Part 3.11: Discretions to exclude evidence

Section 135: General discretion to exclude evidence

Meier
NSW CCA 21.5.1996
Evidence Act 1995 (NSW) s.135 - identification evidence
Held: s.114 inapplicable as identification occurred before Act applicable - general discretions to exclude evidence - failure to reject evidence on discretionary grounds involved risk of miscarriage of justice - appeal allowed.

Mesiti aka Lewis
NSWDC (Ducker DCJ) 23.5.1996
Evidence Act 1995 (NSW) s.135 – 11y complainant identified accused from photos shown to her by police - police used photo of accused taken three weeks prior to arrest instead of at time of arrest
Held: although evidence of identification not excluded under s.115 use of photograph taken prior to arrest created situation of prejudice sought to be avoided by s.115 and excluded under s.135.

Stidworthy
NSWDC (Bellear DCJ) 19.6.1996
Evidence Act 1995 (NSW) s.135 - fingerprint evidence - fingerprint expert having difficulty recalling basis for opinion
Held: court required to balance probative value against dangers that, inter alia, fact finder may use evidence to make decisions on an improperly, perhaps emotional, basis – probative value outweighed by unfair prejudice – to correct unfairness would result in undue waste of time

Mordy
NSWSC (Dowd J) 12.8.1996
Evidence Act 1995 (NSW) ss.135 & 137
Held: “prejudice” and “prejudicial” requires some improper approach to evaluation of evidence other than fact that it is adverse - mere fact that evidence is of slight probative value does not of itself cause it to be prejudicial or to create a prejudice

Huang-Tung, Tam & Kuan
NSWSC (Barr J) 25.2.1997
Evidence Act 1995 (NSW) s.135 - drug importation via crate consignment air freighted from Bangkok - four previous consignments (possibly “dry runs”) air freighted to Sydney from Bangkok - similar delivery modus operandi - Asian males receiving crates with Chinese glass-framed paintings.
Held: danger of prejudice is that tribunal of fact will use evidence upon a basis logically unconnected with issues in case - in this case probative value outweighs any prejudice

Lockyer
(1997) 89 A Crim R 457; NSWSC
Evidence Act 1995 (NSW) s.135 - murder - tendency evidence - adduced by accused against Crown’s principal witness to suggest witness committed murder.
Held: s.135 does not depart from R v Christie [1914] AC 545 discretion at common law - unfair prejudice is not established by mere fact that evidence has only slight probative value - nor is it established because it may reduce effect of Crown case - same considerations apply to determination of unfair prejudice where evidence is tendered either by Crown or accused - no danger of unfair prejudice - evidence admissible

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.135 - prior inconsistent statement by Crown witness - juvenile robbed and murdered adult victim - juvenile accomplices professed at trial to have no memory of statement made police about homicide - statement recorded on ERISP - leave granted to crown to cross-examine witness.
Held: judge correct in granting crown leave to cross-examine own witness - evidence satisfied exclusions to hearsay rule - trial judge took into consideration relevant factors weighing probative value versus unfair prejudice.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.135 - sexual assault - evidence of belief of complainant that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not unfairly prejudicial to accused.

Singh-bal
(1997) 92 A Crim R 397; NSW CCA
Evidence Act 1995 (NSW) s.135 - disputed oral admission to police - no contemporaneous record - voir dire held to consider admission.
Held: voir dire procedure misconceived - trial judge can only exclude evidence if probative value outweighed by prejudicial effect - question of whether admission made is for jury - if jury accepted admission made no danger that jury could have been misled or confused by it - no relevant prejudice

Marks
NSW CCA 2.5.1997
Evidence Act 1995 (NSW) s.135 - attempted armed robbery - identified from photos at police station - details of each photo blackened with texta - by trial name of applicant visible through texta.
Held: cited with approval Carusi (1997) 92 A Crim R 52 - when considering probative and prejudicial value judge cannot consider whether jury should accept evidence or not - must only consider whether, taken at its highest, probative value of evidence is outweighed by prejudicial effect.

(Special leave to appeal refused: (1998) 72 ALJR 1134)

Fernando

NSWSC (Abadee J) 29.5.1997
Evidence Act 1995 (NSW) s.135 - admissibility of police video evidence depicting hospital grounds and damaged motor vehicle which had been broken into and goods stolen
Held: evidence admitted

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.135 - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence - leave granted to Crown to cross-examine witness for inconsistent evidence.
Held: evidence allowed

Velevski (No.3)
NSWSC (Dunford J) 12.6.1997
Evidence Act 1995 (NSW) s.135 - admissibility of Crown expert to testify whether accused able to sleep for 14 to 16 hours on day of homicide
Held: evidence relevant and admissible - Judge declined to exercise discretion under s.135 or 137.

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.135 - supply and possess pistol - during search on street asked police “can we talk?” - in interview room refused interview and made comments about being set up - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: probative value not outweighed by prejudice

Ford
NSWSC (Barr J) 22.4.1998
Evidence Act 1995 (NSW) s.135 & 137 - charged with stabbing murder of fellow prisoner in prison yard - evidence from two eye-witnesses to murder who recognised accused - both acquainted with accused from prison environment - no identification parade held or identification made from photographs - accused of distinctive appearance
Held: evidence highly prejudicial but not unfairly so - probative value of evidence of highest order.

Mankotia
NSWSC (Sperling J) 21.7.1998
Evidence Act 1995 (NSW) s.135 - stabbing murder of girlfriend - Crown sought to lead evidence of photos of deceased at flat and in mortuary after wounds cleaned showing wounds to neck and face, holes in clothing and pooled and splattered blood - also sought to lead evidence of video of deceased in flat - accused did not deny killing
Held: followed Milat NSWSC (Hunt CJ at CL) 5.6.1996 at p.28 - “unfair prejudice” means “real risk that it will be misused by the jury...” - horrific nature of photos not grounds for rejection (Allen NSW CCA 1.12.1992, Murdoch (1987) 37 A Crim R 118, Baraghith (1991) 54 A Crim R 240) - some photos allowed, some excluded on basis of, inter alia, duplication - video disallowed – duplicating images has dramatic quality which may heighten emotion.

Moffatt [No.2]
NSWSC (Kirby J) [226] 18.3.1999 (upheld (2000) 112 A Crim R 201; NSW CCA 23.5.2000)
Evidence Act 1995 s 135 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: admissible - higher tolerance to alcohol because of long history of alcoholism - answers to ERISP appear consistent and lucid - corroborated in many aspects.

Crisologo
(2000) 99 A Crim R 178 (NSW CCA)
Evidence Act 1995 (NSW) s.135 - sexual assault - trial judge rejected evidence of accused’s exculpatory account of offence given to mother and wife two days after offence - account identical to accused’s account at trial.
Held: when considering probative value of evidence given on behalf of accused must bear in mind accused bears lesser evidentiary onus - probative value does not need to be as strong.

FAP
NSW CCA [278] 6.9.1999
Evidence Act 1995 (NSW) s.135 - robbery - identification made from nine photographs including two of accused - unreasonable to hold identification parade in circumstances.
Held: absence of identification parade always relevant to exercise of discretion under s.135 & 137 - troubled by small number of photographs used and presence of two photos of accused - in circumstances, however, no error in discretion of judge in admitting evidence.

West [325]; Smith [317]; Morris [326]
NSW CCA 21.10.1999
Evidence Act 1995 (NSW) s.135 & 137 - armed robbery - accused recognised by police officers from photos taken by bank security cameras
Held: probative value outweighed danger of prejudice
(NB: High Court allowed appeal on basis evidence not relevant)

OGD [No. 2]
(2000) 50 NSWLR 433; NSW CCA [404] 13.9.2000
Evidence Act 1995 (NSW) s.135 - sexual offences on nephew over 5 years - evidence led from three other boys that appellant had also sexually abused them - whether evidence should have been excluded on basis of possibility of concoction.
Held: s.135 and s.137 discretions - Judge made no error in allowing evidence in this case.

Ngo
(2001) 122 A Crim R 467; NSWSC [595] Dunford J 8.3.2001
Evidence Act 1995 (NSW) ss.135 & 137 - murder - technical evidence to be given in relation to murder weapon
Held: technicality of evidence no basis to exclude - responsibility of counsel to ensure evidence presented in way jury can understand

Richards
(2001) 123 A Crim R 14; NSW CCA [160] 1.5.2001
Evidence Act 1995 (NSW) s.135 - drug offences - accused prohibited from cross examining Crown witness on non-custodial sentence witness received in return for assistance - Crown would respond by leading evidence of other reasons for lenient sentence including fears for witness - Judge at trial ruled this would result in prejudice to accused by suggesting witness feared accused and result in discharge of jury - ruled evidence inadmissible
Held: evidence wrongly excluded - look at unfair prejudice of evidence itself, not subsequent consequences of evidence led in response - appeal dismissed because questioning made clear to jury witness given non custodial sentence.

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.135, 136 - stalking - appellant convicted of harassing cousin who refused to marry him - Judge allowed evidence of threatening conduct of appellant towards complainant and family in preceding 5 years.
Held: relationship evidence not unfairly prejudicial - although TJ did not direct his mind to discretions under ss. 135 and 136, there was no basis upon which he could have justifiably exercised his discretion to exclude or limit any of relationship evidence.

Clark
(2001) 123 A Crim R 506; NSW CCA [494] 13.12.2001
Evidence Act 1995 ss. 135-137 - murder - evidence of hostile relationship between appellant and deceased - whether “relationship evidence” admissible - evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant.
Held: admissibility of “relationship evidence” governed by Evidence Act - its reception turned upon three issues: relevance, application of any exclusionary provision, and whether any order should have been made under ss. 135-137 - Frawley (1993) 69 A Crim R 208 distinguished - numerous authorities referred to - no error in not excluding evidence under s135-137 - general discussion of provisions

Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) ss.135, 137 – admission of conversations between accused and police, particularly alleged admission.
Held: no error - no miscarriage of justice – appeal dismissed

Lim & Yeung
NSW CCA [293] 30.7.2002
Evidence Act 1995 ss135-137 - possess drug - evidence of intercepted telephone calls to which appellants were not party - admissibility of statements made by participants to joint criminal enterprise against other alleged participants - reasonable evidence of pre-concert - whether conversations admissible
Held: no error in not excluding evidence under ss135, 137 - conversations made in furtherance of conspiracy.

