Appeal Outcome: Special leave application refused by the High Court - 16 November 2007 New South Wales Court of Criminal Appeal CITATION: R v Suman SOOD [2007] NSWCCA 214 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1 June 2007 JUDGMENT DATE: 19 July 2007 JUDGMENT OF: Ipp JA at 1; Latham J at 2; Fullerton J at 61 DECISION: 1. Appeal allowed; 2. The judgment of Acting Judge Armitage QC of 14 May 2007 is set aside. CATCHWORDS: Criminal Law - Crown Appeal - Criminal Appeal Act 1912, s 5F(3A) - Exclusion of evidence - s 137 Evidence Act 1995 - Evidence to be considered in the Crown case "taken at its highest" - Reliability and weight not relevant to determination of probative vaue - Judgment pursuant to s 137 to be based upon evidence on the voir dire - Error of trial judge in assessing probative value of evidence according to findings of fact unsupported by evidence on the voir dire and against the weight of that evidence - No unfair prejudice in circumstances where evidence established no more than allegations of taxation offences against defendant - Misapplication of Edwards v The Queen (1993) 178 CLR 193. Criminal Appeal Act 1912 Evidence Act 1995 LEGISLATION CITED: Health Insurance Act 1973 (Clth) Criminal Code Act 1995 (Clth) Health Insurance Act 1973 Regina v Cook (2004) NSWCCA 52 Edwards v The Queen (1993) 178 CLR 193 GK (2001) 125 A Crim R 315; [2001] NSWCCA 413 R v Blick (2000) 111 A Crim R 326 ; [2000] NSWCCA 61 R v Rima [2003] NSWCCA 405 R v SJRC [2007] NSWCCA 142 R v Linard Shamouil (2006) 66 NSWLR 228 ; [2006] NSWCCA 112 CASES CITED: R v Carusi (1997) 92 A Crim R 52 R v Singh-Bal (1997) 92 A Crim R 397 R v Yates [2002] NSWCCA 520 Adam v The Queen (2001) 207 CLR 96 ; [2001] HCA 57 Papakosmas v The Queen (1999) 196 CLR 297 ; [1999] HCA 37 R v Cook [2004] NSWCCA 52 R v SJRC [2007] NSWCCA 142 Festa v The Queen (2001) 208 CLR 593 ; [2001] HCA 72 Quinlan v Regina [2006] NSWCCA 284 PARTIES: Regina - Appellant Suman SOOD - Respondent FILE NUMBER(S): CCA 2007/1241 COUNSEL: Appellant - J Agius SC Respondent - SJ Odgers SC SOLICITORS: Appellant - Commonwealth Director of Public Prosecutions Respondent - Mitchell Lawyers LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0525 LOWER COURT JUDICIAL OFFICER: Armitage QC ADCJ LOWER COURT DATE OF DECISION: 14 May 2007 IN THE COURT OF CRIMINAL APPEAL 2007/1241 IPP JA LATHAM J FULLERTON J 19 JULY 2007 REGINA v SUMAN SOOD Judgment 1 IPP JA : I agree with Latham J. 2 LATHAM J : This is an appeal under s 5F(3A) of the Criminal Appeal Act 1912 brought by the Commonwealth Director of Public Prosecutions against a ruling by Armitage QC ADCJ after a voir dire hearing, resulting in the exclusion of evidence from the Crown case at trial, pursuant to s 137 of the Evidence Act 1995. The trial of the respondent on 96 charges of dishonestly obtaining a financial advantage from the Health Insurance Commission was aborted following upon his Honour's ruling. 3 The charges arose out of a lawful search on 30 October 2001 of the respondent's medical clinic where she carried out pregnancy terminations, among other services. A Health Insurance Commission investigator found a number of cash receipt books and original cash receipts in waste bins, in and near the recovery room of the clinic. The Crown sought to rely upon the finding of these documents towards proof of the respondent's knowledge that she was dishonestly receiving money in addition to that to which she was entitled under the Medicare "bulk billing" scheme, established by the Health Insurance Act 1973 (Clth). The respondent's knowledge in that regard is an essential element of the offence under s 134.2 of the Criminal Code Act 1995 (Clth). 4 The respondent successfully argued before the trial judge that the probative value of the evidence of the finding of the documents was outweighed by the danger of unfair prejudice to the respondent. In order to appreciate the arguments advanced in this Court, it is necessary to refer to the evidence on the voir dire below and to the trial judge's findings for the purposes of his ruling. The Proceedings in the District Court 5 It was common ground that in October 2001 the respondent was a medical practitioner who performed terminations at her clinic at Campsie and that she ' bulk billed ' for that service as well as charging her patients an additional fee for 'counselling and theatre' services supplied as part of the procedure. This fee structure was published prominently in the clinic. Fees were collected from clients in cash at the time the termination was performed and a receipt was issued by the respondent's staff. The receipt recorded the provision of 'counselling and theatre' services. 6 The evidence on the voir dire consisted of a number of receipt books with carbonised pages recording the receipt of cash from patients for 'counselling and theatre' services and bundles of original cash receipts. The books and original receipts were found by officers of the Health Insurance Commission on 30 October 2001 upon the execution of a search warrant. They were found in two refuse bins, one a biological waste bin in that part of the clinic described as the recovery room and the other a conventional waste bin found in a utilities room. These rooms were adjacent to each other. 