THE UNSTABLE PROVINCE OF JURY FACT-FINDING: EVIDENCE EXCLUSION, PROBATIVE VALUE AND JUDICIAL RESTRAINT AFTER IMM V. THE QUEEN.

• Date: 01 December 2017
• Author: Hamer, David

Intermediate appeal courts in Victoria and New South Wales recently diverged on the question of how a trial judge should approach the assessment of the probative value of evidence at the admissibility stage. NSW courts consider that trial judges should be wary of usurping the jury's fact-finding role, while Victorian courts think that trial judge intervention is required to ensure a fair trial. Unfortunately, the High Court in IMM provided little resolution, splitting three ways, with a self-contradictory majority judgment. In an effort to make sense of IMM, this article examines other areas of criminal procedure--directed acquittals and appeals--that also demarcate fact-finding responsibilities between the judiciary and the jury. This broader jurisprudence reveals a range of underlying policies and interests, including efficiency, factual accuracy, and respecting the jury as the constitutional tribunal of fact. The diversity in these policies and their potential for conflict helps explain the unsettled nature of the law. However, appeal jurisprudence on the primary fact-finder's epistemic advantage points to a reconciliation in the IMM majority's self-contradiction, based on the distinction between evidence delivery and evidentiary context. Notwithstanding this resolution of the majority judgment, the minority judgments in IMM provide a clearer framework within which the sometimes competing forces and considerations can be balanced.

Contents I Introduction II Restraint in Assessing Probative Value and Admissibility According to IMM A Probative Value, Range and Acceptance in the Uniform Evidence Law B Four Attitudes to the Assumption that Evidence Is Accepted C Applications, Contradictions and Explanations III Restraint in Directing Acquittals A Witness Truthfulness, Circumstantial Evidence and Conflicting Evidence B The Scintilla Principle IV Principles of Appellate Restraint A The Primary Fact-Finders' Epistemic Advantages B Constitutional and Institutional Considerations V From Appeals to Admissibility Decisions A Finality, Efficiency, Democracy and Wrongful Conviction B The Jury's Epistemic Advantages C The Distinction between Evidential Source and Objective Evidential Context in IMM VI Conclusion I INTRODUCTION

While fact-finding in serious criminal matters is the traditional and constitutional province of the jury, it is subject to trial judge and appeal court regulation. One key aspect of the regulation is the trial judge's responsibility to exclude certain evidence from the jury's consideration. (1) This responsibility exists at common law and under the Uniform Evidence Law ('UEL'). (2) Exclusion on the basis that evidence falls within a technical category, such as hearsay, may appear appropriately 'legal', causing little disturbance to the balance of power between judge and jury. However, in instances where evidence is excluded simply because it does not appear to the trial judge to be sufficiently strong or probative, the division of responsibilities between judge and jury are brought into sharp relief. (3)

The New South Wales Court of Criminal Appeal ('NSWCCA') has been wary of trial judges being too interventionist in assessing probative value at the admissibility stage, and has laid down tight principles of restraint. In R v Shamouil, Spigelman CJ indicated that '[t]o adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury'. (4) Five judges of the Victorian Court of Appeal ('VCA') in Dupas v The Queen, however, described the NSWCCA approach as 'manifestly wrong', (5) observing that 'trial judges should continue to have the power to exclude admissible evidence in order to minimise the risk of wrongful conviction. The effect of the decision in Shamouil is to undermine an important safeguard ... against an unfair trial.' (6) More recently, five judges of the NSWCCA provided an unsettled response in R v XY; (7) however, the Court appeared to maintain its restrictive, non-interventionist approach. (8)

Trial judge versus jury, fair trial versus institutional integrity, VCA versus NSWCCA; in IMM, the High Court of Australia ('HCA') had the opportunity to settle a multidimensional dispute. (9) The HCA favoured the NSWCCA's more restrained approach by a narrow 4:3 majority, while the minority judges, in one respect, favoured even greater trial judge intervention than the VCA in Dupas. (10) The majority judgment in IMM is elliptical and obscure, appearing to impose tight restrictions on the trial judge while at the same time implying that these do little to impede intervention. All the judgments question whether the difference between the two approaches is as great as may appear. (11)