Giovannone
(2002) 140 A Crim R 1; NSW CCA [323] 14.8.2002
Evidence Act 1995 (NSW) 135, 136 – pervert course of justice – tendency and coincidence evidence of prior payments and meetings
Held: specific directions as to use and standard of proof of tendency and coincidence evidence should have been given to jury - possibility of a miscarriage of justice.

Glover
NSW CCA [376] 11.9.2002
Evidence Act 1995 (NSW) s.135, 137 – malicious damage by explosives - whether TJ erred in admitting evidence to that accused had sought immunity from prosecution in respect of offences in conversation with Federal Police
Held: request for immunity was highly probative - prejudice not unfair to accused and accordingly ss 135 and 137 had no application

Cohen
NSW CCA [339] 12.9.2002
Evidence Act 1995 (NSW) 135, 137 – aggravated break, enter/commit indecent assault - whether TJ erred in admitting evidence of alleged conversation by appellant on basis of its equivocality and inability to assess its probative value.
Held: appeal dismissed - although words were tendered as an admission, true import of words was a circumstantial fact for jury to consider in light of other facts found - could not be said that admission of statements could have prejudiced appellant unfairly

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.135 - drug supply - improperly obtained admissions - discretion to admit ERISP - where answers obtained after accused claimed right to silence - where caution not given until part way through interview - whether cause to believe truth of answers adversely affected
Held: TJ adverted to ss 85, 90 and 138 of the Evidence Act - open to TJ to reach conclusions he did: R v Plevac (1995) 84 A Crim R 570 and R v Clarke (1997) A Crim R 41 applied.

Taylor
NSW CCA [194] 7.11.2003
Evidence Act 1995 (NSW) s135 - murder - admissibility of solicitor's file note containing instructions from client as business record under s 69(2) - whether TJ erred in exercise of discretion under s.135 in refusing to allow defence to tender file note – where file note concerned statement by witness with history of drug abuse and mental problems and who had made inconsistent statements.
Held: file note was business record under s.69 - no error in exercise of TJ’s discretion under s.135 to refuse tender - Bell J at [130] (with whom court agreed): “I consider that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few”.

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.135, 137, 138 – multiple sexual assault offences – complainant described co-accused, G as having ponytail – identified G from photo board – only 8 of 15 photos had long hair – no photos with ponytail – G had longest hair – whether evidence of identification unfair – whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed – no error in admission of evidence of identification – nothing distinctive about photo of G – process videotaped - directions as to identification evidence adequate – not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence

Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) ss. 135, 137, 138 – murder of prisoner – joint criminal enterprise – partial identification of three offenders by inmate who witnessed murder from photograph – photos of 3 accused placed in first 20 photos presented to witness - grouping of all aborigines at beginning also skews process - failure to group array according to physical similarity – contamination of evidence by witness discussing with other inmates – all suspects in one set of photos – z3ZP Crimes Act 1914 (Cth) contrasted – no impropriety pursuant to s.138.
Held: evidence admitted.

Section 136: General discretion to limit use of evidence

Welsh
(1996) 90 A Crim R 364; NSW CCA, 6.11.1996
Evidence Act 1995 (NSW) s.136 - murder - expert medical evidence bearing on state of mind of accused - expert’s opinion based on history of accused as related to her by accused and accused’s mother
Held: evidence of accused’s medical history admissible for non-hearsay purpose of establishing basis of doctor’s opinion - under s.60 statements made to doctor also admissible as evidence of their truth - operation of s.60 subject to discretion under s.136.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.136 - sexual assault - evidence of belief of complainant that accused had assaulted people and shot someone tendered to explain why she did not call out for help - admitted as going to issue of consent
Held: adequacy of trial judge’s directions as to limited use jury could make of such evidence.

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.136 - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence - leave granted to Crown to cross-examine witness for inconsistent evidence.

BD
(1997) 94 A Crim R 131
Evidence Act 1995 (NSW) s.136 - sexual assault - appellant sought to use evidence of complaint to attack credit of complainant
Held: (Hunt CJ at CL) discretion under s.136 should be used sparingly - should only be restricted if unreliability cannot be dealt with by warning
Held: (Smart J in dissent) to admit evidence of complaint as truth of fact is usually unfair to accused - s.136 restriction should usually apply.

BDF
NSW CCA [98] 6.5.1999
Evidence Act 1995 (NSW) s.136 - evidence of complaint.
Held: where evidence of complaint does not fall clearly within precise terms of s.136 use of evidence should ordinarily be limited only where its unreliability is such that it cannot be cured by a warning pursuant to s.165 (R v BD).

Papakosmas v The Queen
(1999) 196 CLR 297; HCA 12.8.1999
Evidence Act 1995 (NSW) s.136 - evidence of complaint.
Held: no general rule that evidence of complaint should be restricted under s.136 - will depend upon circumstances of case - in this case recency, spontaneity and consistency of complaint with other conduct and demeanour of complainant means not a case for s.136 limitation - (per McHugh J) s.136 should only be invoked where danger of hearsay not cured by warning under s.165 - no prejudice just because evidence strengthens Crown case.

TJF
(2001) 120 A Crim R 209; NSW CCA [127] 12.4.2001
Evidence Act 1995 (NSW) s.136 - sexual offences - complaints made 7 months and 2 years after offences committed - no request for direction to restrict use of evidence.
Held: although evidence of complaint not fresh counsel did not ask for it to be excluded - tactical decision to rely upon inconsistencies in evidence of complaint.

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.135, 136 - stalking - appellant convicted of harassing cousin who refused to marry him - Judge allowed evidence of threatening conduct of appellant towards complainant and family in preceding 5 years.
Held: relationship evidence not unfairly prejudicial - although TJ did not direct his mind to discretions under ss. 135 and 136, there was no basis upon which he could have justifiably exercised his discretion to exclude or limit any of relationship evidence.

RTB
NSW CCA [104] 5.4.2002
Evidence Act 1995 (NSW) s.136 – child sexual assault – whether medical history of complainant given by doctor admissible - whether recital should have been admitted only as basis for opinion and not as evidence of truth of facts asserted.
Held: only part of complainant’s medical history given by doctor relating to opinion was re penile penetration of anus - evidence went further to encompass "oral genital contact” - this evidence was not basis of opinion, was irrelevant and should not have been admitted.
Held: recital should have been admitted only as basis for opinion and not as evidence of truth of facts asserted - recital by doctor of complainant’s medical history will often carry risk of unfair prejudice, where statements are admitted as evidence of truth of facts asserted - it may be appropriate to limit use of such evidence, so it is received simply as basis upon which doctor expressed his or her opinion

Chai
NSW CCA [512] 20.12.2002
Evidence Act 1995 (NSW) 136, 137 - manslaughter – joint enterprise – two victims assaulted and later died in hospital - whether TJ erred in not excluding evidence by MK that SHL had told her appellant had told SHL to come and bash victims - SHL gave different account of conversation
[this matter remitted to NSWCCA from HC - [2002] HCA 12]
Held: not typical case for operation of ss 136 or 137 where generally evidence is both inessential to Crown case and liable to cause prejudice to accused because of its emotional impact - evidence not unfairly prejudicial - evidence properly admitted

Livingstone
NSW CCA [122] 30.4.2004
Evidence Act 1995 (NSW) s 136 – Maliciously discharge firearm with intent to cause grievous bodily harm - appellant allegedly fired shots at neighbour on roof - complainant telephoned brother and complained of being shot at by neighbour - dispute at trial as to whether shots in fact fired - evidence of telephone call given by both complainant and brother - TJ restricted use of evidence as to “making of phone call and not as to the occurrence of the event itself” - no direction given to jury as to limited use to be made of evidence.
Held: appeal allowed – failure to give direction to jury as to limited use of evidence crucial where dispute over shooting

Section 137: Exclusion of prejudicial evidence in criminal proceedings

Truong
(1996) 86 A Crim R 188; ACT SC 19.3.1996
Evidence Act 1995 (Cth) s.137 - armed robbery - covertly taped admissions made to friend - police officer failed to obtain warrant for listening device because of incorrect legal advice.
Held: admitted evidence of informer although evidence of police officer and recording inadmissible - probative value not outweighed by unfairness to accused - conduct not intended to be illegal - behaviour did not breach International Covenant on Civil and Political Rights.

Lockyer
(1996) 89 A Crim R 457; NSWSC (Hunt CJ at CL) 11.10.1996
Evidence Act 1995 (NSW) s.137 - murder of young child - accused sought to show reasonable possibility mother killed baby - sought to show reasonable possibility mother responsible for previous injuries to child.
Held: ss.101 and 137 inapplicable to evidence when led by accused.

Harvey
NSW CCA 11.12.1996
Evidence Act 1995 (NSW) s.137 - sexual offences by school teacher on female pupils - another teacher gave evidence of seeing appellant and child in office - appellant had look of “sexual gratification” on face.
Held: evidence admissible as opinion evidence.

