could have no probative value in relation to the offences charged, but a potentially significantly prejudicial effect in establishing the respondent's interest in the complainant, and his willingness to engage in sexual contact with a school girl (although it cannot unequivocally be assumed that she was under the statutory age of consent). 125It is also possible, as the trial judge thought, that the jury might take the view that the Crown had not established that the respondent recognised the caller for who she actually was, and that his answer did not relate to her, but to some other schoolgirl. 126The value of the evidence to the prosecution case thus cannot be definitively assessed. That value depends entirely upon the interpretation that jury puts upon the evidence - that is, the inferences they draw from what the respondent said, in the context of the whole of the prosecution case. The task of this Court, under s 5F(3A), is to assume an interpretation most favourable to the prosecution - that is, that the respondent acknowledged having had some sexual engagement with the complainant. Having regard to the specific evidence of the period during which he had contact with the family, that would include fixing the time of the conduct he acknowledged within the timeframe of the indictment. If the jury were to draw the inference most favourable to the prosecution, and interpret the conversation as an acknowledgment of sexual contact with the complainant, the evidence is of considerable "cogency or force" (Shamouil, [77]). 127Moreover, this is a case in which the only direct evidence of the offences is that of the complainant. In R v Murray (1987) 11 NSWLR 12 at 19, it was held: "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable." A direction in such terms became standard in cases such as the present, in which only one witness is able to give direct evidence of the events in question. 128Whether that remains a required or even correct direction may now be in some doubt. By s 294AA of the Criminal Procedure Act 1986 (introduced by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (No 88)), commencing 1 January 2007: "(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. (3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section." The section appears in Div 1 of Pt 5 of the Criminal Procedure Act, which applies to proceedings in respect of prescribed sexual assault offences, of which offences against s 61J and s 61L are instances. 129The Murray direction is/was not limited to cases involving allegations of sexual offence. It was of general application. 130Whether s 294AA impinges upon the application of Murray in sexual offence cases remains to be seen. To the best of my knowledge, that question has not been considered by this Court. It is arguable that a Murray direction is not "a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant" prohibited by sub-s (2), and is therefore still applicable. On the other hand, when introducing the legislation into Parliament, the Minister for Gaming and Racing, and Minister for the Central Coast, representing the Attorney General, said: "The direction in Regina v Murray (1987) 11 NSWLR 543 provides that where there is only one witness asserting the commission of the offence, the evidence of the witness is to be scrutinised with great care. The typical sexual assault offence takes place in private without any other witnesses. The members of the task force agreed that the direction was unnecessary, as existing directions as to reasonable doubt were sufficient to protect the accused." (NSW Parliamentary Debates, Legislative Assembly, 18 October 2006, 2958) 131The relevance of the above is that it may be that the jury in the present case will be directed in terms of Murray - that is, by having their attention drawn to the fact that the evidence of the complainant is the only direct evidence against the respondent, and by being invited to scrutinise her evidence with care. 132If that is the case, evidence of an acknowledgment by the respondent, if the respondent's response to the complainant is so interpreted, would go a significant way to supporting the complainant's evidence. That in itself gives it "cogency or force". Exclusion of the evidence would substantially weaken the prosecution case. 133In my opinion, the evidence meets the test stated in s 5F(3A). This Court has jurisdiction to entertain the appeal.

The proceedings in the District Court 134The trial judge was invited to exclude the evidence on three bases: those provided by the Evidence Act 1995, s 85, s 90, and s 137. She rejected the respondent's contentions in respect of s 85, holding that that section had no application. She held, however, that both s 90 and s 137 operated so as to justify the exclusion of the evidence. 135Section 90 provides as follows: "90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." Section 137 is in the following terms: "137 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." 136Before coming to an analysis of the trial judge's reasoning to the exclusion of the evidence, it is appropriate to make the following observations. The argument took place on the day fixed for the commencement of the trial. It is recorded in 30 pages of transcript. Some evidence in the voir dire was taken. 137Her Honour delivered her judgment at the commencement of business the following morning. It is plain that the judgment was prepared in some haste and under some pressure. Indeed, at an early stage of giving her reasons, her Honour noted that her remarks were intended to be as short as possible, and offered, if required, more complete reasons at a later time. As is so often the case in such circumstances, the reasons are perhaps not as ordered or as clearly laid out as might otherwise have been the case. 138Section 90 is predicated upon the evidence in question being tendered as an admission (and that it can properly be so categorised). The section involves the exercise of a judgment concerning the unfairness (or otherwise) of the admission of the evidence, having regard to the circumstances in which the admission was made. Here, as I have said in relation to the jurisdictional issue, the evidence is tendered as an admission, and is capable of being so categorised. For the purposes of the present appeal, it should be treated as constituting an admission by the respondent. 139Section 137 also calls for a judgment. That judgment is the evaluation of the probative value of the evidence relative to the danger it could cause of unfair prejudice. 140In respect of each provision, the trial judge undertook the necessary exercise. In my opinion, each determination is to be reviewed by this Court on principles stated in House v The King [1936] HCA 40; 55 CLR 499: see the discussion on a closely related issue in DAO v R [2011] NSWCCA 63; 81 NSWLR 568. Although, with respect to s 90, that very question was touched upon in EM v The Queen [2007] HCA 46; 232 CLR 67 at [55], the High Court found it unnecessary to decide that question. 141In substance, the Director's arguments can be stated as follows:

