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Evan Whitton
22 March, 2005  
The "Christie" claptrap and its bastard offspring

The rise and rise of the inscrutable discretions used by trial judges to conceal evidence

Rhonda Buckley, 51, a grandmother, was strangled in Newcastle, NSW, on Tuesday, September 25, 2001. Next day, her lover, Lyle Simpson, 47, attempted to kill himself. DNA tests showed that Simpsons semen was on her body.

At his murder trial in March 2005 legal aid lawyer Joanne Harris, for Simpson, brilliantly persuaded NSW Supreme Court Justice Anthony Whealy Bin to conceal his suicide attempt because it might cause him unfair prejudice. DPP Nicholas Cowdery QC banged in a nolle. Simpson walked.

Harriss argument was based on a recent vast improvement – for criminals – to the Christie discretion, a wondrous piece of metaphysical claptrap first expounded by the noble Lord Reading and others in Rex v Christie (House of Lords, 1914).

In Evidence: Its History and Policies (Butterworths, 1991), Professor Julius Stone QC and former Justice W.A.N. Wells note how the Christie discretion is supposed to work: the evidence concealed must be of comparatively little probative weight [and] this slight relevance must be accompanied by a great potentiality for prejudice.

imageUntil Simpson, my favourite among Christies Greatest Hits appeared at the 1991 trial of Sir (as he then was) Terence Lewis (seen here), who contrived to be at once a major organised criminal and Queensland Commissioner of Police.

Judge Anthony Healy Bin of the Queensland District Court used the discretion to suppress a tape of phone calls between Sir Terences bagman, Jack Herbert, and another accomplice, Barry MacNamara, in which they fret about a deplorable lack of honour among thieves.

Sir Terence had stiffed them and a John Garde of $1,000 – $333.33 each – from the whack-up of a $25,000 bribe which he had extorted from Jack Rooklyn, the celebrated Sydney organised criminal and yachtsman. MacNamara said:

Oh, I think it is a shitty trick, you know, I really do … And to think, for a fuckin shitty thousand dollars … I think its a very bad act.

Later, MacNamara said John [Garde] took it badly … he’s going to give that bloke [Lewis] a grand light this month, but Herbert cautioned: Terry loves this stuff; he might be a bit upset if I did it back to him.

The judge told Justice (as he now is) John Jerrard, for Sir Terence, that “the conversation tends to suggest … that your client is a person who is capable of ratting on his friends … It would be very prejudicial to him to let it in, so I am excluding it.”

The discretion was changed dramatically by the Evidence Act 1995 (Commonwealth and NSW). Section 137 of the NSW version states: “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.”

On a scale of 100, the probative/prejudicial ratio thus went from, say, 5/95 to 49/51, and the gap was reduced from 90 to virtually zero.

The bottom line on Christie and its bastard offspring is that they effectively give trial judges the power to conceal ALL evidence, however damning. The discretion concerns the trial judge’s opinion of facts. Others may think that, as a question of fact, he was inadvertently wrong about the ratio, but appeal courts cannot correct any such error because the trial judge, like a Rugby referee, is the sole judge of that sort of fact, if not of law.

Which leads to a disturbing point made by the authority on the Christie discretion, Dr John Forbes, of the University of Queensland. In Evidence in Queensland (The Law Book Company, 1992), he wrote, in his droll way:

If there ever was such a thing as judicial corruption, it might well reside in the expanding and almost inscrutable discretions which can alter the whole course of a criminal inquiry.

It might also be noted that a lot of people, including politicians, had a hand in Section 137s new declension in fairness to victims. But who is ultimately responsible? I think we should be told, if only to enable a grateful Mr Simpson to put a small cheque in the mail.