137. Exclusion of prejudicial evidence in criminal proceedings

137. Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

The absence of significant weight alone would not always seen to give rise to its exclusion. Given the traditional inclination toward letting issues of weight be determined by the jury - something the Evidence Act generally promotes - the comments of Hunt CJ (at CL) in R v Sanford (1994) 72 A Crim R 160 [at 137] might apply:

Despite an apparently unshakeable misconception to the contrary on the part of some members of the legal profession, the mere fact that evidence tendered by the Crown is of little weight by itself does not require its rejection under this head of judicial discretion. Nor will evidence be excluded where the only prejudice which it causes is that it establishes (or tends to establish, or assists in establishing) the guilt of the accused. The Christie discretion to exclude evidence is usually directed to evidence which, although not itself probative (or only slightly probative) of guilt, is also probative of some other matter which may wrongly be regarded by the jury as probative (or strongly probative) of guilt – for example, propensity. I can see no prejudice of that type here. This is not of the class of case where the sheer magnitude of the sum involved was likely to divert the jury from its proper task.

The correct approach involves a balancing exercise, though how this is to be achieved is still unclear. The Court of Appeal in R v DG; DG v R [2010] VSCA 173 [at 51] adopted the language of Scalia J in Bendix Autolite Corporation v Midwesco Enterprises Inc 486 US 888 (1988), 897 when describing the comparison of prejudicial effect with probative value as like asking ‘whether a particular line is longer than a particular rock is heavy’. Clearly the balancing exercise undertaken by a judge under s 137 is no simple task. Any conclusion reached may well be one upon which reasonable minds can differ.

The original ALRC Report No 26 [at 957] acknowledged,

There is uncertainty over the meaning of "prejudice". But clearly it does not mean simply damage to the accused's case. It means damage to the accused's case in some uacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.

Unfair prejudice may be misuse by a trier of fact adopting an illegitimate form of reasoning or to give the evidence undue weight: DPP v Williams (Ruling No. 1) [2010] VSC 34 at 23. In that case, vague threats to kill a person other than the victim at a time and place remote to the alleged offence were held by the trial judge not to relevant under s 55 and so not admissible. Lasry J indicated he would also have excluded the statements in the exercise of his discretion under s 137.

The appropriate test the Court of Appeal should apply when reviewing a trial judge's decision under s 137 was given consideration in THD v The Queen [2010] VSCA 115. Maxwell P and Nettle JA both expressed a tentative view that the fairness of the array of photos in a photoboard is an exercise of judgment reviewable according to the principles in House v R (1936) 55 CLR 499 (was the decision open rather than was that the decision the appelate court would have made) but did not find it necessary to decide that question conclusively.

Section 137 does not merely permit a court to exclude evidence if it reaches the conclusion which the trial judge did in this case; it requires such exclusion: DPP v B B; DPP v Q N [2010] VSCA 211.