Pirrottina & Bickell
NSWSC (James J) 20.3.1997
Evidence Act 1995 (NSW) - s.29(4) admissibility of pictorial flow chart tendered by Crown - chart depicted alleged movements of two co-accused and Crown witness on date of alleged offences - Crown submitted chart admissible as aid to jury in their comprehension of Crown case - defendants objected to chart as one-sided and presenting Crown witness’ version ‘at its best’
Held: chart inadmissible - events not a complicated series of business transactions or matters likely to tax the comprehension of an ordinary juror - chart solely concerned with Crown’s version of events - even if admissible under s.29(4) inadmissible pursuant to discretion under s.137

Lock
(1997) 91 A Crim R 356; NSWSC (Hunt CJ at CL) 25.3.1997
Evidence Act 1995 (NSW) s.137 - stabbing murder of husband - claimed self defence - Crown sought to lead evidence of three prior stabbings of victim by accused.
Held: excluded evidence of fears expressed by husband as to accused’s use of knives - probative value slight - did little to assist in determining whether accused acted in self defence - admitted other evidence as relevant to relationship - onus on accused to show prejudice outweighed probative value - availability and effect of warnings relevant to balancing exercise.

GAC
NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.137 - prior inconsistent statement by Crown witness - juvenile robbed and murdered adult victim - juvenile accomplices professed at trial to have no memory of statement made police about homicide - statement recorded on ERISP - leave granted to crown to cross-examine witness.
Held: judge correct in granting crown leave to cross-examine own witness - evidence satisfied exclusions to hearsay rule - trial judge took into consideration relevant factors weighing probative value versus unfair prejudice.

Singh-bal
(1997) 92 A Crim R 397 (NSW CCA)
Evidence Act 1995 (NSW) s.137 - disputed oral admission to police - no contemporaneous record - voir dire as to whether evidence admissible.
Held: danger of prejudice is that tribunal of fact will use evidence on basis logically unconnected with issues in case - in this case probative value outweighs any prejudice

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.137 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - admissible although does show tendency or credibility - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Yu & Ho
NSWSC (Barr J) 21.4.1997
Evidence Act 1995 s.137 - importation of commercial quantity of drugs from Bangkok - tendency and coincidence evidence challenged by defence - four previous consignments (possibly “dry runs” by members of drug ring) air freighted to Sydney from Bangkok - similar delivery modus operandi - regular mobile phone calls with other members of drug ring and circumstantial evidence suggesting presence of two co-accused in Sydney on previous four occasions.
Held: evidence admissible - “significant” probative value considered.

Marks
NSW CCA 2.5.1997
Evidence Act 1995 (NSW) s.135 - attempted armed robbery - identified from photos at police station - details of each photo blackened with texta - by trial name of applicant visible through texta.
Held: cited with approval Carusi (1997) 92 A Crim R 52 - when considering probative and prejudicial value judge cannot consider whether jury should accept evidence or not - must only consider whether, taken at its highest, probative value of evidence is outweighed by prejudicial effect.

(Special leave to appeal refused: (1998) 72 ALJR 1134)

Fernando

NSWSC (Abadee J) 13.5.1997
Evidence Act 1995 (NSW) s.137 - Crown sought to lead evidence from witness who saw co-accused with machetes three weeks prior to murder - machetes used in homicide later found in dam - death of victim consistent with use of machete
Held: evidence allowed.

Fowler
NSWSC (Dowd J) 21.5.1997
Evidence Act 1995 (NSW) s.137 – murder - admissibility of Crown evidence in case in reply - accused made dock statement explaining he had concealed firearms from police for fear he would be convicted for not having licence - in previous trial had given similar evidence but expressed little concern about possible conviction - specific acts in issue going to credibility of accused
Held: evidence admissible but excluded pursuant to s.137 - lapse of time since previous trial taken into account.

Fernando
NSWSC (Abadee J) 23.5.1997
Evidence Act 1995 (NSW) s.137 - admissibility of photos of deceased
Held: photos highly probative to murder and sexual assault counts - admissible.

Fernando
NSWSC (Abadee J) 4.6.1997
Evidence Act 1995 (NSW) s.137 - admissibility of evidence of Crown witness who had conversed with co-accused prior to offence - leave granted to Crown to cross-examine witness for inconsistent evidence.
Held: evidence allowed.

Velevski (No.3)
NSWSC (Dunford J) 12.6.1997
Evidence Act 1995 (NSW) s.137 - admissibility of expert opinion as to whether accused able to sleep for 14 to 16 hours on day of homicide
Held: evidence admissible - not excluded under s.137.

Yi
NSW CCA 27.2.1998
Evidence Act 1995 (NSW) s.137 - sexual assault charges - complainant gave statement through mandarin interpreter - s.38 application granted - Crown later unable to prove complainant said what was attributed to her.
Held: (per Simpson J in obiter) s.137 permits withdrawal of evidence after it has been admitted

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.137 - convicted of supply and possess pistol - during search on street asked police “can we talk?” - in interview room refused interview and made comments about being setup - later offered assistance - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: probative value not outweighed by prejudice

Ford
NSWSC (Barr J) 22.4.1998
Evidence Act 1995 (NSW) s.135 & 137 - charged with stabbing murder of fellow prisoner in prison yard - evidence from two eye-witnesses to murder who recognised accused - both acquainted with accused from prison environment - no identification parade held or identification made from photographs - accused of distinctive appearance
Held: evidence highly prejudicial but not unfairly so - probative value of evidence of highest order.

Mankotia
NSWSC (Sperling J) 21.7.1998
Evidence Act 1995 (NSW) s.137 - stabbing murder of girlfriend - Crown sought to lead evidence of photos of deceased at flat and in mortuary after wounds cleaned showing wounds to neck and face, holes in clothing and pooled and splattered blood - also sought to lead evidence of video of deceased in flat - accused did not deny killing
Held: followed Milat NSWSC (Hunt CJ at CL) 5.6.1996 at p.28 - “unfair prejudice” means “real risk that it will be misused by the jury...” - horrific nature of photos not grounds for rejection (Allen NSW CCA 1.12.1992, Murdoch (1987) 37 A Crim R 118, Baraghith (1991) 54 A Crim R 240) - some photos allowed, some excluded on basis of, inter alia, duplication - video disallowed – duplicating images has dramatic quality which may heighten emotion.

Polkinghorne
(1999) 108 A Crim R 189; NSWSC [704] 13.7.1999
Evidence Act 1995 (NSW) s.137 - murder of de facto - immediately after stabbing victim went next door to mother and told her accused had stabbed her - whether evidence should be excluded as prejudicial.
Held: test for prejudice under s.137 is whether danger that tribunal of fact will use evidence upon basis logically unconnected with issue in case - evidence admitted.

Patsalis & Spathis [No.2]
NSWSC [719] (Kirby J) 15.7.1999
Evidence Act 1995 (NSW) s.137 - murder – admissibility of evidence that P had participated in recruitment program at Police Academy - sought to show P had training that would help in concealment of crime - P left after allegations made of misconduct although charges never laid
Held: evidence inadmissible - relevance slight - unfair prejudice great - jury may wonder why P left program so close to its conclusion.

FAP
NSW CCA [278] 6.9.1999
Evidence Act 1995 (NSW) s.135 & 137 - robbery - identification made from nine photographs including two of accused - unreasonable to hold identification parade in circumstances.
Held: absence of identification parade always relevant to exercise of discretion under s.135 & 137 - troubled by small number of photographs used and presence of two photos of accused - in circumstances, however, no error in discretion of judge in admitting evidence.

West [325]; Smith [317]; Morris [326]
NSW CCA 21.10.1999
Evidence Act 1995 (NSW) s.135 & 137 - armed robbery - accused recognised by police officers from photos taken by bank security cameras
Held: probative value outweighed danger of prejudice
(NB: High Court allowed appeal on basis evidence not relevant)

Lisoff
NSW CCA [364] 22.11.1999
Evidence Act 1995 (NSW) s.137 - maliciously inflict grievous bodily harm with intent - judge excluded DNA evidence - appeal against order pursuant to s.5F Criminal Appeal Act.
Held: (allowing appeal) - trial to proceed according to law - test under s.137 is whether there is real risk of unfair prejudice to accused - judge erred in stating test as “mere possibility of prejudice” - fact that scientific evidence is complex does not mean unfair prejudice

Serratore
(1999) 48 NSWLR 101; NSW CCA [377] 26.11.1999
Evidence Act 1995 (NSW) s.137 - murder - Crown led evidence of statements made by deceased as to relationship with accused.
Held: only unfair prejudice relevant - evidence with slight probative value but which carries with it probability it will be used by tribunal of fact in a way which is logically unconnected with issues in case - probative is defined as rationally affecting assessment of probability of existence of particular fact in issue.

Taumaialo
NSW CCA [14] 18.2.2000
Evidence Act 1995 (NSW) s.137 - aggravated sexual assault on 14y female - forced intercourse while complainant at accused’s home alone - complainant returned to house next day and second offence occurred - complainant gave evidence she had returned to house because accused threatened her and she had heard people say he had a gun and was not afraid to use it - jury directed as to limited use that could be made of evidence - directed it was evidence of complainant’s state of mind not accused’s behaviour.
Held: evidence technically admissible - affirmed guidelines provided in Preston - prejudicial effect extinguished by directions.

Blick
[2000] 111 A Crim R 326; NSW CCA [61] 14.3.2000
Evidence Act 1995 (NSW) s.137 - robbery - victim described assailant to police as man with goatee - victim identified appellant from photos - appellant only man shown in photos with goatee.
Held: under s.137 judge must consider probative and prejudicial effect of evidence - if probative value outweighed by prejudicial effect evidence inadmissible - evidence inadmissible.

Van Dyk
NSW CCA [67] 17.3.2000
Evidence Act 1995 (NSW) s137 - sexual assault - mother of complainant gave evidence that when appellant around girls he had ‘look of wanting’ on his face.
Held: followed Harvey - evidence admissible - should have been excluded under s.137 - transitory nature of a look - long delay.

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 (NSW) s.137 - attempt possess prohibited import - judge admission of evidence revealing appellant’s status as a prisoner at time of offence.
Held: Judge erred in taking into account interest of community in seeing persons who commit serious offences brought to justice - no miscarriage despite error.

