R v Xy

(2013) 84 NSWLR 363; [2013] NSWCCA 121

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Evidence
2. › Exclusion of evidence in criminal proceedings
3. › Probative value outweighed by danger of unfair prejudice
4. › Whether trial judge may assess credibility, reliability and weight of evidence in determining probative value
5. › Restrictive approach — capacity of evidence to support finding
6. › Conflict between intermediate appellate courts
7. › Evidence Act 1995 (NSW), s 137
1. Evidence
2. › Exclusion of evidence in criminal proceedings
3. › Discretion to exclude admissions
4. › Unfairness to defendant
5. › Recorded telephone conversations between complainant and accused
6. › Whether circumstances of admission rendered use at trial unfair
7. › Evidence Act 1995 (NSW), s 90
1. Evidence
2. › Exclusion of evidence in criminal proceedings
3. › Probative value outweighed by danger of unfair prejudice
4. › Whether risk of unfair prejudice could be overcome by proper jury directions
5. › Whether danger that jury would use evidence for impermissible tendency inference
6. › Evidence Act 1995 (NSW), s 137
1. Appeal
2. › Criminal appeal
3. › Director's right of appeal against ruling on admissibility of evidence
4. › Whether exclusion of evidence substantially weakens prosecution case
5. › How appellate court to determine whether ruling substantially weakens prosecution case
6. › Criminal Appeal Act 1912 (NSW), s 5F(3A)

Quick Take

In NSW, the restrictive approach to assessing probative value under s 137 of the Evidence Act 1995 (as stated in R v Shamouil) is affirmed by a five-judge bench: a trial judge assesses the capacity of evidence to support a finding, not its credibility, reliability or weight, those being matters for the jury. The Victorian Court of Appeal's contrary approach in Dupas v The Queen is not followed. Under s 90, a trial judge should not assess what the accused intended to convey by an admission — that is a jury question. The fact that admission of evidence may put the accused under practical pressure to give evidence is not ordinarily a relevant consideration in determining admissibility. The conflict between Shamouil and Dupas remains unresolved at the High Court level.