Uniform evidence law [6 ed.] 9780455241111, 0455241112, 9780455241128, 0455241120

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UNIFORM EVIDENCE LAW

Commentary and Materials

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UNIFORM EVIDENCE LAW: COMMENTARY AND MATERIALS MIIKO KUMAR Crown Prosecutor, Barrister at Law and Senior Lecturer, Faculty of Law, University of Sydney

STEPHEN ODGERS SC Barrister at Law and Adjunct Professor, Faculty of Law, University of Sydney

DR ELISABETH PEDEN Barrister at Law and Professor, Faculty of Law, University of Sydney

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SIXTH EDITION

LAWBOOK CO. 2018

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW ISBN 9780455241111

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PREFACE Since The Honourable Michael McHugh AO QC launched this book in Sydney in April 2004, it has proved to be a useful tool in the learning of Evidence Law. We hope that this new edition continues to make a positive contribution to readers’ understanding of this area of law. This sixth edition marks the 23rd anniversary of the Uniform Evidence Act. This edition contains the most significant cases and is a “standalone” resource. Each chapter provides essential materials, together with questions that can be used either in class or for individual study. Brief answers are provided in the last chapter. Many of the questions require a consideration of the case files contained in Chapter 20. These case files are fictitious and are intended to form the basis of discussion and analysis of how evidence law operates in civil and criminal cases. We would like to thank several people. We are grateful to the late Professor Eilis Magner, who generously allowed us to use some of her problem questions, which we could not improve upon. Thanks are also due to the team at Thomson Reuters, in particular Elizabeth Gandy and Raghavendra KV. We also thank our spouses and families for their ongoing support.

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MIIKO KUMAR STEPHEN ODGERS ELISABETH PEDEN Sydney June 2018

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TABLE OF CONTENTS Preface ............................................................................................................................................ v Table of Cases ................................................................................................................................. ix Table of Statutes ............................................................................................................................. xv

Part 1 – Introduction Chapter 1 – Introduction............................................................................................ 3

Part 2 – Adducing Evidence Chapter 2 – Witnesses .............................................................................................. 11 Chapter 3 – Documents .......................................................................................... 131 Chapter 4 – Real Evidence ...................................................................................... 151

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Part 3 – Admissibility of Evidence Chapter 5 – Relevance............................................................................................. 173 Chapter 6 – Discretions to Exclude or Limit Use of Evidence ........................... 193 Chapter 7 – Hearsay ................................................................................................ 251 Chapter 8 – Opinion ................................................................................................ 337 Chapter 9 – Admissions .......................................................................................... 391 Chapter 10 – Tendency and Coincidence ............................................................. 437 Chapter 11 – Credibility ......................................................................................... 481 Chapter 12 – Character .......................................................................................... 521 Chapter 13 – Identification Evidence ................................................................... 543 Chapter 14 – Privilege ............................................................................................ 561

Part 4 – Proof Chapter 15 – Burden and Standard of Proof ...................................................... 643 Chapter 16 – Judicial Notice................................................................................... 663

Uniform Evidence Law: Commentary and Materials

Chapter 17 – Facilitation of Proof ........................................................................ 675 Chapter 18 – Corroboration and Warnings......................................................... 701 Chapter 19 – Prima Facie Case .............................................................................. 727

Part 5 – Case Files and Answers to Questions Chapter 20 – Case Files ........................................................................................... 735 Chapter 21 – Answers to Questions...................................................................... 777

Appendix – Legislation Evidence Act ............................................................................................................. 871 Relationship Between the Evidence Act 2001 (Tas) and the Evidence Act 1995 (Cth) .................................................................. 1033 Criminal Procedure Act 1986 (NSW) – Extracts ............................................... 1041

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Index.......................................................................................................................................... 1055

TABLE OF CASES A ACCC v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938 ................................................. 14.200 Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 ................. 2.280, 5.30, 6.30, 11.20, 11.180 Ainsworth v Burden [2005] NSWCA 174............................................................................ 6.70, 6.90 Alexander v The Queen (1981) 145 CLR 395 ...................................................... 13.40, 13.50, 13.90 Alister v The Queen (1984) 154 CLR 404 ................................................................................ 14.200 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 ....................................................................................... 15.30 ASIC v Rich (2004) 213 ALR 338 ............................................................................................... 1.140 Aslett v The Queen [2006] NSWCCA 49 ................................................................................... 2.330 Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 ................................. 14.200, 14.240 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 ......................................................................... 3.40, 3.90, 7.270 Australian Securities & Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17........................................................................................................................................ 17.80 Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15 ............................... 6.140, 16.20, 16.40 Azzopardi v The Queen (2001) 205 CLR 50 .................................................... 17.10, 17.100, 17.120

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B BRS v The Queen (1997) 191 CLR 275...................................................................................... 10.10 Bin Sulaeman v The Queen [2013] NSWCCA 283 ..................................................................... 1.110 Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 ............................... 12.20, 12.40, 15.20 Briginshaw v Briginshaw (1938) 60 CLR 336 ............................................................................. 15.40 Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 ...................................... 15.40 Browne v Dunn (1893) 6 R 67 .......................................................... 2.20, 2.350, 2.400, 2.470, 6.70 Bunning v Cross (1978) 141 CLR 54 ......................................................................................... 6.160 Butera v DPP (1987) 164 CLR 180; [1987] HCA 58 ................................................. 3.40, 3.50, 3.140

C CMG v The Queen [2011] VSCA 416 ........................................................................................ 18.90 Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 ............................................................................................................... 7.280 Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903................................................. 7.90, 7.100 Chamberlain v The Queen (1983) 153 CLR 521........................................................................ 15.60 Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 ..... 2.30, 2.40 Col v The Queen [2013] NSWCCA 302..................................................................................... 11.80 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 ............................................................................. 14.170, 14.180 Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 ...................................................... 1.40 Council of the New South Wales Bar Association, The v Franklin [2014] NSWCA 329....... 7.90, 7.110 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ...................... 18.10, 18.50, 18.70, 18.100

D DPP v AM [2006] NSWSC 348 .................................................................................................. 6.160 DPP v CAD [2003] NSWSC 196 ................................................................................................ 6.160 DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194........................................................ 6.160 DPP v Marijancevic; DPP v Preece; DPP v Preece (2011) 33 VR 440; [2011] VSCA 355 ... 6.160, 6.180

Uniform Evidence Law: Commentary and Materials

DPP v Newman (a Pseudonym) [2015] VSCA 25............................................................ 12.50, 12.70 DPP (Cth) v Galloway (a Pseudonym) [2014] VSCA 272 ......................................................... 14.100 DPP (NSW) v Burns (2010) 207 A Crim R 362; [2010] NSWCA 265 .......................................... 2.190 DSJ v The Queen (2012) 84 NSWLR 758; 215 A Crim R 349; [2012] NSWCCA 9 ............. 6.30, 10.50 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ........ 1.40, 1.110, 8.10, 8.80, 8.120 Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) ................................................. 8.50 De Silva v The Queen (2013) 236 A Crim R 214; [2013] VSCA 339 ......................................... 11.150 Derbas v The Queen (2012) 221 A Crim R 13; [2012] NSWCCA 14 ........................... 14.200, 14.230 Devries v Australian National Railways Commission [1992] HCA 41 ........................................ 11.160 Director-General, Dept of Community Services v D (2006) 66 NSWLR 582; [2006] NSWSC 827....................................................................................................................... 14.130 Divall v Mifsud [2005] NSWCA 447 ............................................................................... 14.60, 14.90 Dodds v The Queen (2009) 194 A Crim R 408; [2009] NSWCCA 78.............................. 2.260, 2.270 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 ............................................. 19.10, 19.30 Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 ............... 2.430, 2.440, 11.130 Dyers v The Queen (2002) 210 CLR 285 .............................................. 17.10, 17.80, 17.100, 17.130

E Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 .................................................... 9.110, 9.140 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 ........................................................................................ 14.10, 14.20, 14.30 Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 .... 4.20, 4.30, 4.50, 4.100, 5.30, 5.60, 18.20 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 .................................... 14.10, 14.80

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F FB v The Queen [2011] NSWCCA 217 ...................................................................................... 2.190 FDP v The Queen (2008) 74 NSWLR 645; [2008] NSWCCA 317 ............................................... 6.110 Field v Commissioner for Railways for NSW (1957) 99 CLR 285; [1957] HCA 92 ........ 14.250, 14.260 Foreign Media v Konstantinidis [2003] NSWCA 161 ............................................... 3.40, 3.60, 3.140 Foster v The Queen (1993) 66 A Crim R 112; [1993] HCA 80 ............................. 9.110, 9.120, 9.180

G GPI Leisure Corp Ltd v Herdman Investments (No 3) (1990) 20 NSWLR 15 ................... 2.170, 2.180 Gately v The Queen (2007) 232 CLR 208 ................................................................................. 18.50 Goldsmith v Sandilands (2002) 190 ALR 370 .............................................................................. 5.30 Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 ........................................... 17.60 Graham v The Queen (1998) 195 CLR 606 ....................................................... 7.170, 7.180, 11.180 Green v The Queen (1971) 126 CLR 28 ......................................................................... 15.60, 15.70

H HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 ................................................................. 8.60 Haddara v The Queen [2014] VSCA 100 ..................................................................................... 1.40 Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941 .......................... 2.280 Hargraves v The Queen; Stoten v The Queen (2011) 245 CLR 257; 85 ALJR 1254; 282 ALR 214; [2011] HCA 44 ............................................................................... 11.160, 11.170 Harris v The Queen (2005) 158 A Crim R 454; [2005] NSWCCA 432 ............................. 7.120, 7.140 Henderson v Queensland (2014) 89 ALJR 162; [2014] HCA 52 ................................................. 15.40 Ho v DPP (1998) 102 A Crim R 37 ............................................................................................ 6.160 Hollingham v Head (1858) 140 ER 1135 ..................................................................................... 5.80 Honeysett v The Queen (2014) 88 ALJR 786; [2014] HCA 29 .................................. 8.10, 8.70, 8.120

Table of Cases

Hughes v The Queen [2017] HCA 20, 344 ALR 187 .............................................. 1.40, 10.10, 10.30

I ISJ v The Queen (2012) 38 VR 23; 226 A Crim R 484; [2012] VSCA 321 ................................... 7.210 Idylic Solutions Pty Ltd, Re [2012] NSWSC 568 .............................................................. 3.110, 3.120 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.............................. 6.30, 6.40, 10.10, 10.20

J Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51.................................................. 10.70 Jango v Northern Territory (No 4) (2004) 214 ALR 608; [2004] FCA 1539 .................................. 7.80 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 ....................................................... 17.80, 17.90 Johnstone v New South Wales (2010) 202 A Crim R 422; [2010] NSWCA 70 ............................ 1.140

K Kamleh v The Queen (2005) 213 ALR 97; 79 ALJR 541; [2005] HCA 2 ............................... 7.20, 7.40 Kang v Kwan [2001] NSWSC 698 ................................................................................ 14.60, 14.110 Kelly v The Queen (2004) 218 CLR 216; 205 ALR 274; 78 ALJR 538; [2004] HCA 12 .................. 9.50 Khamis v The Queen [2010] NSWCCA 179.................................................................... 2.400, 2.470 Kilby v The Queen (1973) 129 CLR 460 .................................................................................... 18.50 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531................................................. 2.70 Kozul v The Queen (1981) 147 CLR 221; [1981] HCA 19........................................ 4.70, 4.80, 4.100 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 ................... 17.80 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114......... 8.90

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L LMD v The Queen [2012] VSCA 164......................................................................................... 7.200 La Trobe Capital &Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; 273 ALR 774; [2011] FCAFC 4 ....................................... 6.70, 6.100 Lancaster v The Queen [2014] VSCA 333....................................................................... 7.230, 7.240 Langford v Tasmania [2018] TASCCA 1 ............................................................................ 8.10, 8.100 Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 .................................. 7.20, 7.50, 7.60, 7.310 Lexcray Pty Ltd v Northern Territory (2015) 292 FLR 447; [2015] NTSC 11 ............................ 14.250 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 ...................................... 2.20, 2.310, 2.320 Lithgow City Council v Jackson (2011) 244 CLR 352; 281 ALR 223; 85 ALJR 1130; [2011] HCA 36............................................. 7.230, 7.260, 8.10, 8.30, 8.40, 8.120 Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 .......................................... 18.50, 18.60

M MA v The Queen (2011) 31 VR 203; [2011] VSCA 13 ............................................................... 13.70 MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20.................................................. 11.140 MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 ........................................ 2.20, 2.340, 2.390 Madafferi v The Age [2015] VSC 687; 50 VR 492 .................................................................... 14.140 Makin v A-G (NSW) [1894] AC 57 ............................................................................................ 10.10 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705..................................................... 8.120 Maluka & Maluka (2011) 45 Fam LR 129; [2011] FamCAFC 72 .......................... 16.20, 16.50, 16.60 Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66 ......................... 14.10, 14.60, 14.70 May v O’Sullivan (1955) 92 CLR 654; [1955] HCA 38 .................................................... 19.10, 19.20 McKinney v The Queen (1991) 171 CLR 468 ................................................................... 9.20, 18.50 McNeill v The Queen (2008) 168 FCR 198 ................................................................................. 1.40 Melbourne v The Queen (1999) 198 CLR 1 ........................................................ 12.10, 12.50, 12.60

Uniform Evidence Law: Commentary and Materials

Munro v The Queen [2014] ACTCA 11 .......................................................................... 7.120, 7.150

N NAB v Rusu (1999) 47 NSWLR 309 ......................................................................... 3.40, 3.80, 3.140 NOM v DPP (2012) 38 VR 618; [2012] VSCA 198..................................................................... 15.40 New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 .......... 14.200, 14.220 New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 ...................................................................................................................... 14.220 Nikolaidis v The Queen (2008) 191 A Crim R 556; [2008] NSWCCA 323 ................................ 11.120

O Ordukaya v Hicks [2000] NSWCA 180 ...................................................................... 6.70, 6.80, 7.90

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P Pace (a Pseudonym) v The Queen [2014] VSCA 317 ................................................................. 13.80 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 ................. 2.20, 11.20, 11.30, 11.70, 11.180 Papakosmas v The Queen (1999) 196 CLR 297............................................... 1.40, 5.30, 5.50, 6.60, 6.70, 6.150, 7.170, 11.90, 11.180 Pate v The Queen [2015] VSCA 110 ......................................................................................... 7.220 Patrick v The Queen [2014] VSCA 89 .......................................................................................... 5.55 Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551 ..................... 2.340, 2.370, 2.470 Peterson (a Pseudonym) v The Queen [2014] VSCA 111 ........................................................... 13.60 Petty and Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34 ................... 9.160, 9.170, 10.10 Picken v The Queen [2007] NSWCCA 319 ................................................................................ 1.110 Poniris v The Queen [2014] NSWCCA 100................................................................................ 6.110 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 ......................... 2.360, 2.470

Q Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273; [2008] FCAFC 69 ................... 15.50 Quick v Stoland Pty Ltd (1998) 87 FCR 371 ................................................................................ 7.70

R R v Apostilides (1984) 154 CLR 563 ................................................................................. 2.30, 2.470 R v Birks (1990) 19 NSWLR 677 .......................................................................... 2.340, 2.380, 2.470 R v Blick (2000) 111 A Crim R 326 ............................................................................................ 6.110 R v Burton [2013] NSWCCA 335 ................................................................................................ 6.30 R v Cakovski (2004) 149 A Crim R 1; [2004] NSWCCA 280....................................................... 10.10 R v Chin (1985) 157 CLR 671 ........................................................................................ 2.450, 2.460 R v Christie [1914] AC 545 ......................................................................................................... 6.20 R v Cornwell [2003] NSWSC 97 ................................................................................................ 6.160 R v DGB (2002) 133 A Crim R 227 ............................................................................................ 18.50 R v Da Silva [1990] 1 WLR 31.................................................................................................... 2.260 R v Dalley (2002) 132 A Crim R 169 ......................................................................................... 6.160 R v Damic [1982] 2 NSWLR 750 ................................................................................................. 2.30 R v Dann (2000) 123 A Crim R 506 ............................................................................... 6.110, 6.130 R v Dickman [2017] HCA 24, (2017) 91 ALJR 686 .............................................................. 6.30, 6.50 R v Dookheea [2017] HCA 36 (2017) 91 ALJR 960 .................................................................... 15.60 R v DRF [2015] NSWCCA 181 ................................................................................................... 9.150 R v Edwards (1993) 178 CLR 193................................................................................... 9.180, 18.50

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Table of Cases

R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319............................................................... 10.10 R v Em [2003] NSWCCA 374 .................................................................................................... 6.160 R v Esposito (1998) 45 NSWLR 442..................................................................... 2.190, 2.200, 2.470 R v Flood [1999] NSWCCA 198 ................................................................................................ 18.30 R v GM [2016] NSWCCA 78 .......................................................................................... 10.10, 10.40 R v GW (2016) 258 CLR 108............................................................................................ 2.70, 2.120 R v Gulam Mohammad Khan (unreported, NSW Sup Ct, Hidden J, 22 November 1995) ...................................................................................... 2.140, 2.150, 2.470 R v Helmhout (2001) 125 A Crim R 257; [2001] NSWCCA 372 ....................................... 9.90, 9.100 R v Hogan [2001] NSWCCA 292......................................................................... 2.280, 2.290, 2.470 R v Ivan Robert Marko Milat (unreported, NSWSC, 12 April 1996) .......................... 4.30, 4.40, 4.100 R v Jiminez (2001) 119 A Crim R 299; [2000] NSWCCA 390 ..................................................... 6.160 R v Kneebone (1999) 47 NSWLR 450................................................................................. 2.30, 2.50 R v LTP [2004] NSWCCA 109.................................................................................................... 18.50 R v Le (2002) 130 A Crim R 44; 54 NSWLR 474 .................................................. 2.280, 2.300, 2.470 R v Markuleski (2001) 52 NSWLR 82 ......................................................................................... 18.50 R v McLaughlan (2008) 218 FLR 158; [2008] ACTSC 49 ............................................................. 9.80 R v Moffatt (2000) 112 A Crim R 201 ................................................................................ 9.50, 9.70 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 ............................................................... 18.50 R v Ngo (2001) 122 A Crim R 467 .......................................................................................... 11.100 R v SWC (2007) 175 A Crim R 71; [2007] VSCA 201 ................................................................. 2.410 R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 ................................................ 4.30, 4.60, 4.100 R v Slattery [2002] NSWCCA 367 ............................................................................................. 18.50 R v Small (1994) 33 NSWLR 575 ................................................................................................. 9.20 R v Sood [2007] NSWCCA 214 ............................................................................... 6.30, 6.60, 6.120 R v Stackelroth (unreported, NSWCCA, Gleeson CJ, Powell JA and Smart J, 9 April 1998) ....................................................................................................................... 18.50 R v Stephenson [1976] VR 376 ................................................................................................... 5.80 R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 ................................................... 18.20, 18.40 R v Suteski (2002) 56 NSWLR 182 .............................................................................................. 6.70 R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 ................................................... 9.110, 9.130 R v Tahere [1999] NSWCCA 170 ......................................................................... 13.20, 13.30, 13.90 R v Taylor [2003] NSWCCA 194 .................................................................................................. 6.20 R v Whitmore (1999) 109 A Crim R 51 ................................................................................... 11.110 R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 ................................................................ 7.190 R v XY (2013) 84 NSWLR 363; 231 A Crim R 474; [2013] NSWCCA 121 .................................... 6.30 R v Young (1999) 46 NSWLR 681; 107 A Crim R 1 .................................................................. 14.150 R v Zhang [2000] NSWSC 1099................................................................................ 9.40, 9.50, 9.60 R v Zurita [2002] NSWCCA 22 ....................................................................................... 12.20, 12.30 RPS v The Queen (2000) 199 CLR 620 .................................................................................... 17.100 Ridgeway v The Queen (1995) 184 CLR 19 .............................................................................. 6.160 Robinson v The Queen (1991) 180 CLR 531 ........................................................................... 11.170 Robinson v Woolworths Ltd [2005] NSWCCA 426 ......................................................... 6.160, 6.170 Robbins (a pseudonym) v The Queen [2017] VSCA 288 ............................................ 18.100, 18.110 Rush &Tompkins Ltd v Greater London Council [1989] AC 1280 ............................... 14.250, 14.270 Ryland v QBE Insurance (Australia) Ltd [2013] NSWCA 120 ........................................... 2.190, 2.210

S S v New South Wales (No 3) [2009] NSWCA 248 ................................................................... 14.200 SH v The Queen (2012) 83 NSWLR 258; [2012] NSWCCA 79 ........................................ 2.100, 2.110 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 ................................... 14.200, 14.210, 14.290 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 ........................................ 15.60, 15.80 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 .................................................... 7.120, 7.160

Uniform Evidence Law: Commentary and Materials

Smith v The Queen (2001) 206 CLR 650 ........................................................................... 5.30, 5.40 Southland Coal Pty Ltd (rec and mgrs apptd) (in liq), In the matter of (2006) 203 FLR 1; [2006] NSWSC 899 .................................................................................................. 14.20, 14.40 Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 ....................................... 12.90, 12.100 State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 ............................................................................................................. 11.40, 11.50 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306; [1999] HCA 3 .................................................................................... 11.160 State Rail Authority of New South Wales v Smith (1998) 45 NSWLR 382.................... 14.250, 14.280 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 .................................................. 15.20 Subramaniam v Public Prosecutor [1956] 1 WLR 965 .............................................. 7.20, 7.30, 7.310 Suresh v The Queen (1998) 72 ALJR 769 .................................................................................. 18.50 Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd ........................................................................................................................................ [2005] NSWCA 47 .................................................................................................... 14.20, 14.50

T Telstra Corp v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 ....................................... 1.40 Thomas v New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 ........................ 7.230, 7.250 Tootle v R [2017] NSWCCA 103 ............................................................................................... 2.220 Tuite v The Queen [2015] VSCA 148......................................................................................... 8.105 Tully v The Queen (2006) 230 CLR 234 .................................................................................... 18.50

