Citation: R v Suman SOOD [2007] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 19 July 2007
Judge(s): Ipp JA, Latham J, Fullerton J
Background
The respondent, a medical practitioner who operated a clinic performing pregnancy terminations, faced 96 charges of dishonestly obtaining a financial advantage from the Health Insurance Commission. The Crown alleged she had been bulk billing Medicare while also charging patients additional cash fees for "counselling and theatre" services, contrary to the Medicare scheme established under the Health Insurance Act 1973 (Cth).
During a lawful search of the clinic in October 2001, investigators found cash receipt books and original receipts in waste bins in and near the recovery room. The books were dry despite being found among wet medical waste, indicating they had been placed there deliberately on the day of the search. The Crown sought to rely on the circumstances of this discovery as evidence of the respondent's consciousness of guilt, which was an essential element of the offence.
The trial judge conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) and ruled that the probative value of the evidence was outweighed by the danger of unfair prejudice to the respondent under s 137 of the Evidence Act 1995. The trial was aborted following that ruling, and the Crown appealed under s 5F(3A) of the Criminal Appeal Act 1912.
Legal Issues
- Whether the trial judge correctly applied s 137 of the Evidence Act 1995 in assessing the probative value of the evidence of where and how the receipt books were found
- Whether reliability and weight of evidence are relevant considerations when assessing probative value under s 137
- Whether the trial judge erred by making findings of fact unsupported by the voir dire evidence, or contrary to its weight, when assessing probative value
- Whether the evidence gave rise to any unfair prejudice, given it went no further than suggesting the respondent had committed taxation-related offences
- Whether the High Court decision in Edwards v The Queen (1993) 178 CLR 193 supported the exclusion of evidence of an accused's conduct on the basis that an innocent explanation was plausible
Decision
The Court of Criminal Appeal allowed the Crown's appeal, finding that the trial judge had made multiple errors in his application of s 137. Under that provision, the Crown's evidence is to be assessed at its highest when determining probative value, and questions of reliability or weight are not relevant to that assessment. The trial judge had impermissibly incorporated reliability-based reasoning into his analysis.
The Court found that the trial judge had also made findings of fact that were either unsupported by the evidence on the voir dire or contrary to its weight. In particular, there was no evidential basis on the voir dire for concluding that an innocent explanation for the disposal of the receipt books was available. The respondent's own evidence on the voir dire did not provide a plausible innocent explanation for the books being found in the bins.
On the question of unfair prejudice, the Court held that no such prejudice arose. The evidence went no further than suggesting the respondent may have committed taxation-related offences, which were the very matters already charged. There was nothing in that evidence that would give rise to prejudice beyond the ordinary and legitimate effect of the Crown's case.
The Court also rejected the respondent's submission that Edwards v The Queen supported excluding consciousness-of-guilt evidence where an innocent explanation is plausible. The Court held that Edwards was concerned with the directions a jury should receive about lies told by an accused in court, not with the admissibility of evidence. The principle that a plausible innocent explanation may reduce probative value applies to a jury's assessment of evidence, not to a trial judge's ruling on admissibility under s 137.
Orders Made
- Appeal allowed
- The judgment of Acting Judge Armitage QC of 14 May 2007 is set aside
Key Takeaways
- Under s 137 of the Evidence Act 1995, probative value is assessed by treating the Crown's evidence at its highest. Considerations of reliability and weight play no part in that assessment.
- The Court of Criminal Appeal confirmed that a trial judge ruling on admissibility under s 137 must base the assessment of probative value on the evidence actually adduced on the voir dire, not on factual findings that lack support in that evidence.
- Edwards v The Queen is confined to the question of how a jury should be directed about an accused's lies told in court. It does not establish a principle permitting a trial judge to exclude consciousness-of-guilt evidence on the basis that an innocent explanation for the accused's conduct is plausible.
- No unfair prejudice arises under s 137 merely because evidence suggests an accused committed the very offences charged, including where the evidence points only to taxation-related misconduct that is the subject of the charges themselves.
- A plausible innocent explanation for an accused's conduct may be relevant to how a jury weighs evidence, but that is a matter for the jury. It is not a basis for judicial exclusion of the evidence at the admissibility stage.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), s 137
- Health Insurance Act 1973 (Cth)
- Criminal Code Act 1995 (Cth), s 134.2
Cases:
- Edwards v The Queen (1993) 178 CLR 193
- R v Linard Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v SJRC [2007] NSWCCA 142
- Regina v Cook [2004] NSWCCA 52
- GK (2001) 125 A Crim R 315; [2001] NSWCCA 413
- R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61
- R v Rima [2003] NSWCCA 405
- R v Carusi (1997) 92 A Crim R 52
- R v Singh-Bal (1997) 92 A Crim R 397
- R v Yates [2002] NSWCCA 520
- Adam v The Queen (2001) 207 CLR 96
- Papakosmas v The Queen (1999) 196 CLR 297
- Festa v The Queen (2001) 208 CLR 593
- Quinlan v Regina [2006] NSWCCA 284