Standard of Appellate Review for the Exclusion of Evidence Under Section 135 of the Evidence Act 1995 (NSW): Farewell House v The King
In Australian case law and academic literature, essentially two competing standards of review have become recognised as governing appellate review of a trial judge’s ruling on the admissibility of evidence.
The first standard of review was set out in House v The King (‘House’). The majority of the High Court stated ‘[it] is not enough that the … appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course … [it] must appear that some error has been made in exercising the discretion’. The majority in House identified five types of errors that, if respectively established, would enable an appellate court to substitute the ruling of a trial judge with its own decision. This included if: (1) the judge acted on a wrong principle; (2) the judge allowed extraneous or irrelevant matters to guide or affect them; (3) the judge mistakes the facts; (4) the judge does not take into account some material consideration; or (5) the judge’s decision is unreasonable or plainly unjust.
By contrast, the second standard of review is identified in Warren v Coombes (‘Warren’), where the majority of the High Court stated that:
‘[the] duty of the appellate court is to decide the case — the facts as well as the law — for itself … [in] so doing it must recognize the advantages enjoyed by the judge who conducted the trial … [but] if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment’.
Generally, this approach has been described as the ‘correctness’ standard of review and is viewed as less restrictive than House.
The principles set out in House traditionally supplied the appropriate standard of review for an appeal regarding a trial judge’s decision to exclude evidence under section 135 of the Evidence Act 1995 (NSW) (‘Evidence Act’). Section 135 of the Evidence Act empowers the court in both civil and criminal trials to exclude otherwise admissible evidence if ‘its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or an undue waste of time.’ A decision made under section 135 of the Evidence Act was regarded as analogous to the exercise of a discretion. Therefore, appellate review was governed by the principles stated in House.
However, the recent decision of the New South Wales Court of Criminal Appeal (‘NSWCCA’) in Rogerson v The Queen (‘Rogerson’) has held that the appropriate standard of appellate review for section 135 is the correctness standard, and appellate review according to House is no longer good law. In 2016, Rogerson and McNamara were jointly tried and found guilty for the murder of Jamie Gao and supplying a large commercial quantity of prohibited drugs. They were sentenced by Justice Bellew to life imprisonment for the murder and 12 years for the drug supply offence. In 2020, Rogerson and McNamara sought to appeal their convictions in the NSWCCA. McNamara’s first ground of appeal was that Justice Bellew had erred in excluding under section 135(a) of the Evidence Act two conversations McNamara had with Rogerson regarding his participation in past murders and criminal violence. The first conversation occurred three months before the deceased’s murder. The second shorter conversation happened immediately after the murder. McNamara tendered this evidence as being relevant to his defence upon the issue of duress. Ultimately, the NSWCCA agreed with Justice Bellew’s decision to exclude the evidence, and both appeals were dismissed.
The implication of Rogerson is that the standard of appellate review for section 135 in NSW has now changed to the correctness standard, namely that it is for the appellate court ‘to decide for itself whether the evidence should have been excluded,’ subject to ‘natural limitations’. The NSWCCA outlined that these natural limitations may include the ‘lack of the advantage enjoyed by a primary judge in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole’. The Court’s decision was in light of the less restrictive approach to appellate review recently taken by the High Court in R v Bauer. The NSWCCA stated that akin to the assessment of probative value under section 97 of the Evidence Act, and probative value and prejudicial effect under section 101(2), a trial judge’s assessment of whether or not to exclude evidence under section 135 involves the making of an ‘evaluative judgment’ as opposed to an exercise of judicial discretion. It will be interesting to see how the implication of Rogerson is treated in subsequent case law and other jurisdictions. Despite this, the correctness standard identified in Warren has now prevailed over House in NSW as the appropriate standard of appellate review for a decision made by a trial judge under section 135 of the Evidence Act.