U

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Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471............................. 2.450, 2.470

V Vickers v R [2006] NSWCCA 60 ................................................................................................ 1.110 Velevski v The Queen (2002) 76 ALJR 402 ............................................................... 2.30, 2.60, 2.470 Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60 .......................................... 7.20

W Wade (a Pseudonym) v The Queen [2014] VSCA 13 ................................................................... 3.70 Walton v The Queen (1989) 166 CLR 283 ....................................................................... 7.20, 7.310 Ward (a Pseudonym) v The Queen [2017] VSCA 37 .................................................................. 2.420 Webb v The Queen (2012) 225 A Crim R 550; [2012] NSWCCA 216 ........................................ 7.120 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65............................. 17.100, 17.110 Williams v The Queen (2000) 119 A Crim R 490 ............................................................ 7.120, 7.130 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 ................................ 16.20, 16.30, 16.60

TABLE OF STATUTES COMMONWEALTH Australian Crime Commission Act 2002: 2.140 Corporations Act 2001 s 998(1): 12.40 s 1311(1): 12.40 Crimes Act 1914: 13.10 s 10: 14.290 s 23V: 9.10, 9.20

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Disability Discrimination Act 1992 s 15(2)(d): 15.50 Evidence Act 1995: 1.10, 1.30, 2.140, 2.470, 3.40, 3.140, 4.10, 5.80, 6.70, 7.20, 7.310, 9.10, 9.110, 9.180, 10.20, 11.180, 12.110, 13.90, 14.290, 15.10, 15.100, 18.120, 19.10 ss 1 to 3: 1.60 s 5: 1.60 s 8: 1.40, 1.60, 1.140, 2.20 s 8A: 1.40 s 9: 1.40, 1.60, 2.20 s 10: 1.60 s 11: 1.60, 1.90, 2.20, 2.30, 2.470 s 12: 2.20, 2.70, 2.470 s 13: 2.20, 2.100 s 13(1): 2.470 s 13(2)(a): 2.90 s 13(3): 2.20, 2.70, 2.470 s 13(5): 2.70, 2.470 s 14: 2.470 s 15: 2.20, 2.140, 2.470 s 16: 2.20, 2.140, 2.470 s 17: 2.20, 2.140 s 17(2): 2.70, 2.470 s 17(3): 2.470 s 18: 2.20, 2.140, 2.470, 17.100 s 18(6): 2.20 s 19: 2.20, 2.140, 2.470 s 20: 2.20, 2.140, 17.100, 17.140 s 20(2): 17.140 s 20(3): 17.140 s 22: 2.240 s 26: 1.90, 2.20, 2.170, 2.190, 2.470 s 26(a): 2.20 s 27: 2.20, 2.190 s 28: 2.20, 2.230 s 29: 2.230 s 29(4): 4.100 ss 29 to 31: 2.20 s 30: 2.240 s 31: 2.240 s 32: 2.20, 2.260, 2.470 s 33: 2.20, 2.260, 2.270

s 34: 1.90, 2.20, 2.260 s 35: 3.20, 3.130 ss 35 to 36: 2.20 s 36: 1.90, 3.130 s 37: 2.20, 2.250, 2.430 s 37(1): 2.250, 2.430 s 37(1)(e): 2.470 s 38: 1.100, 2.20, 2.250, 2.280, 2.300, 2.430, 2.470, 11.40 s 38(1): 2.280, 11.180 s 38(1)(a): 2.280 s 38(1)(b): 2.280 s 38(1)(c): 2.280, 2.470 s 38(3): 11.180 s 38(4): 11.180 s 38(5): 11.180 s 38(6): 2.280, 2.470, 11.180 s 39: 2.20, 2.430, 11.10 s 40: 2.310, 2.470 s 41: 2.20, 2.310 s 41(1): 2.20 s 41(3): 2.20 s 42: 2.20, 2.280, 2.330, 2.470 s 43: 2.20, 2.280, 2.330, 2.470 s 44: 2.20, 2.330, 11.180 s 45: 1.90, 2.20, 2.330 s 46: 2.20, 2.340, 2.470 s 47: 3.140 s 47(1): 3.40 s 47(2): 3.40 s 48: 3.20, 3.40, 3.100, 3.140 s 48(4): 3.140 s 49: 3.20, 3.100 s 50: 3.20, 3.110, 3.140 s 51: 3.20, 3.30, 3.140 s 52: 4.20, 4.100 s 53: 4.20, 4.30, 4.100, 5.60 s 53(3): 4.100 s 53(4): 4.20, 4.70 s 53(5): 4.30 s 54: 4.20, 4.30 s 55: 5.20, 5.80, 6.30, 8.10, 8.120, 11.20 s 55(1): 6.30 s 56: 5.20, 5.80, 11.20 s 56(1): 1.40, 8.120 s 57: 5.20, 5.70, 5.80 s 58: 1.130, 5.20, 5.70, 5.80 s 59: 5.20, 7.10, 7.20, 7.310, 9.180, 10.10 s 60: 6.150, 7.10, 7.50, 7.80, 7.170, 7.310, 11.110, 11.180 s 60(2): 7.50 s 60(3): 7.50 s 61: 7.90, 7.310 s 62: 7.90, 7.310

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Uniform Evidence Law: Commentary and Materials

Evidence Act 1995 — cont s 63: 7.10, 7.90, 7.300, 7.310 s 63(2): 7.100 ss 63 to 66A: 7.20 s 64: 7.10, 7.90, 7.300 s 64(2): 7.90, 7.100, 7.310 s 64(2)(b): 7.90 s 64(3): 7.310 s 65: 7.10, 7.120, 7.150, 7.300 s 65(2)(a): 7.310 s 65(2)(b): 7.120, 7.140, 7.310 s 65(2)(c): 7.120, 7.140, 7.310 s 65(2)(d): 7.120, 7.160, 7.310 s 65(3): 7.310 s 65(8): 7.310 s 65(9): 7.310 s 66: 5.50, 6.150, 7.170, 7.180, 7.200, 7.310, 11.110, 11.180 s 66(2): 5.50, 7.170, 7.190, 7.210, 11.180 s 66(2A): 7.170, 7.180 s 66A: 7.310 s 67: 7.90, 7.100, 7.310 s 68: 7.90 s 69: 7.10, 7.230, 7.240, 7.250, 7.260, 7.300, 7.310 s 69(3)(a): 7.250 ss 69 to 75: 7.20 s 70: 7.10, 7.290, 7.300, 7.310 s 71: 7.10, 7.290, 7.300, 7.310 s 72: 7.310 s 73: 7.290, 7.310 s 74: 7.290, 7.310 s 75: 7.10, 7.290, 7.310 s 76: 5.20, 8.10, 8.20, 8.50, 8.120 s 77: 8.10, 8.120 s 78: 7.260, 8.10, 8.20, 8.30, 8.120 s 78(a): 8.120 s 78(b): 8.120 s 78A: 8.10 s 79: 8.10, 8.20, 8.50, 8.60, 8.120 s 79(1): 8.10, 8.50 s 79(2): 8.10 s 80: 8.110, 8.120 s 81: 7.20, 9.10, 9.180 ss 81 to 90: 9.180 s 82: 9.10, 9.180 s 83: 9.10, 9.180 s 84: 1.120, 9.10, 9.30 s 85: 9.10, 9.50 s 86: 9.10, 9.20 s 87: 7.20, 9.10, 9.180 s 88: 9.10, 9.20 s 89: 5.20, 9.10, 9.160 s 90: 9.10, 9.110 s 91: 5.20, 17.140 ss 91 to 93: 17.50 s 92: 7.20 s 94: 10.10 s 95: 10.10, 10.80 s 96: 10.20 s 97: 5.20, 10.10, 10.80, 17.140

s 97(1)(b): 10.10, 1.40, s 98: 5.20, 10.10, 10.80, 17.140 s 98(1)(b): 6.30, 10.10 s 99: 10.10 s 100: 10.10 s 101: 10.10, 10.80, 17.140 s 101A: 11.10, 11.20 s 101A(a): 11.20 s 101A(b): 11.20 s 102: 2.470, 11.10, 11.20, 11.180 s 103: 2.470, 11.10, 11.40, 11.70, 11.180, 17.140 s 104: 11.10, 11.60, 11.70, 12.90, 17.140 s 104(2): 11.180 s 104(3): 11.180 s 104(4): 11.180 s 104(6): 11.180 s 106: 2.470, 11.10, 11.70, 17.140 s 106(1): 11.10, 11.70 s 106(2): 11.10, 11.70 s 108: 7.170, 11.10, 11.90, 11.110, 11.180 s 108(1): 11.180 s 108(3): 11.120 s 108(3)(a): 11.10, 11.180 s 108(3)(b): 11.10, 11.180 s 108A: 11.10, 11.60 s 108B: 11.10 s 108C: 11.10 s 109: 12.110 s 110: 7.20, 11.10, 12.10, 12.110, 17.140 s 111: 7.20, 12.10, 12.80 s 113: 13.10, 13.20 ss 113 to 116: 13.90 s 114: 13.10, 13.20, 13.90 s 114(3): 13.10 s 115: 13.10, 13.40, 13.90 s 116: 13.10, 13.90 s 117: 14.20 s 118: 14.10, 14.20 ss 118 to 119: 14.10 ss 118 to 120: 14.10 s 119: 14.10, 14.20 s 120: 14.10, 14.20 ss 121 to 126: 14.10, 14.60 s 122: 14.10, 14.60 s 122(1): 14.10 s 122(2): 14.10 s 122(3): 14.10 s 122(5): 14.10 s 123: 14.10, 14.100 s 125: 14.10, 14.60 s 126G: 14.10 s 126H: 14.10, 14.140 s 127: 14.10, 14.160 s 128: 1.40, 14.10, 14.170 s 129: 14.10, 14.190, 14.290 s 130: 14.10, 14.200, 14.220 s 130(1): 14.10, 14.290 s 130(4): 14.10 s 130(5): 14.10 s 131: 14.10, 14.250

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Table of Statutes

Evidence Act 1995 — cont s 131(2): 14.10 s 131B: 14.10 s 132: 14.10, 14.290 s 133: 1.90, 14.10 s 134: 14.10 s 135: 4.20, 6.10, 6.20, 6.30, 6.70, 6.100, 6.140, 6.190, 9.10, 10.80, 11.180, 13.10, 13.90 s 136: 5.20, 6.10, 6.150, 6.190, 7.10, 7.50, 8.10, 10.80, 11.20 s 137: 4.20, 6.10, 6.30, 6.60, 6.110, 6.140, 6.190, 9.10, 11.180, 12.10, 13.10, 13.40, 13.90 s 138: 6.10, 6.30, 6.160, 6.190, 9.10, 13.10, 13.40 s 138(2): 6.10, 6.160, 9.90 s 138(3): 6.10, 6.160 ss 138 to 139: 9.180 s 139: 6.10, 6.160, 6.190, 9.10, 9.90 s 140: 15.10, 15.40, 15.60 s 141: 15.10 s 142: 1.120, 5.70, 7.10, 15.10, 15.90 s 143: 16.10, 16.20, 16.60 s 144: 16.10, 16.20, 16.60 s 145: 16.10, 16.20 ss 146 to 152: 17.10 ss 146 to 163: 17.20 ss 153 to 159: 17.10 ss 160 to 163: 17.10 s 164: 18.10, 18.20 s 165: 2.470, 6.150, 7.90, 9.20, 13.10, 18.10, 18.20, 18.50 s 165(1)(a): 18.10 s 165(1)(b): 18.10 s 165(1)(c): 18.10, 18.30 s 165(1)(d): 18.10 s 165(1)(e): 18.10 s 165(1)(f): 8.10 s 165(2): 9.20, 18.10, 18.50 s 165(3): 9.20 s 165A: 18.10, 18.50, 18.80 s 165B: 18.10, 18.50, 18.100 ss 166 to 169: 4.90, 17.10 ss 170 to 173: 3.20, 3.40, 7.10, 7.300, 17.10, 17.20 s 171: 3.20, 3.40, 7.10, 7.300, 17.20 ss 174 to 176: 17.10 s 174 to 176: 17.30 s 177: 8.120 ss 177 to 181: 17.10 s 178: 17.140 ss 178 to 180: 17.40 s 183: 1.130 s 184: 17.10, 17.70 s 187: 14.170, 14.290 s 188: 1.90 s 189: 1.120 s 189(3): 9.50 s 190: 1.110, 5.20 s 191: 17.10, 17.70

s 192: 1.100, 2.470, 11.180, 12.90 s 192(2): 2.280 s 192(2)(b): 12.10 s 192A: 1.100 s 193: 1.90 s 294: 18.50 Ch 1: 1.50, 1.60 Ch 2: 1.50, 2.10, 3.140, 5.10, 5.20 Ch 2, Pt 2.1: 2.20 Ch 2, Pt 2.1, Div 1: 2.10, 2.20, 2.70 Ch 2, Pt 2.1, Div 2: 2.20, 2.160 Ch 2, Pt 2.1, Div 3: 2.20, 7.10, 11.10 Ch 2, Pt 2.1, Div 4: 2.20 Ch 2, Pt 2.1, Div 5: 2.20 Ch 2, Pt 2.2: 2.10, 3.10, 4.90 Ch 2, Pt 2.3: 4.20 Ch 3: 1.40, 1.50, 2.10, 2.20, 2.330, 3.10, 4.20, 5.10, 5.20, 5.60, 8.10 Ch 3, Pt 3.1: 2.330, 5.20 Ch 3, Pt 3.2: 2.330, 4.90, 7.10 Ch 3, Pt 3.2, Div 2: 7.10, 7.90 Ch 3, Pt 3.2, Div 3: 7.230 Ch 3, Pt 3.3: 8.10 Ch 3, Pt 3.4: 7.10, 9.10 Ch 3, Pt 3.6: 10.10, 10.20, 10.80, 11.20 Ch 3, Pt 3.7: 2.330, 11.10, 11.20 Ch 3, Pt 3.9: 13.10, 13.20, 13.90 Ch 3, Pt 3.10: 14.10, 14.290 Ch 3, Pt 3.10, Div 1: 14.10 Ch 3, Pt 3.11: 2.260, 5.10, 5.20, 6.10, 7.50, 8.10, 11.20 Ch 4: 1.50, 15.10 Ch 4, Pt 4.1: 15.10 Ch 4, Pt 4.2: 15.10 Ch 4, Pt 4.3: 15.10, 17.10, 17.20 Ch 4, Pt 4.4: 15.10 Ch 4, Pt 4.5: 15.10 Ch 4, Pt 4.6: 15.10 Ch 5: 1.50 Evidence Amendment Act 2008: 1.30 Evidence Bill 1993: 1.30 National Security Information (Criminal and Civil Proceedings) Act 2004: 14.200 s 3(1): 14.200 Occupational Health and Safety Act: 2.70 Racial Discrimination Act 1975: 15.50

AUSTRALIAN CAPITAL TERRITORY Evidence Act 2011: 1.10

NEW SOUTH WALES Compensation to Relatives Act 1897: 14.290, 17.90 Crimes Act 1900 s 409B(3): 8.60

Uniform Evidence Law: Commentary and Materials

Criminal Appeal Act 1912 s 5F(1)(a): 14.230 s 5F(2): 14.230

Workers' Compensation Act 1926 s 11(1): 14.280

Criminal Appeal Rules r 4: 1.110

NORTHERN TERRITORY

Criminal Procedure Act 1986: 14.150 s 281: 9.10, 9.20 s 293: 8.60, 10.10 s 294: 18.50, 18.70, 18.100 s 294(2): 18.50 s 294A: 2.20 s 294AA: 18.50 s 306U: 2.20 s 306V: 2.20 s 306ZB: 2.20 s 306ZC: 2.20 s 306ZH: 2.20 s 306ZK: 2.20 s 306ZL: 2.20 Ch 6, Pt 5: 14.150 Ch 6, Pt 5, Div 2: 14.10, 14.150 Ch 6, Pt 6: 2.20

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Defamation Act 1974 s 7A(3): 3.60 Evidence Act 1995: 1.10, 1.30 s 9(1): 8.120 s 89A: 9.10, 9.160 s 112: 12.10, 12.90 s 126B: 14.130 s 126B(3): 14.10 s 126F: 14.120 s 126H: 14.10, 14.150 s 126J: 14.10, 14.140, 14.290 s 126K: 14.140 s 126K(1): 14.140 s 126K(2): 14.140 s 126K(2)(a): 14.140 s 126K(2)(b): 14.140 s 126L: 14.10, 14.290 s 131(1): 14.280 s 192A: 7.110 Ch 3, Pt 3.8: 12.10, 12.20 Ch 3, Pt 3.10, Div 1A: 14.10, 14.120 Ch 3, Pt 3.10, Div 1B: 14.10, 14.150 Ch 3, Pt 3.10, Div 1C: 14.10 Evidence Amendment Act 2007: 1.30 Evidence Bill 1993: 1.30 Legal Profession Act 2004 s 32: 7.110

Evidence (National Uniform Legislation) Act 2011: 1.10, 1.30

TASMANIA Evidence Act 2001: 1.10

VICTORIA Crimes Act 1958 s 61: 18.70 s 464H: 9.10, 9.20 Evidence Act 2008: 1.10, 1.30 Jury Directions Act 2015: 2.20, 13.10, 18.10 s 5: 13.10 s 5(4): 17.100 s 6: 17.100 s 7: 17.100 s 7(2): 17.100 s 12: 13.10, 17.100 s 12–17: 10.10 s 14(1): 13.10 s 14(2): 17.100 s 20: 17.100 s 25–30: 10.10 s 26: 10.10 s 31: 18.10 s 32: 18.10 s 36(1): 13.10 s 36(2): 13.10 s 36(3): 13.10 s 39: 18.10, 18.100 s 41: 17.100 s 41(2): 17.100 s 42: 17.100 s 44: 17.100 s 61: 15.60 s 62: 15.60 s 63(1): 15.60 s 63(2): 15.60 s 64: 15.60 Pt 4, Div 6: 17.10 Pt 7: 15.60

PART 1 — INTRODUCTION 1 Introduction ......................................................................................................... 3

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PART1

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CHAPTER 1

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Introduction [1.10]

GENERAL INTRODUCTION ........................................................................................... 3

[1.20]

THE LAW OF EVIDENCE................................................................................................. 3

[1.30]

BACKGROUND TO THE UNIFORM EVIDENCE LEGISLATION ......................................... 4

[1.40]

RELATIONSHIP BETWEEN THE EVIDENCE ACT AND OTHER LAWS ................................. 5

[1.50]

STRUCTURE OF THE ACT AND THE APPROACH TO EVIDENTIAL ISSUES ........................ 6

[1.60]

PRELIMINARY MATTERS ................................................................................................ 6

[1.70]

RECURRING ISSUES ....................................................................................................... 6 [1.80] Civil and criminal proceedings .................................................................... 6 [1.90] General powers of a court .......................................................................... 6 [1.100] Judicial rulings on evidence ........................................................................ 7 [1.110] Objections and waiver ................................................................................ 7 [1.120] Determination of preliminary questions ...................................................... 7 [1.130] Drawing inferences ..................................................................................... 8 [1.140] Joint trials ................................................................................................... 8

GENERAL INTRODUCTION [1.10] This book aims to provide some assistance to lawyers and law students in achieving a

basic understanding of the legislation conveniently described as “Uniform Evidence Law” – the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas), the Evidence Act 2008 (Vic), the Evidence Act 2011 (ACT) and the Evidence (National Uniform Legislation) Act 2011 (NT). This book attempts to distil the essential elements of the uniform evidence legislation. It provides substantial extracts from relevant authorities and articles. It also includes a number of case files, designed to facilitate understanding of evidence law and its practical application.

THE LAW OF EVIDENCE [1.20] The rules of evidence applied in Australian courts serve a number of functions – they

regulate what material a court may consider in determining factual issues; how that material is to be presented in the court; and how the court actually goes about the task of deciding the factual issues on the basis of the evidence. In any trial system, there must be some rules regulating how evidence is produced in the court and how the court is to perform its task of deciding the issues before it. However, this is particularly true in an adversarial system. The parties to the proceeding, not the court, determine the issues which they will fight. The parties, not the court, obtain and produce (“lead”, “tender” or “adduce”) the evidence in support of their case. The role of the trial judge (or magistrate) is to supervise proceedings, act as umpire, determine questions of law and apply the law to the facts as found by him or her on the

Part 1 — Introduction

evidence (or, if there is a jury, direct them in their task of determining the factual issues). The adversarial model is modified in certain ways – in the criminal justice context by altering the balance to accord the accused certain procedural safeguards, in the civil context by emphasising efficient case management. Nevertheless, adversarial elements predominate. Rules of evidence provide the legal framework by which the judge determines how evidence may be adduced by the parties, whether it will be taken into account (whether it is “admissible”); and how the tribunal of fact, judge or jury, is to decide the factual issues on the evidence (“use” of evidence, and “proof”). Until 1995 the law of evidence was largely part of the “common law”, the product of long historical development by the courts themselves, with only limited statutory modification. With the enactment of the uniform evidence legislation, much existing statute law dealing with the rules of evidence in those jurisdictions was abrogated and, to a very significant extent, the common law rules ceased to apply. This is because the Act “covers the field” in a number of areas, most notably in relation to the rules determining the admissibility of evidence. Further, evidence law across these jurisdictions became largely uniform, given the identical statutory language used in most, but not all, of the provisions of the legislation.