Smith
(2000) 116 A Crim R 1; NSW CCA [388] 10.5.2000
Evidence Act 1995 (NSW) s.137 - armed robbery - Crown case relied upon identification - appellant sought to tender report on appeal from Professor of Psychology expressing opinion that risk of false identification substantial.
Held: evidence prime facie admissible under s.79 - did not meet test of fresh evidence - need to consider exclusion under s.137 on basis of undue waste of time - in this case would have excluded because relevant weaknesses of evidence before jury.

Marshall
(2000) 113 A Crim R 190; NSW CCA [210] 15.5.2000
Evidence Act 1995 (NSW) s.137 - armed robbery - sole evidence was identification - witness in police station unable to identify appellant from police photos containing two photos of appellant - identified appellant being escorted into station with investigating officer obviously in custody.
Held: evidence too prejudicial - danger of unfair prejudice where person identified appears to be suspect exacerbated by displacement effect of having recently seen photographs of appellant.

Dann
NSW CCA [185] 19.5.2000
Evidence Act 1995 s.137 - sexual assault - paediatrician gave evidence that state of complainant’s anus was consistent with sexual abuse or constipation - lengthy cross-examination - paediatrician agreed no medical evidence to support sexual abuse.
Held: despite unattractive nature of evidence no prejudice in its admission - mildly supportive of defence.

Moffatt [No.2]
NSWSC (Kirby J) [226] 18.3.1999 (upheld - (2000) 112 A Crim R 201; NSW CCA 23.5.2000)
Evidence Act 1995 - s 137 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: admissible - higher tolerance to alcohol because of long history of alcoholism - answers to ERISP appear consistent and lucid - corroborated in many aspects.

Rees
NSWSC (Bell J) [544] 16.6.2000
Evidence Act 1995 (NSW) s.137 - murder - admissibility of DNA evidence - conflict of expert evidence as to reliability of evidence - whether amount of DNA too small for reliable sample - whether jury have means to determine issue.
Held: evidence admissible - followed Lisoff - function of jury to decide between expert evidence - relevant and no unfair prejudice.

Leroy & Graham
NSW CCA [302] 17.8.2000
Evidence Act 1995 (NSW) s.137 - affray and malicious wounding causing GBH - fight broke out at club during football carnival - witnesses identified offenders from photos taken by another employee at football match next day - no description taken from witnesses prior to identification - L shown prominently in four photos - G only person with goatee beard - other evidence strongly supported crown case.
Held: probative value outweighed danger of prejudice despite deficiencies in evidence including failure to obtain descriptio - situation different to Blick - casual photos and no suggestion to witness that a particular person should be chosen.

Kirby
NSW CCA [330] 13.9.2000
Evidence Act 1995 (NSW) s.137 - robbery - jury given photos from security camera to make comparison during trial to accused.
Held: no basis for exclusion of evidence under s.137.

OGD [No. 2]
(2000) 50 NSWLR 433; NSW CCA [404] 13.9.2000
Evidence Act 1995 (NSW) s.137 - sexual offences on nephew over 5 years - evidence led from three other boys that appellant had also sexually abused them - whether evidence should have been excluded on basis of possibility of concoction.
Held: s.135 and s.137 discretions - Judge made no error in allowing evidence in this case.

Burrell
NSWSC Sully J [120] 5.3.2001
Evidence Act 1995 (NSW) s.137 - murder – accused of kidnapping and murder - body never found - Crown case circumstantial - admissibility of various pieces of evidence.
Held: summary of relevant principles under s.137 & 138 - when considering probative value must first consider relevance under s.55 then extent or degree of relevance - when considering probative value of evidence in circumstantial case consider evidence in context of all other evidence in case - all other evidence includes all admissible evidence - followed Singh-Bal - can only exclude evidence when, taken at its highest, its probative value is outweighed by prejudicial effect - followed Polkinghorne - slight probative value not sufficient to exclude evidence - must be danger that tribunal of fact will use evidence upon basis logically unconnected with issues in case.
Held: two ambiguous documents found in accused’s house Crown will allege summarise kidnapping plan - no unfairness - admissible.
Held: Business Review Weekly magazine found at house of accused - markings on article discussing wealthy people - no link to either accused or victim - excluded.
Held: security photographs of Pajero outside hotel at time victim disappeared - accused owned Pajero - poor quality meant no registration or other identifying features shown - probative value in light of other evidence - no unfair prejudice - admissible.
Held: seizure of firearms from property of accused both licensed and unlicensed - excluded.
Held: casual remarks to two acquaintances that he was familiar with his property and body could easily be hidden there - excluded
Held: phone call made to victims’ husband’s business making further demands in relation to kidnapping - receptionist who answered telephone attempted identification of recorded voices including accused - chose two voices as similar to voice on phone call - on scale of 1 - 10 voices identified were a 6 - not voice identification but voice similarity as part of circumstantial case - admissible.
Held: general inquiries by accused into setting up expensive farming venture in Tasmania - at time in serious financial difficulties - motive - excluded.
Held: possession of bottle with traces of chloroform at house - excluded.
Held: accused made surprise visit to victim prior to disappearance - victim asked nanny not to say anything about visit - heard victim mutter to herself “That bastard, why did he do this to me” - comment admissible under s.72 - excluded under s.137 - too vague and obscure.

Ngo
(2001) 122 A Crim R 467; NSWSC [595] Dunford J 8.3.2001
Evidence Act 1995 (NSW) ss.135 & 137 - murder - technical evidence to be given in relation to murder weapon
Held: technicality of evidence no basis to exclude - responsibility of counsel to ensure evidence presented in way jury can understand

Glossop
NSW CCA [165] 4.5.2001
Evidence Act 1995 (NSW) s.137 - sexual offences against son over twenty years ago - failed to have evidence of complaint excluded.
Held: dismissing appeal - Judge correct in deciding could not exclude evidence under s 137 just because it was unsatisfactory.

McDonald
NSW CCA [363] 14.9.2001
Evidence Act 1995 (NSW) s.137 - sexual offences - only issue identification - complainant and friend claim met accused prior to assaults - friend identified accused from photos on day of trial, three years after event - accused denied ever meeting complainant.
Held: allowing appeal - Judge wrongly reasoned that identification reliable because witness had picked out accused after thee years.

Fisher
NSW CCA [380] 11.10.2001
Evidence Act 1995 (NSW) s.137 - assault with intent to rob - picked from identification parade by two witnesses - previously described by one witness as aboriginal with shoulder length hair - only person in 6 man line up fitting that description
Held: evidence should have been excluded

Atroushi
NSW CCA [406] 12.10.2001
Evidence Act 1995 (NSW) s.137 - stalking - appellant convicted of harassing cousin who refused to marry him - Judge allowed evidence of threatening conduct of appellant towards complainant and family in preceding 5 years.
Held: evidence relevant to fact in issue namely whether appellant had intention to cause complainant to fear mental or physical harm - in circumstances of case evidence not too remote in time.

GK
(2001) 125 A Crim R 315; NSW CCA [413] 16.10.2001
Evidence Act 1995 (NSW) s.137 - sexual offences - Crown sought to rely upon DNA evidence that suggested accused was father of complainant’s child - evidence excluded at first trial - jury failed to reach verdict - judge at second trial felt compelled to follow earlier ruling - evidence included Paternity Index statistics and Relative Chance of Paternity Index statistics
Held: decision under s.137 does not involve exercise of discretion - Judge must answer following questions: whether evidence relevant - whether evidence had probative value - whether danger of unfair prejudice - whether probative value outweighs danger of unfair prejudice - concluded Paternity Index statistics admissible but Relative Chance of Paternity Index statistics should be excluded.

Sing
(2002) 54 NSWLR 31; NSW CCA [20] 13.2.2002
Evidence Act 1995 (NSW) s.137 - DNA evidence - persons who carried out tests not called - expert analysis of DNA evidence - whether based on hearsay - whether should be excluded as prejudicial.
Held: evidence inadmissible - appeal allowed.

McIntyre
NSW CCA [29] 15.2.2002
Evidence Act 1995 (NSW) s.137 - murder of 14 year old boy - body of deceased sexually mutilated - evidence by mother of deceased of conversation between herself and deceased that appellant had made sexual suggestion to deceased - whether conversation evidence of relationship between deceased and appellant - whether relevant to proving appellant murdered deceased - whether probative value outweighs danger of unfair prejudice
Held: conversation admissible.

Melhuish
NSW CCA [85] 8.3.2002
Evidence Act 1995 (NSW) s.137 - firearm offence - judge declined to exclude evidence of gun holster found in appellant’s bedroom
Held: as part of circumstantial case evidence capable of bearing directly upon issue

Suteski [No.4] (see also below CCA [509] 20.12.2002)
NSWSC [218] (Kirby J) 12.3.2002
Evidence Act 1995 (NSW) s.137 - murder - female accused arranged for bashing of employer - record of interview of accomplice tendered after accomplice refused to give evidence - which portions of interview should be excluded - accomplice asked if accused said “stab him, bash him, kill him if you want…” - accomplice did not completely agree with proposition
Held: this portion of interview excluded - alleged words of accused too prejudicial, not from accomplice’s own memory and not completely agreed with

TO
(2002) 131 A Crim R 264; NSW CCA [247] 26.6.2002
Evidence Act 1995 (NSW) 137 - sexual offences - Vietnamese offender placed in line up with other Asians - line up included several Koreans - one Asian victim said no trouble identifying offender - 2 non-Asian victims could not distinguish ethnic origin of persons in line up
Held: no error in holding presence of Koreans did not reduce probative value of evidence

Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) ss.135, 137 – admission of conversations between accused and police, particularly alleged admission.
Held: no error - no miscarriage of justice – appeal dismissed

Nguyen
NSW CCA [342] 21.8.2002
Evidence Act 1995, s.137 - robbery in company - identification evidence
Held: no error in failing to withdraw identification evidence - no unfair prejudice to accused – appeal dismissed

Glover
NSW CCA [376] 11.9.2002
Evidence Act 1995 (NSW) s.135, 137 – malicious damage by explosives - whether TJ erred in admitting evidence to that accused had sought immunity from prosecution in respect of offences in conversation with Federal Police
Held: request for immunity was highly probative - prejudice not unfair to accused and accordingly ss 135 and 137 had no application