• in respect of the decision to exclude the evidence under s 90, the trial judge's findings of fact, in a number of respects, cannot be sustained;
• in respect of the decision to exclude the evidence under s 137, her Honour impermissibly took into account questions of credibility, reliability and weight, in contravention of the principle stated, inter alia, in Shamouil. Consideration of this latter contention inevitably raises the conflict between that decision and the Victorian decision in Dupas. The trial judge's reasons 142Her Honour briefly outlined the relevant evidence. She quickly disposed of the s 85 argument, and turned, concurrently, to the s 90 and s 137 arguments. Although she was aware that each required separate consideration, she appears to have treated the factual basis relevant to each as coextensive with the factual basis relevant to the other. Since each section involves a consideration of possible unfairness, that is an understandable approach. Her Honour began by referring to the decision of this Court in Pavitt v R [2007] NSWCCA 88, 169 A Crim R 452, per McColl JA and Latham J, in which are stated a number of propositions relevant to the admission of covertly recorded conversations. 143The core of each decision is that, in all of the circumstances, the "admission" was unreliable. The trial judge accepted that, in making the telephone call to the respondent, the complainant was acting as "an agent of the State". In this context, "agent of the State" derives from the decision of the Supreme Court of Canada in R v Broyles [1991] 3 SCR 595, a concept adopted by the High Court in The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159, and which found its way into the propositions stated by McColl JA and Latham J in Pavitt. However, the trial judge found that that fact was not determinative, and that questions of unfairness to the respondent in the admission of the evidence remained relevant. She then referred to the answer in the conversation in which the respondent said "Yeah, fuckin oath and I wouldn't mind doing it again ... ha ha" and noted that the prosecution relied upon that as an admission. She then said: "However, as submitted by the defence, the circumstances of the conversation may have adversely affected the truth of that response and, therefore, make the admission of the evidence unfair. [Counsel for the respondent] submits that when a person has allegedly adopted a proposition as the Crown asserts here the Court must consider whether or not the proposition was properly established by the conversation that occurred prior to that." I take this to mean that the question asked by the complainant to which the respondent gave the answer was non-specific, and contained no explicit allegation to which the respondent could properly reply. 144The trial judge nevertheless appears to have accepted that the respondent's answer to the complainant's "question" could reasonably be interpreted as an admission. Her focus, as I read her judgment, was principally upon doubt about its reliability or truthfulness. Ultimately, she declared herself not satisfied that the respondent was "fully aware" of the identity of the caller in the first conversation, in which the admission was made. She reached this position because: (i) the evidence indicated that there had been no contact between the complainant and the respondent between 2002, when the complainant was eight years of age, and 2011, when she was 17 years of age, and that human experience showed that it was unlikely that the voice of an eight year old would sound like that of a 17 year old (I take this to mean that her Honour found it doubtful that the respondent would have recognised the voice of the complainant); (ii) that the tape recording made it clear that there was considerable background noise, and that the respondent was distracted by speaking to others during the course of the conversation with the complainant; (iii) that the "accusation" made by the complainant was vague, and failed to identify with any specificity the conduct of which she was accusing the respondent, and that (at that point) the complainant failed to state her age at the time of the events or the conduct which she was alleging against the respondent; (iv) that in the conversation the respondent appeared to believe that he was speaking to somebody with whom he had had an association (impliedly sexual) at the time when the other party to the association was a student at Blacktown Girls' High School; that the respondent appeared to be "perplexed", but did not concede any engagement with an eight year old at the time he knew her or had anything to do with her. 145The trial judge therefore concluded that the reliability of the "admission" was adversely affected, to such a degree that it would be unfair to permit it to be used in evidence. In reaching this conclusion, she specifically rejected a prosecution submission to the effect that the respondent's reference to a "burgundy jacket" as part of a school uniform of the person to whom he believed he was speaking dovetailed or interlocked neatly with the evidence that, as a primary school student, the complainant wore a "maroon jumper", thereby giving rise to an inference that the respondent was aware of the identity of the caller. 146Her Honour appears also to have accepted and taken into account, in the rejection of the evidence, a further defence submission that, should the evidence be admitted, the respondent would be forced to give evidence at the trial to explain his answer, thus being "compelled to abandon his right to silence". 147The Director takes issue with what is described as "the finding of fact" - that is, that the trial judge was not satisfied that the respondent knew the identity of the caller at the time he made the admission, which was at an early stage of the conversation. In effect, the Director submitted that it was not open to the trial judge not to be so satisfied. That is a very difficult proposition to establish - it entails the further proposition that the evidence that the respondent knew to whom he was speaking was so overwhelming that no other conclusion was reasonably open. 148I do not think that it was either necessary or appropriate for the trial judge to make a finding either way. It was not necessary, for the evidence to be admitted, that the prosecution establish that the respondent was aware of the identity of the caller. That was ultimately a question for the jury. The reliability of the admission was, however, relevant to the exercise required by s 90, and the facts relied on by the trial judge were material to that consideration.