BACKGROUND TO THE UNIFORM EVIDENCE LEGISLATION

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[1.30] On 18 July 1979 the then Federal Attorney-General referred to the Australian Law

Reform Commission (ALRC) terms of reference which required “review [of the] laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to modern conditions and anticipated requirements”. The ALRC produced an interim and final report on evidence; Evidence Interim Report (No 26) 2 vols (1985) and Evidence Final Report (No 38) (1987). The Final Report contained a draft Evidence Bill. Both the Commonwealth and New South Wales Parliaments introduced Evidence Bills that implemented the majority of the recommendations in the ALRC report and were essentially uniform: Evidence Bill 1993 (Cth) and the Evidence Bill 1993 (NSW). The Bills were passed in both Parliaments. The Commonwealth Evidence Act 1995 commenced on 18 April 1995 and the New South Wales Evidence Act commenced on 1 September 1995. Tasmania enacted uniform evidence legislation in 2002 and Norfolk Island enacted it in 2004. On 12 July 2004 the then Federal Attorney-General referred to the ALRC the issue of the “operation of the Evidence Act 1995 (Cth)”. The Victorian and New South Wales Law Reform Commissions joined the inquiry and the three Commissions released a joint report in December 2005 that recommended amendments to the uniform evidence legislation; ALRC, New South Wales Law Reform Commission, Victorian Law Reform Commission, Uniform Evidence Law (ALRC Report No 102, NSWLRC Report 112, VLRC Final Report, 2005, hereafter referred to in this book as ALRC 102). The New South Wales Parliament implemented the recommendations of ALRC 102 and enacted the Evidence Amendment Act 2007 (NSW), which commenced on 1 January 2009. The Commonwealth passed the Evidence Amendment Act 2008 (Cth), which commenced on 1 January 2009. Victoria enacted the Evidence Act 2008 (Vic) on 15 September 2008, which came into force on 1 January 2010. The ACT enacted uniform evidence legislation in 2011, which came into

Introduction

CHAPTER 1

force in March 2012 after the Commonwealth Act was amended to delete its general application to ACT courts. In 2011, the Northern Territory enacted the Evidence (National Uniform Legislation) Act 2011 (NT) and it came into force on 1 January 2013.

RELATIONSHIP BETWEEN THE EVIDENCE ACT AND OTHER LAWS

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[1.40] The Act is not a code of the law of evidence. Sections 8, 8A and 9 provide that the Act

operates with other statutes and laws. Nevertheless, it has been held that Ch 3 of the Act (relating to admissibility of evidence) constitutes a code which means that the common law rules relating to admissibility are abrogated:  Telstra Corp v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 at 349B; McNeill v The Queen (2008) 168 FCR 198. Both of these decisions rely on s 56(1) of the Act. Similar statements have been made in respect of particular parts of Ch 3. For example, in Hughes v The Queen [2017] HCA 20, 344 ALR 187, Kiefel CJ, Bell, Keane and Edelman JJ observed at [31] that “the common law principles governing the admission of similar fact evidence have been abrogated and entirely replaced by Pt 3.6”. However, dissenting voices continue to be heard. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, Heydon J held that the common law “basis rule” (or “proof of assumption rule”), which requires “that the ‘facts’ and ‘assumptions’ [on which an opinion is based] … be proved before the [opinion] evidence was admissible” continues to survive. The other members of the High Court did not address this issue. And in Haddara v The Queen [2014] VSCA 100, Redlich and Weinberg JJA (Priest JA dissenting) held that the common law “discretion to exclude” any evidence, whether confessional or real, on the ground that to receive it would be unfair to a criminal defendant (in the sense that the trial would be unfair) is not caught by the operation of s 56(1) and, accordingly, continues to apply in UEL jurisdictions. Another issue is the extent to which the pre-existing common law of evidence can be used to interpret the Act. In Papakosmas v The Queen (1999) 196 CLR 297, which was a criminal appeal on the admissibility of complaint evidence in a sexual assault trial, Gleeson CJ and Hayne J stated (at [10]) that the “language of the statute”, which is given its “natural and ordinary” meaning, determines the manner in which complaint evidence is treated. In that appeal the court unanimously decided that it is incorrect to interpret the Act in light of, and in a manner consistent with, the common law. McHugh J held that “pre-existing common law concepts will often be unhelpful” (at [88]). Similarly, in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (Heydon J dissenting) do not address common law authority on the existence of a “basis rule” relating to the admissibility of opinion evidence, observing at [37] that “one basic proposition” should be “at the forefront of consideration”: The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made.

Of course, in particular contexts the position before enactment of the legislation may provide assistance in interpreting the Act (see eg in relation to s 128, Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12). Whether or not the common law is to be regarded as influential in interpreting a particular provision in the Act will often be determinative in how that provision is construed (see eg the different approaches taken to the construction of s 97(1)(b) by the members of the High Court in Hughes v The Queen [2017] HCA 20, 344 ALR 187).

Part 1 — Introduction

STRUCTURE OF THE ACT AND THE APPROACH TO EVIDENTIAL ISSUES [1.50] The Act is divided into five chapters. Chapter  1 deals with introductory matters.

Chapter 2 deals with the “adducing” of evidence. The provisions covered in Ch 2 cover issues of procedure, that is, how evidence will be produced in a proceeding rather than whether it is admissible in a proceeding. Chapter  3 is concerned with the “admissibility” of evidence. The rules of admissibility determine what evidence may be admitted and taken into account in a court proceeding. Chapter 4 is concerned with proof and Ch 5 deals with miscellaneous matters.

PRELIMINARY MATTERS [1.60] Chapter 1 in the Act deals with a number of preliminary matters. Sections 1-3 deal

with formal matters (including the use of the definitions in the Dictionary found at the end of the Act). Section 5 provides that the Act applies, in those jurisdictions where it applies, to all proceedings in a court. Section 5 gives the Act an extended application in respect of certain provisions. Sections 8 and 9 deal with the inter-relationship between this Act, other statutory provisions relating to evidence and the common law. Section 10 preserves parliamentary privilege. Section 11 preserves the power of a court to control its own proceedings, subject to the other provisions of the Act.

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RECURRING ISSUES [1.70] Some issues recur when considering the provisions of the Act.

Civil and criminal proceedings [1.80] A number of provisions in the uniform evidence legislation differentiate between civil

and criminal proceedings. The Dictionary to the Act defines “civil proceeding” to mean “a proceeding other than a criminal proceeding”. The Dictionary defines “criminal proceeding” to mean “a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail; but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953”. General powers of a court [1.90] The uniform evidence legislation preserves, or confers, a number of powers on courts

in relation to matters of procedure and evidence. As noted, s 11 preserves the power of a court to control its own proceedings, subject to the other provisions of the Act. Section 26 gives a general power to a court to control the questioning of witnesses. Section 34 gives a court power to require production of a document or thing used in an attempt by a prospective witness to revive memory before giving evidence. Section 36 confers power on a court to require a compellable person present at court to give evidence and produce documents or things. Section 45 confers power on a court to require production of a document or evidence as to the contents of the document, and to take consequential action. Section 133 permits a court to order production of a document, and inspect it, for the purpose of determining an issue of

Introduction

CHAPTER 1

privilege. Under s 188, a court may direct that a document tendered or produced before the court be impounded. Section 193 confers additional powers in relation to the discovery and inspection of documents and the disclosure and exchange of evidence. Judicial rulings on evidence [1.100] A number of provisions in the uniform evidence legislation require the giving of leave

or permission or a direction by a court (eg s 38). Section 192 provides that whenever a court is considering giving leave, permission or a direction under the Act, “in all cases the court must take into account the matters prescribed by s 192(2)”, as well as “matters which may be relevant in a particular case”. Section 192A confers a discretion on a court to give an advance ruling or make a finding in relation to evidence before the evidence in question is adduced in the proceedings. Objections and waiver

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[1.110] In practice, it will often be necessary for a party to object to evidence or a question

eliciting evidence before a court will ensure strict compliance with the provisions of the uniform evidence legislation. At a more theoretical level, there is some authority that the rules of admissibility do not apply in the absence of objection. However, that authority is difficult to reconcile with the explicit provisions in s 190 dealing with the issue of “waiver of rules of evidence”. In civil cases, a failure to object to evidence will usually prevent the point being raised on appeal as it has been waived. In criminal appeals, r 4 of the Criminal Appeal Rules (NSW) provides that there can be no appeal after a failure to object to evidence at trial without the leave of the Court of Criminal Appeal. In Picken v The Queen [2007] NSWCCA 319, Mason P said at [19]: Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice. ... It appears to be generally accepted that the appellant must at least establish that he or she has lost a real chance (or a chance fairly open) of being acquitted.

See also Bin Sulaeman v The Queen [2013] NSWCCA 283 at [121]-[132]. Indeed, the prevailing view is that r 4 applies even where objection was taken to the admission of certain evidence at trial but not on the basis sought to be advanced on appeal (see Vickers v R [2006] NSWCCA 60, Simpson J at [73]-[74]). Where objection is taken, “the general rule” is that trial judges should “rule upon … objections as soon as possible”: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [19] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Determination of preliminary questions [1.120] Sometimes, it is necessary for a court to determine a factual question when deciding

whether a witness is competent or compellable or an item of evidence is admissible (and, if so, for what use). For example, was the making of an admission influenced by violent conduct (s 84)? Section 189 (entitled “the voir dire”) deals with some aspects of the procedure to be followed in a court determining such preliminary factual questions. Section 142 deals generally with the applicable standard of proof in relation to factual findings which are a precondition to admissibility or “any other question arising under the Act”.

Part 1 — Introduction

Drawing inferences [1.130] The Act does not, in general, attempt to regulate the drawing of inferences from evi-

dence. Common law principles relating to the drawing of inferences continue (see Chapter 17 [17.10]). However, for the purposes of determining the relevance of a document or thing, s 58 permits reasonable inferences from the document or thing. Similarly, “if a question arises about the application of a provision of this Act in relation to a document or thing”, s 183 permits the document or thing to be examined by the court and reasonable inferences to be drawn from it. Joint trials

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[1.140] When a joint criminal trial is held, involving multiple defendants, in legal theory

there is not one trial but several. Thus, in a trial with two defendants (D1 and D2), evidence admitted in the trial against D1 may not be admissible for or against D2, and in that situation must be disregarded in the trial of D2 (and if that is impossible, the trials should be separated). For example, where evidence is admitted of an admission by D1, it will not necessarily be an “admission” in the trial of D2, since an “admission” is defined to be a previous representation “made by a person who is or becomes a party to a proceeding”. Since D1 is not a party in the trial of D2, the evidence of a previous representation by D1 is not an admission in the trial of D2 unless s 87 operates to permit it being treated as an admission by D2. Conversely, testimony by D1 will, if relevant to the trial of D2, be admissible in the trial of D2 (on the assumption that no provision of the Act otherwise provides). When a criminal trial is held of multiple charges against one defendant, again, in legal theory, there is not one trial but several. Evidence admissible in respect of the trial of one charge may not be admissible in the trial of another. Whether or not it will be admissible depends on the application of the provisions of this Act. In a jury trial, where evidence is admissible in respect of one charge but not another, careful directions to this effect would be necessary. It might have been thought that these principles would apply equally to civil proceedings. However, there is some NSW authority to the contrary (see ASIC v Rich (2004) 213 ALR 338 at [22], [24]; Johnstone v New South Wales (2010) 202 A Crim R 422; [2010] NSWCA 70 at [102]).

PART 2 — ADDUCING EVIDENCE 2 Witnesses ........................................................................................................... 11

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4 Real Evidence ................................................................................................... 151

PART2

3 Documents ....................................................................................................... 131

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CHAPTER 2

Witnesses [2.10]

INTRODUCTION ......................................................................................................... 12

[2.20]

OVERVIEW .................................................................................................................. 12

[2.30]

WITNESSES ................................................................................................................. 15 [2.30]

[2.70]

Calling a witness ....................................................................................... 15 [2.40] Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd ............ 15 [2.50] R v Kneebone ............................................................................ 16 [2.60] Velevski v The Queen .................................................................. 23 Competence and compellability ............................................................... 26 ALRC 102 ................................................................................. 27 SH v The Queen ......................................................................... 28 R v GW .................................................................................... 37

[2.80] [2.110] [2.130]

[2.140] [2.160] [2.170]

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[2.190]

[2.230] [2.240] [2.250] [2.260] [2.280]

[2.310] [2.330] [2.340]

[2.430]

Sections concerning compellability ........................................................... 42 [2.150] R v Gulam Mohammad Khan........................................................ 42 Oaths and affirmations ............................................................................. 46 General rules about questioning witnesses ................................................ 46 [2.180] GPI Leisure Corp Ltd v Herdman Investments (No 3) .......................... 46 Questioning witnesses by parties and the judge........................................ 47 [2.200] R v Esposito............................................................................... 48 [2.210] Ryland v QBE Insurance (Australia) Ltd............................................ 53 [2.220] Tootle v The Queen..................................................................... 54 Order and form of questioning witnesses.................................................. 60 Interpreters............................................................................................... 60 Examination-in-chief ................................................................................. 60 Reviving memory...................................................................................... 60 [2.270] Dodds v The Queen .................................................................... 61 Unfavourable witnesses ............................................................................ 62 [2.290] R v Hogan ................................................................................ 63 [2.300] R v Le ...................................................................................... 68 Cross-examination .................................................................................... 79 [2.320] Libke v The Queen ...................................................................... 79 Cross-examination – leading questions and previous statements............... 83 The rule in Browne v Dunn ....................................................................... 84 [2.350] Browne v Dunn .......................................................................... 84 [2.360] Precision Plastics Pty Ltd v Demir ................................................... 90 [2.370] Payless Superbarn (NSW) Pty Ltd v O’Gara ...................................... 92 [2.380] R v Birks ................................................................................... 96 [2.390] MWJ v The Queen ...................................................................... 98 [2.400] Khamis v The Queen ................................................................. 101 [2.410] R v SWC ................................................................................. 108 [2.420] Ward (a Pseudonym) v The Queen ............................................... 110 Re-examination ...................................................................................... 116 Drabsch v Switzerland General Insurance Co Ltd ............................. 117

[2.440]

Part 2 — Adducing Evidence

[2.450]

Rebuttal and reopening .......................................................................... 119 [2.460] R v Chin ................................................................................. 119 [2.470] Urban Transport Authority of NSW v Nweiser ................................. 121

INTRODUCTION [2.10] Chapter  2 of the Evidence Act 1995 deals with the “adducing” of evidence, which

is a concept to be distinguished from the “admissibility” of evidence. The rules of admissibility, which determine what evidence may be admitted and taken into account in a court proceeding, are dealt with in Ch 3. The provisions in Ch 2 are concerned more with issues of procedure – how evidence may be produced in a proceeding, rather than whether it will be admitted. However, it should be understood that failure to comply with the provisions of this Chapter of the Act may mean that the evidence will not be admitted at all. The Chapter is divided into three parts: witnesses, documents and other evidence. It is clear that most of the provisions are not to be regarded as a code. The common law continues to operate alongside the provisions of the Act, except where there is conflict, in which case the Act will apply. However, Div 1 of Pt 2.1, dealing with the competence and compellability of witnesses, and Pt 2.2, dealing with proof of the contents of a document by means other than tendering the original document, effectively codify the rules in those two areas.

OVERVIEW

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[2.20] Part 2.1, dealing with procedures relating to the adducing of evidence from witnesses,

is divided into five Divisions:  Div 1 (Competence and compellability of witnesses), Div 2 (Oaths and Affirmations), Div 3 (General rules about giving evidence), Div 4 (Examination in chief and re-examination) and Div 5 (Cross-examination). Whether evidence so adduced will be admissible will be determined by the rules of admissibility in Ch 3. The provisions in this Part are to be applied in the context of common law principles (see ss 8 and 9). Section 11 recognises the general power of a court to control the conduct of proceedings, subject to the operation of the Act. For example, the legislation does not modify the underlying principle of the accusatorial and adversarial system that the prosecution in a criminal trial must offer all its proof before a defendant is called upon to make his or her defence. Division 1 (Competence and compellability of witnesses) starts with s 12, which creates a presumption that all persons are competent to testify and may be compelled to testify. However, s 13 provides that certain persons lack the capacity to give sworn evidence, particularly “if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence” (s 13(3)). Such a person (eg a young child) may be able to give unsworn evidence. A witness may not be compellable (ie cannot be required) to testify in certain circumstances. Special rules apply to Heads of State, Parliamentarians (s 15), judges and jurors (s 16), and, in criminal proceedings, defendants (s 17). As regards a spouse, de facto partner, parent or child of a defendant in criminal proceedings, such a person may object to testifying under s 18 (except in certain specified circumstances: s 19) and it will be for the court to determine whether, in the particular circumstances, the nature and extent of any harm that “would or might be caused … to the person, or to the relationship between the person and the defendant, if the person gives the evidence” outweighs the desirability of having the evidence given (s 18(6)). Where a defendant in criminal proceedings (or a spouse, de facto partner, parent or child of a defendant) does not testify, s 20 (except in Victoria) controls the

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Witnesses

CHAPTER 2

“comment” that may be made to a jury about that fact. A prosecutor may not comment at all. In addition, the High Court has ruled that, quite apart from the terms of s 20, substantial limitations are imposed by fundamental accusatorial principles applicable to a criminal trial. Only in “rare and exceptional” cases would adverse comment by a judge be permitted. As regards comment on the failure of the defence to adduce other evidence, common law principles also apply (see Chapter 17). In Victoria, s 20 has been deleted from the Victorian Act and Div 6 of Pt 4 of the Jury Directions Act 2015 (Vic) contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials. Division 2 (Oaths and Affirmations) deals with the general requirement that the evidence of witnesses and interpreters be sworn, either by taking an oath or by making an affirmation (subject to the possibility of unsworn evidence being given under s 13). Division 3 (General rules about giving evidence) deals with procedural rules relating to the adducing of evidence from witnesses in a proceeding. Section 26 specifically gives a court power in relation to a number of aspects of the questioning of witnesses, notwithstanding the general principle that, in an adversary system, it is for the parties to decide who will be called as witnesses and the order in which they are called. As regards the questioning of a witness, the existing common law position continues to apply in that, absent objection by counsel for any other party, the trial judge should only intervene in the questioning in limited circumstances. Section 27 provides that a party may question any witness, subject to the limitation imposed by the rest of the Act. Section 28 deals with the order of examination in chief, crossexamination and re-examination. Sections 29-31 deal with various ways of giving evidence (including in narrative form and through an interpreter). Procedures for a witness attempting to revive memory in court from contemporaneous notes are contained in s 32 and special rules for police officers in s 33. Some regulation of attempts to revive memory outside court is found in s 34. An opposing party “calling for” a document referred to by a witness (and inspection of the document) is dealt with in ss 35-36. Division 4 (Examination-in-chief and re-examination) deals with procedural rules relating to the adducing of evidence from a witness called by a party in examination-in-chief and, after cross-examination by another party, re-examination. Section 37 prohibits “leading questions” (questions that suggest the answer or assume facts in dispute) in examination-inchief and re-examination unless one of the exceptions applies. Limits on re-examination are contained in s 39. Section 38 permits a party who calls a witness who proves “unfavourable” to the party to question the witness as if in cross-examination (ie by asking leading questions and seeking to discredit the witness). In deciding whether to grant leave for this to occur, the court is required to consider a number of matters, including fairness to other parties. In appropriate circumstances, such questioning may occur in re-examination (with further cross-examination by other parties allowed). Specific statutory provisions apply in respect of ways in which evidence of a vulnerable person may be given. For example, Ch 6 of Pt 6 of the Criminal Procedure Act 1986 (NSW) defines a “vulnerable person” as “a child or a cognitively impaired person”. A vulnerable person is entitled to give evidence in chief in the form of a recording made by an investigation official (ss 306U and 306V). A vulnerable person is also entitled to give evidence by means of closed-circuit television (CCTV) and if CCTV is not available, they have a right to alternative arrangements for giving evidence (ss 306ZB, 306ZC and 306ZH). Vulnerable persons also have a right to the presence of a supportive person while giving evidence (s 306ZK). Similar provisions are found in other UEL jurisdictions.

Part 2 — Adducing Evidence

Division 5 (Cross-examination) of the UEL deals with procedural rules relating to the cross-examination of a witness called by another party to the proceeding. Under s 41(1) in the Commonwealth and New South Wales Acts, the court “must” disallow a question put to a witness in cross-examination “if the court is of the opinion that the question”: (a)

is misleading or confusing, or

(b)

is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or

(c)

is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d)

has no basis other than a stereotype (eg a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

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On the other hand, a question is not improper “merely because” the question “challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness”, or “the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness”:  s 41(3). In Victoria, a court “may” disallow an improper question or improper questioning. However, it must do so if the person being crossexamined is a “vulnerable witness” (under the age of 18 or suffering from a relevant disability) “unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put”. The Explanatory Memorandum to the Victorian Act explains the different approach: The adoption, in Victoria, of a two step approach recognises the capacity of the court to control proceedings by enabling regulation of the questioning of all witnesses, without unduly interfering with the trial process. It also acknowledges, however, that special protection is required for vulnerable witnesses and the mandatory obligation to consider all relevant circumstances is designed to facilitate a positive culture of judicial intervention for these witnesses.

Questions may be “improper” for reasons of substance (eg they seek evidence which is not admissible under the Act) or form (eg asking questions that are improper under s 41). Given the general power of the court to control the conduct of a proceeding (s 11) and questioning in particular (s 26(a)), s 41 is not a comprehensive guide to “improper” questions. To give one example, under the existing common law, it is impermissible to put to one witness that his or her evidence is to the contrary of another witness and expressly or impliedly invite an opinion as to the reasons for the contradiction. Indeed, it is improper to ask a witness to speculate about the reasons someone else did or said something (see Palmer v The Queen (1998) 193 CLR 1). Other examples are double questions, argumentative questions and questions likely to produce answers that are confusing: see Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. Section 42 may disallow leading questions in cross-examination if “the facts concerned would be better ascertained if a leading question was not used” or there is some other good reason (for example, the witness is unusually susceptible to suggestive questioning). Section 43 deals with the procedure to be adopted in cross-examining a witness about a “prior inconsistent statement”, a previous statement that is inconsistent with evidence given by the witness. Section 44 controls questioning of a witness about a previous statement alleged to have been made by another person. Section 45 deals with the production and use that can be made of documents used to cross-examine a witness under s 43 or s 44. Other statutory provisions may impose further limits on cross-examination. For example, ss 294A and 306ZL

Witnesses

CHAPTER 2

of the Criminal Procedure Act 1986 (NSW) provides that complainants of sexual offences and vulnerable persons cannot be cross-examined by an (unrepresented) accused but must be cross-examined by a person appointed by the court. Section 46 permits a witness to be recalled where there has been a failure to cross-examine the witness in specified circumstances. It overlaps with, but does not affect the continued operation of, the common law rule usually referred to as the rule in Browne v Dunn (1893) 6 R 67. In MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 at [38] it was stated: The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.