Cohen
NSW CCA [339] 12.9.2002
Evidence Act 1995 (NSW) 135, 137 – aggravated break, enter/commit indecent assault - whether TJ erred in admitting evidence of alleged conversation by appellant on basis of its equivocality and inability to assess its probative value.
Held: appeal dismissed - although words were tendered as an admission, true import of words was a circumstantial fact for jury to consider in light of other facts found - could not be said that admission of statements could have prejudiced appellant unfairly

Coe
NSW CCA [385] 25.9.2002
Evidence Act 1995 (NSW) 137 - robbery with violence - identified by witness who knew appellant - whether prejudicial to lead evidence of witness selecting photo of appellant in photo line-up.
Held: no error in admitting evidence at trial

Ambrosoli
(2002) 55 NSWLR 603; (2002) 133 A Crim R 461; NSW CCA [386] 30.9.2002
Evidence Act 1995 (NSW) 137 - malicious wounding/assault - committal evidence and statement of Crown witness – evidence of Crown witness
Held: merely because evidence points overwhelmingly to guilt does not make it unfair to adduce it - probative value of evidence is always required to be assessed, even if it carries prejudicial overlay: GK [2001] - no error in failing to exclude evidence as it was not unfairly prejudicial

Nguyen
(2002) 133 A Crim R 547; NSW CCA [403] 3.10.2002
Evidence Act 1995 (NSW) s.137 - deemed supply of heroin - statutory defence - evidence of cash and gold bars at appellant's premises relevant and admissible to rebut the defence
Held: conviction appeal dismissed - no error in admitting evidence of gold and cash found at premises - relevant and admissible - fact that explanations consistent with innocence may be asserted does not make evidence inadmissible or require its exclusion

Suteski
(2002) 56 NSWLR 182;137 A Crim R 371; NSW CCA [509] 20.12.2002
Evidence Act 1995 (NSW) s.137 - murder - female arranged for bashing of employer - employer stabbed to death - killer gave evidence against accused - second person, S, convicted of ‘procuring someone to commit gbh’ but refused to give evidence - ERISP of S admitted into evidence - whether TJ properly considered defence application for exclusion of ERISP under s 137.
Held: TJ correctly considered nature of the weighing process analysed in R v Blick [2000] NSWCCA 61 – subject to excision of portions of ERISP involving second hand hearsay and leading questions by police in unduly emotive terms, TJ had concluded correctly ERISP of significant probative value.

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s 137 - supply large commercial quantity prohibited drug (heroin) - admissibility of evidence of prior criminal conduct where not adduced for tendency purpose
Held: open to trial judge to allow evidence

Chai
NSW CCA [512] 20.12.2002
Evidence Act 1995 (NSW) 136, 137 - manslaughter – joint enterprise – two victims assaulted and later died in hospital - whether TJ erred in not excluding evidence by MK that SHL had told her appellant had told SHL to come and bash victims - SHL gave different account of conversation
[this matter remitted to NSWCCA from HC - [2002] HCA 12]
Held: not typical case for operation of ss 136 or 137 where generally evidence is both inessential to Crown case and liable to cause prejudice to accused because of its emotional impact - evidence not unfairly prejudicial - evidence properly admitted

Riscuta & Niga
NSW CCA [6] 6.2.2003
Evidence Act 1995 (NSW) s137 - supply drugs - admissibility of voice identification evidence - intercepted telephone conversations - relevance
Held: evidence properly admitted - under Evidence Act there are no preconditions for reception of voice identification evidence apart from requirement of relevance - if relevant evidence is admissible unless positive order is made excluding it under ss 135, 137 or 138: R v Adler (2001) 52 NSWLR 451

Harbulot
NSW CCA [141] 21.5.2003
Evidence Act 1995 (NSW) ss 137 - sexual intercourse without consent - complaint lacked detail
Held: prejudicial effect of complaint evidence did not outweigh probative value - complainant's distress as witnessed by flatmate and sister admissible.

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) ss 137, 138, 139 – murder – s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police – respondent indicated he did not wish to have any conversation with police recorded or written down – police took R to local park for chat – covertly wearing listening devices – police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station – partial caution given – did not warn R anything he said could be used against him – kept asking questions although R indicated he did not wish to talk about murder – whether TJ erred in excluding evidence
Held: allowing appeal against exclusion of evidence – cannot exclude evidence of admissions under s.137 because believe jury should not find admissions made – cannot exclude evidence because do not believe jury should act on admissions – if evidence relevant and no likelihood of misuse probative value of admissions matter for jury – do not exclude evidence where prejudice is that jury more likely to convict – must find some prejudice emanating from evidence that would cause jury to overreact in illogical or irrelevant manner.
“Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31] Papakosmas v R (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury. I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise.” [120-1]

Cook
NSW CCA [52] 12.3.2004
Evidence Act 1995 (NSW) s.137 –sexual offence – evidence of flight - evaded police on two occasions before being arrested and denying all involvement
Held: appeal allowed - failure to balance prejudicial effect of appellant’s explanation for his flight (he was seeking to avoid police action for a breach of AVO) against probative value of evidence - no direction as to how jury entitled to use evidence of flight – failure to draw attention to possibility of alternative explanations for flight - where actual evidence of alternative explanation for flight evidence should be drawn to jury’s attention and way it is to be assessed should be explained

Razzak
NSW CCA [62] 19.3.2004
Evidence Act 1995 (NSW) s.137 – malicious wounding with intent to do GBH - stabbed stranger in street at night – complainant identified appellant from photographs saying he was ‘not 100% sure’ and that hair was different - videotape from surveillance cameras showed appellant near scene of offence shortly after stabbing - only issue at trial was identity of assailant
Held: appeal dismissed - weak identification evidence is not inadmissible, although alone it could not support conviction: Pitkin (1995) 69 ALJR 612; Festa (2001) 208 CLR 593 at [51] - weaknesses in identification evidence appropriately emphasized by standard directions - evidence from videotape could not be used to bolster weak identification evidence, but was admissible and relevant to issue of whether appellant stabbed complainant

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.135, 137, 138 – multiple sexual assault offences – complainant described co-accused, G as having ponytail – identified G from photo board – only 8 of 15 photos had long hair – no photos with ponytail – G had longest hair – whether evidence of identification unfair – whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed – no error in admission of evidence of identification – nothing distinctive about photo of G – process videotaped - directions as to identification evidence adequate – not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence

Buchanan, Smith and Thomas
NSWSC [815] 4.8.2004, Buddin J
Evidence Act 1995 (NSW) s137 – murder of inmate at Long Bay Gaol – joint criminal enterprise – partial identification of three offenders by inmate who witnessed murder from photograph – Pitkin distinguished
Held: no basis for excluding evidence pursuant to s.137.

Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) ss. 135, 137, 138 – murder of prisoner – joint criminal enterprise – partial identification of three offenders by inmate who witnessed murder from photograph – photos of 3 accused placed in first 20 photos presented to witness - grouping of all aborigines at beginning also skews process - failure to group array according to physical similarity – contamination of evidence by witness discussing with other inmates – all suspects in one set of photos – z3ZP Crimes Act 1914 (Cth) contrasted – no impropriety pursuant to s.138.
Held: evidence admitted.

Derbas
NSWSC [972] 23.8.2004, Dunford J
Evidence Act 1995 (NSW) s114, 115 – murder of prison inmate – Crown witness gave evidence at Crime Commission – during evidence identified two accused from between six to twelve photographs – subsequently made statement to police – whether evidence could be given of initial identification at Crime Commission
Held: application to exclude evidence refused - s.115 did not apply because not identification made by someone from photos kept for use by police and shown to them by police - s.114 did not apply because picture identification is excluded by section – definition of “picture identification” under s.115 not relevant to s.114 – s.114 definition does not require picture identification to be made from photos kept for the use of police officers - if s.114 did apply still admissible because one accused refused identification parade when arrested seven months earlier and identification made of second accused was recognition evidence - s.137 not applied – weaknesses in procedure can be dealt with in cross-examination, comments and directions to jury

Bullock
[2005] NSWSC 825, Buddin J, 19.8.2005
Evidence Act 1995 (NSW) s.137 - murder – spontaneous admission to police at scene of offence – conversation with police at scene recorded only in notebook – subsequently adopted in video-taped ROI – appellant injured and intoxicated at time of conversation
Held: allowing evidence – evidence allowed under s.90 – probative value – no unfair prejudice resulting from fact jury unable to view admissions as they were made

Section 138: Discretion to exclude improperly or illegally obtained evidence

Truong
(1996) 86 A Crim R 188; ACT SC (Miles CJ) 19.3.1996
Evidence Act 1995 (Cth) s.138 - armed robbery - covertly taped admissions - false statement during course of questioning within s.138(2)(b) - improperly obtained in contravention of law - whether Crown discharged onus of establishing whether desirability of admission of evidence outweighs undesirability of admission
Held: deliberate conduct not intended to be illegal - Bunning v Cross (1978) 141 CLR 54 did not apply - s 138 may require exercise of discretion very similar to Bunning v Cross - Act not intended to reverse trend of sensitivity to admitting evidence of admissions – evidence admitted.

Fittler
NSWDC (Ducker DCJ) 19.4.1996
Evidence Act 1995 (NSW) s.138 - armed robbery - although arrest legal detention became illegal prior to admissions - first ERISP contained no admissions - spoke to de facto and then made admission prior to and during second ERISP - Judge accepted admission made in response to police threat that de facto would be charged and child placed into welfare
Held: unlawful detention not enough to exclude the admissions - offence too serious - s.138(1) replicates old Bunning v Cross discretion with certain factors to be considered under s.138(3) – threats by police so serious that evidence excluded (although admission probably true).

