In Dupas v The Queen  VSCA 328 the Victorian Court of Appeal, sitting as a bank of five judges, declined to follow the precedent of R v Shamouil (2006) 66 NSWLR 228, a decision of the NSW Court of Criminal Appeal. In Shamouil, a mid-trial Crown appeal on the exclusion of key prosecution evidence, it was held that the decision to exclude evidence had erred, and was remitted to be reconsidered.
Some subsequent NSW and Commonwealth decisions assert that Shamouil stands for the proposition that, when assessing probative value under s 137 of the Evidence Act 1995 (NSW) a trial judge must assume that the evidence is not only truthful, but also reliable. In Victoria, which uses s 137 of the Evidence Act 2008 (Vic), a number of cases have accepted this approach as correct. But from now on, at least in Victoria, an assessment of the credibility of the evidence will form a part of the assessment of probative value, to be weighed against the risk of prejudicial effect.
Having two different interpretations on identically worded legislation is problematic. I suggest that an appeal to the High Court (but not this case) will be required to settle the issue.
The Law As Previously Understood
When assessing whether the probative value of evidence outweighs its prejudicial effect (the test for admissibility or exclusion under s 137), it is not usually necessary to consider whether the evidence is reliable (in the sense of it being likely or unlikely to be accurate). When this needs to be considered, the test is not whether the trial judge thinks it will be accepted by the jury or if the trial judge thinks that it should be; the test is whether it could properly be accepted by the jury. It’s a low threshold test, designed not to subvert the jury’s function of deciding the facts.
This is the law as it has been applied (and continues to exist) in NSW and elsewhere, but not in Victoria any longer. The Victorian Court of Appeal declined to follow the line of authority that flowed from the NSW Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228. The High Court said in Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22; 230 CLR 89 [at 135] that intermediate appellate state courts should follow one another’s decisions on the interpretation of national uniform legislation unless convinced that the interpretation is plainly wrong. The Victorian Court of Appeal in Dupas v The Queen  VSCA 328 decided that the NSW Court of Criminal Appeal had misunderstood the common law Christie test, misstated the correct approach under s 137, and led the courts that followed into error. The Court attempted to explain why in some detail (spanning 157 paragraphs). Their decision had five limbs:
- [From 65] the common law required trial judges to assess the weight of evidence when deciding whether to admit evidence, prior to the statutory reform;
- [From 147] principles of statutory interpretation favour this interpretation;
- [From 179] extrinsic material and commentary favours this interpretation (for a variety of reasons);
- [From 200] the identified exceptions (or ‘work arounds’) to the rule in Shamouil are narrow and ineffective;
- [From 212] the question had yet to receive full consideration (after argument) in the Victorian Court of Appeal before the determination of this case.
After consideration of the principles of comity, the Court determined it should not follow a precedent it considers plainly wrong. Implicit in the judgment is the expectation that other jurisdictions will look at the arguments provided and adopt them, in time creating a new uniformity of approach.
Dupas v The Queen
In Dupas’ first trial, the appellant unsuccessfully applied to have the identification evidence against him excluded under the old Christie discretion. By the time of his retrial the Evidence Act 2008 was operating, so a similar application was made under s 137. This was also refused. The Court of Appeal [Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA] didn’t interfere with Dupas’ conviction. It could have avoided a direct collision of competing interpretations by agreeing that some cases do require the trial judge to assess the credibility of evidence, but others don’t. Instead, the Court found that a trial judge’s assessment of the weight that can appropriately be given to evidence doesn’t usurp the jury’s function of deciding what weight it will give to it, and is often an integral part of assessing probative value.
The Court seemed to particularly have in mind cases where the prejudicial effect of evidence is that its probative value appears to have a lot of probative force, but actually doesn’t. The Court created its own checklist of principles applicable to s 137 [at 63]:
(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.
(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.
These points are clearly intended to expressly refute the statements of law in Spigelman CJ’s judgment in Shamouil
R v Shamouil
Spigelman CJ said in Shamouil [at 60, Simpson and Adams JJA agreeing] that,
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. This conclusion is reinforced by the test that evidence must “rationally affect” the assessment. As Gaudron J emphasised in Adam, a “test” of ‘rationality’ also directs attention to capability rather than weight. There will be circumstances, as envisaged by Simpson J in Cook, 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. 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  HCA 51; (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 s 137.
Simpson J said in Cook that [at 43, Ipp JA and Adams J in agreement] when it became necessary for a trial judge to assess the credibility of evidence as part of deciding its probative value, the question was whether it is ‘capable of belief by a jury’.
Each court looked at the problem from the opposite end of a conceptual telescope. The NSW Court considered the weight of evidence to be a matter for a jury, with a very small gatekeeping role for the trial judge to keep out evidence that was far too weak or shaky to sustain a conviction. By contrast, the Victorian Court sees a need for a more active trial judge, policing evidence for the potential to mislead or prejudice, and excluding it from the trier of fact’s consideration.
The Victorian Court of Appeal certainly did due diligence in the part of its judgement relating to the history of the exercise of the Christie discretion. While I can accept that various commissions and parliaments involved in bringing the UEA into being intended and expected s 137 to work in the same way as the Christie discretion, I doubt that many of the people involved had considered the implications to this level of detail.
One of the weakest aspects of the Court’s reasoning is a failure to identify why the common law distinguishes between truthfulness and reliability. There isn’t any explanation in the judgment for why this distinction exists. Why is a trial judge better placed to identify the weaknesses of evidence caused by poor lighting, distances, unfamiliar and brief contact with a stranger, etc. in an identification case, than in spotting an untruthful witness answering questions in the witness box?
There was no explanation proffered for the distinction that the Court insisted was both long-standing and important. Dupas says that the assessment of reliability of evidence is a part of every balancing exercise under s 137, but accepts that there will be cases where (un)reliability of evidence isn’t a key feature. Shamouil says that a restrictive approach should be taken to a trial judge assessing the weight of evidence, but there will be times when the reliability of evidence presented is so lacking it would be wrong to let it go to the jury. Both agree that it’s not a question of the trial judge trying to insert their own opinions. It’s about making an objective assessment about what the jury could properly do with the evidence (something trial judges are called upon to make rulings on all the time). These are not as far apart as they first appear.
Perhaps Shamouil is a victim of the desire to sum up a legal principle in two lines or less. (It’s a temptation I know well). It’s tempting to sum up Shamouil as, ‘the trial judge has to assume the evidence is true when assessing its probative value’. But, as the quotes produced from the case make clear, that’s not what the NSW Court of Criminal Appeal originally said.
If other jurisdictions adopt the Victorian Court of Appeal’s approach then s 137 will be interpreted uniformly. But if (as seems more likely) some non-Victorian courts continue to follow the NSW Court of Criminal Appeal’s earlier decision, the law across jurisdictions will remain uncertain. (Though, as I do continue to rejoice in saying, the law is always certain, even when none know what it is). An appropriate case will need to go to the High Court to settle the issue, but it’s not going to be this one.
In Shamouil, Spigelman CJ put forward as one of his reasons that, if the trial judge were to exercise their own assessment of the probative value of evidence, this wouldn’t just impact on identification evidencE, or the exercise of this particular discretion. Because of the repeated use of the phrase probative value through the Evidence Act, a trial judge’s assessment of the reliability of evidence influences the admissiblity of most kinds of evidence. His Honour said [at 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 (s 97(1)(b), s 98(1)(b), s 101(2)); cross-examination on credit (s 103(1)); the comparative weight with misleading, confusing, or time wasting effects (s 135(b) and (c)); and the comparative weight with unfair prejudice (s 135(a), s 137).