House rules

Edit: In response to some feedback, I should clarify that the NSW/Vic/Tas interstate divide extends beyond interlocutory appeals into post-trial appeals also. I've tidied up the language of the original post so as to remove confusion.

When introducing the UEA I heard the predicted benefits grouped under three main headings:

(1) Reduction in complexity of evidence law;
(2) Reduction in cost of the legal process;
(3) Consistency across Australian jurisdictions.

The first two are presumably linked together by an expectation that (1) will produce (2). The accuracy of either can be doubted.

PNJ v DPP (discussed below) demonstrates that the UEA fails to produce (3), as well. (A point I wasn't brave or original in making last year in The NSW Supreme Court in Victoria). The Court of Appeal didn't even stop to mention the purpose at s 1 when stating a preference for the traditional Victorian approach over the one taken in NSW.

Whether the approach taken in interlocutory appeals must be the same as that taken at a post-trial appeal is a question for another time, but tentatively I question if that is so. The tests applicable for an appeal against conviction (and particularly the application of the proviso) are necessarily different than those confronting the Court during an interlocutory appeal.

There's an expectation that an increase in interlocutory appeals will lead to a reduction in post-trial appeals. Whether that will occur remains to be seen, but appears as unlikely to me as the predictions that were made about the UEA.

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The first truly significant point of departure from the NSW Court of Appeal on the so-called Uniform Evidence Laws has arrived.

In PNJ v DPP [2010] VSCA 88, Maxwell P, Buchanan and Bongiorno JJ rejected the notion that interlocutory appeals under s 295 should be decided according to the principles of House v The King (1936) 55 CLR 499. In House, the High Court set out the test appellate courts apply when reviewing the discretionary decision of lower court. Dixon, Evatt and McTiernan JJ,

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Short version: appeal courts aren't supposed to step into the shoes of the original decision-maker and ask themselves if that was the call they would have made.

In NSW, the Criminal Court of Appeal have traditionally determined that the House test applies to an appeal under s 395: R v Fletcher (2005) 156 A Crim R 308, Simpson JA (McClellan CJ at CL agreeing, Rothman J dissenting). See also R v Zhang (2005) 227 ALR 311 where Simpson J (Buddin J agreeing) restated the law as in Fletcher, and Basten JA dissented.

The dissenting judgment of Basten JA at 45,

45 At [139] below, Simpson J seeks to adopt an approach to the application of s 98, which her Honour set out in respect of s 97 in R v Fletcher [2005] NSWCCA 338 at [32]- [35]. Two preliminary points may be made in relation to that material. First, her Honour stated in Fletcher at [32] that a decision about the admissibility of evidence “necessarily and of itself involves the determination of a question of law”. That proposition may cover several issues. For example, wrongful admission of evidence may mean that the trial proceeded on a legally erroneous basis, but the error in assessing admissibility need not be a legal error: c.f. R v Gidley [1984] 3 NSWLR 168, 169-170 (Mahoney JA). However, that issue need not be addressed for present purposes. More importantly, her Honour suggested in the same paragraph that appellate challenge to such a decision, which involves “an evaluative process”, may only be made in limited circumstances which she identified at [48] in Fletcher by reference to the principles established in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 505. House was concerned with the basis upon which an appellate court might interfere with a particular exercise of the discretionary power of a sentencing judge. However, there is a distinction in principle, even if the dividing line may be blurred in particular circumstances, between the exercise of a discretionary power and the making of a finding of fact which involves a level of “evaluation and judgment”: see, in a different context, Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [10] ff (Gleeson CJ, Gaudron and Hayne JJ), [115]-[116] (Callinan J). As presently advised, I would take the view that an accused should have no less protection under s 6(1) from an erroneous ruling by a trial judge than that enjoyed by a civil litigant albeit on an appeal by way of rehearing. The correct approach to the exercise of evaluating the evidence should follow that identified in Warren v Combes [1979] HCA 9; (1979) 142 CLR 531.

46 A separate concern relates to the five principles identified by her Honour in undertaking the exercise required under s 98 of the Evidence Act, at [139] below. The first two principles set out are unexceptionable. The third principle introduces a concept of the “actual probative value” of evidence, being the probative value assigned by the jury. The decision under s 98 is then said to be a two stage process by which the trial judge first identifies whether evidence is “capable of” rationally affecting the probability of a fact in issue, and, secondly, evaluating the likelihood that the jury would assign the evidence significant probative value. I do not agree with that approach, nor do I think it is supported by the judgment of Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457. His Honour’s discussion in Lockyer, at least at 460, was concerned with the exercise required by s 135 (and one might add, relevantly for present purposes, s 101(2)), namely the assessment of whether the probative value outweighs any prejudicial effect. It is true that the concept of prejudicial effect requires an assessment of the misuse of the evidence which might be made by a jury, comprising people without legal training. On the other hand, I do not think that the assessment of “probative value” requires such an exercise. That conclusion follows from the definition of “probative value” in the Dictionary to the Act, namely “the extent to which the evidence could rationally affect the assessment of the probability” of a fact. Evidence has significant probative value if it could have such an effect, to a significant extent. The trial judge is not required to second-guess the jury: the judge must make his or her own assessment of probative value for the purposes of s 98.

47 It follows that, in my view, her Honour has set herself a legally incorrect test at [139] below and has applied an overly constrained approach in her assessment of factual findings, limited by the principles stated in House: see [141] below.

The Victorian Court of Appeal prefers Basten JA's analysis, bolstered by the Tasmanian Chief Justice's decision in L v Tasmania (2006) 15 Tas 381. (Whichever way a Victorian court went, it would still leave the eastern states with an inconsistent approach.)

Underwood CJ [at 52] in L v Tasmania (Tennant J agreeing, Crawford J examining the issue but expressing no judgment),

52 Whether or not evidence is admissible is a question of law. The determination of the question may require the trial judge to find certain facts, the existence of which constitute a condition precedent for the admission of the evidence. See Sinclair v R [1946] HCA 55; (1946) 73 CLR 316 at 325 - 326. In cases where the admission of evidence is dependent upon an evaluation process such as that imposed by the Act, ss97(1) and 98(1), the determination of the trial judge is, as Spigelman CJ said in Ellis, not an exercise of discretion, but a matter of judgment.

Though not argued, the Victorian Court of Appeal held in PNJ v DPP,

15 A question arose, at the commencement of argument on the application for leave to appeal, as to the nature of the appeal from a ruling of this kind. As noted by Stephen Odgers SC in his Uniform Evidence Law in Victoria, the New South Wales Court of Criminal Appeal has (by majority) held that a decision of this kind is reviewable on appeal only on the principles stated in House v The King. That view was expressed by Simpson J (with whom McClellan CJ at CL agreed) in R v Fletcher, and her Honour adopted the same approach (with the concurrence of Buddin J) in R v Zhang. In the latter case, however, Basten JA in dissent expressed the view that the appeal court should decide for itself whether the relevant evidence was admissible.

16 On this application, senior counsel for the Crown accepted that the Court should, if leave to appeal were granted, decide for itself whether the coincidence evidence was admissible. Unsurprisingly, counsel for the applicant concurred. We have approached the matter on that basis. With respect to those members of the New South Wales Court of Criminal Appeal who have taken a different view, we think that the analysis of Basten JA in Zhang, together with that of Underwood CJ in L v Tasmania, accords with the approach which this Court has consistently taken in dealing on appeal with questions of admissibility of evidence.

It's possible that the NSW Court of Appeal, when it inevitably re-visits this issue, will reach the same conclusion as its southern neighbours. But for now NSW and Victoria divide on the appropriate test to apply in appeals.