7 Given that the receipt books and the receipts were found with other refuse consisting of wet swabs and dressings of various kinds and well into the cavity of the bins, but that the books were themselves quite dry, it was patently obvious that the books had been put in the bins by someone on the day the warrants were executed, and put there in a deliberate attempt to conceal them. 8 There was no challenge to the admission into evidence of the receipt books and receipts per se. What was sought to be excluded was evidence of the place where they were found and the circumstances in which they were found. 9 Evidence was called on the voir dire from members of the respondent's staff and from officers of the Health Insurance Commission. Their evidence at a previous trial was also tendered. The respondent also gave evidence on the voir dire and was cross examined. 10 In summary, the evidence from the Commission officers established that the respondent had unsupervised access to the recovery area and utilities rooms for some time after she was made aware of their arrival and their desire to speak with her. She could not have been aware, however, at that time, of the fact that the Commission officers had a search warrant and were intending to execute it, as this was not made clear to the receptionist who telephoned the respondent in the procedure room to advise her of their attendance. 11 The respondent gave evidence that the used receipt books were kept in a locked cupboard near to, or in, the utilities room. She acknowledged that she had the combination to the lock on the cupboard, as did other members of her staff, and that she would have had the opportunity on the day of the search to dispose of the receipt books in the bins. The respondent denied, however, that she disposed of the books or that she had directed any member of her staff to dispose of them. She said that after the search she asked each member of her staff whether they had disposed of the books or the receipts of their own volition and that no one admitted doing it. She said she could not think of any reason why she, or anyone else, would want to throw the books in the bin. She claimed there was other evidence of her receipt of fees from patients undergoing terminations in the form of a ledger and the receipt book that was in current use at the reception desk at the time of the search. It would appear that while the cash receipt book in current use was seized, the ledger was not located in the search. 12 She acknowledged that before the search commenced she read that part of the warrant that nominated the offence to which the warrant referred as, inter alia, "….. the making of false statements in connection with claims for payments under the Health Insurance Act 1973 in respect of …..direct billing Medicare in addition to charging a moiety." 13 She claimed, however, that this part of the warrant was not worded in a way that made sense to her. She said she did not understand that 'moiety' meant money. She said she did not understand it to mean that the officers were investigating whether she had been bulk billing in addition to charging a fee in respect of the same procedure. She acknowledged that she had been peer counselled in October 1995 against charging for certain equipment used in circumcision and/or for intravenous drugs used during terminations, in addition to bulk billing for these procedures as this transgressed the Heath Insurance Act, but she did not regard charging for theatre and counselling fees as being in the same category. She asserted a considered belief that she was entitled to charge for counselling and theatre fees and that this practice was commonplace in other medical practices providing the same termination service. She said that she continued charging these fees after 30 October 2001. 14 The respondent acknowledged that she was aware that a former partner and colleague, Dr Singh, had lodged a detailed complaint against her with the Health Care Complaints Commission (HCCC) in July 2001 which included, inter alia, an allegation that at least up until June 1999, and at premises from which she practiced at that time, that she was charging a moiety under the guise of counselling fees and then bulk billing, and that the cash she received was not declared for taxation purposes. She said that although she received the Singh letter of complaint under cover of a letter from the HCCC dated 19 September 2001, she did not read the Singh letter at that time and, further, that until the letter was provided to her in the witness box she did not know that it contained the precise allegation that was foundational to the Crown case against her. The HCCC's letter which invited a detailed response to the Singh letter, inaccurately summarised that allegation as a failure to declare counselling fees for taxation purposes and that the counselling was inadequate. In so far as the letter from the HCCC was concerned, she said she read it through very carefully and while she thought she had commenced the process of responding to it by 30 October 2001, she had not replied in full by that time. 15 The respondent acknowledged that cash in an amount of $160,000 was seized from her home when a search warrant was executed later on the 30 October 2001 but claimed that this could be lawfully accounted for. She did not claim to have any fear or concern that she was otherwise exposed to any criminal liability in regard to her taxation affairs, or that she might be so exposed. Ms Zoretic, a nurse in the respondent's employ, said that at the time of the search she was aware that Dr Singh had made a complaint to the authorities to the effect that the respondent was avoiding paying tax, but was unaware of any other complaint in respect of her fee charging practices. 