A policeman thought he could hear a confessional statement on a recording of a telephone call made by the accused to emergency services. Experts agreed that they could not assist the jury as to whether or not those sounds were words or excited breathing. Amazingly, the trial judge, and three Court of Appeal judges, ruled that the jury could listen to the disputed sounds. The Supreme Court unanimously ruled the sounds inadmissible: Bain v R  NZSC 16 (18 May 2009; judgment published 11 June 2009).
Three Supreme Court justices held that the sounds were not shown to be relevant: Elias CJ and Blanchard J jointly, Wilson J agreeing. McGrath and Gault JJ thought the sounds were relevant. All judges held that, if relevant, the sounds were inadmissible because their probative value was outweighed by their illegitimately prejudicial effect.
If the sounds were relevant, that would mean they had a tendency to prove a matter in issue: s 7 Evidence Act 2006. What then would their probative value be? One would think that, if they were confessional words, their probative value would be very great. Indeed, the Court of Appeal thought the sounds were "plainly relevant" as if their probative value was equally plain: Bain v R  NZCA 1 (30 January 2009) at para 255.
In the Supreme Court the probative value of the sounds was unanimously regarded as slight. Equivalent, for Gault J (103), to the mere possibility that jurors might, without priming, hear the disputed sounds as the alleged words. Wilson J (94) said the probative value was "very limited" because of the uncertainty about whether the sounds were words and if they were, what words they were, and because of the risk of priming. This reasoning seems to amount to saying that the probative value was slight because of the risk of prejudice, which is to blend the separate issues. McGrath J was clearer on probative value (83):
" ... the uncertainty of the conclusions of the expert witnesses, which are reached because of the limited audibility and indistinctness of the sounds themselves, impacts on their probative value and lessens the weight of the recordings as evidence of an admission in the balancing exercise."
Strange to say, however, McGrath J had used the opposite reasons to decide that the sounds were relevant (79):
"...I am satisfied that the disputed material is reasonably capable of influencing a jury's assessment of the probability of the existence of a disputed fact at the trial and that it meets the test of relevance in terms of s 7 of the Evidence Act."
Elias CJ and Blanchard J held (66) that the probative value of the sounds was slight, when contrasted with the prejudicial effect of the evidence. They considered the probative value was insufficient for the same reasons they held that the sounds were not relevant. These were (59) that the experts could not say whether or not the sounds were words or if they were, what they were. No standard of proof is mentioned for the weighing exercise in s 8(1), but Elias CJ and Blanchard J found (62 – 66) that some analogy could be obtained from s 28 (exclusion of unreliable statements) where the judge has to be satisfied on the balance of probabilities that the circumstances were not likely to have adversely affected the reliability of the statement, s 45 (visual identification evidence) where such evidence obtained at a properly conducted formal procedure is admissible unless the defence proves on the balance of probabilities that the evidence is unreliable, and s 46 (voice identification) where the prosecution must prove on the balance of probabilities that the evidence is reliable.
The prejudicial effect could be "profound" Elias CJ and Blanchard J (67). Even if they decided the sounds were not words, or not the words alleged, the jury could still be influenced by the suggested interpretation in their assessment of other evidence. The judge would have to direct the jury that it would be dangerous to rely on the sounds as a confession. So, the only effect of their admission could be prejudicial.
McGrath J considered (85) that the source of the prejudicial effect was the risk that priming by suggestion would lead the jury to misinterpret the sounds and give them more weight than they deserved. This is not a case where the sounds are to be interpreted in the light of other circumstantial evidence (87). The jury could be diverted to "superficial reasoning" (88).
Wilson J regarded the prejudicial effect as "very great" (94, 96). If the jury decided the sounds were confessional words, that is all the evidence they would need to convict (94). The risk of priming by suggestion was too great.
This was the issue on which the Court split 3 – 2. The governing provision is s 7 Evidence Act 2006.
Elias CJ and Blanchard J regarded the case as best decided under s 7, rather than under s 8. For the sounds to be relevant it was necessary that they could reasonably be taken to be speech of a confessional nature (53), because otherwise they would not tend to prove the matter for which they were put forward. Here, the experts' evidence was that the sounds were not reasonably capable of being such a statement (59).