Evidence Act, s 90 149The approach to be taken in the application of s 90 was considered by the High Court in EM. Gleeson CJ and Heydon J said; "56 The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning ... In any particular case, the application of s 90 is likely to be highly fact-specific ..." That was a case in which the unfairness was said to lie in assumptions made by the alleged offender about the use that would be made of anything he said to police officers, and I have omitted from the extract passages specifically relevant to that issue. 150Gleeson CJ and Heydon J accepted that unreliability is an important aspect of the unfairness discretion but added a reference to Swaffield in which it was made plain that unreliability is not the exclusive determining factor (Swaffield at [78]). Gummow and Hayne JJ agreed that questions of reliability play an important part in the exercise of the common law discretion to exclude confessional evidence in circumstances of alleged of unfairness (at [110]-[111]) (and, by implication, to the exercise of the s 90 discretion). 151At [107], their Honours said: "... the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as 'fair' or 'unfair'." At [115] their Honours identified the question presented by s 90 as: "why did these circumstances make the use at his trial of the evidence of what he had said unfair?" That is the question that must here be answered. That is not the question that was grappled with by the trial judge. 152I have concluded that there was error, in the House sense, in the approach taken by the trial judge. The error is that she went beyond considering questions of reliability (in the EM sense) and embarked upon a consideration of what motivated the respondent to give the answer that he did, and more importantly, what he intended to convey - for example, she said: "He appears to believe that he is speaking to somebody with whom he has had some sort of association, and impliedly a sexual one, at the time that she was a high school student at Blacktown High ..." That is a question to be determined by the jury. 153I accept, as I have above, that different interpretations may be placed upon the respondent's answer to the complainant. I accept that an argument is available to him (whether or not he gives evidence) that it has not been conclusively or even persuasively shown that, when he gave that answer, he knew that the person to whom he was speaking was the complainant. (I accept also that there are persuasive arguments to the contrary.) I accept that the answer cannot be construed as a confession to any of the individual allegations made by the complainant that have been translated into the individual counts on the indictment. I accept that the admission of the evidence might put the respondent in a position of needing to make a forensic decision about giving evidence or not giving evidence. 154I do not accept that this last is a relevant consideration. That a person might, by reason of the admission of contested evidence, consider himself or herself forced to give evidence in a criminal trial is not, ordinarily, a relevant consideration in the determination of the admissibility of the evidence. It cannot be said that evidence is unfairly prejudicial merely because it is of such potency or force that it calls for an answer by the accused person. The objective of Crown evidence in a criminal trial is to call for an answer, if an answer is available. 155True it is, that in Cook, I held that s 137 ought to be exercised in favour of that appellant, in circumstances in which the contested evidence (which was evidence of flight from the police, tendered as showing that he acted out of a consciousness of guilt) could have forced him to give an explanation. That was not because that appellant considered himself forced into the witness box, and was therefore denied his right to silence. It was because the only explanation he could give in respect of the flight evidence would have exposed him as having a history of the very kind of offence with which he stood charged. It was nothing to do with the abrogation of the right to silence. 156Acceptance of the propositions I have set out above does not dictate a conclusion that the evidence is unreliable. And, as Gleeson CJ and Heydon J said in EM, reliability is not the only consideration. Also relevant is that, should the evidence be admitted, the jury will undoubtedly have the benefit of argument from both parties as to what they should make of it, what interpretation they should place upon what the respondent said, and will also have the benefit of detailed directions from the trial judge as to the relevant alternatives. 157I agree with Basten JA that the evidence is admissible, and that there is nothing in the circumstances in which it was made that renders its admission unfair. The trial judge was in error in relying on s 90 to exclude it.