16 In pressing for the tender of the evidence, the Crown contended that the overwhelming inference was that the respondent put the receipt books and original receipts in the bins, and that she did so conscious that they provided compelling evidence of the fact that she was claiming a rebate from Medicare in respect of services for which she was also charging patients a cash fee, knowing this was not permitted. The Crown submitted that in this way the respondent's conduct displayed a consciousness of guilt on her part of the offences charged and that this significantly enhanced the Crown case. 17 The respondent submitted that the probative value that attached to the circumstances of the finding of the books and the receipts was slight and that it was outweighed by the danger of unfair prejudice. It was submitted that assuming that the respondent did place the receipt books and the receipts in the bins (which she denied) the probative value in the evidence was nevertheless slight because of an available and reasonable alternate hypothesis for her conduct, namely, that she sought to dispose of the material to conceal her exposure to an allegation of tax fraud. The danger of unfair prejudice to the respondent resulted, it was submitted, from her being forced to advance the hypothesis that her conduct should be understood by reason of other uncharged criminal conduct, and having to adduce evidence to support that hypothesis, including the complaint by Dr Singh and the cash found at her home. Regina v Cook (2004) NSWCCA 52 was relied upon in support of both limbs of this argument. It was submitted that in these circumstances the danger of unfair prejudice was substantial and far outweighed the probative value of the evidence which was in any event slight. 18 The trial judge excluded the evidence pursuant to s 137 of the Evidence Act. In assessing the probative value of the evidence his Honour was satisfied that it was not strongly probative of the offences charged. He determined that there was no evidence to support the contention that she was fearful of being prosecuted for charging fees in addition to bulk billing, or that she was even doubtful as to the legality of what she was doing in that regard. He was not satisfied that even after reading the search warrant she would have had any appreciation of the fact that she was acting dishonestly when claiming benefits in addition to charging clients for counselling and theatre. He referred to the publication of her schedule of fees in the waiting area of the clinic, and her charging practices after 30 October 2001 as support for the conclusion that at the date the books and receipts were found in the bin she had no appreciation that what she was doing was wrong. 19 By way of contrast, his Honour found that as at 30 October 2001 the respondent was well aware that charges of tax evasion could be laid against her and, accordingly, that she had a genuine fear of that occurring. He was satisfied that in order to meet the fact that the jury may well find that she placed the receipts and receipt books in the bins she would be compelled to advance her fears about a tax prosecution as an explanation for that conduct. He found that the unfair prejudice that would result would be substantial. He considered it unrealistic that directions to the jury could restore the balance. The Grounds of Appeal 20 Six grounds of appeal are pressed. Grounds 1 and 2 take issue with the trial judge's assessment of the probative value of the evidence. Grounds 3, 4 and 6 take issue with his determination that the unfair prejudice occasioned by the admission of the evidence outweighed the probative value of that evidence. Ground 5 argues that the trial judge misapplied Edwards v The Queen 178 CLR 193. 21 No issue is taken with the jurisdiction of the Court pursuant to s5F(3A) of the Criminal Appeal Act. The submissions of the Crown and of the respondent in this Court did not differ from those made to the trial judge on the voir dire. The Court was assisted by the fact that the Crown and the respondent were represented by the same senior counsel as appeared below. Section 137 of the Evidence Act 1995. 22 Section 137 of the Evidence Act 1995 (the Act) provides :- 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. 