In this article I attempt to make sense of the HCA's reasoning in IMM. First, the majority and minority approaches are distinguished, along with other variations, and the seeming contradictions in the majority judgment are highlighted. Next, I place the admissibility issue in a broader context by examining other areas of procedure in which the fact-finding responsibilities of judiciary and jury are demarcated: directed acquittals and appeals on the facts. An understanding of policies and principles of judicial restraint invoked at these other stages provides insights into the conflicting positions regarding admissibility in IMM. The discussion traces the conflicts in IMM to deeper ideological tensions; for example, between protecting the province of the constitutional fact-finder on the one hand, and protecting the accused's interest in avoiding wrongful conviction on the other. However, the appeal jurisprudence also offers a resolution to the seeming contradiction in the IMM majority judgment. Having regard to the jury's epistemic advantage, the trial judge exercises considerable restraint in assessing the evidential source while being more willing to intervene with regard to evidential context. While helpful in resolving the contradictions in the majority judgment, this analysis nevertheless indicates that the majority in IMM has left the law in a needlessly complex state. The minority approach provides a cleaner and simpler framework for achieving the law's policy goals. (12)

II RESTRAINT IN ASSESSING PROBATIVE VALUE AND ADMISSIBILITY ACCORDING TO IMM

The appellant in IMM had been found guilty in the Northern Territory Supreme Court on two counts of indecent dealing with a child and one count of sexual intercourse with a child under 16 years, all perpetrated against his step-granddaughter. According to the prosecution, these incidents occurred in the course of several years of recurrent sexual abuse.

The appellant appealed on the basis that two pieces of evidence had been wrongly admitted. The first challenge concerned tendency evidence from the complainant that the appellant had had sexual contact with her on an occasion not giving rise to charges. The appellant argued this was wrongly admitted as tendency evidence because it did not have 'significant probative value' as required by UEL s 97. The second challenge concerned evidence that the complainant had told relatives and a friend of the appellant's sexual abuse some time prior to the matters being reported to police. This was admitted as hearsay evidence under an exception to the hearsay rule. (13) The appellant, however, argued that it should have been excluded under UEL s 137 on the basis that its 'probative value is outweighed by the danger of unfair prejudice to the appellant'. (14)

The admissibility of both items of evidence turned upon trial judge assessments of probative value. On such questions, the Northern Territory courts adopted the trial judge restraints of the NSWCCA. (15) The trial judge assessed probative value on the basis that the evidence would be accepted by the jury. In the HCA, the appellant argued that this was incorrect. The trial judge should have taken a more interventionist

approach, recognised the low probative value of the tendency and complaint evidence, and excluded both. In a joint judgment, a majority of four upheld the NSWCCA approach and held that the tendency evidence should have been excluded, while confirming the admissibility of the complaint evidence. (16)1 The minority, in two separate judgments, supported what appears to be a more interventionist approach. However, as discussed further below, the majority is far less restrained than first appears. Gageler J agreed with the majority orders, (17) and Nettle and Gordon JJ upheld the admissibility of the tendency evidence while questioning the admissibility of the complaint evidence. (18)

A Probative Value, Range and Acceptance in the Uniform Evidence Law

Despite the apparent divergence between the restrained majority and interventionist minority, there is an important element of common ground. Interventionists would agree that the UEL requires trial judges to exercise some restraint in assessing probative value. This is made clear in the definition of probative value in the UEL, which is expressed in terms of the capacity of evidence to prove the facts in issue. Probative value is defined as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. (19) A leading advocate of the interventionist approach and defence counsel in IMM, Stephen Odgers, explains that '[t]he trial judge is required to accept the existence of a range of probative value assessments, none of which are unreasonable ... and assess probative value as at the highest point of that range'. (20) The majority and minority judges in IMM appear to agree with this approach. (21)

The point on which the restrained majority and interventionist minority differ is whether, in assessing probative value, the trial judge should assume that evidence will be 'accepted' by the jury. The majority held that this assumption should be made, inflating the probative value assessment and...