Evidence Act, s 137 158As I have set out above, it is plain that the trial judge took into account the reliability of the alleged admission by the respondent in her consideration of the objection based upon s 137. 159Whether that was an error calls for consideration of the competing views of this Court (Shamouil, Cook, Mundine, Sood) and the Court of Appeal of Victoria (Dupas). A preliminary question is that explored in some depth by Basten JA at [23]-[40]. I agree with his Honour's conclusion at [40] that this Court should determine for itself the correct approach to the application of s 137, paying due regard to the expressed views of the Victorian Court of Appeal. 160What this Court said Shamouil was: "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. ... 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] 171 CLR 207 at 275, 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 s 137." 161What the Victorian Court of Appeal said in Dupas was encapsulated in para [63], set out below: "63 For the following reasons, we are compelled to the view that Shamouil and the other decisions that have applied it are manifestly wrong and should not be followed. We are compelled to the conclusion that we should depart from the reasoning and conclusion in Shamouil as error can be demonstrated with a degree of clarity by the application of the correct legal analysis ... Our conclusions are as follows: (a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority. (b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law. (c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase 'taken at its highest' is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable. (d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight. (e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not. (f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function." (italics in original, bold added) 162I state at the outset that, having given careful consideration to the reasoning of the Victorian Court of Appeal, I adhere to the views I have previously expressed in Cook and Mundine and my concurrence with those of Spigelman CJ in Shamouil. 163There are two evaluations that constitute the s 137 exercise - the assessment of the probative value of the evidence in question, and the assessment of its potential prejudicial effect. A judge asked to exclude evidence pursuant s 137 is necessarily asked to do so at a time before the evidence in the trial is complete. As a matter of practice, increasingly frequently (by reason of trial efficiency, and minimisation of jury inconvenience) this is done prior to the empanelling of the jury. Ordinarily, in this State at least, the assessments of probative value and prejudicial effect are made on the basis of documentary material - principally, the statements of witnesses. For the purposes of the evaluation, the assumption is made that the evidence will be accepted as accurate. 164In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 I said (with the concurrence of McClellan CJ at CL); 36 A decision to admit or reject evidence tendered under s 97(1) [of the Evidence Act] must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving 'a degree and value judgment' ..." That proposition applies equally in respect of the consideration of rejection of evidence on the basis provided by s 137. 165Section 137 is one of a number of provisions in the Evidence Act in which the question of admissibility of evidence is contingent upon an assessment by the trial judge of its probative value, sometimes in conjunction with, or balanced against, some other specified consideration. "Probative value" is defined in the Dictionary as: "... the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 166Other sections requiring assessment of probative value, in the context of questions of admissibility include:

• s 97 (tendency evidence);
• s 98 (coincidence evidence) (in respect of each of which admission depends upon the evidence being shown to have "significant probative value");
• s 101 (for the purposes of criminal cases, imposing a further restriction on the use of tendency or coincidence evidence, such that the probative value must be shown "substantially" to outweigh any prejudicial effect it may have on the defendant);
• s 103 (permitting, as an exception to the credibility rule (see s 102), cross-examination relevant only to a witness' credibility where the evidence is shown to have "substantial probative value");
• s 135 (conferring a discretion to refuse to admit evidence if its probative value is "substantially outweighed" by the danger that it might be unfairly prejudicial to a party, misleading or confusing, or cause or result in undue waste of time);
• s 138(3) (conferring a discretion to exclude improperly or illegally obtained evidence - one specified consideration in the exercise of the discretion is the probative value of the evidence). Except for s 101 and s 137, each of which applies only in criminal proceedings, all provisions are of general application. It is of some interest and significance that s 97 and s 98 require the assessment of "significant probative value" to be made in the context of the evidence already adduced, and evidence anticipated to be adduced, by the party seeking to adduce the tendency or coincidence evidence. For myself, I do not see that requirement as involving the trial judge in weighing the relative merits of competing explanations for the conduct the subject of the tendency or coincidence evidence: see DSJ v R; NS v R [2012] NSWCCA 9; 215 A Crim R 349 at [10], [78]-[82]. 167The actual probative value to be assigned to any individual item of evidence lies in the province of the tribunal of fact - in most criminal trials, the jury. It is not ordinarily possible to determine the actual probative value of any piece of evidence until the evidence in the proceeding is complete and the full picture can be seen. "Probative value" in the sections mentioned is plainly not used in that sense. It is used in the sense of the potential of the evidence to have the relevant quality. Where an assessment of probative value is a prerequisite to a decision to admit or not admit any particular item of evidence, the exercise for the trial judge is necessarily "predictive and evaluative" (Fletcher, at [35]). The prediction is of what use the jury could rationally make of the evidence, in the context of the trial evidence in its complete form. The evaluation is of the importance or significance of the evidence in the same context. 