23 Whilst this provision appears in Part 3.11 of the Act, headed "Discretions to Exclude Evidence", it has been held that the mandatory terms of the section are more consistent with an evaluative judgment, dependent upon "a connected series of findings of law and of fact", rather than the exercise of a judicial discretion : GK (2001) 125 A Crim R 315 at 333 ; [2001] NSWCCA 413 at [74] ; see also R v Blick (2000) 111 A Crim R 326 ; [2000] NSWCCA 61 ; ; R v Rima [2003] NSWCCA 405 ; R v SJRC [2007] NSWCCA 142 24 The questions giving rise to that "connected series of findings of law and of fact" were articulated by Sully J in GK as follows :- 2.1 Is the tendered evidence relevant at all in the sense required by s 55(1) of the Act? If not, then the evidence is in any event inadmissible. 2.2 If the tendered evidence is relevant in that sense, then what is its probative value, as that expression is defined in the Dictionary that forms part of the Act? 2.3 Is there a danger that the tendered evidence, if admitted, will give rise to the danger of unfair prejudice to the defendant: that is, to the real risk that the evidence, if admitted, will be misused by the jury in some way that is unfair to the defendant? 2.4 If so, then where does the preponderant weight lie as between, on the one hand that probative value; and on the other hand that danger of unfair prejudice to the defendant? If the preponderant weight favours the factor of probative value, then s 137 does not require the exclusion of the evidence; and the evidence ought to be admitted unless there is some other proper basis for its exclusion. 25 It has not been suggested, nor could it have been, that the evidence of the circumstances surrounding the finding of the documents is not relevant to proof of the charges against the respondent. The focus of this appeal is on the answers to questions 2.2 and 2.3 above. The Assessment of Probative Value in the Crown Case 26 As noted above at [17], the proposition advanced by the respondent in this appeal (the defendant at trial) was that the assessment of the probative value of the evidence, supporting the inference of dishonesty, necessarily takes into account competing inferences that might arise for the jury's consideration. The argument therefore assumes that the trial judge is entitled to consider interpretations of the evidence other than that advanced by the Crown, and that questions relating to the weight of the evidence sought to be adduced are legitimate factors in assessing probative value. In my opinion, the argument must be rejected for the following reasons. 27 The probative value of evidence is "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". That bare definition in the Dictionary to the Act must, however, be considered in the context of the provision in which it appears. Section 137 requires the assessment of the probative value of evidence to be adduced by the prosecution, that is, the probative value of that evidence in the Crown case, unqualified by competing constructions or inadequacies that might be advanced by the defendant or contrary evidence that might be led in the defendant's case. 28 In R v Linard Shamouil (2006) 66 NSWLR 228 ; [2006] NSWCCA 112, the assessment of the probative value of identification evidence was considered by Spigelman CJ for the purposes of determining whether the test posed by s 5F(3A) of the Criminal Appeal Act was satisfied, and for the purposes of the exercise required by s 137. Counsel for the respondent in Shamouil submitted that s 5F(3A) was not satisfied because the absence of weak identification evidence could not be said to substantially weaken the Crown case. Whilst senior counsel for the respondent in this appeal conceded that the trial judge's ruling in this case eliminated or substantially weakened the prosecution case for the purposes of s 5F(3A), it is pertinent to refer to this aspect of the Chief Justice's judgment (with which Simpson J and Adams J agreed). In rejecting the submission, the Chief Justice said at [39] :- The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to "the prosecution's case", to be considered as a "case". This section is not concerned with the weight of the Crown's evidence. Probative Value and Considerations of Weight, Reliability and Credibility 29 When dealing with probative value in the context of s 137, the Chief Justice noted that, before the introduction of the Evidence Act, the equivalent common law discretion to the exercise required by s 137 (the Christie discretion) did not engage considerations of the reliability of the evidence sought to be excluded. Reference was made to R v Carusi (1997) 92 A Crim R 52 at 65-66, wherein Hunt CJ at CL (with whom Newman J and Ireland J agreed) said :- The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest , its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied – on the whole of the evidence – that the jury ought nevertheless have had a reasonable doubt. (original not in bold) 30 Furthermore, the Court in R v Singh-Bal (1997) 92 A Crim R 397 and in R v Yates [2002] NSWCCA 520 adopted this formulation of the discretion following the enactment of s 137. Whereas Carusi was an identification case, Singh-Bal and Yates were not. The former concerned the exclusion of an alleged admission by the accused, while the latter concerned the exclusion of the evidence of a witness who had given three different accounts to police, only one of which was incriminatory of the accused. 