Wilson J agreed (90), although he thought the threshold for establishing relevance was low. He did not say he disagreed that the interpretation suggested by the party seeking to adduce the evidence had to be reasonably available, and he applied that reasonability criterion in concluding that the evidence was not relevant here (92).
Gault J thought the evidence was relevant (101), as s 7 does not contain a threshold of the balance of probabilities (99). McGrath J also thought the sounds were relevant, noting that probative force is immaterial to relevancy, but there must be the tendency to prove the matter in issue. He took a different interpretation of the expert evidence:
" ... The expert evidence supports the proposition that the sounds may be an exhalation of breath containing the incriminating words as speech intended to be sotto voce. A jury would find contextual assistance in determining if this was so from another section of the tape, which records what are plainly words spoken in conjunction with an audible exhalation."
Hummmm ... my assessment
- The ratio is correct: the s 7(3) requirement of a tendency to prove or disprove anything that is of consequence to the determination of the proceeding means the judge must conclude that the inference could reasonably be drawn if the evidence is to be admitted as relevant (43, 44).
- The Court's application of this ratio to the facts was correct.
- The Court was wrong to apply s 8: there was no need to do so. All the matters considered in purporting to apply s 8 were actually matters applicable to deciding relevance.
- In proceeding to consider what it would have decided if the evidence was relevant, the majority introduce confusion by failing to appreciate the implications of a decision that the evidence was relevant.
- If the evidence was relevant, it would have been reasonable support for an inference of guilt. That is, the jury would have assessed the evidence reasonably if it concluded that the sounds were a confession.
- If reasonably assessed as a confession, the probative value of the sounds would have been very high. There were no circumstances indicating that the confession was improperly obtained or was unreliable. The unfair prejudice in admitting it would have been zero: there was no risk that it would be used for an improper purpose or would cause the jury to reason wrongly. (I am not saying I think the probative value was high: the sounds were irrelevant and had no probative value.)
- As soon as one says no, the probative value was low because of the difficulty in hearing the sounds as words, one goes back, undermining the assumption that the evidence was relevant.
- Applying s 8 to this evidence has clouded the meaning of probative value and unfair prejudice. Those concepts apply once it is known what the evidence is; here the difficulty is prior to that, in determining what the evidence is.
- The joint judgment's reference (63) to analogous provisions that use the balance of probabilities in the decision process gives the impression that something similar should apply to the s 8 decision. Usually an omission of a phrase used in other parts of a statute would be regarded as deliberate. The balance of probabilities fits uneasily in s 8, because it suggests a high level of risk of unfair prejudice may be required.
- Footnote 60 of the joint judgment refers to s 8(2), which is expressed as a qualification on the probative value – unfairly prejudicial effect weighing exercise in s 8(1)(a). Its meaning is obscure, although Elias CJ and Blanchard J adopt the Law Commission’s commentary and treat s 8(2) as introducing a limit on the calling of defence evidence. That, however is far from clear, because s 8(1)(b) can serve that function. Indeed, s 8(2) is best regarded as a reminder that in exercising the discretion in s 8(1)(b) the judge must remember that the defendant has the right to offer an effective defence. Unfortunately s 8(2) expressly addresses the probative value against unfairly prejudicial effect weighing exercise required by s 8(1)(a), and the footnote attempts an impossible task when it tries to make sense of this by saying, “Under the Evidence Act the right of the accused to present evidence as part of his case is not absolute but is simply a factor to be considered in balancing probative value against unfairly prejudicial effect in excluding relevant evidence.” [Update: the role of s 8(2) was clearer in argument, transcript Bain v R SC13/2009 2 March 2009, pp 48-49, where it was submitted that the right to present a defence is relevant to assessing the risk that evidence will be improperly prejudicial. Elias CJ thought this might be “doubling up” on s 8(1), but then she accepted that s 8(2) is not expressed as a stand-alone provision.]
- The Court was right to decide the admissibility of the sounds without listening to them. The role of an ultimate appeal court is with law and policy, as was pointed out recently by Lord Hope in Secretary of State for the Home Department v AF (noted 11 June 2009) at para 88; there, the Law Lords dealt with the disclosure of closed evidence without knowing what it was.