Simply Unconvincing: The High Court on Probative Value and Reliability in the Uniform Evidence Law

Published date01 March 2022
Date01 March 2022
DOI10.1177/0067205X211066140
Subject MatterARTICLES
Article
Federal Law Review
2022, Vol. 50(1) 104127
© The Author(s) 2022
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DOI: 10.1177/0067205X211066140
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Simply Unconvincing: The High
Court on Probative Value and
Reliability in the Uniform Evidence
Law
Jason M Chin*, Gary Edmond** and Andrew Roberts***
Abstract
Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long
been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM)
curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the
evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing
so, it provided a mysterious qualication: some evidence may lack probative value not because it is unreliable,
but because it is simply unconvincing. The majority illustrated unconvincingness with the example of an
unreliable eyewitness identication. Courts and legal scholars criticised the majority judgment for its harmful
implications and for its apparent inco herence. From a review of almost 4 years of post-IMM jurisprudence
and deeper exploration into one particular case, we nd that simply unconvincinghas accentuated the
confusion and inconsistency in Australian evidence jurisprudence.
Received 12 March 2021
I confess to some difculty in resolving the proper approach to the evidence in light of the identication
example given by the majority in IMM. Identication evidence is unconvincing but that is because it is
unreliable.
1
The exclusion of evidence, the probative value of which is outweighed by the risk of unfair
prejudice, is a fundamental safeguard against the risk of wrongful conviction in adversarial criminal
*School of Law, University of Sydney, Sydney, NSW, Australia. The author may be contacted at jason.chin@sydney.edu.au or
jmichaelchin@gmail.com
**Faculty of Law and Justice, University of New South Wales, Sydney, NSW, Australia
***Melbourne Law School, The University of Melbourne, Melbourne, VIC, Australia
1. Tasmania v Farhat [2017] TASSC 66 [41] (Farhat) (emphasis added).
trials.
2
In the Australian Uniform Evidence Law (UEL),
3
it is given effect by section 137.
4
Development of the related jurisprudence has been fraught. Appellate courts of the two largest UEL
jurisdictions adopted contradictory positions on the question of how probative value ought to be
determined, setting the matter on a course to the High Court. It was considered in IMM v The Queen
(IMM),
5
in which a majority held that assessment of probative value does not require assessment of
the reliability of the evidence or the credibility of its source.
6
It suggested that instead, the probative
value of the evidence will depend on how convincingthe evidence appears to be, and illustrated
the application of this approach with a solitary example of an identication made on a foggy night.
This passage and the IMM majority judgment have attracted signicant criticism for hobbling an
evidence law safeguard and for introducing confusion into the law.
7
Approaching IMM from
linguistic and empirical standpoints, we evaluate the last 4 years of IMM jurisprudence, nding that
these concerns have been borne out.
It has been suggested that the approach adopted by the majority has diminished an important
safeguard, and as indicated by the passages from post-IMM judgments (eg the above epigraph),
appears to have caused some confusion among those who are required to follow it. Assessment of
probativevalue is central to the UELs safeguardsagainst the risk of wrongfulconviction.
8
Uncertainty
as to what the High Court meant when it stated that assessment of probative value requires the
convincingnessof evidence to be taken intoaccount, rather than its reliability, is likely to accentuate
inconsistencies in the evaluation of probative value.
9
Convincingness is an unfamiliar term, and one
that draws on the subjectivity of the particular decisionmaker. Reliability, on the other hand, is a well-
known evidence law concept that generally describes the evidences accuracy and trustworthiness.
10
2. R v Morris [1983] 2 SCR 190; Federal Rules of Evidence, 28 USC r 403; Police and Criminal Evidence Act 1984, c 60, s
78; Pentland v The Queen [2020] QSCPR 10 [53] (Pentland).
3. Uniform Evidence Law (UEL).The UEL is incorporated into the laws of the Commonwealth (Evidence Act 1995 (Cth)),
the Australian Capital Territory(Evidence Act 2011 (ACT)), New South Wales (Evidence Act 1995 (NSW)), the Northern
Territory (Evidence (National Uniform Legislation) Act 2011(NT)) (NT Evidence Act), Tasmania (Evidence Act 2001
(Tas)) and Victoria (Evidence Act 2008 (Vic)), as well as Norfolk Island (Evidence Act 2004 (NI)).
4. S 137 reads: 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.
5. [2016] HCA 14 (IMM).
6. Ibid [44], [47], [50]. This position deviates from other accusatorial trial jurisdictions, including Australian states that have
retained the common law: Pentland (n 2) [53]; White Burgess Langille Inman v Abbott and Haliburton [2015] 2 SCR 182
[24].
7. On the present state of the law, therefore, the judge in a criminal trial is unable to perform the gatekeeperRole…’:
Chris Maxwell, Preventing Miscarriages of Justice: The Reliability of Forensic Evidence and the Roleof the Trial Judge
as Gatekeeper(2019) 93(8) Australian Law Journal 642, 643. See also Gary Edmond, Icarus and the Evidence Act:
Section 137, Probative Value and Taking Forensic Science Evidence At Its Highest”’ (2017) 41(1) Melbourne
University Law Review 106; David Hamer, The Unstable Province of Jury Fact-Finding: Evidence Exclusion, Probative
Value and Judicial Restraint after IMM v the Queen(2017) 41(2) Melbourne University Law Review 689; Andrew
Roberts, Probative Value,Reliability and Rationalityin Andrew Roberts and Jeremy Gans (eds), Critical Perspectives
on the Uniform Evidence Law (Federation Press, 2017) 63. Two practitioners expressed confusion over it: Stephen
Odgers and Richard Lancaster, The probative value of evidence(Winter 2016) Bar News 36.
8. See, eg, ss 97, 97A, 98, 101, 135, 137.
9. Benjamin Johnson and Richard Jordan, Should Like Cases Be Decided Alike?: A Formal Analysis of Four Theories of
Justice(2018) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3127737>.
10. IMM (n 5) [114] (Nettle and Godon JJ), contrastingreliability with credibility (or the whether the witness is intentionally
being truthful or not).
Chin et al 105

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