That “notice” will be given by appropriate cross-examination. Breach of the rule may result in the court giving leave under s 46 to recall the witness. Other possible consequences include the drawing of adverse inferences and even evidentiary exclusion.

WITNESSES Calling a witness

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[2.30] The Act does not deal with the calling of a witness by a party or the court. It is left

to the common law and the power of a court to control the conduct of a proceeding (see s 11). Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd is authority for the proposition that a judge in a civil case may not call a witness. This is different from a criminal trial where judges can call witnesses in the “most exceptional circumstances”: R v Apostilides (1984) 154 CLR 563 at 576. R v Apostilides concerned a prosecutor’s failure to call two witnesses who were present with the complainant immediately before the alleged sexual assaults. The trial judge also did not call the two witnesses. The defence called the two witnesses and the prosecutor cross-examined the witnesses to adduce evidence of prior conviction from one of the witnesses. Apostilides appealed on the failure of the prosecutor to call the witnesses. The High Court advanced six propositions on the prosecutor’s obligation to call witnesses. The propositions are stated in the extract of R v Kneebone. R v Kneebone makes it clear that it is necessary for a prosecutor to point to identifiable factors which justify a decision not to call a material witness on the grounds of unreliability. An example of circumstances that would justify a judge calling a witness are illustrated in R v Damic [1982] 2 NSWLR 750 where the accused was unrepresented and the trial judge on his own motion called psychiatric evidence which raised the defence of mental illness to a charge of murder. Velevski v The Queen considers the prosecutor’s obligation to act fairly and call all relevant and material expert witnesses.

Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd [2.40] Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 Facts [This was an interlocutory application for directions and orders in respect of proceedings in which Clarke Equipment Credit sought an accounting in respect of moneys advanced by it to Como under a joint venture agreement. In the course of resolving issues in relation to the power of a court-appointed referee, Powell J discussed the question of whether a judge can call a witness in a civil trial. Powell J approved authority which held that in civil cases a judge may not call a witness without the consent

Part 2 — Adducing Evidence

Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd cont. of both parties. In a different case, however, Wilcox J of the Federal Court held that according to this authority there is power for the court to call a witness in a civil case: Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518.] Judgment POWELL J (at 567-568): I do not regard the question of whether or not a judge in a civil proceedings may call a witness of his own motion to be merely a rule of evidence; on the contrary, I regard it as a matter of fundamental principle: see, for example, Titheradge v The King (1917) 24 CLR 107 at 116 per Barton J. While recognising the criticisms which, over the years, have been directed at the rule said to have been laid down in Re Enoch and Zaretzky, Bock & Co’s Arbitration [1910] 1 KB 327 it seems to me that until the High Court, or the Court of Appeal, decides otherwise, or the legislature chooses to act in response to comments such as those expressed by Hope JA in Bassett v Host (at 207), a mere trial judge should proceed upon the basis that the views expressed in Re Enoch and Zaretzky, Bock & Co’s Arbitration [1910] 1 KB 327 (at 331 per Cozens-Hardy MR, as he then was, at 332 per Fletcher Moulton LJ, as he then was) ought to be regarded as still being the law.



R v Kneebone [2.50] R v Kneebone (1999) 47 NSWLR 450 Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Facts [Kneebone appealed his conviction of aggravated sexual assault on his de facto spouse’s daughter, then aged 14. The successful ground of appeal was on the failure of the prosecutor to call Kneebone’s de facto (the complainant’s mother) as a witness in the trial. The complainant gave evidence that on 24 February 1995, upon arriving home from school, Kneebone abused her verbally, struck her a number of times, pushed her against a wall, choked her and then sexually assaulted her in her bedroom. During the sexual assault, her mother came into the room, said “that’s enough” and walked out again. Kneebone then physically assaulted the complainant in the bathroom. While the complainant was packing her bags her mother asked her what was wrong, to which she replied “Like you don’t know”. The complainant went to the home of a family friend (Mrs Saillard) in a distressed state. The complainant reported the assault to police, but not the rape. Photographs of the physical injuries were taken. When interviewed by police at the time, Kneebone denied the assault, saying it was an accident. The mother also denied any assault had taken place (and she provided a statement to police dated 27 February 1995 which formed part of the police brief for the sexual assault charge). Kneebone and the mother left New South Wales prior to his trial for the physical assault, having denied the allegations to police, and he was convicted in absentia. The complainant was placed in foster care. Later, in 1996, the complainant confided in the daughter of her foster mother that on the day of the assault, she had also been sexually assaulted. The matter was investigated and the trial for sexual assault took place in 1998. At trial, the prosecutor indicated in his opening address that the mother was a potential witness, but on the second day of the trial the prosecutor told the defence that he would not call her. The prosecutor sought a Jones v Dunkel direction in relation to the defence’s failure to call the mother on the basis that the witness was in the defence “camp” (see Chapter 17 for an explanation of this direction). In the sentence proceedings, the complainant’s mother was called by the defence and gave evidence. The Crown did not cross-examine her. The trial judge drew her attention to what the complainant had asserted about her presence during the sexual assault and she denied anything like that had happened. On appeal, the mother and defence lawyers deposed

Witnesses

CHAPTER 2

R v Kneebone cont. affidavits about the conduct of the trial. On appeal the prosecution conceded that the mother was a material witness who had not been interviewed about the sexual assault allegations and that there had been no adequate investigation.] Judgment ... GREG JAMES J (Spigelman CJ concurring): Evidence in this court [32] In her affidavit of 6 May 1999 in this court, the mother denies having seen the sexual assault or saying the things her daughter alleged. She says she gave a statement to the police about the assault and was contacted by the police before the trial about a subpoena and told she was on the list of witnesses. She attended the trial and stayed throughout ready to give evidence. She was not interviewed by either side.

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[33] The appellant’s solicitor says in his affidavit that the Crown Prosecutor at the end of the first day of trial approached the defence barrister and solicitor in their chambers at the courthouse enquiring whether the defence intended to call the mother to give evidence. It was pointed out to the Crown Prosecutor that her statement formed part of the brief upon which the appellant had been committed for trial. The following morning, the Crown Prosecutor advised the defence that he probably would not call the witness as “he had formed the opinion that her evidence would be unreliable”. The defence solicitor did not enquire as to the basis on which that opinion had been formed. He further deposes that it had been accepted by the defence that the prosecution would call the witness and for that reason she had not been interviewed. [34] After the Crown Prosecutor had informed the defence that he had decided not to call her, it was decided by the defence not to call her since no proof had been obtained and the defence were not aware from her what she might say as to the allegations of the complainant, particularly, seeing her “de facto husband having sex with her daughter and saying the words ‘That’s enough’ or something similar”. He asserts that it is his recollection that the decision was made not to call her because of “what we believed to be the state of evidence of the complainant and where it stood in relation to the other witnesses”. He said: I was of the view as well that [she] may not have been truthful to the police when she gave the statement at the Bathurst Police Station about the circumstances of the alleged physical assault. [35] He further expresses the belief that the Crown Prosecutor before the trial, when informing the jury panel of potential witnesses, included the name of the witness and her address as a Crown witness. [36] Defence counsel has, in his affidavit, given evidence generally confirmatory of the solicitor’s evidence. ... The Australian position [39] The High Court of Australia in The Queen v Apostilides (1984) 154 CLR 563 at 575 laid down a number of general propositions as being applicable to the conduct of criminal trials in Australia: 1.

The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

2.

The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

Part 2 — Adducing Evidence

R v Kneebone cont. 3.

Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

4.

When charging the jury, the trial judge may then make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, would be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge.

5.

Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

6.

A decision of the prosecutor not to call a particular person as a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

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[40] In discussing the circumstances in which a miscarriage might be occasioned by the failure to call a witness, the court said: In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome. It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice. No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being called. In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness. Nevertheless the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred … So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the essential question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory. (at 577-578) [41] In Whitehorn v The Queen (1983) 152 CLR 657, Deane J (at 663-664) characterised the obligation of a prosecutor for the Crown in these terms: In performing the function of presenting the case against an accused, a Crown Prosecutor must act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. [42] Dawson J, for his part, said at 674-675: [a]ll available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them, then the selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court … No doubt all of these

Witnesses

CHAPTER 2

R v Kneebone cont. observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. [43] The guidelines of the New South Wales Director of Public Prosecutions issued by the DPP in March 1998 say: [t]he Crown should generally call all apparently credible witnesses whose evidence is essential to the complete unfolding of the Crown case or is otherwise material to the proceedings. If a decision is made not to call a witness where there are identifiable circumstances establishing that his or her evidence is clearly unreliable, the Crown should where possible assist the accused to call such a witness by making him or her available … Mere inconsistency of the testimony of a witness with the Crown case is not grounds for refusing to call the witness … A decision not to call a witness otherwise reasonably to be expected to be called should be notified to the accused a reasonable time before the commencement of the trial with an indication of the reasons for the decision. New South Wales Bar Rules [44] The New South Wales Bar Rules, by rr 62 and 66B provide: 62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts. … 66B. A prosecutor must call as part of the prosecution’s case all witnesses: Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(a) whose testimony is admissible and necessary for the presentation of the whole picture; (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; (c) whose testimony or statements were used in the course of any committal proceedings; and (d) from whom statements have been obtained in the preparation or conduct of the prosecution’s case; unless: (e) the opponent consents to the prosecutor not calling a particular witness; (f) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or (g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that: (h) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)-(d), if the prosecutor believes on reasonable grounds that the testimony of that witnesses is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and (i)

the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision.

[45] The authorities in Australia have been extensively reviewed recently by the Queensland Court of Appeal in The Queen v Wilson CLS (1997) QSC CA 38 by the majority, Fitzgerald P and Lee J. …

Part 2 — Adducing Evidence

R v Kneebone cont. Ascertaining unreliability [49] Since both experience and logic confirm that merely because a witness’s evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability: see Apostilides (supra, at 576); DPP Guidelines (supra), at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary, interviewing witnesses to be able to form the opinion. [50] In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness’s account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness’s evidence is seen as not fitting the prosecution’s view of the case is likely to lead to a miscarriage of justice. Apostilides (supra) deals with the consequence of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: R v Anderson (1991) 53 A Crim R 421.

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[51] The advisability, if not necessity for a conference, is reinforced by the decisions in Tran v Magistrates’ Court of Victoria (1998) 4 VR 294; R v Armstrong (1998) 4 VR 533, where the prosecutor refused to interview the witness or to consider notes proffered by counsel for the defence indicating the substance of the evidence it was anticipated the witness would give; and R v O’Brien (1996) 66 SASR 396 particularly in the judgment of Doyle CJ at 398-399. There the prosecutor had sensibly spoken to and proofed the witness before concluding that there was a clear allegiance on the part of the witness to the accused. [52] In Regina v Shaw (1991) 57 A Crim R 425, the Victorian Court of Criminal Appeal had regard to an assertion that the witness was unreliable and found the assertion unacceptable in the absence of the prosecutor having, by an appropriate technique such as conferring with the witness, satisfying him or herself properly of the witness’s capability to give relevant and truthful evidence. In relation to an assertion that the prosecution should be able to disregard witnesses inconsistent with the general case, Nathan J said (at 450): … eye witnesses do not belong to a camp, but are within the class of persons from whom juries expect and are entitled to hear. The characterisation of witnesses being in camps is unfortunate. It necessarily implies that the prosecutor might choose to call only those witnesses favourable to his camp. This is an absolute derogation of a prosecutor’s responsibilities. [53] I agree with his Honour’s observations. They accord with the generally accepted view of the role and responsibility of a Crown Prosecutor (see, for example Richardson v The Queen (1974) 131 CLR 116). … Conclusions [57] In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with a theory of the accused’s guilt. [58] In the way in which the complainant’s evidence was given, the evidence of her mother was essential to the unfolding of the narrative and crucial on credibility (see Semeviratne v The King (1936) 36 All ER 36 at 48-49). [59] Not calling the witness without having a principled basis for not so doing accorded ill with the traditional notion of the functions of a prosecutor for the Crown. (See the remarks of Fullagar J in Ziems v Prothonotary (1957) 97 CLR 279 at 294.3.)

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R v Kneebone cont. [60] In the present case, no basis is put forward in evidence which would have entitled the Crown Prosecutor on the basis of unreliability to have formed the view that the witness should not properly be called in the Crown case. There was, for example, no evidence that the witness was unwilling to speak to the police; there was no attempt to conduct a conference with the witness and the witness’ statements to the police concerning the physical assault may have been explicable on a basis other than being in the accused’s “camp”. [61] I am of the view that by reason of the failure to call the witness, occasioned, as it appears to be, by a failure to adopt an appropriate course to enable proper consideration of any question of unreliability, a miscarriage has occurred. In my view, the supplementary grounds of appeal should be upheld. It remains to consider whether, in all the circumstances, the appropriate order is for a new trial. SMART AJ (Spigelman CJ concurring):

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[99] There was a significant departure from proper practice in the Crown not interviewing and not attempting to interview the mother after the allegation of rape had been made in late 1996. It was not a matter to which attention was directed on 27 February 1995 when she was being interviewed about the assaults as it was not known to arise. The Crown knew that the mother was in the house. Any moderately competent investigation required that the mother be interviewed and asked about what had happened. [100] From what is [known] of the mother’s evidence, it does raise acute problems. She admits that she did not tell the police when being interviewed on 27 February 1995 about the appellant and her daughter being in the bathroom although the appellant had told her about that. She claims that she did not see any injuries on the complainant before she left home and that the complainant appeared to be talking and walking alright. According to the appellant, the mother helped the daughter pack and saw her off the premises. The difficulty is that if her statements about the assault and the condition of her daughter are unreliable, as they appear to be, and she did not tell the police of the bathroom incident, how much weight, if any, can be given to her denial of witnessing one segment of the assault, namely the alleged sexual assault which occurred between the other assaults. [101] The principles relating to the calling or non-calling of witnesses by the Crown have been authoritatively restated by the High Court in R v Apostilides (1983-84) 154 CLR 563 at 575. As the Court noted, it did not attempt to deal exhaustively with the responsibility of the prosecutor and it referred back to the Court’s earlier decisions. The difficulty in the present case lies not so much in the statement of the principles but in their application. [102] At the risk of undue repetition, these further principles should be noted: (a)

The Crown prosecutor in deciding how the Crown case will be presented and what oral evidence will be adduced has the responsibility of ensuring that the Crown case is presented with fairness to the accused: Richardson v The Queen (1974-75) 131 CLR 116 at 199.

(b)

The Crown prosecutor will often have to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether it is credible and truthful, whether in the interests of justice it should be subject to crossexamination, amongst other matters: Richardson at 119.

(c)

The prosecutor should decide in the particular case what are the relevant factors and in the light of those factors determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused: Richardson at 119.

(d)

To avoid a miscarriage of justice, a Crown prosecutor should call all available material witnesses. They include those whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime and will include witnesses notwithstanding that they give accounts inconsistent with the

Part 2 — Adducing Evidence

R v Kneebone cont.

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Crown case: Whitehorn v The Queen 152 CLR 657 at 674 per Dawson J. (An exception exists where there are many witnesses to prove the same point.) (e)

However, the Crown has a discretion not to call in the Crown case as an eye witness if the prosecutor judges that there is sufficient reason for not calling the witness, as, for example, where the prosecutor concludes the witness is not reliable and trustworthy or is otherwise incapable of belief. This applies even to a witness who is essential to the unfolding of the narrative on which the prosecution is based: Richardson at 121 and Whitehorn at 674.

(f)

The prosecutor’s judgment must be based on more than a feeling or intuition. There must be identifiable factors pointing to unreliability or lack of belief in the proposed evidence of the witness. It is not enough that the prosecutor considers that the evidence may be unreliable. Suspicion, scepticism and errors on subsidiary matters will not suffice. The attention of the prosecutor should be on matters of substance and even on these there may be significant differences between the witnesses. It is for the jury to resolve these: Apostilides at 576.

(g)

“In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment” [or able to give material evidence] but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defendant and then, if necessary, be re-examined: Apostilides at 576.

(h)

Frequently, eye witnesses will be close or have been close to the accused and possibly to the victim. That does not mean that they should not be called by the Crown. It is where it is apparent that the eye witness is so devoted to the accused and his cause that she will not tell the truth as to what happened that the question of the Crown not calling that witness will arise.

(i)

Overriding all the particular guidelines and formulations is the general obligation imposed upon a Crown prosecutor to act fairly in the discharge of the function which he performs. That is the guiding and fundamental principle to be kept in mind as new and unusual situations emerge: Whitehorn at 675.

[103] I have considerable doubt whether the mother is necessary to unfold the narrative and give a complete account of the events upon which the prosecution rely. On the complainant’s evidence, the mother was an observer for a short period and uttered the words, “that’s enough”. The alleged rape commenced before she came to the door of the bedroom and continued after she left. It was the complainant who attributed the role mentioned to the mother. The mother denies acting as an observer or being aware of the activities of the appellant alleged by the complainant and for that reason her evidence, if true (or if there is a possibility that it is true), is important. [104] One consideration is whether in the interests of justice the mother’s evidence should be subject to cross-examination (Richardson at 119). Given the unsatisfactory features of her evidence as to other parts of the incident, it is difficult to see how that question can be answered other than in the affirmative. Section 38 of the Evidence Act 1995 then needs to be considered as it allows a party, who called witness, with the leave of the Court, to question a witness as though cross-examining her about evidence given that is unfavourable to the party. Under s 38(4) such questioning is to take place before the other parties cross-examine the witness unless the Court otherwise directs. Section 38 makes an important change in the law and removes restrictions which had the effect, on occasions, of making important evidence unavailable and preventing the adequate testing of evidence. The judge has the task of deciding whether the evidence is unfavourable (not favourable) and then whether in the exercise of his discretion he ought to grant leave to cross-examine. The careful exercise of that discretion is designed to ensure that there will be no unfairness. The prosecutor will

Witnesses

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R v Kneebone cont. need to bear this section in mind and also the appellant’s desire that the Crown call the mother. The Crown prosecutor would have to consider the alternative course of simply calling the mother and allowing the mother to be cross-examined by the appellant. He could still do this if leave to crossexamine were refused. [105] On the material available to this Court, and it is at best doubtful if there will be further significant material, it is hard to avoid the conclusion that there will probably be a miscarriage of justice if the Crown does not call the mother. In practical terms the appellant cannot call her. In fairness she should be called despite the reservations about the evidence. The offence charged is particularly serious and the appellant received a long term of penal servitude (nine years with a minimum term of six years). Apart from the appellant and the complainant, she was the only other person in the house at the critical time. It was the complainant who said that the mother observed the rape and made the comment mentioned. Thus, the complainant rendered the mother’s evidence in denial of importance to the appellant. [107] The task confronting the prosecutor is a formidable and lonely one. There are a number of courses of action available. In Apostilides the High Court pointed out that the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred. Despite the problems with some of her evidence and the reservations about it, this appears to be such a case. Preeminently, this is a case where the jury should assess the complainant, the appellant and the mother. Without the mother, the jury may be left with unanswered questions of consequence. The prosecutor will have to address not only the question of whether the mother’s evidence would be unreliable but the further question of whether there would, in the special circumstances, be a miscarriage of justice if she were not called.

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(Appeal allowed. Conviction quashed. New trial ordered.)



Velevski v The Queen [2.60] Velevski v The Queen (2002) 76 ALJR 402 Facts [The appellant was convicted of murdering his wife and three children. The appeal focused on the conflicting expert evidence from forensic pathologists on the prosecution case of murder/murder and the defence case of murder/suicide that was admitted in the trial. Dr Bradhurst, called by the Crown, was the forensic pathologist who attended the crime scene and viewed the bodies. Dr Bradhurst and a defence witness, Dr Zillman, opined that it was murder/suicide. Each of the four other pathologists called by the Crown was of the contrary view. The detective who had the conduct of the investigation (Detective Sgt Whyte) gave evidence that he knew that Dr Bradhurst’s opinion had been “agreed with” by some of his professional colleagues (including Professor Hilton and Drs Lawrence and Duflou). The detective did not obtain statements from these experts because he said that he “took the view that Dr Bradhurst’s report certainly covered the views held by those doctors. I did not see the point of getting any further reports from them”. No statement was obtained from Dr Botterill, who assisted Dr Bradhurst to carry out the autopsies. After receiving Dr Bradhurst’s report, the detective sought opinions from Drs Cooke, Oettle and Collins and Professor Mason and they were called as witnesses for the prosecution (along with Dr Bradhurst). Professor Hilton, and Drs Botterill, Lawrence and Duflou were not called as witnesses.]