31 Spigelman CJ went on to deal with a division of opinion on this issue between Gaudron J on the one hand in Adam v The Queen (2001) 207 CLR 96 ; [2001] HCA 57, and McHugh J on the other hand in Papakosmas v The Queen (1999) 196 CLR 297 ; [1999] HCA 37. In Adam, Gaudron J said at [59-60] :- The dictionary to the Act defines "probative value" to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". That definition echoes the substance of s 55(1) of the Act which provides that "evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". It is to be noted that the dictionary definition differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted. The omission from the dictionary definition of "probative value" of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition. 32 McHugh J in Papakosmos was of the view that the omission of "if it were accepted" from the Dictionary definition of "probative value" was of significance :- The distinction which the Act makes between relevance and probative value also supports the view that relevance is not concerned with reliability. Probative value is defined in the Dictionary of the Act as being "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." That assessment, of course, would necessarily involve considerations of reliability. "Probative value" is an important consideration in the exercise of the powers conferred by ss135 and 137. An assessment of probative value, however, must always depend on the circumstances of the particular case at hand. (at [86]) 33 In resolving this tension in favour of the approach taken by Gaudron J, and having regard to a number of decisions in this Court, the Chief Justice said in Shamouil at [60 – 65] :- 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 supra, a "test" of 'rationality' also directs attention to capability rather than weight. ………………………………………………………………………….. 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 (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 s137. 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 (s97(1)(b), s98(1)(b), s101(2)); cross-examination on credit (s103(1)); the comparative weight with misleading, confusing, or time wasting effects (s135(b) and (c)); and the comparative weight with unfair prejudice (s135(a), s137). 34 The reference to the "preponderant body of authority" appears to be an acknowledgement of Simpson J's judgment in R v Cook [2004] NSWCCA 52, in so far as it was interpreted in Shamouil as support for the proposition that there may be limited circumstances in which credibility and reliability will be taken into account when determining probative value. The Chief Justice's concession in that regard does not however warrant a departure from an unbroken line of authority on this issue in this State. Given the reliance placed upon Cook by the respondent's counsel on the hearing of this appeal, it is appropriate to examine that decision more closely. 35 In Cook, Simpson J (with whom Ipp JA and Adams J agreed) dealt with a ground of appeal that challenged the admission of evidence of flight in the Crown case, as demonstrating a consciousness of guilt. The accused's counsel at trial had sought the exclusion of the evidence pursuant to s 137, on the basis that its admission would require the accused to provide other explanations for flight, inconsistent with a consciousness of guilt of the offence at trial (a sexual assault), but revealing to the jury a contravention of an AVO and an assault upon a female for which he received a term of imprisonment. 36 The trial judge in Cook was found to have fallen into error in his approach to s 137. The critical passages of Simpson J's judgment, set out below in bold type, confirm that her Honour determined that findings of fact, including questions of credibility and reliability (and therefore weight), from the evidence on the voir dire play no part in the assessment of the probative value of evidence sought to be admitted in the Crown case. The credibility and reliability of any explanation proffered by the accused, in order to explain flight or other conduct suggestive of a consciousness of guilt, may however play a role in the balancing exercise, that is, in determining whether unfair prejudice arises out of the nature of the explanation. 