168The terms "credibility", "reliability" and "weight" have largely been used as though interchangeable. Although it is possible to discern differences in what is imported by these terms, I will, for present purposes, proceed on the basis that they convey essentially the same concept. 169Determination of the credibility of evidence will often depend upon the assessment of the witness who gives the evidence. Determination of reliability will often depend upon some analysis of the circumstances surrounding the coming into existence of the evidence. 170Determination of the weight to be given to any item of evidence will depend, not only on where that evidence fits in the overall mosaic of the evidence in the trial, but, in many cases, upon an assessment of a witness after cross-examination. It may also depend upon an assessment of the evidence of one witness against the evidence of another (or others). That is not something that can readily be undertaken at a pre-trial or interlocutory stage. 171Nor is it appropriate that the exercise be partially undertaken - as the Victorian Court of Appeal appears to envisage in , where it said that the judge is required: "... to make some assessment of the weight that the jury could, acting reasonably give to that evidence." (bold added) None of the sections that call for assessment of the probative value as a precondition to admissibility give any indication that some exploration of credibility, reliability or weight ought to be conducted, or, if so, what limits are imposed on the extent of that exploration. To embark upon a partial assessment of weight could, in my opinion, be potentially productive of real injustice. No boundaries with respect to the extent to which the weight of the evidence is to be explored are discernible in any of the provisions that call for evaluation of probative value. 172I appreciate that the construction of a statute will not ordinarily be dictated by the fact that it might have unwanted, or even undesirable, practical consequences. At least that is so where the language of the statute is clear, or where the intention of the legislature can be discerned with relative confidence. Even where it is not, unwanted practical consequences have a limited role to play. 173Here, there is nothing obvious in the language of the statute that suggests that probative value, at the admission stage, is to be determined by reference to the weight to be assigned to the evidence. That much is clear by the reasoning in Dupas - the Victorian Court of Appeal reached its conclusion by examination of historical precepts, not the language of s 137. 174The nature of the practical consequences of that interpretation is useful as a guide in answering the question whether the construction reflects the intention of the drafters of the legislation. That, in my opinion, is a further pointer to the position taken by this Court in Shamouil, in preference to that taken in Dupas. 175For these reasons, in addition to those given by Spigelman CJ in Shamouil, I maintain the view that questions of credibility, reliability and weight play no part in the assessment of probative value with respect to s 137. Although it does not call for present determination, it seems to me that the same must apply in all cases where admissibility depends upon such an assessment. 176Since it is quite clear that the trial judge did take into account such issues in the s 137 decision, error in the House sense has been demonstrated. This Court should intervene. 177Moreover, because of the approach taken by the trial judge, she made no assessment of the probative value of the evidence (on the assumption that the jury drew the inferences that will be urged by the prosecution) nor of the potential unfair prejudicial effect, having regard to appropriate available ameliorative directions. 178In my opinion, the evidence is admissible. What is to be made of it is a matter for the jury, when fully instructed. 179Accordingly, I agree with the orders proposed by Basten JA. 180BLANCH J: The Crown appeals pursuant to the provisions of s 5F(3A) of the Criminal Appeal Act 1912 from a ruling of the District Court at Parramatta on 6 November 2012. 181The respondent appeared for trial charged with five counts of indecently assaulting a child under the age of 10 years and one count of aggravated sexual assault. The offences are alleged to have occurred in 2002 when the complainant was eight years old. The respondent was a family friend who visited the family during 2002. Thereafter the family left the area. 182In 2011 the complainant made a complaint to the police who obtained a warrant and arranged for the complainant to have two telephone conversations with the respondent on 25 August 2011. These conversations were recorded. 183The trial judge excluded the evidence of those two telephone conversations pursuant to ss 90 and 137 of the Evidence Act 1995. It is that ruling the Crown appeals against asserting the ruling was wrong and that pursuant to s 5F(3A) of the Criminal Appeal Act the ruling substantially weakens the prosecution's case. 184The two conversations are as follows: Telephone Interphase Transcript - 25 August 2011 V1 COMPLAINANT V2 XY V1 Hello V2 What V1 Hello who's this V2 XY V1 It's B V2 Who's that V1 B do you remember me V2 Huh V1 B V2 Nah -- who's that V1 Um remembers (sic) R's girlfriend KL's daughter V2 R R, R's girlfriend V1 R, RB Doonside V2 Oh yeah V1 Yeah do you remember me V2 How you doing V1 Um nothing much V2 Hey V1 Yeah do you remember what you used to do to me V2 Yeah fuckin oath and I wouldn't mind doing it again...haha V1 Alright then V2 Aye V1 Um well you ruined my life cause of it V2 Sorry V1 You ruined my life V2 You what V1 You ruined my life V2 How the fuck did I ruin your life V1 My family don't believe me that you did it to me V2 Heh V1 My family didn't doesn't believe me V2 That what I did to you V1 Yeah and I got kicked out and all, so I'm