Part 2 — Adducing Evidence

Velevski v The Queen cont. Judgment ... GLEESON CJ and HAYNE J:

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[46] Nor was there any miscarriage of justice occasioned (as the appellant submitted) by the failure of the prosecution to call as witnesses other pathologists who, a police officer testified, had “agreed with” Dr Bradhurst’s opinion that Mrs Velevski had probably committed suicide. No statement or report was obtained from the pathologists mentioned in the police officer’s evidence and no statement was obtained from a Dr Botterill who assisted Dr Bradhurst at the post-mortem examinations. Yet it was contended that the prosecution had been duty bound to call them to give evidence. Indeed Kirby J, who dissented in the Court of Criminal Appeal, concluded that a miscarriage of justice had been caused by the “imbalance” in the medical evidence tendered in the prosecution case. [47] The argument proceeds from an assumption about what the evidence of these persons might have been. The most that could be said to have been revealed by the evidence was the general tenor of their views. It may be doubted whether an assumption that their evidence would have supported the particular views formed by Dr Bradhurst is well founded, in the absence of any statement or report which revealed what evidence each may have given about the various matters of which Dr Bradhurst gave evidence. Even assuming, however, that one or more of them, when qualified, would have given evidence which supported the opinions of Dr Bradhurst, there has been no miscarriage of justice. First, the notion of “balance” in this context is seductive, but misleading. On its face it suggests that, in every case where expert evidence is to be led, the prosecution must seek out and adduce evidence of competing or contradictory opinions. Why that should be so in an adversarial system is not revealed. What is required is that the prosecutor is bound to ensure that the prosecution case is presented with fairness to the accused. Fairness does not require some head count of experts holding differing opinions. Secondly, it is to be recalled that the evidence now in issue is expert evidence of opinion. It is not evidence of facts. R v Apostilides, and like cases about the obligations of the prosecution, are primarily concerned with evidence about the facts of the case. Other considerations intrude in relation to expert evidence, not least being the consideration that such a witness can give evidence only by reference to facts which will have to be established otherwise. In a case such as the present, where several experts were to be called to give evidence, the prosecution, not already being in possession of evidence from other expert witnesses, was not bound to seek it out by having the witness qualify himself or herself to form an opinion and then to call the witness to give evidence of the opinion that was formed. ... GAUDRON J: [116] The first defect in the trial, in my view, would otherwise require a new trial, relates to the failure of the prosecution to call as witnesses those forensic pathologists who, to the knowledge of the prosecutor, had formed opinions coinciding with that expressed by Dr Bradhurst. The prosecution neither obtained statements from these persons nor called them as witnesses. [117] The ordinary rule is that: all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. Of course, a failure by the prosecution to call witnesses is not a defect which will result in a new trial unless it is established that that failure resulted in a miscarriage of justice, in the sense of depriving the accused of a chance of acquittal that was fairly open.

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Velevski v The Queen cont. [118] It would, I think, be going too far to say that, where there is a conflict in the evidence of expert witnesses, the interests of justice require the prosecution to call all experts who are known to have expressed opinions on the matter in issue. However, two particular matters rendered it necessary in this case for the prosecution to call those forensic pathologists who were known to have expressed opinions coinciding with those of Dr Bradhurst. [119] It will be recalled that Dr Bradhurst was of the view that certain marks on Snezana’s face and shoulder were the result of post-mortem lividity and that petechial haemorrhages observed on her eyelids, lips and gums occurred post-mortem. Dr Oettle and, to a lesser extent, other experts who gave evidence that, in their opinion, Snezana’s death was probably homicidal, considered that the marks were bruise marks and that the petechial haemorrhages may have been the result of neck compression while she was alive. It was not disputed in this Court that Dr Botterill assisted Dr Bradhurst with the post-mortem examinations. It is to be assumed that he would have been in a better position to form an opinion about the nature of the marks on Snezana’s body and, perhaps, the petechial haemorrhages than those experts who based their opinions mainly, or, in some cases, wholly on photographs.

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[120] The second matter that should be noted with respect to the failure of the prosecution to obtain statements from those persons who supported Dr Bradhurst’s opinion and to call them as witnesses is that, in his summing-up, the trial judge instructed the jury that it was for them “to give such weight to the opinions of [the] expert witnesses as [they thought appropriate], having regard to the qualifications of the witness, the honesty of the witness, the partiality or otherwise of the witness and the extent, if any, to which the witness’ opinion accords with such other facts as you find proved to your satisfaction”. A little later, his Honour instructed the jury that “in assessing the evidence of those experts whom you find to be credible and impartial … it would not be proper to find an issue against the accused by accepting one body of expert evidence and rejecting another unless there was good reason for doing so”. [121] It will later be necessary to consider the adequacy of the trial judge’s directions with respect to the conflicting expert evidence. For the moment, it is necessary to observe only that, in the context of the direction set out above, the case was left to the jury on the basis that they might reject the evidence of particular experts. What is important to note is that the jury could only have found the appellant guilty by rejecting the evidence of Drs Bradhurst and Zillman. As their opinions did not depend entirely or, even, mainly, on facts that the jury might or might not find proved to their satisfaction, it must be taken that their evidence was rejected, at least in significant part, on the basis of their honesty, credibility or partiality, unless, in the case of Dr Zillman, his evidence was also rejected on the basis of his comparative lack of experience in the field of forensic pathology. Their evidence might well not have been rejected on any of those bases if those persons who agreed with the opinion of Dr Bradhurst had been called as witnesses in the trial. Accordingly, in my view, the failure of the prosecution to obtain statements and call them as witnesses resulted in a miscarriage of justice. ... GUMMOW and CALLINAN JJ: [173] Senior counsel for the appellant at the trial addressed the jury on the basis that the failure by the Crown to call the pathologists who had expressed agreement with Dr Bradhurst was improper and unfair. The trial judge did, however, give a clear and helpful direction about this matter. His Honour said: Reference has been made by defence counsel to the failure of the Crown to call particular persons as witnesses, eg Professor Hilton, Dr Duflou, Dr Botterill … It is desirable that I give you a direction in this regard; where it appears that there is a witness who could be expected to be able to give relevant evidence but that witness has not been called, you are not entitled to speculate upon what he or she might have said if he or she had been called; but where that witness is a person who in the ordinary course you

Part 2 — Adducing Evidence

Velevski v The Queen cont. would expect eg the Crown to call, and the Crown offers no satisfactory explanation as to its failure to call that witness, you are entitled to draw the inference that his or her evidence would not have assisted the Crown case. Here however, in relation to the pathologists at least, there is no reason to speculate on what they might have said. There is evidence both from Dr Bradhurst and from Det Sgt Whyte, that they agreed with Dr Bradhurst’s opinion … [175] In R v Apostilides, this Court held that a decision of the prosecutor not to call a particular witness would constitute a ground for setting aside the conviction if, when viewed against the conduct of the trial taken as a whole, it could be seen to give rise to a miscarriage of justice. [176] Even if, notwithstanding that the appellant was fully apprised of the opinions of the experts who were not called, the respondent should have called those witnesses as we are inclined to think he should, the trial judge’s direction following the appellant’s counsel’s strong criticism of the respondent in his address would have operated to cure disadvantage to the appellant (if any) that might otherwise have occurred. (Appeal dismissed.)

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 Competence and compellability [2.70] It would appear that Div 1 of Pt 2.1, dealing with the competence and compellability of witnesses, codifies the applicable law in this regard. The reason is that s 12 provides that “except as otherwise provided by this Act”, every person is competent to give evidence and compellable to give it. A “competent” witness is a witness who may give evidence (either generally or about a particular fact). A “compellable” witness is a witness who may be required by order of the court to give evidence (either generally or about a particular fact). A witness may not be competent because of lack of capacity. The test to determine whether a witness is competent to give sworn or unsworn evidence is based on the witness’ “capacity to understand a question” and “give an answer that can be understood”. Section 13(3) provides that the test for competence to give sworn evidence is whether a person has “the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence”. If a person does not satisfy the test in s 13(3) then the person can give unsworn evidence provided that the court tells the person the three things listed in s 13(5). The provision is designed to allow young children and persons with a mental disability to testify even though they do not comprehend such concepts as “obligation”. Unsworn evidence is still evidence and is treated no differently from other evidence by the Act (see R v GW (2016) 258 CLR 108). The extract at [2.130] is a script that has been developed for use in special hearings with children or cognitively impaired witnesses. Also note that a defendant is not competent to give evidence as a witness for the prosecution: s 17(2). In a joint trial of two defendants (a company and a director of the company) for offences under the Occupational Health and Safety Act, the prosecution called the director defendant as a witness (this was at his request). The High Court held that the director was not a competent witness for the prosecution and his evidence was not admissible against him: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

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ALRC 102 [2.80] Uniform Evidence Law, ALRC 102 Seen and heard: priority for children in the legal process [The Australian Law Reform Commission reported in 2005 as follows. Footnotes have been deleted.] [4.3] The law of competence addresses both legal competence and competence in the sense of the capacity of a person to be a witness. This chapter is concerned with the latter. The primary rationale for the existence of tests of competence is to guard against the admission of evidence of little or no probative value. This need has to be balanced against the unnecessary exclusion of relevant evidence. These competing priorities are particularly evident in the context of the criminal law where it is necessary, on the one hand, to ensure that relevant evidence is before the trier of fact and, on the other, to provide an initial filter to exclude evidence that is so unreliable its admission would be unfair to the accused. [4.4] The assessment of competence should not be: concerned with the many factors that can affect the value of the witness’ evidence such as the powers of observation, the time which has elapsed between the perception of an event and its ultimate report and so on. These factors will have bearing on the credibility of the witness and should therefore be taken into account at the stage when the weight of the testimony is to be assessed.

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[4.5] Rather, the test of competence should be concerned with assessing the “ability of the witness to function as a witness”. [4.6] The issue of competence generally only arises when the witness is a child or has some form of disability. There is a wide range of characteristics which may lead to a party seeking to impugn a person’s competence as a witness including, for instance, age, some forms of physical or sensory disability, acquired brain injury, mental illness and intellectual or cognitive disability. [4.7] Historically, the rationale for stringent rules regarding competence reflects stereotypical views about children and their unreliability as witnesses. The reasons for children’s evidence being considered inherently “suspect” have been put on the basis that children have less reliable powers of observation and memory, are prone to live in a make-believe world, are egocentric and forget details unrelated to themselves, are suggestible and have little notion of the duty to speak the truth. Even more extreme views have been expressed in the past. [4.8] Recent research challenges many of these views. Of particular relevance in the context of this discussion about competence is that: there is no psychological evidence that children are in the habit of fantasising about the kinds of incidents that might result in court proceedings or that children are more likely to lie than adults. Indeed, research suggests that children may be actually more truthful than adults. Certainly, the research on children’s beliefs about court proceedings implies that children may be more cautious about lying in the witness box than adult witnesses. When children do lie to an adult, the adult is usually well able to discern this, particularly with younger children. [4.9] Further, some research about children’s conceptions and moral judgments of truth-telling and lying shows that, in reality, [c]hildren’s knowledge about truth- and lie-telling emerges early and develops rapidly. Children from preschool years onward often show sophisticated understanding of the

Part 2 — Adducing Evidence

ALRC 102 cont. concepts of lying and truth-telling, rate truthful statements about rule violations positively, and judge lying to conceal rule violations negatively.

 [2.90] Prior to amendments to the Act following on ALRC 102, s 13(2)(a) required that,

before a person was ruled competent to give unsworn evidence, the court must be satisfied that the person “understands the difference between a truth and a lie”. ALRC 102 proposed deletion of this requirement. [2.100] The New South Wales Court of Criminal Appeal explained the operation of the

amended version of s 13 in SH v The Queen (2012) 83 NSWLR 258; [2012] NSWCCA 79.

SH v The Queen [2.110] SH v The Queen (2012) 83 NSWLR 258; [2012] NSWCCA 79 Facts

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[The accused was convicted for sexual assault of a girl aged under 10. The main witness for the prosecution was the complainant. She gave unsworn evidence. The accused appealed on the basis that the judge failed to give a necessary instruction to the complainant, so that her evidence was inadmissible and she was not competent.] Judgment BASTEN JA: Competence – unsworn evidence … [5] The Evidence Act requires that every witness must either take an oath or make an affirmation, except a person who gives unsworn evidence under s 13: s 21. The primary test of competence, namely the capacity to understand a question and communicate a comprehensible answer, may be generic in respect of a particular witness or may relate to particular facts: sub-ss (1) and (2). Even what appears to be a generic exclusion, such as inadequate competence in English requiring the intervention of an interpreter, may operate differentially in relation to questions about particular facts: s 30. Deaf and mute witnesses are treated as having a generic incapacity: s 31. However, not all competent witnesses are competent to give sworn evidence; that depends upon having the capacity to understand that one is obliged to give truthful evidence: sub-s (3). [6] The purpose and effect of sub-s (4) is less clear: it appears to have a dual operation, namely to impose a precondition on a person who is not competent to give sworn evidence, but who is competent to give unsworn evidence and to condition the competence to give unsworn evidence upon compliance with sub-s (5). The word “may” is ambiguous: on one view, competence within sub-s (1) having been determined, it is merely the conferral of an alternative procedure for giving evidence. On another, its intended purpose may be to confer a discretionary power on the trial judge to allow such evidence, but only in some circumstances and not others. If the latter operation were intended, it would be necessary to identify the criteria (or criterion) to be applied by the trial judge. [7] Section 13 was amended by the Evidence Amendment Act 2007 (NSW) (the 2007 Amendment Act), which commenced operation on 1 January 2009. In its old form, s 13(2) permitted a person to give unsworn evidence if the Court were satisfied that the person understood the difference between the

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SH v The Queen cont. truth and a lie: s 13(2)(a). That required an evaluative judgment. That requirement appears to have been deliberately removed because of the lack of clear differentiation between that test and the test of understanding an obligation to give truthful evidence, necessary to give sworn evidence. [8] This ambiguity is to be resolved in favour of the conclusion that there is no discretionary power to refuse to allow a child to give unsworn evidence, if the court is satisfied as to the capacity to understand a question and give a comprehensible answer, in accordance with sub-s (1). That conclusion follows from both the structure of the section and by reading sub-ss (4) and (5) together. Thus, sub-s (5) does not use equivocal language, but, subject to identified preconditions, states that a person who is not competent to give sworn evidence “is” competent to give unsworn evidence. That language, together with the absence of any attempt to specify criteria relevant to the exercise of a discretion, demonstrate that no discretionary power was intended. [9] In its form prior to the 2007 Amendment Act, the Court was not merely obliged to tell the witness that it was “important to tell the truth” but the prospective witness was required to indicate “by responding appropriately when asked” that he or she would not tell lies. The practical consequence of that dual requirement was that trial judges gave the instruction as a question and required a response. Perhaps counter-intuitively, the present form of sub-s (5) requires judicial instruction but no response. Nevertheless, it is understandable that, as occurred in this case, a judge is likely to seek a response to ensure that the instruction has been noted and understood. [10] For the purposes of this case, sub-s (5) raised two issues. The first was the essential requirement of paragraph (c); the second, involving the combined operation of sub-ss (4) and (5), concerned the consequence of a failure to comply with sub-s (5).

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(b) Content of section 13(5)(c) [11] Dealing with the content of paragraph (c), it appears that there are two limbs to the required instruction, each involving the idea of a “suggestion”, reflecting a common form of cross-examination. The prospective witness is advised to agree with those suggestions which he or she thinks are true, but “should feel no pressure to agree with” statements believed to be false. [12] Little assistance in understanding the purpose and content of sub-s (5) is to be obtained from the Australian Law Reform Commission report, Uniform Evidence Law – Report 102 (AGPS, December 2005) as that report limited the requirement in respect of a person giving unsworn evidence to a direction to the person that it is “important to tell the truth”: Appendix 1, p 699 and Recommendations at 114-115. The amendment accepted by the legislature mirrors s 23(1D) of the Evidence Act 1958 (Vic). That provision was introduced pursuant to a recommendation of the Victorian Law Reform Commission Report, Sexual Offences: Final Report (2004), Recommendation 137 at 296: see Anderson, Williams and Clegg, The New Law of Evidence (2nd ed, LexisNexis, 2009) at [13.9]. That report provides limited guidance, but the idea behind the provision is tolerably clear: it is designed to limit the danger that persons with a limited understanding of the concept of truth-telling may be confused or intimidated by the fact that a person with apparent authority is seeking agreement to a proposition. Similar concerns underlay the formulation of the rules for interrogation of Aboriginal persons in R v Anunga (1976) 11 ALR 412 (Forster J). Forster J noted the difficulty in dealing with people who do not understand English very well, a remark which also applies in respect of the language used in courts. His Honour continued at 414: Another matter which needs to be understood is that most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. [13] Similar considerations may apply in respect of children. Although somewhat vaguely expressed, the key consideration underlying paragraph (c) appears to be a concern that the prospective witness should not feel under pressure to agree with statements put by adults in wigs and robes. Such

Part 2 — Adducing Evidence

SH v The Queen cont. instruction is required to be provided by the court, not by the person who is likely to be doing the questioning. (c) Consequence of non-compliance [14] The second issue concerns the consequence of a failure to give an adequate instruction in accordance with the statutory provision. In The Queen v WG [2010] VSCA 34, Warren CJ, Nettle and Ashley JJA drew a distinction between a condition of competence and a condition of admissibility: at [35]. The Court continued at [36]: In our view, the importance of that distinction is that, although compliance with a condition of competence is essential (in that the testimony of an incompetent witness is not evidence at all), and thus it has been held that failure to comply with the requirements of ss 13(2)(a), (b) and (c) of the Uniform Evidence Act is productive of a miscarriage of justice to which the proviso cannot be applied, a condition of admissibility can ordinarily be waived and, if so waived, failure to comply with the condition does not result in a miscarriage of justice or at least in a miscarriage to which the proviso cannot be applied. [15] The reference to s 13(2) of the Uniform Evidence Act was a reference to that provision as it applied before the 2007 Amendment Act. The authorities identified for the proposition that such a failure cannot be cured were R v Brooks (1998) 44 NSWLR 121 at 125 and R v BBR [2009] QCA 178; [2010] 1 Qd R 546 at [25]. However, these cases did not deal with the current provision. As correctly noted by Anderson, Williams and Clegg at [13.1], the amendment of s 13 requires that cases determined under the repealed provision should be treated with caution.

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[16] In its earlier form, s 13(2) read: 13 Competence: lack of capacity ... (2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if: (a) the court is satisfied that the person understands the difference between the truth and a lie, and (b) the court tells the person that it is important to tell the truth, and (c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding. [17] In R v Brooks, the failure to comply with paragraph (b) (being the only provision involving potential judicial instruction) was inconsequential. The Court held that where the evidence demonstrated that the child was capable of giving sworn evidence, the trial was fatally flawed in circumstances where she was not sworn. In giving separate reasons for that conclusion, Sperling J stated at 127C-D: I do not think there was compliance with the requirements of par (b) of s 13(2). The trial judge failed to “tell” the complainant it was important to tell the truth. A witness who has been asked whether they know something is important has not been told it is important. The distinction is significant. The policy I discern behind the provision is that the authority of the court is to be brought to bear on the witness by means of an instruction. Nothing less will do. [18] The principal judgment in Brooks was given by Grove J, who expressed, obiter, a different view concerning the requirement of s 13(2)(b), at 126E-F: I am unable to agree that nothing less than some form of judicial instruction is necessary. I would construe the obligation cast on the court by the provision as to convey the information that it is important to tell the truth; if the authority of the court was being called in aid

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SH v The Queen cont. the obligation could be phrased as directing the person to tell the truth. The latter could in isolation amount to an empty ritual. The conveyance of information that it is important to tell the truth is coordinated with s 13(2)(c) where the person to whom the information is conveyed is to respond by appropriate assurance that he or she will not tell lies in the proceeding. The effect is to be derived from the combined operation of both provisions. I would understand the use of “tells” in s 13(2)(b) in the sense of making known and I see no warrant for adding to the meaning a bringing to bear of authority or some instructive character.

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[19] Priestley JA agreed with Grove J, expressly including his “addendum concerning what is required by s 13(2)(b)”: at 122D. However, the reasoning of Grove J in reaching a conclusion contrary to that of Sperling J rested heavily on the coincidence of paragraphs (b) and (c). That provided a powerful reason for the conclusion reached. Two changes have now been made in s 13, relevant for present purposes. First, sub-s (2) having been recast into sub-ss (4) and (5), there is no equivalent to the old par (c), requiring a response from the prospective witness. Secondly, the idea of a condition of competence, rather than a condition of admissibility, is reinforced by the fact that competence to give unsworn evidence is said, in sub-s (4), to be “subject to sub-s (5)” and in sub-s (5) competence is said to arise “if” the elements in pars (a), (b) and (c) have been “told” to the prospective witness. [20] Sections 9, 9A and 9B of the Evidence Act 1977 (Qld), as considered by the Court of Appeal in R v BBR, were different from both the Victorian and the Uniform Evidence Acts. Section 9B(3) required that, if a witness were competent to give evidence, but not on oath, “the court must explain to the [witness] the duty of speaking the truth”. In circumstances where the trial judge failed to give such an explanation, the Court (Chesterman JA, Keane JA and Ann Lyons J agreeing) concluded that the failure “vitiated the trial process because the statutory condition to the reception of the child’s evidence had not been satisfied”: at [18]. Chesterman JA referred to Brooks at 125-126, concluding that a witness was not entitled to give unsworn evidence unless incapable of understanding the obligation to give truthful evidence and noting the finding that “before such unsworn evidence can be put before a court the requirements of s 13(2)(b) and s 13(2)(c) must be fulfilled”. There was no reference to the subsequent remarks as to the nature of compliance with those provisions. Chesterman JA concluded at [25]: The judgments in Brooks stand as authority for two propositions. Both are relevant to this appeal but it was only the second which figured in the appellant’s submissions. That proposition is that where a statute permits the giving of unsworn testimony on certain conditions those conditions must be satisfied before the evidence can be given. Where a condition is that the judge give an explanation or admonition of some kind to the witness the explanation or admonition must be given. [21] R v Starrett [2002] SASC 175; 82 SASR 115 dealt with s 9 of the Evidence Act 1929 (SA), which, with a slightly different structure, was to similar effect as s 13(2) prior to the 2007 Amendment Act. Doyle CJ stated: [23] But s 9(2)(a)(ii) requires that the Judge “tells the person that it is important to tell the truth.” The Judge did not do this. ... There are obvious reasons why Parliament has required that the Judge tell the witness that it is important to tell the truth, and that the witness indicate to the Judge that the witness will tell the truth. ... [28] Such authority as there is suggests ... that this is an irregularity that gives rise to a miscarriage of justice. The trial was not conducted according to law. The appellant was entitled to such a trial. The departure from the requirements of the law is not a trifling one, nor is it a departure on a matter that can be regarded as a mere matter of form. [22] Section 13(5)(c) does not impose an obligation to give instruction in a particular form, but to a particular effect. There is room for differences of opinion as to whether a particular instruction is sufficient in respect of a specific witness. Although the context differs from that where a challenge is

Part 2 — Adducing Evidence

SH v The Queen cont. made to the instructions given to the jury, the possibility that error might be remedied by a timely objection is present in both circumstances. It might seem undesirable if, as a matter of principle, r 4 of the Criminal Appeal Rules (requiring leave to raise a point to which objection was not taken at trial) were to be treated as irrelevant. Similarly, it might be thought unfortunate if a doubt as to the adequacy of the instruction to the witness were held to be fatal to maintenance of a conviction, despite the appeal court being satisfied there had been no substantial miscarriage of justice, for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW). [23] Section 13, it should be noted, is not directly concerned with the interests of a witness of limited competence, such as a young child: it is concerned with the public interest of obtaining evidence relevant to the determination of a criminal charge. There are other provisions which protect the interests of a child witness in sexual offences such as the present, including those which provide for the recording of evidence and the absence of the child from the court room to a different place linked by closed circuit television. It is not correct to treat the operation of s 13 as involving a balance between the interests of the child witness and those of the accused: cf BBR at [38].