37 Her Honour said (at [36] – [37] and [43]) :- The probative value of the evidence can be assessed merely by examination of the evidence itself . In this case, that examination inevitably gives rise to a conclusion that the probative value to the Crown case was very high indeed. Within five days of the assault on the complainant, the appellant twice fled when police approached. The inferences available to a jury are obvious. The balancing exercise required by s137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise . That was the purpose of the evidence given by the appellant in the voir dire. The effect of his evidence there was to put before the judge evidence of the response that the appellant would make, if the Crown evidence were admitted. This meant that the evidence of flight could be seen in its complete context. What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant's case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting – disclosing his history of violence and breach of the law. …… The prejudicial effect of the explanation was what s137 required to be balanced against the probative value the Crown evidence would otherwise have had. That exercise was not explicitly undertaken by the trial judge. The s137 exercise also called for consideration of directions that could be given to the jury in order to ameliorate the impact of the knowledge of the appellant's prior conduct. …………………………………………………………………………. I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act , to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused's response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice. 38 In short, the rationale in Cook is consistent with the established line of authority since Carusi, which holds that the probative value of the evidence sought to be excluded under s 137 is to be assessed by taking the evidence at its highest. I am mindful of the fact that Simpson J was a member of the bench in Shamouil, but a careful reading of her Honour's judgment in Cook does not, in my opinion, admit of any other interpretation. In circumstances where the evidence is relied upon to found an inference that the accused acted out of a consciousness of guilt, the court must approach the assessment of the probative value of that evidence on the basis that such an inference is capable of acceptance by a jury. Of course, the inference must be one that is clearly available, whether or not the jury ultimately draw that inference. 39 The trial judge expressly found that the probative value of the evidence of the finding of the cash receipt books in the bins was not strongly probative because "if she did hide the receipt books, the overwhelming inference is that she did so because she was afraid of being prosecuted for tax evasion." (Voir Dire judgment at 15) (It was conceded before the trial judge and before this Court that the jury would in all likelihood conclude that the respondent had placed the receipt books in the bin, despite her denial.) Not only did he make this finding in the absence of any evidence from the respondent that she held such fears, but more importantly, he failed to assess the probative value of that evidence in the prosecution case by having regard, purely and simply, to the inference that the evidence was capable of supporting, namely that the respondent hid the receipt books because she was aware of the unlawful nature of her charging practices. As Simpson J observed in Cook, the probative value of that evidence was to be assessed merely by an examination of the evidence itself. 40 Contrary to the submissions of counsel for the respondent, it was no part of the trial judge's function in assessing probative value under s 137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied, even assuming that an alternative explanation was given by the respondent on the voir dire. The trial judge exceeded the reach of his function and entered into the jury's domain : R v SJRC [2007] NSWCCA 142 at [36] – [40]. Far from assisting the respondent, Cook exposes the flaw in the argument advanced on this appeal. 41 I would also note that the concession made by senior counsel for the respondent, that the trial judge's ruling eliminated or substantially weakened the prosecution case, is difficult to reconcile with the submission that the excluded evidence had low probative value, for the reasons set out at par 28 above. 42 The trial judge erred in his approach to the assessment of probative value under s 137. I would uphold grounds 1 and 2 of the appeal. The Danger of Unfair Prejudice 43 The danger of unfair prejudice requires more than the spectre that the evidence will tend towards proof of the Crown case. In Papakosmos, McHugh J said at [91, 92] :- Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD , Hunt CJ at CL pointed out: "The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." (footnote omitted) In its Interim Report, the Australian Law Reform Commission explained: "By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required." See also Festa v The Queen (2001) 208 CLR 593 ; [2001] HCA 72, per Gleeson CJ at 599. 