16.97 Traditionally, rulings on evidentiary questions and determinations of admissibility take place during the course of the trial. However, a number of jurisdictions permit the courts to determine preliminary questions prior to the commencement of trial. Further, some jurisdictions empower the courts to make ‘advance rulings’ in relation to questions of admissibility, including whether evidence should be excluded on the basis of judicial discretion, either before the trial commences or before the issue arises for determination.
16.98 The uniform Evidence Acts are silent on the issue of advance rulings. After their enactment, authorities in New South Wales proceeded on the assumption that the Acts allowed for advance rulings in relation to the admissibility of evidence. However, these authorities were recently overruled by the High Court in TKWJ v The Queen, where it held that the uniform Evidence Acts only permit advance rulings to be made in some cases where leave, permission or direction is sought.
16.99 In TKWJ, counsel for the defence informed the Crown prosecutor that he intended to raise evidence of the accused’s good character. The Crown prosecutor indicated that if the defence took this course of action, the Crown would seek to rebut the evidence of good character with evidence of matters that were the subject of a related charge. On this basis, defence counsel decided not to adduce evidence of good character. The accused appealed his subsequent conviction on the grounds that there had been a miscarriage of justice as he had been unfairly denied the benefit of adducing evidence of good character. He argued that his counsel at trial ought to have sought an advance ruling on whether the Crown’s character evidence would have been excluded pursuant to ss 135 or 137.
16.100 A majority of the High Court held that the uniform Evidence Acts do not confer the power to give an advance ruling as to how the discretions in ss 135 or 137 will be exercised, and that ‘a discretion can only be exercised if and when it is invoked’. However, the Court held that it may be appropriate to give an advance ruling on a matter in respect of which the uniform Evidence Acts requires leave, permission or direction to be sought, as s 192 gives the court the discretion to give such leave, permission or direction ‘on such terms as the court thinks fit’. However, it held that such a power is limited. Gaudron J said:
Although it may be appropriate in some cases to give an ‘advance ruling’ as to a matter in respect of which the Evidence Act requires leave, permission or direction, it is to be remembered that counsel ultimately bears the responsibility of deciding how the prosecution and defence cases will be run. Thus, it is that ‘advance rulings’, even if permitted … may give rise to a risk that the trial judge will be seen as other than impartial. Particularly is that so in the case of advance rulings that serve only to enable prosecuting or defence counsel to make tactical decisions. If there is a risk that an ‘advance ruling’ will give rise to the appearance that the trial judge is other than impartial, it should not be given.
16.101 The rationale for the view that judges cannot exercise a ‘discretion’ in advance is that ss 135–137 must be exercised in the context of the other evidence adduced at trial. In an adversarial system, the judge is not in possession of all the facts at the beginning of the trial, as the facts emerge during the course of the trial as evidence is adduced by both parties. Hence, in exercising a ‘discretion’ to exclude evidence in advance, the judge will depend on the ability of counsel to anticipate the nature and extent of the evidence to be adduced at trial or upon an assumption that the evidence will be the same as that adduced at the committal proceedings. The risk is that, once the occasion for the exercise of the discretion actually arises, the foreshadowed decision may no longer seem appropriate.
16.102 On the other hand, advance rulings may serve the interests of justice by adding to the overall efficiency of the trial. Crispin J articulated the benefits of advance rulings as follows:
There are some cases in which substantial inconvenience, expense and perhaps even unfairness might ensue if there were to be no indication as to the likely exercise of discretion. Such an approach may require counsel to prepare for trial and make tactical decisions without knowing whether a substantial body of evidence is likely to be admitted, the Crown may be unable to make any sensible assessment as to the prospects of obtaining a conviction, counsel for the accused may be unable to offer any sensible advice as to the appropriate plea and the opening addresses may have to omit any explanation of the relevance of evidence subsequently admitted. Furthermore, if the trial judge subsequently rules that the evidence should be excluded in the case of one accused but not the other, it may be necessary to then discharge the jury and order that the accused be tried separately. That would involve a substantial waste of time and money, create unnecessary risks of prejudice to both the Crown and the accused and leave jurors with the feeling that their time had been wasted.
Submissions and consultations
16.103 In DP 69, the Commissions proposed that the uniform Evidence Acts should be amended to give the court the power to give advance rulings.