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[24] Further, BBR is not itself authority for the distinction between a condition as to competence and a condition of admissibility. The failure to comply with the statutory requirement was, it was said, such as to render the evidence “not admissible”: at [39]. Nor is the failure to give instruction to a prospective witness in the same category of error as a failure to swear a witness who was competent to give sworn evidence, as in Brooks. [25] Given the differences in the statutory schemes, it is apparent that no authority requires this Court to conclude that a failure to comply with s 13(5) necessitates upholding the appeal. On the other hand, it is clear that the South Australian Court of Criminal Appeal in Starrett and the reasoning of the Victorian Court of Appeal in WG support such a conclusion. Similarly, in Brooks, this Court treated the liberalisation of the rules relating to the competence of witnesses as requiring careful compliance in order to avoid a miscarriage of justice. [26] A critical aspect of the present provision is that, being satisfied that a child has the capacity to understand a question and give a comprehensible answer in respect of a fact, there appears to be no residual discretion to decline to allow evidence to be given unsworn, assuming the absence of capacity to understand the obligation to give truthful evidence. A further consideration to be taken into account is the removal, also by the 2007 Amendment Act, of the power of a judge to give any of the warnings with respect to evidence of a child set out in s 165A(1), although that does not preclude an appropriate warning as to the unreliability of specific evidence: s 165A(2) and (3) and s 165. Application of principles [27] On 20 April 2009 the jury was empanelled and given initial instructions by the trial judge. On the following morning, the prosecutor opened to the jury, followed by a brief opening on the part of counsel for the accused. In the absence of the jury, the question of the competence of the complainant was addressed. Giving evidence on closed circuit television, she was asked a number of questions by the trial judge, designed to determine whether she understood the obligation to tell the truth. In the absence of the witness, the prosecutor suggested that she had demonstrated capacity to make an affirmation. Counsel for the accused cast doubt upon that proposition and the trial judge merely stated that he would “bring her back online and I will deal with those matters that arise under section 13 subsection (5)”: Tcpt, 21/04/09, p 9(30). [28] In fact what then followed was questioning by the trial judge, following which he expressed doubts as to her ability “to give evidence”, but permitted the prosecutor to ask further questions. In the course of the further questioning, the following exchange took place (Tcpt, p 14): Q. I think you can see a man sitting down the other end of this table with a lady, is that right? A. Yes, yes. Q. He’s going to need to ask you some questions do you understand that?

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SH v The Queen cont. A. Yes. Q. If he says to you something that’s wrong are you going to agree with him? A. No. Q. Do you understand that it’s important to tell us if you don’t agree with us? A. Yes. Q. Do you understand that you shouldn’t feel under any pressure because we are grown ups in funny clothes to agree with us if we’re not right? A. Yes. Q. Do you know what that means to be under pressure? A. No. Q. Pardon. A. No. Q. No. Do you understand you don’t have to agree with us because if for any reason if what we’re saying isn’t true? A. Yes. Q. Do you understand you especially don’t have to agree with us because we’re grown ups in funny clothes and we’re saying it? A. Yes. Q. You understand that if we get grumpy and say it that you don’t have to agree with us if it’s not true? A. Yes. Q. You understand that it is your job to only tell the truth which certainly means not agreeing if it’s wrong? A. Yes. Q. Did you understand that question? A. Yes. [29] Following that exchange, counsel for the accused stated: Once again I was concerned with the complainant’s inability to answer your Honour’s questions. My friend has asked her a number of questions and it is a matter for your Honour, but the section is quite specific as to whether she is competent to give unsworn evidence. It is a matter for your Honour. [30] The prosecutor then submitted that she was competent to give unsworn evidence: Tcpt, p 15(26). There followed a brief judgment in which the trial judge set out the terms of s 13(5) and concluded: Although the course of asking her questions has taken some time, I accept that she is competent to give unsworn evidence and that she has effectively been told of paragraphs (a), (b) and (c) of subsection (5). So I propose to allow her to give unsworn evidence. [31] At that stage, the point might have been taken on behalf of the accused that the trial judge himself had not told the person the matters set out in sub-s (5) and particularly those set out in paragraph (c). That did not happen, although there followed discussion between the trial judge and counsel as to relevant steps in respect of the complainant’s evidence. When the jury returned, the closed circuit television was reactivated and the following exchange occurred between the complainant and the trial judge, after identifying her by name (Tcpt, 21/04/09, p 18): Q. Do you understand that it’s important that in telling us about what happened that you tell us the truth? A. Yes. Q. You understand that if you’re asked questions and you don’t know the answer to the question you should say that you don’t know? A. Yes.

Part 2 — Adducing Evidence

SH v The Queen cont. Q. Do you understand that if you’re asked a question in relation to which you can’t remember the answer, you should say that you cannot remember? A. Yes. Q. Do you understand that if it is suggested to you .... [32] At this stage there appears to have been a technical problem and the closed circuit television was turned off and the reactivated. When it resumed, the trial judge continued: HIS HONOUR: Now do you also understand that if someone suggests to you that something is untrue when you say that it’s true, that you should tell us that what they’ve said to you is wrong? WITNESS: Yes. [33] Despite the suggestion in the judgment on competence set out above, there is no doubt that the trial judge appreciated the need that he should give the instruction required by s 13(5) and proceeded to do so. Although he did so by asking questions of the witness, that form of instruction should not be seen as inconsistent with the requirement of sub-s (5). However, what was missing from the final question in relation to suggestions was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness “should feel no pressure to agree” with such a statement.

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[34] In my view that omission was a failure to comply strictly with the terms of sub-s (5). However, given the passage from the examination by counsel for the prosecution set out at [28] above in relation to not feeling under any pressure “because we are grown-ups in funny clothes”, it is difficult to conclude that there was any substantial miscarriage of justice resulting from that omission. [35] On the other hand, to seek to avoid the consequences of non-compliance would be inconsistent with the approach referred to in the authorities discussed above. If reliance upon the statement by the prosecutor in the course of asking questions of the witness on the voir dire were to be treated as an adequate compliance with sub-s (5) in one respect, it would be difficult to draw a line in respect of other requirements of sub-s (5). On the other hand, ignoring the part played by the prosecutor, it would be difficult to draw a line based on the omission by the trial judge of some element of the instruction, as opposed other elements. Rather than take such a course, the appropriate conclusion is that the complainant was not competent to give unsworn evidence because, it having been concluded that she did not have sufficient capacity to understand the obligation to tell the truth, she was not given the directions required by s 13(5) in full. In the words of Doyle CJ in Starrett, the trial was not conducted according to law, as was the appellant’s entitlement, and accordingly the conviction should be set aside. [36] BLANCH J: I agree with Basten JA. [37] HALL J: I agree for the reasons stated by Basten JA, that the conviction should be set aside.

 [2.120] Australasian Institute of Judicial Administration, Bench Book for Children Giving

Evidence in Australian Courts, 2015, Melbourne, “Appendix:  Suggested ‘Script’ for Use in Special Hearings with Children or Cognitively Impaired Witnesses”. [This script has been primarily developed for child witnesses and should be adapted as necessary for older children and for cognitively impaired witnesses, whether adult or children.] See https://aija.org.au/wpcontent/uploads/2017/07/Child-Witness-BB-Update-2015.pdf. JUDGE: Hello (name of witness), can you hear me? Can you see me? My name is Judge …… and I am in charge here today. You can call me Judge if you want to say something to me.

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Are you comfortable on that seat? Do you have a drink (and/or any other requirement)? In the room with you is Mr/Ms ……………… (tipstaff/associate) or (first name). His/her job is to help me at your end because you are in a different room to me. Also in the room with you is ………………… (support person) who is there to be with you while you give your evidence. In the courtroom with me are some other people even though you cannot see them. You have probably met one of them before – the prosecutor, Mr/Ms …….…… I will ask the prosecutor to stand in front of the camera. Can you see him/her now? He/she will ask you questions soon. There is another lawyer who will ask you questions later, Mr/Ms……………… I will ask him/her to stand. Can you see him/her now? (To witness) …….…., you have come to court today to • tell what happened to you • give evidence/answer questions about.…

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• tell what you know about … [name of the accused] [your father/uncle etc] First I want to ask you a few questions. Then I want to talk to you about the rules here in court. How old are you? When is your birthday? Do you have any brothers or sisters? Tell me about them. How old are they? What year are you in at school? Do you have a favourite subject at school? Tell me about that. Are there any things you find hard at school? Tell me about that. Tell me what you do at play time and lunchtime? What does the word “rules” mean? Explain: rules are orders or instructions that help us to understand what we are allowed to do and what we are not allowed to do. Does your teacher have rules in your classroom? What are some of those rules? Do you play any sport? Tell me about that. What are some of the rules in that sport? Tell me what you like doing when you are not at school? Do you have any pets? Tell me about them. Now I want to talk to you about being in court. Do you remember that we just talked about some rules in the classroom/in sport? If the child says no, remind them of the rules they talked about. Well, in court there are some rules as well. A very important rule is that you tell the truth when you answer questions. Do you know what it is called if you do not tell the truth? Is telling the truth different to telling a lie? Explain that to me? / Is telling the truth the right or wrong thing to do? Is telling a lie the right or wrong thing to do? / Tell me why it is the right/wrong thing to do? Now I am going to tell you something that is true, and something that is a lie. I want you to tell me whether what I said is true or a lie.

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Part 2 — Adducing Evidence

For example, “A horse is in your room with you now.” Is that true or a lie? (Affirm the response if correct: “Yes, it would be a lie to say that a horse is in your room with you now.”) For example, “(support person) is sitting in your room with you now.” Is that true or a lie? (Affirm the response if correct: “Yes, it is true to say that (support person) is sitting in your room with you now.”) Do you think it is important to tell the truth here in court? (Affirm the response if correct: “Yes, it’s very important to tell the truth here.”) Do you know what makes it important to tell the truth here? (If yes, “Can you tell me more about that?”) What might happen to you if you told lies in court? It’s always important to tell the truth. But it’s even more important in court than anywhere else. Did you know that? So, do you understand that it is very important that you tell the truth here? Do you understand that it is very important that you do not tell lies here? Will you tell the truth here in court? Do you promise not to tell lies in court? Now I want to talk to you about some other rules in court. I will try to make sure the questions you are asked by the lawyers are not too hard. If you do not know the answer, that is fine / ok / all right. Just say “I don’t know”. So what will you say if you do not know the answer? (Affirm the response if correct, or provide the correct answer: Just say “I don’t know”.) If you do not remember/forget the answer, that is fine / ok / all right. Just say “I don’t remember”. So what will you say if you do not remember the answer? (Affirm the response if correct, or provide the correct answer: Just say “I don’t remember”.) If you do not understand the question/if you do not know what the question means, that is fine / ok / all right. Just say “I don’t understand / I don’t know what that means”. So what will you say if you do not understand / do not know what that means? (Affirm the response if correct, or provide the correct answer: Just say “I don’t understand / don’t know what that means”.) THEN Version for younger children: The lawyers might say things and ask you if those things are true. They might also say things and ask you if those things are not true. If you think what is said is true, you should say it is true. So what will you say if you think something is true? (Affirm the response if correct, or provide the correct answer: Just say, “That’s true”.) If you think what is said is not true, you should say it is not true. You don’t have to agree just because the lawyer said it. So what will you say if you think something is not true? (Affirm the response if correct, or provide the correct answer: Just say, “That’s not true”.) OR

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Witnesses

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Version for older children or cognitively impaired adults: You may be asked questions that suggest things that are true or untrue. You should agree when you believe what is being suggested is true. You should not agree when you believe what is being suggested is not true. Is that clear? For example, if you were asked:  “You barrack for Essendon, is that right?” you would agree if that suggestion is true and you would disagree if that suggestion is not true. It is important to not feel pressured to agree with what is being suggested to you if you believe it is untrue. All witnesses: Also, you might get tired, or need to go to the toilet. If you do, it’s ok to say “Can we stop for a while?” You can say that to me or to ……(support person) in the room with you. As we go along, I will try to help you to remember these rules. Will you do your best to answer the questions? Will you tell the truth in your answers? Is there anything you would like to ask me about the court rules? Is there anything else you would like to ask me? If witness is going to be declared competent: Soon, I am going to ask you to say again that you will tell the truth. That will be done using the Bible. There is a Bible on the table in front of you. You will see another member of my staff on screen and you will say the words after him/ her. (If appropriate) There is a sheet on the table in front of you to help you follow the words you are to say. Are you ok with using the Bible? (Or an affirmation is taken.) (Witness is not sworn/affirmed until the RED tape is begun, after the Judge’s introductory remarks.) ... Are there any questions you want to ask me? We are now about ready for (the prosecutor) to start asking you questions. Do you want to take a break before he/she begins? [Judge announces (brief) ruling as to whether witness will give sworn or unsworn evidence.]

R v GW [2.130] R v GW (2016) 258 CLR 108 Facts [GW was convicted of an act of indecency in the presence of R, his daughter, R being a person under the age of 10 years. The offence was alleged to have occurred between 29 March 2012 and 2 April 2012. R was five years old at the time. Following a voir dire hearing, the trial judge (Burns J) determined that R’s evidence should be received unsworn. GW successfully appealed to the Court of Appeal on the basis that the trial judge did not apply the presumption of competence to give sworn evidence in determining that R’s evidence should be given unsworn. Further, that the trial judge failed to direct the jury concerning the significance of the fact that R’s evidence was unsworn. The Court of Appeal held that the trial judge was required to instruct the jury on the difference between sworn and unsworn evidence and to instruct the jury to take that difference into account in assessing the reliability of R’s unsworn evidence. The prosecution appealed the Court of Appeal’s decision to the High Court.]

Part 2 — Adducing Evidence

R v GW cont. Judgment FRENCH CJ, BELL, GAGELER, KEANE AND NETTLE JJ. … [15] R was aged six years and five months at the date of the pre-trial hearing. There was no issue as to R’s capacity to understand questions about the facts of the alleged offence and to give intelligible answers to those questions. Accordingly, there was no issue as to R’s competence to give evidence. There was an issue as to R’s competence to give sworn evidence. The issue was raised by the prosecutor, who informed the Court: [T]he child is six years old. I’ve spoken to her. I don’t believe she can give sworn evidence. She doesn’t understand what a Bible or affirmation is. It seems to me that the procedure is set out in 13(5) of the Evidence Act. When I spoke to her before she understood the importance of telling the truth.

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[16] Defence counsel did not demur to the proposal that the Court should follow the procedure set out in s 13(5) and take R’s evidence unsworn. Nonetheless, Burns J declined to adopt that course, informing counsel that “[i]t seems to me that I need to go through the process in subsection (3) of section 13 before we get to subsection (5)”. R was called and questioned by Burns J. After some preliminary questions, the examination continued: Now, you’ll be asked to tell us the truth about what happened to you in the past. What do you understand to be the truth about what happened to you in the past? (No audible reply) Now, I’ll ask it another way. How long have you been at your school? I don’t know. Right. Did you come to the court today in a car or in a bus? In a car. All right [sic]. So if I was to say to you, you came to court today in a bus would that be true or not true? Not true. And do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that? Yes. Things that you saw and you heard. You understand that? Yes. [17] At the conclusion of the examination, the transcript records the following exchange: HIS HONOUR: Gentlemen, despite the fact that the witness has indicated that she understands that – at least understands the difference between the truth and what is not the truth, and says that she understands that she has an obligation to tell the truth today, I think that it is probably better to proceed under subsection (5). At the present time, because of the difficulty in truly gauging the level of her understanding and her age, I am not satisfied that she has the capacity to understand that in giving evidence today she has an obligation to give truthful evidence. So I propose to proceed under subsection (5) of section 13. Do you want to be heard in relation to that, [defence counsel]? [DEFENCE COUNSEL]: No, your Honour. (emphasis added) [18] R was recalled and Burns J informed her of each of the matters of which he was required to inform her under s 13(5). R’s evidence was then taken unsworn. …

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R v GW cont. Submissions in this court [24] Reduced to its essentials, the appellant’s case is that the Court of Appeal erred by drawing from brief, ex tempore remarks that Burns J did not comply with s 13. The appellant says that it is evident that his Honour was mindful of the presumption of competence to give sworn evidence and satisfied that it had been displaced. [25] The respondent’s argument embraces the Court of Appeal’s analysis; it is evident from his reasons that Burns J was not satisfied one way or the other of whether R possessed the requisite capacity. Moreover, the respondent observes that at no stage in the course of the hearing did Burns J correctly state the s 13(3) test. In his submission, it was well open to the Court of Appeal to infer that his Honour was under the misapprehension that unsworn evidence was the “default” position because the material suggested that R had the requisite capacity. R’s affirmative answer to the question of whether she understood that, in giving evidence, she had to tell the truth is suggested by the respondent to amount in effect to an acknowledgment of her understanding that she was under an obligation to do so. Correctly understood, the prosecutor’s submission is suggested to have supported that conclusion. This is because R’s want of understanding of the Bible or an affirmation was “utterly irrelevant” to the question while the prosecutor’s opinion that R understood the importance of telling the truth was “almost identical to the criterion” (of competence in s 13(3)). The respondent submits that it is questionable that it was open to Burns J to be satisfied affirmatively to the contrary.

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Consideration [26] Turning to the respondent’s last submission first, “obligation” in s 13(3) is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound – in this case, to give truthful evidence [The New Shorter Oxford English Dictionary, (1993), vol 2 at 1966, “obligation”, sense 3]. A child may agree that he or she understands that he or she is to tell the truth without having any understanding of what it is to give evidence in a court proceeding, much less of the concept of being morally or legally bound to give truthful evidence. Contrary to the respondent’s submission, R’s affirmative answer to the question “[a]nd do you understand that today in giving evidence you have to only tell us the truth? You have to tell us things that really happened, you understand that?” is not to be understood as necessarily conveying that R had the capacity to understand that, in giving evidence, she was under such an obligation. [27] There are many ways to explore whether a child understands what it means to give evidence in a court and the concept of being morally or legally bound to be truthful in so doing. Here, it would seem the prosecutor questioned R about her understanding of swearing an oath on the Bible or making an affirmation. Her lack of understanding of either was not determinative but it was not irrelevant to the formation of the opinion that she did not possess the capacity to understand the obligation. The suggestion that it may not have been open to Burns J to be satisfied that R, a six-year-old child, lacked that capacity is unsustainable. [28] It was necessary for Burns J to be affirmatively satisfied that R did not have the requisite capacity before instructing her pursuant to s 13(5) and admitting her evidence unsworn. At the end of the examination of R, Burns J expressed his provisional conclusion, subject to any submission by defence counsel, in terms that he was not satisfied that R had the requisite capacity. In the absence of controversy over the indication of the intention to proceed under s 13(5), Burns J was not required to, and did not, give further reasons for the determination. Whether it is correct to conclude that Burns J was not satisfied that R lacked the requisite capacity, and that his Honour treated the reception of R’s unsworn evidence as the “default” position under the Evidence Act, does not turn on analysis of his remarks alone. It requires consideration of the whole of the circumstances.

