The Probative Value Issue
47 Section 137 of the Evidence Act provides:
"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."
48 The words "probative value" 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."
49 Before the Evidence Act the Christie discretion to exclude evidence at common law for which s137 is a replacement, did not involve considerations of reliability of the evidence.
50 As Hunt CJ at CL, with whom Newman and Ireland JJ agreed, said in R v Carusi (1997) 92 A Crim R 52 at 65-66:
"It was for the jury, and not for the trial judge, to determine the factual issues at the trial. Applying the ordinary tests, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected. The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. 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; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied - on the whole of the evidence - that the jury ought nevertheless have had a reasonable doubt." [Footnotes omitted]
51 After the enactment of s137, the same approach was taken in R v Singh-Bal (1997) 92 A Crim R 397 at 403 and R v Yates [2002] NSWCCA 520 at [255]-[256], in both of which the formulation from R v Carusi was expressly adopted, i.e. the evidence must be "taken at its highest" in order to determine its probative value.
52 Other views have been expressed in the authorities on this issue.
53 Consistently with the pre Evidence Act position, in Adam v The Queen (2001) 207 CLR 96 at [60], Gaudron J concluded that the dictionary definition of "probative value" must have read into it an assumption that the evidence would be accepted on the basis that "evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted".
54 A contrary view was taken by McHugh JA in Papakosmas v The Queen (1999) 196 CLR 297 at [86] where his Honour said that the assessment required by the definition of probative value "would necessarily involve considerations of reliability".
55 In R v Rahme [2004] NSWCCA 233 James J at [201]-[202], with whom Sully J agreed at [65], adopted the approach of Gaudron J. However, Hulme J at [217]-[223] adopted the approach of McHugh J.
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 R v Cook [2004] NSWCCA 52 in which evidence of flight was sought to be excluded under s137. Her Honour said:
"[43] … 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."
57 A similar approach is evident in the reasoning of Adams J, with whom I and Sully J agreed in R v AB [2001] NSWCCA 496. That case involved the admission of tendency evidence under s101 of the Evidence Act, where the question is whether or not "the probative value of the evidence substantially outweighs any prejudicial effect it may have". In that context Adams J said:
'[17] … In my view, the probative value of that evidence was high in the circumstances of this case, upon the assumption, of course, that it was true, but that must be necessarily the assumption with which s 101 is concerned."
58 This difference in approach in the authorities referred to above turned, in large measure, on the weight, if any, to be given to the omission of the words 'if the evidence were accepted', from the definition of "probative value". Such words appear in the otherwise almost identical formulation in the definition of relevance of evidence in s55(1). I note, further, that in s55 the words "directly or indirectly" expressly qualify the phrase "rationally affect". They do not appear in the definition of probative value.
59 There is at least one reason why the words that appear in s55 would not be appropriate in the definition of "probative value". The latter definition has work to do in s103, the exception to the credibility rule. Whether cross-examination on credit has "substantial probative value" within s103(1) does not invite consideration of 'acceptance' of the evidence proposed to be used as part of an attack on credit. Nor does it invite consideration of whether the 'effect' on "the assessment" is 'direct or indirect'.
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.
61 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.
62 This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam supra, a "test" of 'rationality' also directs attention to capability rather than weight.
63 There will be circumstances, as envisaged by Simpson J in Cook supra, 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. In that limited sense McHugh J's observations in Papakosmas that "considerations of reliability are necessarily involved" have application.
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) 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 s137.
65 This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that "probative value" falls to be assessed by the trial judge including: tendency and coincidence evidence (s97(1)(b), s98(1)(b), s101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and (c)); and the comparative weight with unfair prejudice (s135(a), s137).
66 I have set out above his Honour's reasoning in this respect. It appears to me to be clear that his Honour determined the probative value of the evidence by referring to the general unreliability of identification evidence and the possibility of a displacement effect which, if the complainant had in fact seen the Respondent on those two occasions in Fairfield, would have been operative in the present case.
67 Furthermore, his Honour plainly took into account issues of credibility when he said, as quoted above: "…. It appears to me that arguably the complainant was lying, or was very seriously mistaken, about some of the matters central to this question of identification". In this passage his Honour does not determine whether the "deception" was about the original identification or on the occasion of the subsequent withdrawal. The fact that his Honour, after saying he did not have to "decide any questions of fact", applied a test of the mere 'arguability' of the deficiencies in the credit of the witness, suggests that his Honour was applying a very low order test.
68 On any view, in these respects, his Honour did not apply the test established by the authorities in this Court, as set out above.
69 The appeal should be allowed.