44 The unfair prejudice found by the trial judge to be implicit in the introduction of the evidence of the finding of the cash receipt books was said to be of the same character as that discussed in Cook, namely that the respondent would be compelled "to adduce evidence regarding complaints of tax evasion made against her prior to the search and evidence of the $160,000 found in her home." As to "what directions, if any, [that] could ameliorate the impact of the revelation to the jury of the very real fear she had in relation to charges of tax evasion and the fact that $160,000 in cash was found in her home", his Honour was of the view that "whatever confidence one may have in the desire of individual jurors to follow directions ….., it is unrealistic to think that any such directions could in any meaningful way restore the balance." (VD judgment at 15) 45 At the outset, there is a very pertinent distinction to be drawn between Cook and the circumstances of this case. It was never disputed in Cook that the accused fled from police when they attempted to approach him to question him about alleged sexual assaults. The accused in Cook gave evidence on the voir dire that he did so because he was wanted for breach of an AVO that related to a previous offence of violence against a woman, the very type of offence for which he was standing trial. Whilst this explanation was not entirely consistent with what the accused said to police in his interview, it was nonetheless an objectively available interpretation of his behaviour that was not necessarily consistent with his guilt of the offence at trial. It clearly raised the prospect of arousing in the jury a sense of horror or provoking an instinct to punish. 46 The respondent, on the other hand, gave evidence on the voir dire that she did not put the receipt books in the bins, nor did she direct anyone else to do so. On the evidence before the trial judge, there was no dilemma confronting the respondent such as confronted the accused in Cook. The jury did not have to be informed of the fact that the respondent was the subject of unsubstantiated complaints, unrelated to the charges at trial, in order to place the evidence at trial in its complete context. 47 The trial judge was required to evaluate the existence of unfair prejudice on the basis of the evidence on the voir dire. To permit otherwise is to place a trial judge in the wholly unrealistic position of anticipating how an accused's case might be conducted at trial. The exercise under s 137 is not concerned with the identification of hypothetical forms of unfair prejudice that may or may not materialise during the trial. It is not an advisory ruling. As noted by Sully J in GK , the notion of danger of unfair prejudice imports a real risk, not a speculative one. 48 There was no evidence before his Honour that the respondent expected to be prosecuted for tax evasion, or that she held any fears in that regard. The respondent expressly disavowed any reason for disposing of the cash receipt books. The height of the evidence in relation to purported taxation offences was a letter of complaint by the respondent's former partner, Dr Singh, to the NSW Medical Board in July 2001. That letter claimed that the respondent was not declaring income for taxation purposes at a period of time before June 1999 at her former clinic, not the premises the subject of the search warrant. The letter was referred to the HCCC, which in turn sought the respondent's comments in September 2001. An awareness that allegations had been made against her does not equate to a fear of prosecution. No prosecution had been instituted against the respondent for taxation offences. 49 Returning then to the danger of unfair prejudice on the basis of the evidence on the voir dire, no question of alternative explanations for conduct, otherwise indicating a consciousness of guilt, arose, until and unless the jury rejected the respondent's account that she was not responsible for placing the cash receipt books in the bins. The trial judge would, in the circumstances of this case, be obliged to direct the jury that, if they rejected the respondent's evidence and found as a fact that she was responsible, the inference of consciousness of guilt could not be drawn unless it was the only available inference in all the circumstances. 50 In any event, it is not correct to say that the respondent would be compelled to introduce evidence of Dr Singh's letter, the HCCC letter to the respondent and the $160,000 in cash at the respondent's home, thus giving rise to unfair prejudice. It could not be unfair, albeit it might occasion prejudice to the respondent, because it would amount to no more than a forensic decision by counsel for the respondent, in the circumstances of the trial as it unfolded. Trial counsel are routinely confronted by such forensic decisions, that is, whether to undercut the main plank of the defence case by reliance upon an alternative, but inconsistent case theory. 51 Assuming for present purposes that the respondent admitted that she placed the receipt books in the bins, and that she gave evidence of a fear of prosecution for taxation offences, or that an inference could be drawn to that effect, the credibility of such a claim stood to be assessed on the basis that the search warrant related to offences against the Health Insurance Act 1973 in the period between January 1999 and October 2001. None of the cash receipt books recovered from the bins related to the period pre-June 1999. In short, there was little or no contemporaneity between the timing of the alleged taxation offences and the alleged offences at trial. In those circumstances, had the probative value of the Crown's evidence been weighed against the risk of unfair prejudice to the respondent, the balance would clearly favour the former. This is precisely the type of outcome foreshadowed by Simpson J in Cook at [43] ; any prejudice occasioned to the respondent by an explanation lacking credibility is less likely to qualify as unfair prejudice. 