going to the cops about it so V2 When did this happen anyway V1 When I was eight years old you just admitted it V2 Eight years old V1 Yes I was eight years old at the time V2 Eight years old V1 Remember you used to tell me I was bad and I was the bad one but now I'm older now I know that you're the bad one V2 - when you were in high school man not not eight years old V1 I was eight years old V2 I remember you from high school, remember when you were wearing the maroon jackets and that and went to high school V1 That was that was primary school V2 Nah nah nah V1 Yes it was V2 Blacktown boys Blacktown Girls high V1 No V2 That's alright anyway I have a QC barrister so you do what you want to do ok I will meet you up here see ya Call disconnects Telephone Interphase Transcript 2-25 August 2011 V1 COMPLAINANT V2 XY V1 Hello V2 Yeah V1 Hello V2 Yeah V1 I might not go to the cops but V2 Nah don't worry about it man look I don't even remember you that much ok V1 Yeah I might not go to the cops because V2 It doesn't matter you if you want to, your willing to go do it I'm telling you mate, I was a good friend of yours, I was a good friend of your brothers I was a good friend of your fuckin mothers and fathers and you know what I've come to think about it I was thinking about it just then I don't even remember that V1 What do you mean you don't remember V2 I don't man I swear to god mate what at your mums and dads house V1 R's you remember RB V2 Oh yeah R yeah where he used to live with that big girl V1 Next to that big girl Doonside V2 Um V1 You used to touch me next to the the trampoline at the back V2 Oh mate VI You used to give me stuff V2 I don't remember man V1 You gave me a bike V2 A what V1 A bike and you used to say it was bad I was the bad one V2 oh V1 Remember when you took me for a drive to a house I didn't even know where I was and you did it beside the house V2 No way V1 Yeah you did you can't deny it V2 No way man V1 You can't deny it V2 No way oh well if you want to be like that mate you do what you want to do and urn I will work it all up after that cheers thanks mate alright V1 Yep V2 Ok if you want to go oh yeah if you wouldn't mind cheers mate yeah so Call disconnects 185In my view the conversations were highly prejudicial to the respondent and unfairly so. In the first conversation the exchange: Question "Yeah do you remember what you used to do to me" Answer "Yeah fuckin oath and I wouldn't mind doing it again haha" indicates the character of the respondent as someone prepared to engage in opportunistic casual sexual encounters. The subsequent part of that conversation indicates the respondent's interest in a girl he remembers at high school. In the state of NSW the usual age for such girls is between 12 and 18 and the relevant age of consent is 16. 186The topic of sexual activity with under age children is highly emotive in the community and for the respondent to portray himself as promiscuous and interested in high school age children could only have the effect of seriously damaging his character in the eyes of a jury. 187In Attwood v The Queen [1960] HCA 15; 102 CLR 353 at 359 the High Court in a joint judgment of Dixon CJ, McTiernan J, Fullagher J, Taylor J and Menzies J said as to evidence of bad character: "It is not excluded as irrelevant to proof of guilt. It is excluded as a matter of policy, policy deeply rooted in principle. 'The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety nine. Willes J (1865) Le Co at p541' " 188Exceptions to this principle such as the admissibility of tendency and coincidence evidence are strictly governed by the provisions of ss 97 and 98 of the Evidence Act and prior to the inception of that Act by the common law. There is no claim that the evidence should be admitted here as falling into any such exception. 189Section 137 of the Evidence Act is mandatory in its terms. It states: "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." In consequence the trial judge was bound to evaluate both the unfair prejudice and the probative value of the evidence in issue. 190The commentary in paragraph 957 of the Australian Law Reform Commission, Evidence (Interim) Report No. 26 (1984) introducing the Evidence Act makes it clear the discretion is the common law discretion and points out that "prejudice" ... means "damage to the accused's case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have." 191In Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51] McHugh J said: "But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task." 192Evidence is not admitted unless it is relevant. Once admitted the evidence is probative of the guilt of an accused. Of necessity that means the evidence is prejudicial. It is only where the evidence is unfairly prejudicial that the discretion to exclude it arises. In deciding that issue it is necessary for the trial judge to weigh the probative value of the evidence against its unfair prejudice to the accused. In doing that the judge must take into account any directions that could be given to minimise the prejudice created (R v Cook [2004] NSWCCA 52 at [37] per Simpson J). 193In the instant case, in the emotionally charged atmosphere of a child sexual assault trial, evidence disclosing the respondent's promiscuity and interest in high school girls would create a highly significant and unfair prejudice to the respondent. It introduces a real danger of the jury using tendency reasoning to arrive at a verdict. 194In performing the balancing exercise between unfair prejudice and probative value the courts in this state have been guided by the judgment of Spigelman CJ in Regina v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. He quoted with approval the statement of Hunt CJ at CL (with whom Newman and Ireland JJ agreed) in R v Carusi (1997) 92 A Crim R 52 at 65-66 where it was said: "The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect;" 195He referred to other authorities to the contrary including Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 and said at [60]-[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 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." 