Part 2 — Adducing Evidence

R v GW cont. [29] The Court of Appeal acknowledged that Burns J was aware of the requirements of ss 13(3) and 13(5) [GW v The Queen [2015] ACTCA 15 at [78]]. Their Honours went on to say [GW v The Queen [2015] ACTCA 15 at [78].]: His Honour expressly referred to both, and to the distinction between the importance of telling the truth (which relates to whether a witness is competent to give unsworn evidence) and understanding the meaning of the obligation to give truthful evidence when under oath (which goes beyond the importance that ordinarily attaches to telling the truth). [30] The explanations in parentheses are the Court of Appeal’s analysis of the distinction between competence to give unsworn evidence and competence to give sworn evidence. It is an analysis that harks back to the reception of unsworn evidence under the Commonwealth Act before the 2008 amendments. As earlier explained, s 13 does not condition the admission of unsworn evidence on an understanding of the importance of telling the truth. In determining the inference to be drawn from Burns J’s remarks at the conclusion of the examination, it is necessary to appreciate that the only purpose of the examination was to assess R’s competence to give sworn evidence about a fact. [31] Neither party submitted that R was competent to give sworn evidence. Nonetheless, Burns J insisted that it was necessary to “go through the process in subsection (3) of section 13” before considering taking R’s evidence unsworn. This might be thought to allay any concern that his Honour was under a misapprehension that the “default” position was to take R’s evidence unsworn. His Honour’s conclusion was not based solely on the “difficulty in truly gauging the level of [R’s] understanding” [GW v The Queen [2015] ACTCA 15 at [80]]. It took into account that R was a six-year-old child. In the circumstances, the failure to express the conclusion in the terms of the statute did not support a finding [GW v The Queen [2015] ACTCA 15 at [84]] that Burns J was not satisfied on the balance of probabilities that R lacked the requisite capacity. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

… Consideration – adequacy of directions [49] The respondent locates the requirement in the common law principle enunciated in Bromley v The Queen [(1986) 161 CLR 315], Crofts v The Queen [(1996) 186 CLR 427 at 451; [1996] HCA 22] and Longman v The Queen [(1989) 168 CLR 79 at 86; [1989] HCA 60]. In his written outline, the respondent suggests that the principle may be distilled as a requirement for “jury directions where the jury may fail to take into account a consideration that is material to the assessment of evidence”. The circumstance that a key prosecution witness lacks the capacity to give sworn evidence is said to be such a consideration. The respondent submits that an appropriate direction, that is consistent with the Court of Appeal’s holding, would inform the jury of three things: that (a) a person who gives unsworn evidence does not make a formal promise to tell the truth, the whole truth and nothing but the truth; (b) a person may only give unsworn evidence if that person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence; and (c) a person giving unsworn evidence is not subject to the sanction which may apply for failure to adhere to the oath or affirmation. The proposed direction addresses the absence of the solemnity that attaches to sworn evidence in (a) and the absence of penal sanction in (c). To these differences between sworn and unsworn evidence is added a third item of information: the statutory condition for the admission of unsworn evidence. 50. Missing from the respondent’s proposed direction is what the judge is to tell the jury about how these three items of information are to be taken into account in assessing the unsworn evidence. That omission is not usefully advanced by the submission that unspecified “jury directions” are required where the jury may fail to appreciate a consideration that is material to the assessment of evidence. The requirement of the common law explained in Bromley, Crofts and Longman is to warn the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice [Bromley v The Queen (1986) 161 CLR 315 at 319 per Gibbs CJ (Mason and Wilson JJ agreeing at 322, Dawson J agreeing at 326), 323-325 per Brennan J; Crofts v The Queen (1996) 186 CLR 427 at 435 per Dawson

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R v GW cont. J, 446 per Toohey, Gaudron, Gummow and Kirby JJ; Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ]. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury [Longman v The Queen (1989) 168 CLR 79 at 86 per Brennan, Dawson and Toohey JJ, citing Bromley v The Queen (1986) 161 CLR 315 at 319 per Gibbs CJ (Mason and Wilson JJ agreeing at 322, Dawson J agreeing at 326), 323-325 per Brennan J; and citing Carr v The Queen (1988) 165 CLR 314 at 330 per Brennan J; [1988] HCA 47]. The risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable. Subject to any statutory prohibition, where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury’s attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it.

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[51] At the respondent’s trial, the jury observed witnesses giving evidence on oath or affirmation as the case may be and may be taken to have heard those witnesses undertake to tell the truth, the whole truth and nothing but the truth. By contrast, the jury did not see R take an oath or make an affirmation before giving her evidence. It strains credulity to suggest that in order to avoid the risk of a miscarriage of justice it was necessary to instruct the jury that R’s evidence had been received without the solemnity of an oath or affirmation or the possibility of sanction should it be intentionally false. It might be thought unlikely that it would occur to jurors to think a six-year-old child was at risk of prosecution for perjury regardless of whether the child’s evidence was taken on oath or otherwise. [52] The respondent contends that implicit in the Court of Appeal’s reasons is the necessity to inform the jury not only of the difference between sworn and unsworn evidence but of the reason that evidence is given unsworn. At least in the case of a key prosecution witness, it is argued that the jury must be informed that the evidence is only admitted unsworn because the witness does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. The respondent points out that the suggested direction is a proposition of law. He disavows any need to inform the jury of the judge’s factual finding made in its absence [Under s 189 of the Evidence Act, factual questions relevant to the determination of competency to give evidence are to be determined in the absence of the jury unless the court otherwise orders.]. [53] This submission does not explain how instruction on the legal condition for the admission of unsworn evidence (by way of distinction from sworn evidence) might be material to the jury’s assessment of the evidence. The contention must be that its materiality derives from the circumstance that a witness who lacks the capacity to understand that in giving evidence he or she is required to give truthful evidence is, or may be, less reliable than a witness who possesses that capacity. The correctness of the contention does not call for consideration. Relevantly, on this analysis the information is material not because the law imposes the condition but because, as a matter of fact, the witness meets it. Yet as the respondent’s submission appears to accept, Penfold J cannot be said to have erred by failing to inform the jury of a factual finding made by the judge on the balance of probabilities in the jury’s absence. [54] The Court of Appeal was right to say that the most difficult task that the jury had to undertake was the assessment of the reliability of R’s evidence [GW v The Queen [2015] ACTCA 15 at [103]]. As a matter of practical reality, neither the fact that R did not take an oath or make an affirmation before giving her evidence, nor that she was not subject to the sanctions that may apply to the failure to adhere to the oath or affirmation, was material to the assessment of whether R’s evidence was truthful and reliable such that the jury could accept and act upon it. [55] The jury was directed of the need to examine R’s evidence “very carefully” before being satisfied that it could “safely act on [R’s] evidence to the high standard required in a criminal trial”. That instruction was repeated in the course of a “Murray direction” [R v Murray (1987) 11 NSWLR 12 at 19 per Lee J. This appeal does not raise consideration of the relationship between s 69 of the EMP Act and the application of a Murray direction; cf Ewen v The Queen [2015] NSWCCA 117.]. The further direction which the Court of Appeal held Penfold J had been required to give is likely to have been understood as conveying that even if the jury were satisfied of R’s truthfulness and reliability to the criminal standard, her evidence was nonetheless to be accorded less weight than sworn evidence.

Part 2 — Adducing Evidence

R v GW cont. [56] The Evidence Act does not treat unsworn evidence as of a kind that may be unreliable. Had a direction been requested under s 165(2), there was no requirement to warn the jury that R’s evidence may be unreliable because it was unsworn. Nor was there a requirement under the common law to warn the jury of the need for caution in accepting R’s evidence and in assessing the weight to be given to it because it was unsworn. Nor was there a requirement under common law, falling short of a warning of that kind, to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of R’s evidence. [57] It is possible that different considerations would apply where a witness other than a young child is capable of giving evidence about a fact but incapable of giving sworn evidence because the witness does not have the capacity to understand that, in giving evidence about the fact, he or she would be under an obligation to give truthful evidence. Depending on the circumstances, it might prove necessary or desirable to give some further form of direction. But, for the present, that need not be decided. [Appeal allowed.]

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 Sections concerning compellability [2.140] Particular rules based on policy considerations relate to the compellability of particular persons holding public office (s 15), to the competence and compellability of judges and jurors (s 16), to the competence and compellability of defendants in criminal proceedings (s 17) and to the compellability of a defendant’s family in criminal proceedings (ss 18, 19). The case of R v Gulam Mohammad Khan provides an example of the considerations that are relevant in determining whether a witness is compellable. The issue in the case was whether the wife of the accused could be compelled to testify against her wishes. Where a defendant in criminal proceedings fails to testify, or a member of the defendant’s family fails to testify (pursuant to s 18), s 20 regulates permissible comment to the jury. This provision is discussed in Chapter  17 (Facilitation of proof), under the heading “Inferences from absence of evidence”.

R v Gulam Mohammad Khan [2.150] R v Gulam Mohammad Khan (unreported, NSW Sup Ct, Hidden J, 22 November 1995) Facts [Khan was tried for the murder of his friend, who was renting a room in the accused’s house. While the accused was away in Fiji, the friend and the accused’s wife began an affair. One night, when the accused had told his wife he would be away for the night, he returned home to find his wife and friend cuddling on the bed. A fight ensued and the friend was killed. The prosecution wanted to call the accused’s wife to testify. She objected. The issue was whether the judge could compel her to testify under s 18.] Judgment HIDDEN J: The accused and his wife are Fijian Indians. They are both Moslems. They married in Australia in 1985, and are still together. Indeed, they continue to cohabit during the trial, as the accused has been on bail which does not prevent his return to the matrimonial home. They have two daughters, aged 9 and 5.

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R v Gulam Mohammad Khan cont. On 4 December, 1993, the day of the alleged offence, Mrs Khan made a statement to the police. … She went on to describe an attack and a struggle commencing in the deceased’s bedroom and ending in a family room at the rear of the house. She tried, unsuccessfully, to disarm the accused. She heard him yelling, “You call me brother and this is what you do to me”. She ran upstairs, took the children into her bedroom and locked the door. There she telephoned the police. By then everything was quiet downstairs and she heard the accused shout, “I’ve killed him, he is dead”. Some minutes later the police arrived. Mrs Khan made a subsequent statement which deals with some matters not in dispute and is not material for present purposes. This material is of obvious significance, but the situation is not as simple as it seems. Both counsel conferred with Mrs Khan on the first day of the trial. The Crown prosecutor informed me that, if called to give evidence, Mrs Khan would resile from that statement in significant respects. She would deny that she became enamoured of the deceased and, whilst she would agree that there had been some sexual intimacy between them, she would say that that was because he had threatened her so as to overbear her will. Such was the case on the morning in question. Her evidence would be that the accused was unarmed when he came upon them in the bedroom and that the violence erupted when the deceased grabbed a knife, which happened to be on the dressing table, and set upon the accused. At some stage in the course of the struggle the accused managed to get hold of the knife.

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Mr James QC, for the accused, told me that Mrs Khan would say that she and the children were taken to the police station and detained there against her will. She was in a state of shock. She was not permitted to contact relatives or a lawyer. She was told that she would be charged with hindering police if she did not make a statement. She was asked a number of questions and they prepared a statement, which she signed without reading it. The Crown prosecutor submitted that, in those circumstances, he would be entitled to treat Mrs Khan as an unfavourable witness (s 38 of the new Evidence Act), cross-examine her on the statement and, if she did not acknowledge it as hers, put the statement in evidence (s 43). In that event, he submitted, the statement would be available in proof of its contents and not merely as evidence bearing upon Mrs Khan’s credibility (s 60). He foreshadowed that he would invite the jury to accept the statement to the police as the truth, and to reject her oral evidence in so far as it departed from that statement. Because her statement was available as evidence on the issues in the case, he did not consider that he should discard her as an untruthful witness: compare Richardson v The Queen (1974) 131 CLR 116 at 119. For the same reason, he did not consider that calling her, knowing that she would not adhere to her statement, would be a mere device to get her statement before the jury for an illegitimate purpose: compare R v Blewitt (1988) 62 ALJR 503 at 505. Indeed, he saw it as his duty to take the course he proposed so that the jury would not be deprived of relevant material. I should say at once that I see no impropriety whatsoever in his having argued this matter as he has, and I agree that his stance is entirely within the boundaries of a Crown prosecutor’s function and responsibility. (a) Mrs Khan’s statement to the police was not tested by cross examination in the committal proceedings because she relied upon her right to decline to give evidence under the provision which was then in force, s 407 of the Crimes Act, 1900. Of course, that section conferred upon the spouse of an accused a right to refuse to give evidence which was unqualified by judicial discretion. Section 18 of the new Act allows the spouse, de facto spouse, parent or child of an accused to object to being required to give evidence for the prosecution but enables a judge to compel such a person to give evidence for the prosecution, notwithstanding that objection … The Crown relies upon sub-s 7(a) and (b). The gravity of the crime with which the accused is charged is not in doubt. Nor is the importance of Mrs Khan’s evidence if one were to treat her statement to the police as her evidence in the relevant sense. However, the weight to be given to her evidence as a whole is another matter, and there is a question whether the matters upon which the Crown relies in her statement might reasonably be available to the prosecution from other sources: sub-s 7(c). It

Part 2 — Adducing Evidence

R v Gulam Mohammad Khan cont. is necessary to examine the other evidence in the Crown case and to determine what the real issues in the case are. Not surprisingly, the Crown prosecutor foreshadowed in his opening address to the jury that provocation might be a major issue in this case. After the Crown opening Mr James addressed the jury briefly, and agreed. He foreshadowed that there would be no issue that the deceased met his death at the hands of the accused. In any events, there is abundant evidence, apart from Mrs Khan, that the accused was the killer and that the attack was a ferocious one. Several police who attended the scene have given evidence that he admitted to the killing, having come upon the deceased in sexual intimacy with his wife. Observations by police at the scene, including a trail of blood from the front bedroom on the ground floor to the family room where the deceased was found, confirmed that the attack commenced in that bedroom and progressed to the rear of the house. A pathologist who attended the scene and later conducted a post-mortem examination observed 67 knife inflicted wounds over a considerable area of the body of the deceased, of which only eight had the appearance of defensive wounds. The death was a result of stab wounds and deep cuts to the abdomen and the right upper chest. In the kitchen police found the knife which the accused admitted was the weapon he had used. There was blood on his clothing consistent with that of the deceased.

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The Crown prosecutor, whilst acknowledging that the real issue is provocation, submitted that Mrs Khan’s statement bears on that issue. From it, he said, the jury could conclude that the accused did not discover the deceased and his wife that night in a sexual encounter of which he had no foreknowledge. As he put it, the statement evidenced the growth and duration of the relationship between the deceased and Mrs Khan, and the accused’s suspicion of it, and the statement carries the implication that he had left the home on the Friday evening intending to return in the small hours of the morning to see if his suspicion was justified. On that view of the facts, he argued, the jury might conclude that the killing was an act of revenge, rather than a result of a loss of self-control. Again, there is evidence in the case, apart from Mrs Khan’s statements, tending to establish the circumstances in which the deceased came to live at the accused’s home and his subsequent suspicion of an illicit relationship between the deceased and his wife. The officer in charge of the investigation, Det Snr Const O’Connor, has given evidence that, in a conversation prior to a recorded interview, the accused explained how the deceased came to live in the Monterey home and said that, prior to the day of the killing, he had had a feeling that the deceased and his wife were having an affair. Const Gentle has given evidence that, during a break in the recorded interview, the accused again said that he had suspected a relationship between the deceased and his wife “for a while”. He went on to say that, on the night in question, while he was at the mosque, he was thinking about them and decided to drive home. He parked the car in the car park next to the beach and walked to the home. There, he waited in a spare bedroom on the ground floor adjacent to the room occupied by the deceased. He heard his wife receive a phone call in the bedroom upstairs, in which she told the deceased that she would be waiting for him in his bedroom when he returned from his taxi driving shift. He heard her go downstairs and enter the deceased’s room and he heard the deceased arrive. He heard them “having sex”. He became angry, walked to the kitchen, got the knife and proceeded to the bedroom. There he stabbed the deceased and a struggle ensued. He concluded, “He ran out and I followed him. That’s it.” It is true that, in the recorded interview with Det O’Connor and Const Gentle, the accused did not adopt the conversation just referred to or the admissions said to have been made to police at the scene. Nor did he make any admissions in the recorded interview itself. That said, the combined weight of the evidence of these various officers is considerable. In any event, while Mr James has cross-examined these officers as to the accuracy of their recollection of what was said by the accused, he does not appear to have challenged the substance of their evidence: that is, that the accused

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R v Gulam Mohammad Khan cont. admitted having killed the deceased after discovering him in a compromising situation with his wife and having suspected, before the night in question, that there was an improper relationship between them. The tenant of the “granny flat” at the rear of the house at Monterey has given evidence that, while the accused was away in Fiji, he and his fiancée were invited to dinner in the house. He observed the body language of the deceased and Mrs Khan and formed the view that they were lovers. The deceased’s brother has given evidence (subjected, I must say, to strong and effective challenge in cross-examination) that on Thursday 2 December 1993, the accused told him in a phone conversation that he had “some trouble” with the deceased, and when asked by the witness what the trouble was had said, “I don’t need to explain. You have a look at what is happening in the future”. There was evidence from police officers that, in the morning of 4 December, in company with Mrs Khan, they found the yellow Corolla sedan in the car park on Grand Parade. This material is consistent with the proposition that the accused had gone to the house in the small hours of the Saturday anticipating a confrontation with the deceased.

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Mr James submitted that Mrs Khan should not be compelled to give evidence. He argued that her statement to the police was not her “evidence” for the purpose of s 18, at least in the absence of her adoption of it in her sworn evidence. This argument has considerable force but, as it happens, it is unnecessary that I decide the matter. He also argued that the account in the statement was in no way inconsistent with the accused’s having lost self-control at the relevant time. It disclosed escalating suspicion and resentment on his part, which erupted into uncontrollable anger when he found his worst fears were realised. He submitted that her evidence, as a whole, would lack cogency, and that I would reject it in the exercise of my discretion (s 137). Both in her statement to the police and in her anticipated oral evidence, she would be forced to acknowledge the loss of her chastity, either through adultery or rape. Given her status as a wife and mother, he urged that she should be spared the ordeal of giving evidence. For present purposes, I am prepared to assume in favour of the Crown: (a)

Mrs Khan’s “evidence” within the meaning of s 18 embraces her statement to the police;

(b)

that the evidence could bear on the issue of provocation in the manner for which the Crown contends;

(c)

I would not reject the evidence in the exercise of my discretion. Even so, I would not require Mrs Khan to give evidence.

The developments in the common law leading to the enactment of s 407 of the Crimes Act and its legislative predecessors was traced by Abadee J in Smiles v The Director of Public Prosecutions (Cth) (unreported, 17 December 1992). (An appeal from his Honour’s decision was allowed in part; see OPP v Smiles (1993) 30 NSWLR 248.) The policy embodied in those provisions of the preservation of the stability of marriage has been extended by the new section to the protection of de facto relationships and the relationship of parent and child, but the importance of protecting those relationships must be weighed against the interests of justice in the case at hand. Hence, a Court must perform the balancing exercise set out in s 18(6). The accused is Mrs Khan’s husband of ten years standing and the father of her children. It seems that the marriage endures, notwithstanding their present circumstances. Her evidence would be of relatively little weight and the significant matters in it can be proved in the Crown case by other evidence. Applying the requisite test, I consider that her being required to give evidence would be likely to cause harm to her relationship with the accused of a nature and extent which outweighs the desirability of having the evidence given. I should say that no evidence was led before me to suggest that their joint practice of the Moslem faith is relevant to the assessment of the likely harm to the relationship, and I have not had regard to that matter in the balancing exercise.

Part 2 — Adducing Evidence

R v Gulam Mohammad Khan cont. For these reasons, I concluded that Mrs Khan should not be compelled to give evidence for the prosecution.

 Oaths and affirmations [2.160] Division 2 of Pt 2.1 regulates oaths and affirmations made by witnesses. The Schedule to the Act provides standard oaths and affirmations. General rules about questioning witnesses [2.170] Section 26 gives a general power to a court to control the questioning of witnesses. The common law also offers guidance; see GPI Leisure Corp Ltd v Herdman Investments (No 3) at [2.180].

GPI Leisure Corp Ltd v Herdman Investments (No 3) [2.180] GPI Leisure Corp Ltd v Herdman Investments (No 3) (1990) 20 NSWLR 15

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Facts [A voir dire was held during a civil trial to determine issues in relation to cross-examination. The dispute related to the price of units in a unit trust in which the transfer of units at a below market value to the defendants was being resisted by the owners of those units. The defendants made a cross-claim that would effectively ensure the transfer of the units, and this was being resisted by the plaintiffs and the Standard Chartered Bank (the mortgagee of the units). It was contended that since the plaintiffs and the mortgagee were parties in the same interest, their respective counsel should not both be allowed to cross-examine defence witnesses.] Judgment YOUNG J (at 18): [His Honour noted as follows.] … all the rules as to cross-examination are not rules dealing with rights of parties at all, but are guidelines to judges as to how they should, in fairness, conduct trials before them. [There was therefore, no right to cross-examine witnesses, and such rules or practice that existed was to ensure a fair trial. Young J made the following points.] [at 22-23] Drawing all these threads together, the following appears to me to be the situation. (1)

The only actual “right” is the right to have a fair trial.

(2)

It is the duty of the trial judge to ensure that all parties have a fair trial.

(3)

In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured.

(4)

Ordinarily, a judge in carrying out his duty will see that the trial is conducted in the manner that is commonly used throughout the State, namely that witnesses are examined, crossexamined and re-examined.

(5)

Where there is more than one counsel for the same party, then ordinarily the judge will not

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CHAPTER 2

GPI Leisure Corp Ltd v Herdman Investments (No 3) cont.

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permit any more than one counsel to cross-examine the same witness. (6)

Where there are parties in the same interest, the judge will apply the same rule as stated in (5).

(7)

Where the issues are complex and there is no overlapping of cross-examination and the proposal is outlined before cross-examination begins, it may be proper for the judge to permit cross-examination of one or more witnesses by more than one counsel in the same interest notwithstanding prima facie rr (5) and (6).

(8)

It may be that in the interests of time or to prevent “torture” of the witness or for other good reasons, a judge may in special circumstances limit cross-examination. Such a situation would occur where, for instance, there was only a fixed amount of time before an event occurred and a decision was essential before that event occurred.

(9)

It is usually not proper to indicate at the commencement of the hearing that cross-examination will be limited to X minutes subject to the right to make an application for an extension, although such a ruling might be justified if time was limited. It would, however, appear to be proper for the judge to say, at any stage during the cross-examination, that he would, unless convinced that the cross-examiner was being of more assistance to the court, curtail crossexamination in Y minutes time. This power would of necessity be used sparingly.

(10)

Group cross-examination either by all counsel cross-examining the witness at one time or a group of witnesses being cross-examined by one counsel at the same time is not a procedure that should be permitted.

(11)

In all proceedings, the court has a duty to prevent cross-examination purely for a collateral purpose or to “torture” the witness.

(12)

In interlocutory proceedings, especially proceedings for an interlocutory injunction, the collateral purpose rules must be looked at very closely because ordinarily it is not proper to permit counsel to go on a fishing expedition and all that the plaintiff need show is a prima facie or strongly arguable case on the merits. Cross-examination on laches, balance of convenience etc is, of course, in a different plight.

(13)

Ordinarily a judge should permit cross-examination of all witnesses by all counsel unless one or more of the above rules apply.

I should add that when I speak of “rules” I am merely noting guidelines as to how ordinarily a trial will be conducted under the superintendence of the trial judge. When I use the word “torture” I am, of course, picking up the word used by Pearson J in Re Mundell. [Cross-examination by both counsel was permitted, but they were not to cover the same ground.]