Mesiti aka Lewis
NSWDC (Ducker DCJ) 23.5.1996
Evidence Act 1995 (NSW) s.138 – 11y complainant identified accused from photos shown to her by police - police used photo of accused taken three weeks prior to arrest instead of at time of arrest
Held: Bunning v Cross discretion - case honest mistake of judgment - no impropriety - (evidence excluded under s.135).

Rooke
NSW CCA 2.9.1997
Evidence Act 1995 (NSW) s.138 - assault police and SMV - when police called to house found registration and compliance plates in garage - verbal admission at house and written record of interview made at police station - appellant argued did not make admissions and signed ROI because of violence and threats from police
Held: detention unlawful because police failed to take appellant before Justice - discretion has changed from common law - once illegal Crown, not defence, has burden of showing evidence should be admitted.

Salem
(1997) 96 A Crim R 421; NSW CCA 3.10.1997
Evidence Act 1995 (NSW) s.138 - supply prohibited drug - police agent involved in arranging supply - committed offence of solicit / incite supply - despite illegality judge allowed evidence of agent
Held: once illegality shown Crown must satisfy Court evidence should be allowed - question is whether desirability of admitting evidence outweighs undesirability of admitting evidence, given unlawful conduct of police - reviewed test for competing public interest under Ireland, Bunning v Cross and Ridgeway - judge correct in admitting evidence given the type of offence being investigated

Bozatsis & Spanakakis
(1997) 97 A Crim R 296 (NSW CCA)
Evidence Act 1995 (NSW) s.138 - manufacture prohibited drug - police told by informer that accused planning manufacturing operation - surveillance undertaken - police arranged for supply of acid after accused had difficulty obtaining it - at trial defendants claimed Crown evidence should be excluded under s.138 on basis police aided and abetted by providing acid and accused only involved because police informer lured them into operation for purpose of allowing police to make arrest - judge excluded all Crown evidence and granted stay of proceedings.
Held: judge failed to indicate basis for exclusion of all evidence - if only basis for exclusion was supply of acid this would not warrant exclusion of all evidence - case returned for judge to reconsider discretion

Clarke
(1997) 97 A Crim R 414; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.138 - AR - acquitted of use weapon to resist arrest - indicated to police did not want to talk about robbery - answered questions directed to second charge although not cautioned in relation to that charge - whether unfair to admit admission once person has purported to exercise right to silence
Held: (dismissing appeal) - declined to follow South Australian practice that police cannot continue questioning once accused has refused to answer and asked for a solicitor - protection offered by ss.85, 90 and 138 sufficient.

Haughbro
ACT SC (Miles CJ) 19.12.1997
Evidence Act 1995 (Cth) s.138 - drug offences - police guilty of offence
Held: discussed relationship between common law (Ridgeway) and Evidence Act - evidence admitted

Nabalarua
NSW CCA 19.12.1997
Evidence Act 1995 (NSW) s.138 - assisting escape of prisoner while on police escort to court - admission in signed notebook and in ERISP - arrest illegal.
Held: once arrest shown to be illegal Crown has burden of showing evidence should be admitted - failure of trial judge to properly consider the requirements of s.138(3) on admissibility of ERISP admissions as contrary to public policy - appeal allowed to reconsider s.138.

Coulstock
(1998) 99 A Crim R 143; NSW CCA 10.3.1998
Evidence Act 1995 (NSW) s.138 - supply prohibited drugs - police guilty of solicit / incite supply - rejected appellant’s claim that police talked him up in amount.
Held: s.138 not discretion to exclude evidence but discretion to admit - onus on accused to show illegality - once illegality proved onus on Crown to show evidence should be admitted - court must consider nature of offence, gravity of illegality, deliberation with which impropriety was committed and whether evidence could have been obtained without illegality - judge correct in admitting evidence - appropriate method of investigation used.

Oinonen
NSWSC (Dunford J) 31.3.1998
Evidence Act 1995 (NSW) s.138 - murder - accused intoxicated when in contact with police - advised by solicitor not to speak to police until solicitor available later that day - solicitor and accused agreed to search by police of accused’s camp with accused but in absence of solicitor - during search police questioned accused who made admissions.
Held: questions constituted -breach of “tacit understanding” between solicitor and police - impropriety - considered seriousness of offence, importance of evidence, whether evidence could have been obtained otherwise, seriousness of breach - admission adopted during interview later that afternoon - breach was reckless not deliberate - evidence admitted.

Ho & Tam
(1998) 102 A Crim R 37; NSWSC (Ireland J) 15.5.1998
Evidence Act 1995 (NSW) s.138 - order sought by H to restrain Crown from calling T as witness at H’s trial - T pleaded guilty and sentenced - T had agreed to give evidence against two other co-accused but always refused to give evidence against H - Crown sought to call T and cross-examine under s.38.
Held: prohibiting Crown from calling T - emergence of evidence of conversation with co-offenders being conditional upon T not having to give evidence against H taints evidence with impropriety if Crown should seek to adduce it by cross-examining T under s.38.

Mankotia
NSWSC (Sperling J) 30.7.1998
Evidence Act 1995 (NSW) s.138 - murder of girlfriend - at restaurant asked for police to be called - made spontaneous admission - not asked to adopt or refute admission in later ROI
Held: s.138 does not apply - spontaneous admissions made without any request or prompting cannot be said to have been ‘obtained’ - failure to ask accused to confirm or refute admission in subsequent ROI not improper or contravention of any law.

Wu
NSW CCA 12.11.1998
Evidence Act 1995 (NSW) s.138 - manslaughter - driver of vehicle for robbery - security guard shot - admissibility of ROI
Held: appellant must establish probability of improper obtaining of evidence - Crown must then establish desirability of admission outweighs undesirability.

Morgan
NSW DC (Howie DCJ) 26.2.1999
Evidence Act 1995 (NSW) s.138, s139 - accused made spontaneous statements to medical doctor about gunshot wound during examination under s.353A Crimes Act implicating him in commission of crime - doctor made further inquiries to ascertain if wound properly treated.
Held: evidence admissible - doctor not asking questions to investigate crime and no requirement to caution accused - doctor not an “investigating official” within meaning of s.424A(4) Crimes Act.

Suckling
NSWCCA [36], 12.3.1999
Evidence Act 1995 (NSW) s.138 - murder - admissibility of conversations between appellant and prison informant.
Held: jury needed context of conversations to evaluate whether they contained admission - judge correct in admitting evidence of taped conversations.


Pimental
(1999) 110 A Crim R 30; NSW CCA [401] 10.12.1999
Evidence Act 1995 (NSW) s.138 - drug importation - crew member of ship importing cannabis resin - police boarded vessel prior to completion of importation - Crown relied on evidence of unloading of drugs by police officers to complete importation offence - no authority obtained under Part 1AB Crimes Act 1912 (Cth).
Held: evidence admissible - even if illegal in circumstances judge correct to admit evidence.

Helmhout / Helmhout
NSWSC [185] Bell J 23.2.2000; (2000) 112 A Crim R 10; NSWSC [208] Bell J 22.3.2000
Evidence Act 1995 - s138(1) - murder - separate trials - aboriginal accused - made admissions in police record of interview - duty officer failed to comply with cl 28 Crimes (Detention After Arrest) Act 1998 - failed to contact Aboriginal Legal Service.
Held: allowing evidence - probative value of evidence very high - charge very serious - oversight serious but not deliberate or reckless - desirability of admissions outweighed undesirability of admission.

Walker
NSW CCA [130] 23.3.2000
Evidence Act 1995 - s 138 - murder - admissions made to prison informer - prisoner approached police - no attempt made by prisoner to trap appellant with questions - police officer believed could not tape conversation by use of covert listening device - prisoner to receive assistance in own sentencing matter.
Held: no element of impropriety under s.138 - in any event desirability of admitting evidence outweighs undesirability of excluding evidence.

Toro-Martinez
(2000) 114 A Crim R 533; NSW CCA [216] 7.6.2000
Evidence Act 1995 (NSW) s.138 - drug importation - Ridgeway issue.
Held: no error in judge finding police involvement at low level and not illegal.

Smith
NSW CCA 14.6.2000 [202]
Evidence Act 1995 (NSW) s.138 - murder - admissions made to registered police informer in prison cell.
Held: no impropriety in obtaining admissions - police did not set up meeting between informer and appellant nor use any subterfuge to induce admissions - appellant made spontaneous admissions - lawful listening device warrant - circumstances not same as Swaffield or Pavic

Fowler
NSW CCA [352] 7.9.2000
Evidence Act 1995 - s138 - assault with intent to rob - sister told by police she could be in serious trouble if she withheld information from police - husband advised her to similar effect.
Held: judge made no error in concluding evidence not obtained by improper conduct or that desirability of admitting evidence outweighed undesirability of admitting evidence

Eade
[2000] 118 A Crim R 449; NSW CCA [369] 15.11.2000
Evidence Act 1995 - s.138 - evidence of conversation illegally recorded under Listening Devices Act - warrant failed to specify date for removal.
Held: nature of illegality does not necessarily render evidence inadmissible - need to consider s.138 - matter remitted to reconsider test.

DPP v Farr
(2001) 118 A Crim R 399; NSWSC [3] Smart AJ 5.1.2001
Evidence Act 1995 - s.138 - claim of illegal search of car in relation to drug offences.
Held: onus on accused to establish illegality - once established Crown has onus to satisfy court to exercise discretion - do not need to consider s.90 as well.

Phung & Huynh
NSWSC [115] Wood CJ at CL 26.2.2001
Evidence Act 1995 - s.138 - murder and AR - 17y boy - two ROI - various breaches - delay in contacting support person - absence of support person during forensic tests - no opportunity for accused to make representation as to detention warrant - selection of support person by police without ascertaining wishes of accused - relative immaturity and inexperience of support person - no legal practitioner contacted - failure to allow accused to talk privately to support person - failure to properly explain role to support person - accused showing signs of fatigue and drug withdrawal - limited opportunity for accused to sleep - second interview conducted after accused already in custody - police selected unknown Salvation Army Officer as support person - no evidence accused properly advised as to rights - no opportunity to talk to support person - no effort to contact solicitor.
Held: breaches not deliberate, behaviour not oppressive and no reasons to suppose truth of what accused said was adversely affected - “sufficient circumstances involving non compliance with the statutory regime so as to give rise to the serious concern as to whether the accused, a 17 year old boy with a somewhat disturbed background, had been sufficiently advised as to his rights and as to whether those rights were adequately protected to require exclusion under s.90 and s.138”.

