Resolving the Application of the Christie Discretion in the Uniform Evidence Legislation
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| DOI | 10.22145/flr.42.3.5 |
| Subject Matter | Article |
DISCRETION IN THE UNIFORM EVIDENCE LEGISLATION
Andrew Hemming*
ABSTRACT
The application of s 137 of the uniform evidence legislation, which essentially restates the Christie
discretion, has been thrown into confusion with the Supreme Courts of New South Wales and
Victoria taking a restrictive and expansive interpretation respectively of the meaning of ‘probative
value’ for the purpose of the weighting exercise between probative value and unfair prejudice.
Definitive clarification of such an important and well known evidential principle, which could
reasonably have been previously regarded as settled law, will most likely be postponed until a
suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution
of the application of s 137, by applying well-understood principles of statutory interpretation, to
argue in favour of the Victorian expansive approach to the meaning of ‘probative value’ in the
uniform evidence legislation.
I INTRODUCTION
As the nature of ‘discretionary’ judgments is central to this article, mention should be
made at the outset of the significant scholarship in relation to evidential discretions.1 Sir
Rupert Cross, in discussing D v National Society for the Prevention of Cruelty to Children,2
a civil case concerning whether a judge retains a discretion to uphold a witness’s
objection to disclosing confidences although no legally recognised privilege is
applicable, has observed:
I deplore the use of the word ‘discretion’ to describe the judge’s duty to perform the
contemplated balancing act. It is nothing like a power to exclude legally admissible
questions. The balancing is required in order to determine whether there is a legal
obligation to answer. Single exercises of the discretionary power of exclusion never
constitute a binding precedent.3
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*
Senior Lecturer in Law, University of Southern Queensland. The author would like to thank
the anonymous referees for their valuable comments.
1 See, eg, Rosemary Pattenden, Judicial Discretion and Criminal Litigation (Oxford University
Press, 2nd ed, 1990); Rupert Cross, ‘Discretion and the Law of Evidence: When it Comes to
the “Forensic Crunch”’ (1979) 30(4) Northern Ireland Legal Quarterly 289; Mark Weinberg, ‘The
Judicial Discretion to Exclude Relevant Evidence (1975) 21(1) McGill Law Journal 1; Bernard
Livesey, ‘Judicial Discretion to Exclude Prejudicial Evidence’ (1968) 26(2) Cambridge Law
Journal 291.
2
[1978] AC 171.
3
Rupert Cross, ‘Discretion and the Law of Evidence: When it Comes to the “Forensic Crunch”’
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The operation of the ‘discretion’ to exclude relevant evidence has been summarised
by Weinberg, writing in 1975, as being (1) narrowly confined; (2) requiring greater
attention to ‘sufficient relevance’; (3) stemming from dubious legal sources; and (4)
supplemented with subsidiary ‘fairness’ criteria which are vague and often conflicting.4
Up until the Victorian Court of Appeal, in a five bench court, unanimously decided
Dupas v The Queen,5 the meaning of ‘probative value’ in the uniform evidence
legislation6 was understood to have a restrictive meaning following the judgment of
Spigelman CJ in the New South Wales Court of Criminal Appeal’s decision in R v
Shamouil.7 By restrictive meaning is meant the court should assume that the probative
value of evidence is both reliable and credible. However, the Victorian Court of Appeal
held that ‘we are compelled to the view that Shamouil and the other decisions that have
applied it are manifestly wrong and should not be followed’.8 The basic reasoning in
Dupas was that the language of s 137 of the uniform evidence legislation9 was ‘the same
as that at the common law’10 which meant the Christie discretion11 was retained.12
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(1979) 30(4) Northern Ireland Legal Quarterly 289, 294.
