Citation: R v Briggs [2014] NSWSC 850
Court: Supreme Court of New South Wales
Date: 2 June 2014
Judge: Button J
Background
The accused was on trial for the alleged fatal assault of the deceased inside a residential flat. Two witnesses, Mr Costin and Mr Ryan, were outside the flat at the relevant time. Each witness gave evidence that they heard a male voice from inside the flat make threatening statements, and each subsequently identified that voice as the accused's voice.
Defence counsel objected to the admission of this voice identification evidence. The objection was not based on any common law preconditions to admissibility of voice identification evidence, nor on s 55 of the Evidence Act 1995 (NSW) (which concerns relevance). Rather, the objection rested on s 137 of that Act, which requires a court to exclude prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.
The voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility) raised a direct question about how a trial judge should conduct the s 137 balancing exercise, specifically whether the judge should assess the reliability and weight of the evidence as part of that process.
Legal Issues
- Whether, when applying the s 137 balancing test, a trial judge should assess the credibility, reliability, or weight of evidence, or instead assume the evidence will be accepted by the jury.
- Whether cross-examination of the voice identification witnesses on issues of weight and reliability was permissible at the voir dire.
Decision
The Crown Prosecutor submitted that binding authority from the NSW Court of Criminal Appeal, including R v Shamouil, R v XY, and Burton v R, firmly establishes that questions of credibility, reliability, and weight are not for the trial judge when conducting the s 137 balancing exercise. On this approach, the judge assumes the evidence will be accepted by the jury and assesses its probative value on that assumption, having regard to all foreshadowed evidence and the facts in issue at trial.
Defence counsel argued that some genuine assessment of the strength of the evidence must form part of a proper application of s 137. Button J acknowledged this submission had force historically: the modern approach departs from the longstanding common law "probative/prejudicial" discretion first articulated in R v Christie [1914] AC 545, and also from how trial judges had previously applied s 137 itself.
Nonetheless, Button J accepted the Crown's position. His Honour noted that the majority in R v XY endorsed the approach of Spigelman CJ in R v Shamouil, and that in the very recent Burton v R, a unanimous Court of Criminal Appeal affirmed the same analysis. The position in New South Wales is now settled: issues of credibility, reliability, weight, and alternative inferences are exclusively for the jury, not for the trial judge performing the s 137 balancing exercise.
As a consequence, any voir dire directed at questions of weight was unnecessary, and cross-examination of the two witnesses on those grounds was not permitted.
Orders Made
No formal orders were recorded in this decision. The ruling was that the voice identification evidence of both witnesses was not excluded under s 137, and cross-examination on weight at the voir dire was disallowed.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a trial judge conducting the probative value/unfair prejudice balancing exercise must assume that the evidence will be accepted by the jury, rather than assessing its actual credibility, reliability, or weight.
- Credibility, reliability, weight, and alternative explanations or inferences are matters exclusively for the jury and do not fall within the trial judge's role at the s 137 stage.
- The Supreme Court confirmed that this approach, endorsed by the NSW Court of Criminal Appeal in R v Shamouil, R v XY, and Burton v R, represents settled law in New South Wales, even though it departs from the earlier common law approach under R v Christie and from how s 137 was previously applied in practice.
- A voir dire directed solely at questions of weight will be "otiose" (that is, serving no useful purpose) under the current framework, and cross-examination on such questions will not be permitted.
- No common law preconditions attach to the admissibility of voice identification evidence in New South Wales: the framework established in R v Adler and R v Riscuta confirms that admissibility turns on the statutory provisions, not common law rules.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 137
Cases
- Burton v R [2013] NSWCCA 335
- R v Adler [2000] NSWCCA 357; 52 NSWLR 451
- R v Christie [1914] AC 545
- R v Riscuta [2003] NSWCCA 6
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v XY [2013] NSWCCA 121; 84 NSWLR 363