Burrell
NSWSC Sully J [120] 5.3.2001
Evidence Act 1995 (NSW) s.138 - murder and kidnapping - body never found - Crown case circumstantial - police search and seizure of documents from accused’s property illegal - search warrant did not conform to Act - documents seized not covered by description in warrant - documents not “found” but included in wholesale seizure of documents from property - admissibility of various pieces of evidence.
Held: summary of relevant principles under s.137 & 138 - when considering probative value must first consider relevance under s.55 then extent or degree of relevance - when considering probative value of evidence in circumstantial case consider evidence in context of all other evidence in case - all other evidence includes all admissible evidence - followed Singh-Bal - can only exclude evidence when, taken at its highest, its probative value is outweighed by prejudicial effect - followed Polkinghorne - slight probative value not sufficient to exclude evidence - must be a danger that tribunal of fact will use evidence upon a basis logically unconnected with issues in case.
Held: unlawful conduct not deliberate but reckless - officer in charge ordered wholesale seizure of all documents from house without considering whether authorised by warrant - strongly disapprove of cavalier approach of police - powerful countervailing considerations including seriousness of offence and probative value of evidence - evidence of two ambiguous documents found in accused’s house Crown will allege summarise kidnapping plan - no unfairness - admissible.

Sotheren
NSWSC [204] Dowd J 26.3.2001
Evidence Act 1995 - s.138 - murder and 4 x AR - accused refused video ROI and identification parade - police video recorded interview with accused in prison - used footage of interview for purpose of identification - judge found one of aims of police in recording interview was to obtain video footage for purpose of identification - s.115 does not apply because nothing about photos suggests accused in custody.
Held: evidence admissible - “improper” and “impropriety” to be given ordinary meaning - action of police not improper - similar to usage of covert listening device - no right not to be photographed - even if improper still admissible having considered probative value of evidence, seriousness of offence and fact that impropriety intentional but not grave - courts must have regard to all matters under s.138(3) although do not need to mechanically go through each one

Knight
(2001) 160 FLR 465; 120 A Crim R 381; NSW CCA [114] 30.3.2001
Evidence Act 1995 (NSW) s.138 - fraud offences - police documents filled out by appellant at prior arrests tendered by Crown as comparison for handwriting expert.
Held: no basis to exclude evidence under ss.138 or 139 - not improper or illegal - not admission requiring caution.

DPP v Leonard
(2001) 53 NSWLR 227; 127 A Crim R 381; NSWSC [797] (James J) 14.9.2001
Evidence Act 1995 (NSW) s.138 - magistrate ruled search of car illegal
Held: if magistrate not prepared to make finding that police officer consciously decided to act in knowledge he was breaching statutory duty cannot find breach was deliberate - if magistrate cannot find police officer acted in knowledge he may be acting in breach of statutory duty but nevertheless deliberately decided to proceed cannot find recklessness pursuant to s.138(3)(e) - conscious decision to instigate search does not make it a deliberate or reckless breach

Helmhout
(2001) 125 A Crim R 257; NSW CCA [372] 19.9.2001
Evidence Act 1995 (NSW) s.138 - murder - aboriginal accused - made admissions in police record of interview - duty officer failed to comply with cl 28 Crimes (Detention After Arrest) Act 1998 - failed to contact Aboriginal Legal Service - judge ruled evidence admissible despite breach
Held: dismissing appeal - no error in judge’s decision to admit evidence - Ipp AJA and Hulme J both expressed opinion that in considering admissibility under s.138 judge must consider individual characteristics of accused person.

Dungay
(2001) 126 A Crim R 216; NSW CCA [443] 1.11.2001
Evidence Act 1995 (NSW) s.138 - sexual assault - illegal arrest because appellant arrested for sole purpose of investigation - no intent at time of arrest to take before magistrate - admissions in record of interview only evidence against appellant - complainant exculpated appellant
Held: evidence of record of interview should have been excluded - in favour of inclusion was strong probative value of admissions, seriousness of offence, fact that admissions were the only evidence, fairness of actual questioning and fact that police had reasonable cause to suspect appellant had committed offences - these factors outweighed by seriousness of illegality, fact that appellant falsely told complainant had made a complaint against him and was not told complainant had actually exculpated him - test for unfairness is that of Lee (1950) 82 CLR 133.

Pearce
NSW CCA [447] 7.11.2001
Evidence Act 1995 (NSW) s.138(1) - fraud - questioning by officials of ATO - admission of answers given to officials
Held: had to show at time of questioning officials had formed belief there was sufficient evidence to establish appellant had committed an offence - suspicion not sufficient - appeal dismissed

DPP v Carr
(2002) 127 A Crim R 151; NSWSC [194] (Smart AJ) 25.1.2002
Evidence Act 1995 (NSW) s.138 - resist arrest, assault police and intimidate police - police arrested accused in street when he became agitated and swore at police - accused walked away and subsequently charged - police aware of accused’s address - magistrate excluded evidence on basis police should have proceeded by way of summons or Field Court Attendance Notice
Held: no error in excluding evidence of offences on basis it had been obtained by ill advised use of arrest powers in circumstances of case - appeal against decision allowed on other grounds

Nicola
NSW CCA [63] 11.3.2002
Evidence Act 1995 (NSW) s.138 - sexual offences - appellant declined to give DNA sample - DNA obtained from coffee cup appellant used at police station
Held: no illegality in obtaining of DNA evidence

Lamb & Thurston
NSWSC [357] (Dunford J) 24.4.2002
Evidence Act 1995 (NSW) s.138 - murder - breach of Part 10A - not given copy of Caution and Summary document and not requested to sign - failed to properly assist in relation to support person - offender could not read - no evidence he wanted support person
Held: evidence admissible - extremely high probative value - importance of evidence - serious offence - minor technical breaches - willing to answer questions

Dalley
(2002) 132 A Crim R 169; NSW CCA [284] 19.7.2002
Evidence Act 1995 (NSW) s.138 - murder - breach of requirement under Part 10A (s.356H(9)) to submit affidavit day after successful application for extension of investigation period - relevance of seriousness of offence when considering whether evidence should be excluded.
Held: breach of s.356H(9) not relevant to s.138 because evidence not obtained as a result of the contravention - (per Spigelman CJ and Blanch AJ, Simpson J disagreeing) the more serious an offence the more likely the public interest will be in favour of admitting evidence obtained in contravention of the law

Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.135 - drug supply - improperly obtained admissions - discretion to admit ERISP - where answers obtained after accused claimed right to silence - where caution not given until part way through interview - whether cause to believe truth of answers adversely affected
Held: TJ adverted to ss 85, 90 and 138 of the Evidence Act - open to TJ to reach conclusions he did: R v Plevac (1995) 84 A Crim R 570 and R v Clarke (1997) A Crim R 41 applied.

Cornwell
(2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) [97] 20.2.2003
Evidence Act 1995 (NSW) s.138 - conspiracy to import - challenge to material obtained under listening device - whether misstatement of facts on application for warrant amounted to impropriety
Held: evidence admitted - when considering s.138(2) and s.139 court should consider facts of case and circumstances with due regard to seriousness of finding of impropriety and consequences of such finding - not every defect, inadequacy or failing should result in finding of impropriety - at same time failure need not be willful, committed in bad faith or an abuse of power - prepared to accept that misstatement in affidavit could be an impropriety - question of motive and intent goes to gravity of impropriety and exercise of discretion to admit - in this case not satisfied misstatement an impropriety and no causal connection between misstatement and issue of warrant - would exercise discretion in favour of admission

DPP v CAD
NSWSC (Barr J) [196] 26.3.2003
Evidence Act s.138 - Justices Act appeal - assaults - youthful offenders - whether improper conduct by police - whether evidence relied on by prosecution was obtained in consequence of unlawfulness or impropriety - whether evidence inadmissible
Held: arrest not improper in circumstances - evidence not improperly obtained - misapplication of s 138 - court's obligation to understand nature of evidence objected to - appeal allowed

NSWSC (Studdert J) [318] 17.4.2003
Evidence Act s.138 – murder during robbery - whether evidence improperly obtained and unbearable pressure placed on witness forcing him to give certain evidence.
Held - no impropriety in circumstances in which witness came to give evidence - plain that what was being sought from witness was truth - no impropriety in what witness was told concerning possibility of indemnity - "improperly" and "in consequence of an impropriety" in s 138 should not be narrowly construed - application dismissed

NSWSC (Adams J) [363] 1.5.2003
Evidence Act 1995 (NSW) s.138 - Crown appeal against dismissal of assault charges - evidence of victim excluded on basis it was improperly obtained - victim a police officer - victim approached injured male in street - verbally abused and rebuffed by male but continued approach seeking to ascertain what was going on and assist male - touched injured male on arm - punched and kicked in head by offender - magistrate ruled attempted unlawful arrest and excluded evidence of assault
Held: appeal allowed - discussion as to meaning of “obtained by impropriety” - need more than causal link - unable to agree with Smart AJ in Carr that “obtained” means “caused” or “stemmed from” - “where real evidence is indeed obtained as a result of impugned conduct then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring the evidence. Where however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been ‘obtained’ unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of ‘obtained’, almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences"[24] - in any event unreasonable decision that undesirability of admitting evidence outweighed desirability of admitting evidence

Phan
NSW CCA [205] 24.7.2003
Evidence Act 1995 (NSW) s.138 – drug offence - s.5F appeal against exclusion of illegally obtained evidence - police went to house occupied by respondent and estranged wife to investigate reports of illegal immigrants – made illegal search of appellant shortly before permission given by wife to search premises – incriminating material found on appellant – all evidence flowing from search excluded – included all crown case
Held: appeal allowed – TJ found police acting in good faith – in circumstances of case evidence should have been admitted.

Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) s.138 - drug importation - unlawfully obtained admissions – where extension of investigation period not properly obtained - discretion to admit ERISP – whether TJ failed to have regard to evidence of A’s tiredness and to whether police made inducement that cooperation with police would be taken into account by sentencing court
Held: TJ properly found A had acted deliberately and no inducement by police - TJ correct in holding ERISP unlawfully obtained and did not err in exercise of discretion to admit evidence.

McKeough
NSW CCA [385] 3.12.2003
Evidence Act 1995 (NSW) s.138 – s.5F appeal by Crown against decision of trial judge to exclude police ERISP – police search of motor vehicle pursuant to s357E Crimes Act – finding of drugs - whether search illegal – whether trial judge in error in excluding ERISP under s.138
Held: evidence of search of motor vehicle and of electronically recorded interview admissible in trial of respondent - matter remitted to District Court.

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) ss 137, 138, 139 – murder – s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police – respondent indicated he did not wish to have any conversation with police recorded or written down – police took R to local park for chat – covertly wearing listening devices – police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station – partial caution given – did not warn R anything he said could be used against him – kept asking questions although R indicated he did not wish to talk about murder – whether TJ erred in excluding evidence
Held: appeal allowed – Judge erred in taking into account fairness of trial to accused when considering exercise of discretion under s.138 – s.138 refers only to public policy discretion - question of fairness irrelevant – also erred in considering whether admission of evidence would be oppressive or unfair to accused – discretion to reject because of unfairness found in s.90 - erred in excluding evidence on basis persistent questioning breached Police Code of Conduct – undue pressure – in view of finding that admissions reliable, electronically recorded and police behaved properly no basis for finding breach too great to permit conviction.

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.135, 137, 138 – multiple sexual assault offences – complainant described co-accused, G as having ponytail – identified G from photo board – only 8 of 15 photos had long hair – no photos with ponytail – G had longest hair – whether evidence of identification unfair – whether directions as to identification evidence failed to refer to specific weaknesses in case
Held: appeal dismissed – no error in admission of evidence of identification – nothing distinctive about photo of G – process videotaped - directions as to identification evidence adequate – not necessary to give judicial authority to every defence argument or to draw attention of jury to every discrepancy in evidence

Workman
(2004) 60 NSWLR 471; NSW CCA [213] 30.6.2004
Evidence Act 1995 (NSW) s.138 – sexual offences against stepdaughter – complainant reported conduct to Qld police - police arranged for recording of telephone conversation between appellant and complainant – recording legal in Qld but not NSW
Held: no error in admission of evidence – evidence not obtained illegally or improperly where obtained in different jurisdiction according to laws of that jurisdiction

Buchanan, Smith and Thomas
NSWSC [815] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) s137 - murder – prison inmate stabbed to death in showers by three inmates – murder witnessed by another inmate – accused identified by witness from video of photographs of 194 inmates of relevant section of gaol – Crown case ‘bound to fail’ without identification evidence – witness indicated some hesitation due to differences in hair between photo of accused and assailant at time of offence – accused relied upon several factors as undermining evidence: identification made by prison informer, made from photos, description given by witness of assailant matched photo in general terms only, witness in fear of life, limited opportunity to observe assailant, identification made 19 days after offence, three placed in first 16 photos of array
Held: application to exclude evidence refused - some criticisms of identification process valid - balancing exercise, taking into account appropriate directions warning as to inherent dangers of identification evidence

Buchanan, Smith and Thomas
NSWSC [816] 10.8.2004, Buddin J
Evidence Act 1995 (NSW) s.137 - murder – prison inmate stabbed to death in showers by three inmates – murder witnessed by another inmate – accused identified by witness from video of photographs of 194 inmates of relevant section of gaol – three accused placed in first twenty photos of array amongst Aboriginal inmates - Crown case ‘bound to fail’ without the identification evidence
Held: application to exclude evidence refused - no error in failing to hold identification parade – not reasonable in circumstances of case – fact that witness recognized accused relevant – conduct of parade with inmates would have revealed identity of witness – logistical difficulties – complications if one or more suspects declined parade – probative value of evidence not outweighed by unfair prejudice

Ladocki
NSW CCA [336] 1.10.2004
Evidence Act 1995 (NSW) s.138 – ongoing supply heroin - controlled operation using civilian – authority to conduct controlled operation obtained under Law Enforcement (Controlled Operations) Act 1997 - failed in application for authority to indicate civilian informer a heroin addict – TJ found failure to reveal information was breach of Clause 1 in Code of Conduct that applicant act in good faith - declined to exercise discretion under s.138 to exclude evidence
Held: dismissing appeal – doubt whether evidence was illegally obtained – not every breach of Code of Conduct relating to controlled operations invalidates authority – in any case appeal nothing more than attempt to reconsider exercise of discretion – no error demonstrated in exercise of discretion

MM
NSWCCA [364] 25.10.2004
Evidence Act 1995 (NSW) s 138 – s.5F(3A) Crown appeal – sexual offences on young stepdaughter – admissibility of comments made by respondent to Probation and Parole officer – officer supervising respondent on bond imposed for offence involving child pornography – comments indicated sexual attraction to young girls, including step-daughter - excluded by TJ as improperly obtained – found officer misconceived role and commenced criminal interrogation
Held: evidence erroneously excluded – TJ erred in finding questioning outside proper role of officer – in circumstances of case officer acted in order to provide effective supervision and guidance to respondent - erroneously concluded gravity of offence not relevant to exercise of discretion under s.138 – (Dalley (2002) 132 A Crim R 169 applied)

Dalton
NSWSC [137] Adams J 15.12.2004
Evidence Act 1995 (NSW) s.138 – solicit to murder – accused discussed possibility of having two persons killed with undercover police officer – no authorisation obtained under Law Enforcement (Controlled Operations) Act 1997 because advised by Legal Services Branch undercover officer committing no offence
Held: authorisation should have been obtained as undercover officer guilty of offence when encouraged accused to solicit murder - wrongly advised – no deliberate attempt to avoid using Act – criminal conduct relatively slight - desirability of admitting evidence outweighed undesirability of admitting evidence

Harris
NSWDC BlackDCJ 11.3.2005
Evidence Act 1995 (NSW) s.138 – possession prohibited drug – appellant sitting at table with friends – police sniffer dog touched appellant on jacket and groin and detected drugs – no reasonable suspicion prior to dog touching
Held: where sniffer dog touches a person prior to police being entitled to conduct a search evidence improperly obtained – conviction quashed

Section 139: Cautioning of persons.

Morgan
NSWDC (Howie DCJ) 26.2.1999
Evidence Act 1995 (NSW) s.138, s139 - accused made spontaneous statements to medical doctor about gunshot wound during examination under s.353A Crimes Act implicating him in commission of crime - doctor made further inquiries to ascertain if wound properly treated.
Held: evidence admissible - no requirement to caution accused - s.139 did not apply - doctor no power to arrest accused and no belief accused had committed an offence - asking medical questions.

Patsalis & Spathis [No.3]
NSWSC (Kirby J) 20.7.1999
Evidence Act 1995 (NSW) s.139 - murder - accused voluntarily gave handwritten statement to police detailing involvement in offence - sought to show present at offence but unaware of intentions of co-offender - no caution given prior to handing over of statement.
Held: evidence admissible - no impropriety under s.139.

Downes v DPP
NSWSC (Studdert J) [1054] 16.11.2000
Evidence Act 1995 (NSW) s.139 - traffic offences - no caution given to appellant prior to making admissions.
Held: once impropriety established evidence must be excluded unless court persuaded desirability of admitting evidence outweighed undesirability of admitting it - accused does not have to justify exclusion, just prove impropriety - magistrate applied wrong test

Knight
(2001) 160 FLR 465; 120 A Crim R 381; NSW CCA [114] 30.3.2001
Evidence Act 1995 (NSW) s.139 - fraud offences - police documents filled out by appellant at prior arrests tendered by Crown as comparison for handwriting expert.
Held: no basis to exclude evidence under ss.138 or 139 - not improper or illegal - not admission requiring caution.

Deng
NSW CCA [153] 20.4.2001
Evidence Act 1995 (NSW) s.139(3) - drug offences - police cautioned appellant in English - judge concluded evidence of conversations at time of arrest showed appellant had reasonable fluency in English.
Held: section does not deal with general language ability but ability to understand concept underlying caution and function of caution - overwhelming evidence that accused understood caution.

Cornwell
(2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) [97] 20.2.2003
Evidence Act 1995 (NSW) s.139 - conspiracy to import - challenge to material obtained under listening device - whether misstatement of facts on application for warrant amounted to impropriety
Held: evidence admitted - when considering s.138(2) and s.139 court should consider facts of case and circumstances with due regard to seriousness of finding of impropriety and consequences of such finding - not every defect, inadequacy or failing should result in finding of impropriety - at same time failure need not be willful, committed in bad faith or an abuse of power - prepared to accept that misstatement in affidavit could be an impropriety - question of motive and intent goes to gravity of impropriety and exercise of discretion to admit - in this case not satisfied misstatement an impropriety and no causal connection between misstatement and issue of warrant - would exercise discretion in favour of admission

Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) ss 137, 138, 139 – murder – s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police – respondent indicated he did not wish to have any conversation with police recorded or written down – police took R to local park for chat – covertly wearing listening devices – police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station – partial caution given – did not warn R anything he said could be used against him – kept asking questions although R indicated he did not wish to talk about murder – whether TJ erred in excluding evidence
Held: appeal allowed – trial judge erred in excluding evidence - judge erred in finding failure to give caution meant breach of s.139 - failure to make finding that R under arrest at time of conversation.