4 Weinberg, above n 1, 41.
5
[2012] VSCA 328 (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA) (‘Dupas’). In
Dupas, three witnesses gave identification evidence of having seen the applicant at the
Fawkner cemetery in Melbourne on the day of the murder. Two of those witnesses had
previously seen the applicant on television in connection with other murders of which he
had been convicted, and the third witness had seen the applicant’s photograph in a
newspaper accompanied by comment he had murdered the victim. A number of years had
passed between the sightings of the applicant at the cemetery and their identification of the
applicant as the person they had seen on the day of the murder.
6
The uniform evidence legislation covers six Australian jurisdictions: Evidence Act 1995 (Cth);
Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); Evidence Act 2011
(ACT); and Evidence (National Uniform Legislation) Act 2011 (NT). The States ‘holding out’
against the uniform evidence legislation are now reduced to Queensland, South Australia
and Western Australia.
7
[2006] NSWCCA 112 (Simpson and Adams JJ agreeing) (‘Shamouil’). In Shamouil, the victim
of a shooting identified the respondent in a photo-board identification. The victim later
retracted his earlier identification evidence. The trial judge excluded the evidence of the
photo-board identification pursuant to s 137 of the Evidence Act 1995 (NSW). The Crown
appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which provides for such an
appeal if a ruling on admissibility of evidence substantially weakens the prosecution’s case,
on the basis that, first, his Honour had wrongly considered the reliability of the identification
evidence when determining its probative value, and, secondly, his Honour had failed to
identify any unfair prejudice. The defence argued that the identification evidence caused
unfair prejudice because of the danger of the jury speculating as to why the victim might
have retracted his statement.
8
Dupas [2012] VSCA 328 [63].
9
Section 137 of the Evidence Act 2008 (Vic) provides for the Exclusion of prejudicial evidence
in criminal proceedings. 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 accused.’
10 Dupas [2012] VSCA 328 [63].
11 R v Christie [1914] AC 545.
12 Dupas [2012] VSCA 328 [65]. The use of the word ‘discretion’ requires clarification. Section
137 uses the word ‘must’ which is mandatory. However, because the judge is engaged in an
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Resolving the Application of the Christie Discretion
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Under this expansive approach, the court is able to assess reliability and credibility for
itself.
The Christie discretion finds expression in each of the three remaining common law
States of Queensland, South Australia and Western Australia, who have yet to adopt the
uniform evidence legislation.13 In the South Australian case of R v Bunting and Wagner
(the infamous Snowtown murders case),14 one of the appeal grounds related to the
admission into evidence of photographs of the post-mortem examinations of the
deceased, in that the photographs gave rise to unnecessary prejudice in circumstances
where it would have been better to use diagrams and sketches. Perry J held there was
nothing in this proposed ground.
With or without photographs, the presentation of the Crown case in this trial involved at
times descriptions of gruesome and inhumane torture and mutilation of bodies. Against
this background, it is doubtful whether the tender of the photographs could be said to have
added a prejudicial layer to the evidence.
This was a case which was likely to shock the sensibilities of the jury, however it was
presented.15
In another South Australian case, R v S, DD,16 one ground of appeal contended that
the complaint evidence was not probative of consistency of conduct of the complainant.
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evaluation and comparison between the probative value of the evidence and the danger of
unfair prejudice if the evidence is admitted, the weighting exercise is discretionary.
13
See Evidence Act 1977 (Qld) s 130; Evidence Act 1929 (SA) s 34KD(2); Evidence Act 1906 (WA)
s 5 and s 31A(2). In Western Australia, there is no reference to a general discretion to exclude
evidence, but s 5 states that the Act does not derogate from the rules of evidence existing at
common law that are not inconsistent with the Act’s provisions. In Slater v The Queen [2004]
WASCA 151, the court quashed a conviction and ordered a new trial based on the admission
of a videotape of the appellant’s police interview, in which he denied the offences with which
he was charged, but admitted to asking about a sixteen-year-old girl’s availability for sex
and that he had commonly supplied alcohol and cannabis to young people at parties at his
home. The Court of Appeal held that this evidence should not have been admitted as its
probative value was outweighed by its prejudicial effect. Furthermore, the...
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