196He also observed at [71]: "Like other sections of the Evidence Act, s 137 calls upon a judge to compare essentially incommensurable considerations: probative value on the one hand and unfair prejudice on the other. As Justice Scalia once put it, this is like asking "whether a particular line is longer than a particular rock is heavy. (Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) at 897)". Nevertheless, this is a task that judges are often called upon to perform." 197He emphasised it was not desirable for the Court to undertake an investigation into the weight of evidence based on credibility or reliability because to do so would be to usurp the function of the jury. 198It is to be noted that in the present case the evidence sought to be tendered does not give rise to any question of credibility or reliability. The evidence is known and can be evaluated. 199It was held in R v Suman Sood [2007] NSWCCA 214 at [40] per Latham J: "... it was 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, even assuming that an alternative explanation was given by the respondent on the voir dire." 200In that case the Health Insurance Commission executed a search warrant on Dr Sood to investigate fraud. When the authorities eventually got to see Dr Sood they found cash receipt books and receipts discarded in waste bins. The Crown asserted this was done by Dr Sood because of her consciousness of guilt. Evidence was given by Dr Sood and she denied disposing of the books. After hearing considerable evidence on the matter it was obvious a real issue of credibility arose and in those circumstances for the judge to decide the issue was a clear usurping of the function of the jury and so the Court held. It is this credibility issue to which the passage quoted refers. 201In assessing the probative value of evidence in DSJ v R; NS v R [2012] NSWCCA 9 Bathurst CJ said at [10]: "However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered." (Allsop P agreed with that comment at [11]). 202At [78] Whealy JA said: "... the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value." 203The judgment of Whealy JA was endorsed by Bathurst CJ, Allsop P, McClellan CJ at CJ and McCallum J. 204The alternative explanation or explanations must amount to a "real possibility" or be such as to "rob the evidence of its otherwise cogent capacity". The case of R v SJRC [2007] NSWCCA 142 was a case where this Court held the impugned evidence was not robbed of its cogency and force. In that case the accused sent two text messages the day after an alleged sexual assault apologising for his behaviour. The content of those text messages very strongly supported the complainant's account of what happened and so the Court held. The same cannot be said in this case. 205In my view the contention by the Crown that the comments made by the respondent in the conversations under review amount to a confession is open to question. There are other interpretations open including that he was not aware of the real identity of the complainant. 206The trial judge correctly noted the respondent could not be expected to recognise the voice of the complainant after nine years and when she had grown up in the intervening time. She noted that the background noise in the call and the respondent's early responses indicated a degree of confusion at the respondent's end of the call. She also noted the lack of clarity in what is said to be a confession. She also noted his positive denial when he understood her claim related to a time when she was eight years old. 207Those matters are all relevant for the judge to consider when assessing the capacity of the evidence to establish the fact in issue. What must be done then is to weigh that capacity against the unfair prejudice. In this case when I do that I find the capacity of the evidence to prove guilt is compromised because of the competing inferences open when interpreting the conversations and the unfair prejudice is highly significant. It is evidence that may inflame the jury or divert the jurors from their task. Furthermore, such prejudice could not be corrected by directions to the jury and it outweighs the probative value of the evidence. 208In my view the trial judge was correct in rejecting the evidence and accordingly, I would dismiss the appeal. 209PRICE J: I agree with Hoeben CJ at CL and Blanch J that the appeal should be dismissed, but wish to express my reasons for that agreement. 210Section 5F (3A) of the Criminal Appeal Act 1912 is as follows: "(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 211The Court does not have jurisdiction unless the Crown discharges the onus of establishing that the exclusion of the two telephone conversations by the trial judge substantially weakens its case. 212The two telephone conversations that were excluded are comprehensively contained in [184] in Blanch J's judgment. The Crown places particular reliance on the following exchange between the complainant and the respondent in the first conversation: "[complainant] Yeah do you remember what you used to do to me [respondent] Yeah fuckin oath and I wouldn't mind doing it again ... haha." 213The Crown contends that the conversation, taken at its highest is an admission by the respondent of sexual misconduct with the complainant and without that evidence the prosecution case essentially relies upon the evidence of the complainant alone. The Crown says that its case depends on the jury forming a favourable view of the credibility of the complainant. The Crown argues that the exclusion of the evidence leaves the complainant to be assessed by the jury without any significant supporting evidence, in circumstances where the complainant has come forward years after the alleged offence. As a result, the prosecution case has been substantially weakened. 214The respondent submits that the evidence excluded by the trial judge is of such low "probative value" that its exclusion will not "substantially" weaken the prosecution case. 215This Court's task is to determine whether the trial judge's rejection of the telephone calls not "weakens" but "substantially weakens" the prosecution case by asking whether or not that would be the effect "on the assumption that the jury accepted the evidence." The prosecution case is to be considered as a whole and questions of weight are irrelevant: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [39] - [40]. 