52 One further point should be made regarding the evidence that $160,000 in cash was found at the respondent's home by HIC investigators on 30 October 2001. The Crown did not propose to lead that evidence at the respondent's trial, having accepted that the benign explanation for the cash offered by the respondent at an earlier trial could not be disproved. To the extent that the respondent relied upon that evidence, it could only be relevant to the risk of unfair prejudice if the respondent disavowed the benign explanation previously advanced. 53 It is difficult to understand his Honour's view of the inability of a jury to comply with a direction, that warned them against the use of evidence of the respondent's fear of tax evasion charges (assuming evidence or suggestion of such a fear), adverse to the respondent : see Quinlan v Regina [2006] NSWCCA 284. Fear of tax investigation and prosecution would be one of the few experiences capable of being appreciated by a large number of the community from which juries are drawn. Far from operating adversely to the respondent, a jury would readily comprehend the distinction between proof of the charges at trial and conduct by the respondent potentially consistent with the commission of taxation offences. As already noted, directions to this effect would only come into play if the jury found the respondent responsible for putting the receipt books in the bins. 54 The trial judge committed a number of fundamental errors in determining the danger of unfair prejudice. Findings of fact were made that were unsupported by the evidence and, in some instances, against the weight of the evidence. The prejudice identified by his Honour did not arise on the respondent's case and, to the extent that it might, it was not unfair prejudice. I would uphold grounds 3, 4 and 6 of the appeal. 55 Ground 5 complains that the trial judge misapplied Edwards v The Queen 178 CLR 193, in that his Honour appears to have accepted the submission made by the respondent's counsel that Edwards, by analogy, dictated the exclusion of the evidence relating to the circumstances under which the receipt books were found. It is not altogether clear on what basis his Honour relied upon Edwards. The only reference to it in the judgment on the voir dire is at pp10 – 12. His Honour sets out a passage in the judgment of the majority at 212-213, including :- Whilst in many cases it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence. 56 His Honour then goes on to summarise a submission by senior counsel to the effect that if the respondent was found to have lied about the hiding of the receipt books in the bins, that lie could not be probative of guilt because of the innocent, plausible explanation "available on the evidence." At no point does the trial judge consider the application of Edwards to the evidence sought to be excluded, that is, the finding of the receipt books in the bins, and the significance of the inference relied upon by the Crown. It was the respondent's conduct in hiding the receipt books (if the jury so found) that, according to the Crown, suggested a consciousness of guilt, not her lie in respect of that conduct. The trial judge simply went on to say that he accepted senior counsel's submissions, without differentiating between them. 57 Once again, it should be noted that there was no innocent, plausible explanation for concealing the receipt books "available on the evidence." In so far as senior counsel on the hearing of this appeal submitted that Edwards stands for the principle that "a trial judge may exclude evidence of an accused person's conduct contended to support an inference of consciousness of guilt where an 'innocent explanation' for that conduct is 'so plausible that the [conduct] could not have been probative of guilt'", I reject that submission. There is nothing within the judgments in Edwards that supports such a principle. Edwards was concerned with the use to which lies, said to have been told in court by an accused, could be legitimately put by the jury. The admissibility of the evidence of the accused, including his alleged lies, was never in question. 58 Senior counsel went further however, and submitted that Edwards also implicitly stood for the proposition that a trial judge, in assessing the probative value of evidence of an accused person's conduct contended to support an inference of consciousness of guilt, may consider the plausibility of innocent explanations that arise on the evidence. That proposition is only correct if one substitutes "a jury" for "a trial judge." 59 I would also uphold ground 5 of the appeal. 60 The orders I propose are :- 1. Appeal allowed 2. The judgment of Acting Judge Armitage QC of 14 May 2007 is set aside. 61 FULLERTON J : I agree with Latham J ******** 20/07/2007 - Amendment to citation Paragraph 23 R v SJRC - Paragraph(s) Par 23 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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