16.104 Submissions and consultations express unanimous support for this proposal. The NSW PDO states:
In TKWJ v The Queen the High Court held that the power of a court to give advance rulings was extremely limited. This decision was an unfortunate one. The power to make advance rulings was extremely useful, especially in cases where an accused was contemplating partially raising good character, or making an attack on the character of a Crown witness. The practical demise of the ‘advance ruling’ has meant that in many cases, an accused is not prepared to run the risk of partially raising character.
16.105 One senior practitioner considers that advance rulings are beneficial to avoid the need to ‘chase evidentiary rabbits’. Another practitioner expresses the view that the proposal is excellent and should be extended further to issues of culpability.
16.106 One judicial officer considers that, despite the criticisms of the High Court of the ‘advance’ exercise of discretion, ss 135–137 require the court to make a judgment in advance in any case, and that it is often difficult to predict during the voir dire whether evidence will have the significance that counsel indicates.
The Commissions’ view
16.107 Although the High Court found that there was nothing in the uniform Evidence Acts to support the existence of the power to give advance rulings as to the exercise of the ‘discretion’ to exclude evidence, the Commissions are of the view that there is nothing in the uniform Evidence Acts which indicates that courts are precluded from giving advance rulings. This is consistent with the adversarial context in which the Acts operate. It is also consistent with the practice in jurisdictions such as Victoria, where advance rulings are given in criminal trials before evidence is called.
16.108 The power to give advance rulings carries significant benefits in relation to the efficiency of trials. It allows counsel to select witnesses and prepare for trial with greater certainty. Without such a power, tactical decisions, particularly in relation to character evidence, are based on speculation.
16.109 The Commissions consider that there are strong arguments of policy and practice in favour of removing the prohibition imposed by the High Court in TKWJ v The Queen. This view is supported unanimously in submissions and consultations. It is therefore recommended that the uniform Evidence Acts should be amended so as to provide the court with the express power, in civil and criminal proceedings, to give advance rulings in relation to the admissibility of evidence and other evidentiary questions. This power should extend to evidentiary questions arising out the uniform Evidence Acts and other laws affecting the admissibility of evidence. A draft provision providing for advance rulings is set out in Appendix 1.
Recommendation 16–2 The uniform Evidence Acts should be amended to provide that, in civil and criminal proceedings, the court may, if it thinks fit, give an advance ruling or make an advance finding in relation to any evidentiary issue.
 Eg, Criminal Procedure Act 1986 (NSW) s 130; District Court Rules 1973 (NSW) Pt 53 rr 10 and 11; Crimes Act 1958 (Vic) s 391B; Criminal Code 1924 (Tas) s 361A.
Crimes Act 1958 (Vic) s 391B; Criminal Code 1924 (Tas) s 361A.
 See R v PKS (Unreported, New South Wales Court of Criminal Appeal, Wood CJ at CL, Sully and Ireland JJ, 1 October 1998); R v Robinson (2000) 111 A Crim R 388.
TKWJ v The Queen (2002) 212 CLR 124.
 Ibid. The operation of s 192 of the uniform Evidence Acts is discussed in Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [14.98]–[14.105].
TKWJ v The Queen (2002) 212 CLR 124, .
 Ibid,  per Gaudron J;  per Gummow J;  per Hayne J. Gleeson CJ and McHugh J found it unnecessary to decide the question: , , .
 Ibid, .
 This term is used loosely, as s 137 is in fact a mandatory exclusion. However, in this context it is appropriate to refer to it as a ‘discretion’ as the issue in the discussion is the exercise of judgment based on broad principles, which is the discretionary aspect of s 137.
R v TR and VG (2004) 180 FLR 424.
 Ibid, .
Adam v The Queen (2001) 207 CLR 96, .
R v TR and VG (2004) 180 FLR 424, .
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposal 14–2.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; C McDonald, Consultation, Darwin, 31 March 2005; P Greenwood, Submission E 47, 11 March 2005.
 New South Wales Public Defenders Office, Submission E 89, 19 September 2005.
 P Greenwood, Submission E 47, 11 March 2005.
 C McDonald, Consultation, Darwin, 31 March 2005.
 New South Wales District Court Judges, Consultation, Sydney, 3 March 2005.
TKWJ v The Queen (2002) 212 CLR 124.