216The content of the conversations does not disclose an express admission of sexual impropriety by the respondent but the Crown's argument is that an inference can be drawn that the respondent made a "general admission" of sexual misconduct with the complainant. The drawing of inferences requires more than optimistic leaps of instinct or imagination, it requires the ability to reason from facts admitted or proved. The obligation to assess the conversation at its highest does not mean, in my opinion, that the context in which the respondent said "...I wouldn't mind doing it again" is to be ignored. An examination of the first recorded conversation is required in order to ascertain the inference that the evidence itself is capable of supporting. 217In the first recorded conversation, the exchange between the complainant and the respondent included the following: "[respondent] When did this happen anyway [complainant] When I was eight years old you just admitted it [respondent] Eight years old [complainant] Yes I was eight years old at the time [respondent] Eight years old [complainant] Remember you used to tell me I was bad and I was the bad one but now I'm older now I know that you're the bad one [respondent] when you were in high school man not not eight years old [complainant] I was eight years old." 218Accepting that for the purpose of s 5F(3A), regard is not to be had to competing explanations for the words that are said to be an admission, the highest inference the evidence is capable of supporting is that the respondent acknowledged he had engaged in sexual misconduct with the complainant when she was in high school. It is not a general admission of sexual misconduct with her. 219All of the charges upon which the respondent is to be tried are alleged to have occurred when the complainant was eight years old. I do not consider that if the jury drew this inference that the probative value of the evidence would be significant. 220I do not think that the Crown's contention that the respondent made a general admission of sexual misconduct is enhanced by the respondent's statement in the first recorded conversation; "I remember you from high school, remember when you were wearing the maroon jackets and that and went to high school". Although the Crown proposes to adduce evidence that the complainant's primary school uniform included burgundy shorts and a burgundy jumper, the respondent made it very clear in all of his conversation that whatever he meant by "...I wouldn't mind doing it again" was confined in his mind to when the person with whom he was speaking was in high school. 221I do not agree with the Crown's submission that the complainant's evidence is left without significant support by the exclusion of the recorded conversations. The complainant's evidence is supported by that of her mother who recalls regular visits by the respondent to the family home, an occasion when the respondent took her daughter out in his car and the complaint made by her daughter, who was then 14 years old, that the respondent had molested her. Furthermore, the complainant's recollection of noticing a mole or a sore on the top of the respondent's penis is supported by the police photographs that reveal a small red lesion on the head of the penis. Although the medical practitioner is unable to express an opinion as to whether the lesion may have been present in 2002, a jury, when considering the evidence in combination, could well consider that the presence in 2012 of a lesion that is consistent with the complainant's recollection to be an egregious coincidence. There is also the evidence of KL (junior) who recalls the complainant crying but did not remember exactly what the complainant told her but she knew that the complainant was hurt and something bad had happened. 222In my view, the Crown's challenge to the trial judge's decision fails to clear the first hurdle. The Crown has not discharged the onus of establishing that its case has been substantially weakened. 223As to s 137 Evidence Act 1995, I agree with Blanch J's identification at [185], [186] and [193] of the unfair prejudice that might arise to the complainant from the admission of the conversations. To my mind, it is unnecessary to consider questions of competing explanations as the evidence viewed at its highest is weak and is substantially outweighed by the danger of unfair prejudice to the respondent, which could not be corrected by jury directions. The exclusionary power in s 137 mandated the rejection of the evidence. 224Whilst upon my analysis, it is unnecessary to consider the conflict in the approaches to be taken to s 137 Evidence Act since the decision in Dupas v The Queen [2012] VSCA 328, it seems to me that enabling the trial judge to consider questions of credibility, reliability or weight when s 137 is invoked, is likely to enhance the fundamental principle that an accused is to receive a fair trial. Although Simpson J at [163], [170]-[171] refers to the practical difficulties that may arise by adopting such an approach, it is not uncommon for a witness to be cross-examined during a voir dire and an assessment can be made by the trial judge of the actual probative value of the evidence. More often than not, the probative value of evidence may be assessed from the witness statements without the necessity of calling witnesses. 225In my opinion, the approach taken in Dupas does much to avoid evidence being before a jury which in reality (rather than being taken at its highest in favour of the Crown) has little probative value and is outweighed by the danger of unfair prejudice to the accused. 226For these reasons, I would dismiss the appeal.

Amendments 14 February 2014 - [3(6)] - deleting 's' in "misunderstanding"; [8] amend to now read "she had not had"; [24] deleting "a" after "namely"; [34] deleting "the" before "each"; [37] amending Patrick Stevedores citation; [38] and [39] amending citation of Walker Corporation, [39] correcting name of Act; [53] amending "read in" to "read as". Amended paragraphs: [3(6)], [8], [23], [24], [34], [37], [38], [39], [53] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2014