While counter-intuitive evidence may require a direction against its misuse, it is wrong to attempt to formulate a general direction applicable in all cases: BQ v The King [2024] HCA 29 at [50].
“[51] … Instead, where necessary, the legitimate and potentially illegitimate uses to which such evidence might be put should be identified and, if there is a sufficient likelihood or risk that such evidence might be put to an illegitimate use, then that may warrant consideration of its exclusion … or the giving of a direction to the jury to guard against that illegitimate use.”
This appears to reject the practice current in New Zealand and described at [48], whereby the jury is told that the counter-intuitive evidence is general in nature and that it says nothing about the credibility of this particular complainant.
It seems likely that the New Zealand Supreme Court will disavow any intention to require such a general direction in all cases where counter-intuitive evidence is given.
Also delivered today is the judgment in Steven Moore (a pseudonym) v The King [2024] HCA 30. After a quite interesting discussion of the standard of appellate review applicable to interlocutory admissibility decisions in criminal cases (concluding at [18] that it is the correctness standard), the Court went on to consider the probative value and illegitimately prejudicial effect weighing exercise, familiar to everyone and used in some admissibility decisions.
The Court repeats, and applies, a potentially absurd overview of this weighing exercise [30]:
“… The fact that the evidence has high probative value makes the appellant’s task of demonstrating a danger of prejudice that outweighs that value much harder.”
This is to confuse weighing with balancing [1]. A level of prejudice that results in trial unfairness for the defendant should necessarily outweigh any probative value. The Court here seems to be stating its proposition too generally.
So the New Zealand courts must reject any thought they may have about enjoying a monopoly on inappropriate generalisations.
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[1] See my note dated 8 October 2019.