 Questioning witnesses by parties and the judge [2.190] Section 27 permits a party to question any witness, subject to the other provisions in the Act (including the general power of the court to control questioning of a witness in s 26). As regards the questioning of a witness by the court, see R v Esposito, which deals with the issue of how much a judge can intervene in a trial and question witnesses. However, the traditional position has been changing in civil proceedings. It has become much more common for judges to take an active part in the conduct of cases. As Whealy JA stated in FB v The Queen [2011] NSWCCA 217 at [93], “[t]he growth of litigation, the increasing complexity of litigation, and the limited resources of courts and legal aid have made

Part 2 — Adducing Evidence

it inevitable that judges must, within reasonable limits, intervene wherever it is necessary to ensure that the issues are clarified and that justice is dispensed within reasonable limits of efficiency”. In Ryland v QBE Insurance (Australia) Ltd [2013] NSWCA 120 at [18]-[22] the NSW Court of Appeal dismissed an appeal based on a claim that the trial judge compromised the fairness of a trial by excessive questioning of witnesses. A similar approach may be taken on criminal proceedings without a jury: FB v The Queen [2011] NSWCCA 217 at [90]-[110]. Nevertheless, in Director of Public Prosecutions (NSW) v Burns (2010) 207 A Crim R 362; [2010] NSWCA 265, in the context of a trial by a magistrate, the NSW Court of Appeal emphasised the proposition that “the task of destroying the credit of a defence witness should always be left by the judge to the Crown Prosecutor”: Beazley JA at [28].

R v Esposito [2.200] R v Esposito (1998) 45 NSWLR 442 Facts [The appellant was convicted of murder occasioned on 24 April 1995. She appealed on a number of grounds, including that the trial judge had unduly intervened in the hearing, resulting in a mistrial. The appellant submitted at trial that the judge had asked Miss Esposito a long series of questions which “amounted to in effect, cross-examination, and went beyond clarifying issues but raised new issues”. At the trial, Miss Esposito unsuccessfully applied for the judge to disqualify himself and to discharge the jury on the basis of the intervention. The judge, in refusing the application, found that “justice to the community” required the questions to be asked.]

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Judgment WOOD CJ at CL (with whom James and Adams JJ agreed, adding comments of their own (at 462)): The segment, of which particular complaint is made, however, occurred at the end of the crossexamination by the Crown Prosecutor of the appellant, when his Honour asked these further questions: HIS HONOUR: Q. Miss Esposito, had you been taking Rivotril for some time before April 1995? A. On and off, yes your Honour. Q. I am sorry, can you speak up? You are facing me and the jury cannot hear. A. On and off, yes your Honour. Q. For how long? A. Maybe I am only guessing, maybe, how long each day or how long in time? Q. No, over what period had you been taking Rivotril on and off prior to April 1995? A. Maybe, oh, a month. HIS HONOUR: Q. Is that your best estimate of the time, a month? A. It possibly could be more. I’m not too sure. Q. What is your best estimate of the number of days a week that you were taking it over that month or so prior to April 1995? A. Well the doctors give a script for one every four months of each Normison, Serepax and Rivotril, so I can only go back every four weeks to the doctors to get it, so twice, three times a month, say yeah. Q. You have been taking it perhaps twice or three times a month? A. Yes, something like that, maybe more. Q. Before 24 April 1995, you had experienced the effects of Rivotril on you, would that be correct? A. Yes. [at 463]

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R v Esposito cont. Q. Those effects were what? A. I don’t remember the effects your Honour, because I’m not aware of them. I’m not aware what was happening to me. Q. Let me ask you the question again so I am clear on your answer. Can you tell the jury what you had noticed prior to April 1995 as to the effects of Rivotril on yourself? A. The effects – well, up to the point where I can remember, when you take them your head starts to get light headed and you are not thinking clearly, it is like your brain is all cloudy and that’s as much as I can remember of it. Q. Had you noticed prior to 24 April 1995 that Rivotril had any effect on your memory? A. No, wasn’t – not to my attention, no. Q. You said in answer to me a moment ago that you noticed that Rivotril tended to make you light headed, do you remember saying that? A. Yes. Q. You said earlier this morning it made you heavy headed, do you remember saying that? A. Yes, I remember saying it. It is really hard to define. I’m sorry, it’s really hard to define. McCLINTOCK: I think she said the day after it made her heavy headed. HIS HONOUR: Q. Do you remember saying this morning that one of the effects, be it that day or the day after of Rivotril, was to make you heavy headed? A. Yes I did say that. Q. Can you explain how it came about this morning that you referred to heavy headedness and you just now referred to light headedness? A. Well, the heavy headedness is the after effects of a night’s binge, very drowsy, very heavy headed but prior, at the beginning, it is light headed. … [at 465] The Crown Prosecutor … asked a number of further questions of the appellant concerning her use of Rivotril and other drugs, and concerning their effect on her memory. This cross-examination was followed by several additional questions from his Honour, in the following terms: HIS HONOUR: Q. Miss Esposito, you know now, do you, that when you have a handful of pills your memory substantially deteriorates? A. Now I have a rough idea of it. Q. That it commences to deteriorate about half an hour after you have taken a handful of pills, would that be right? OBJECTION: McCLINTOCK HIS HONOUR: I note your objection. Q. Is that right? A. Well I haven’t timed it exactly but roughly maybe half an hour. Q. Has it been your experience over the years prior to April 1993 that your memory deteriorates substantially after you have had a significant quantity of Rivotril? McCLINTOCK: Does your Honour mean 1995? HIS HONOUR: I am sorry, I withdraw that. Q. Has it been your experience prior to April 1995 that your memory substantially deteriorates when you have had a handful of pills? A. I know that now, yes. Q. Was that your experience prior to April 1995? A. Yes I did experience memory loss. Q. I am trying to be precise. Was it your experience prior to April 1995 that your memory substantially deteriorated after you had had a handful of pills? A. Yes. Q. When the police interviewed you on 26 April did you know that after you had had a handful of pills your memory deteriorated in the way you have indicated? A. I had a rough idea, not exactly but roughly.

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R v Esposito cont. Q. Why was it in that situation that you told the police on 26 April that you had had pills all day, yet you knew what you were saying and doing? A. I don’t know why, your Honour. I don’t know why I said that. Q. You have been asked today some questions as to the effect on you of taking Rivotril, do you recall those questions today? A. Yes. Q. Can you explain why on 26 April 1995, you gave these answers to these questions: [at 466] “All right. So, when you said you, you’ve had a few pills, how would you describe how you were, mentally, how was your mental –” and you answered or interrupted: “Relaxed.” The question continued: “– state?” and you said: “Relaxed, I was relaxed.” Can you give any explanation as to why you gave that answer to that question on the 26th? A. No your Honour. Q. Can you give the jury any explanation for why you answered to the question: Q. And, your memory of the events on that Monday are clear? A. As clear as daylight? A. I can’t explain why I said that. I can only assume I meant up to the point before the pills took effect but I can’t explain it. I have no explanation for it. Q. Do you remember Detective Lee giving evidence yesterday? A. I heard him, yes. Q. Do you remember him recounting a conversation between Constable McCartney and yourself and do you remember him saying, that is the conversation with Constable McCartney: From then on contact was made with Kings Cross detectives and I remained with the defendant till Detectives Wood and Rotsey from Kings Cross arrived. A. I heard him say that but that is not true, your Honour. Q. Finally, and correct me if I am wrong, I think you have said to me this morning that on 26 April 1995, you had to have your Methadone by about 12.30? A. That is right your Honour. Q. Can you explain why you had to have it by that time or about that time? A. It shuts around that time and it is not open till later on in the afternoon and I just wanted it. The appellant was then re-examined by her counsel. On the following Monday, counsel for the appellant asked that his Honour disqualify himself from the trial, and discharge the jury. … The application was refused. … [at 467] The present is not a case that was conducted in any atmosphere of acrimony or hostility from the Bench, nor is it one where his Honour intruded into its running to any obvious degree, save in so far as he participated in questioning the appellant at some length in the presence of the jury. It is not a case where it has been suggested that by his questioning, his Honour interrupted counsel or interfered with the development of any line of examination. It is, however, one where it is submitted that his Honour adopted the robe of an advocate and did [at 468] so in a way that would have conveyed to the jury his disbelief of the appellant on critical issues. The need for caution on the part of a trial judge in remaining above the fray, particularly in a criminal trial, is well established. … In Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155, Denning LJ observed, in a passage that has been frequently cited as a classic statement of the duty of a trial judge (at 63-65; 159): … In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in

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R v Esposito cont. England, however, a judge is not a mere umpire to answer the question: “How’s that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that “truth is best discovered by powerful statements on both sides of the question”?: see Ex parte Lloyd (1822) Mont Cases in Bankruptcy 70 at 72, note. And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have [at 469] his vision clouded by the dust of conflict”: Yuill v Yuill [1945] P 15 at 20; (1945) 61 TLR 176; [1945] 1 All ER 183. Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales – the “nicely calculated less or more” – but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky Bock & Co [1910] 1 KB 327. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see Rex v Cain (1936) 25 Cr App R 204, Rex v Bateman (1946) 31 Cr App R 106 and Harris v Harris [1952] The Times, Apr 8–9, by Birkett LJ especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see R v Clewer (1953) 37 Cr App R 37. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Bacon spoke right when he said that (Essays or Counsels Civil and Moral of Judicature): “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well tuned cymbal …”. Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties – nay, each of them – has come away complaining that he was not able properly to put his case; and these complaints are, we think justified. (emphasis added) It is the extent to which his Honour dropped the mantle of a judge and assumed the robe of an advocate that is in issue in this appeal. … [at 470] In Galea v Galea (1990) 19 NSWLR 263 at 281-282, Kirby A-CJ extracted from the cases, concerning complaints of excessive judicial intervention, the following principles: 1.

The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146.

2.

A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in

Part 2 — Adducing Evidence

R v Esposito cont.

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principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (emphasis added). 3.

Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has [at 471] closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self persuasion”: see Sir Robert Megarry, Temptations of the Bench (1978) 16 Alta L Rev 406 at 409; see also U Gautier, Judicial Discretion to Intervene in the Course of the Trial (1980) 23 Crim LQ 88 at 95-96 and cases there cited.

4.

The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626; see discussion (1976) ACLD DT 630; compare Ex parte Prentice; Re Hornby (1969) 90 WN (NSW) (Pt 1) 427; [1970] 1 NSWR 654.

5.

It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).

6.

The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F, per Gleeson CJ (emphasis added).

[at 472] The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties. …

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R v Esposito cont. In the present case the matters that his Honour pursued with the appellant were of considerable importance so far as they went to her memory at the relevant times, and in relation to the effect of the drugs which she had taken on 24 and 26 April. That this is so can be seen from the fact that extracts from the passages earlier noted were read to the jury in the course of the summing-up. On a fair reading, the questions his Honour put did test the truthfulness of the appellant’s answers, and they did serve to advance the case for the prosecution. While there is no question other than that his Honour was endeavouring to see justice to the community done in the case, it was not, in my view, appropriate for him to have undertaken this line of examination. The matter should have been left to the Crown Prosecutor particularly after the concerns of defence counsel had been expressly ventilated. It appears from the reasons given that his Honour took the course that he did, in examining the appellant, because of his concern as to the inconsistencies between the evidence she had given on the voir dire and in the trial, and because of his suspicion that she had tailored her evidence in the trial to meet some of the problems exposed on the voir dire. His purpose, as stated, was to encourage the Crown Prosecutor to pursue that matter so that “justice to the community” might be served. In making this observation (albeit in the absence of the jury) there was a tangible risk of his Honour having been seen to have sided with the prosecution, and to have lost the appearance of impartiality which was expected.

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Such an impression would not have been helped by the later observation, noted in respect of ground 1A, when his Honour in dismissing an application to [at 473] withdraw the summing-up, justified the course taken, as an attempt to “reduce the imbalance in the trial (between the prosecution and defence cases) arising from undue repetition in an otherwise very good and effective crossexamination, and an imbalance in the quality of address, that of Mr McClintock being of an extremely high standard”. It was not appropriate for his Honour to have gone to the aid of the Crown, either in the presentation of the evidence, or in the summing-up. To have done so risked a fair trial, in appearance and fact. The intervention was unfortunate. Although well motivated, my conclusion is that it was inappropriate and excessive, with the result that this ground is made out. (Appeal allowed. Conviction quashed. New trial ordered.)



Ryland v QBE Insurance (Australia) Ltd [2.210] Ryland v QBE Insurance (Australia) Ltd [2013] NSWCA 120 Facts [An assertion was made that the trial judge compromised the fairness of the trial by excessive intervention in questioning of witnesses. In support of that submission, the applicant relied upon an analysis of a number of questions asked in respect of each witness, separately identified with respect to examination, cross-examination and re-examination and the percentage of total questions asked.] Judgment BASTEN JA (with whom Meagher and Gleeson JJA agreed): [19] This challenge fails for a number of reasons. First, the number of questions as such is of little, if any, relevance. Many of the questions of Ms Dennaoui, for example, were directed to clarifying aspects of the documentary evidence, including locating where particular things or events were to

Part 2 — Adducing Evidence

Ryland v QBE Insurance (Australia) Ltd cont. be found on plans or photographs and ensuring that photographs were marked by the witness in a manner which revealed their location. [20] Secondly, to the extent that it was suggested that the interventions of the judge may have affected the evidence, the examples given were without substance. The strongest example of the kind of intervention complained of occurred in the cross-examination of Ms Dennaoui, the first question being asked by counsel for the applicant, at p 154(25): Q. It’s not possible is it to reach Table Eight from the main entrance without going past one of those two takeaway food areas, is it? A. You’d have to pass them, yes. HIS HONOUR: Well I can answer that question looking at the map, the answer to that question is yes. THOMPSON: Well the witness says no your Honour.

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[21] Whether the trial judge was disagreeing with the witness is unclear. More importantly, the intervention did not suggest an answer, the answer had already been given. The trial judge then asked a number of further questions seeking to relate the evidence to the plan before him. The end note of the examination by the trial judge was to ask the question, “So you don’t have to pass through a food court area to get to Table Eight”, to which the answer was, “No”. That of course was a different question from that which counsel had asked at the outset of the interchange, about going past one of the takeaway food areas. The answer given by Ms Dennaoui in respect of each question was correct. The intervention demonstrated no unfairness in respect of the cross-examination. [22] A reading of the whole transcript demonstrates that the trial judge was closely attentive to the evidence being given; that he wished to understand the oral testimony by reference to the documentary material; that he was anxious to clarify points of uncertainty as the evidence unfolded and was alert to the need to focus on the real issues in dispute. In these circumstances, an attack based solely on the number of questions asked of the witnesses by the trial judge was misconceived. An objective reading of the transcript reveals no inappropriate level of intervention and, in particular, no unfairness to the conduct of the trial on behalf of the applicant.



Tootle v The Queen (Australia) Ltd [2.220] Tootle v The Queen [2017] NSWCCA 103 Facts Tootle was convicted of 11 counts of sexual offences against a single complainant, alleged to have been committed between February 2009 and November 2012. Tootle, aged 49 in 2009, and the complainant, aged 13 in 2009, knew each other through their mutual involvement in refereeing soccer in their local area. During the trial, the trial judge gave a number of directions to the jury. Several of the directions advised the jury that they were entitled to formulate questions to be asked of witnesses, or otherwise encouraged the jury to do so. The trial judge advised the jury of the particular process through which they could have questions put to witnesses. The process involved: the trial judge did not immediately excuse the witnesses at the close of his or her evidence; the jury deliberated as to any questions they wanted put to the witness; the jury submitted questions in writing to the trial judge; the trial judge discussed the questions with counsel;

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Tootle v The Queen (Australia) Ltd cont. the evidence of the witness was taken on the voir dire; the trial judge ruled as to admissibility; and the questions permitted were then asked of the witness by the Crown prosecutor. The jury asked questions of witnesses. For example, the jury sent a note setting out five questions to be asked of the complainant’s father. The questions were: (1)

“how would you describe [the complainant’s] personality and character,

(2)

how did [the complainant] get to friend’s houses, was he always driven by family or did he make his own way there,

(3)

what is your occupation,

(4)

why did [the appellant] visit your house when his house was broken into,

(5)

how would you describe your relationship with [the appellant]?”

Tootle argued in the CCA that the trial judge’s direction to the jury had drawn the jury into an investigative role, potentially altering the burden of proof that the Crown bore, and deprived counsel of the right of putting the case that they saw fit to put. Judgment Simpson JA (McCallum J and Fagan J agreeing)

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... [38] The investigation of an offence takes place well before any trial, as does the assembly of the evidence upon which the prosecution will rely to prove the offence. It is the proper role of the prosecution to determine the witnesses who will be called, and the evidence-in-chief that will be adduced from them, just as it is the proper role of defence counsel to determine what, if any, further evidence will be adduced in cross-examination or in the defence case. [39] If what might appear to a bystander to be a relevant question is not asked, it may be assumed that there is legitimate reason why it is not asked. A third party, whether judge or jury, in ignorance of the full brief of evidence, may, by asking an ill-advised question, blunder into the arena. This is not to suggest that questioning by a judge or jury necessarily signifies partisanship – a question may be completely neutral, at least in the mind of the questioner. But it may disrupt a carefully laid strategy on the part of either party. It is not to be encouraged. [40] The fundamental question is whether the process adopted in this case rendered the trial unfair. If it did, there was a miscarriage of justice (Ratten v The Queen (1974) 131 CLR 510 at 525; [1974] HCA 35, per Menzies J). Whether any practical injustice could be demonstrated was immaterial; a miscarriage of justice occurs where a trial departs from “the very nature of a criminal trial and its requirements in our system of criminal justice” or is “altered in a fundamental respect”: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [43]. Such a miscarriage of justice may be seen where a person is prejudiced in his or her defence because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case (Lee at [41]). [41] It is therefore appropriate to consider what is “the very nature of a criminal trial and its requirements in our system of criminal justice” – the essential elements of such a trial (Lee, at [43]). [42] The system of criminal justice places considerable faith in the adversarial process. A criminal trial conducted in accordance with well-established principles follows a conventional path. Each participant has a distinct role to play. The prosecution presents such evidence as is admissible to establish the guilt of the accused (although a prosecutor has particular obligations of fairness that go beyond the obligations of counsel in party/party litigation (Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 6634, 675; [1983] HCA 42; see also Lee, at [44])) and to seek (again within well-established rules including

Part 2 — Adducing Evidence

Tootle v The Queen (Australia) Ltd cont. as to fairness), to persuade the jury of the guilt of the accused. The role of defence counsel is to seek (also in accordance with well-established rules) to cast doubt on the evidence adduced by the prosecution or the inferences the prosecution seeks to have drawn from the evidence, and to put the case for a reasonable doubt as to the guilt of the accused, whether this is done by adducing evidence in the defence case or by challenging the prosecution case. The role of both judge and jury requires that each maintains a position of impartial arbiter, the judge as to procedural, evidentiary and legal issues, and the jury as to the facts and the final determination of whether the prosecution has established, to the requisite standard, the guilt of the accused. Crucially, neither has any investigative or inquisitorial role. [43] It is also of prime importance (but may not readily be apparent to the jury) that the accused knows, well in advance of its presentation in court, what the case of the prosecution is and the evidence by which it proposes to make that case, and therefore what evidence he or she needs to adduce (whether by cross-examination or by calling evidence) in order to meet the prosecution case. [44] Only the parties and their legal representatives have, at the commencement of and during the trial, a complete overview of the evidence to be called. Neither judge nor jury is privy to the case as a whole. The structure of the trial is undermined if the jury is permitted to take on an inquisitorial role, and steer the trial in a direction different from that laid out by the prosecution, and known to the defence. [45] Many years before Lee, a differently constituted High Court considered in more detail the respective roles of various participants in a criminal trial: Ratten at p 517. Barwick CJ endorsed a proposition stated by Smith J in the Full Court of the Supreme Court of Victoria (Re Rattan [1974] VicRp 26; [1974] VR 201) in the same case, in the following terms:

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Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence. He went on to say: It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge’s directions, the jury is to decide whether the accused is guilty or not .... (at p 517) These remarks were made in the context of a consideration of whether a miscarriage of justice had occurred because of the absence from the trial of evidence subsequently obtained, but they are apposite to the present issue. The observations about the role of the judge are, for present purposes, equally applicable to the role of the jury. These formulations leave little, if any, role for the jury in the determination of the evidence that is adduced. [46] Guidance may also be obtained from a number of cases in which the necessity for the judge to maintain a distance from the participants has been emphasised. A comprehensive discussion is to be found in the judgment of Wood CJ at CL in R v Esposito (1998) 45 NSWLR 442 at 460-473. The authorities there discussed in that case establish (hardly controversially) that it is ordinarily inappropriate for a judge to “descend into the adversarial arena”: R v Damic [1982] 2 NSWLR 750 at 762. (I interpolate that it is equally inappropriate for a jury, the tribunal of fact in a criminal trial, to do so.) Excessive participation by a judge in the questioning of witnesses may result in a miscarriage of justice, for any of the reasons given in R v Mawson [1967] VicRp 23;[1967] VR 205. [47] Any practice of a trial judge allowing a juror or jurors directly to question witnesses has long been frowned upon by this Court: R v Pathare [1981] 1 NSWLR 124; Damic, at 763; Sams v The Queen (1990) 46 A Crim R 468 at 472-473.

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Tootle v The Queen (Australia) Ltd cont. [48] No doubt in recognition of the attitude towards direct questioning of witnesses by jury members stated by this Court in the cases cited above (although in the initial direction, extracted above, the trial judge expressly advised the jury of what she called their entitlement to ask questions of the witnesses), the trial judge in fact instituted a procedure whereby the jury submitted to her the questions they wished to be asked of various witnesses, which were then subjected to examination by counsel, and were put, in the absence of the jury, to the relevant witness in order to ascertain what evidence would be elicited. [49] The Appeal Division of the Supreme Court of Victoria, in R v Lo Presti [1992] VicRp 51; [1992] 1 VR 696, formulated five propositions concerning questioning by juries of witnesses – whether directly or through the judge. The propositions are: 1. Juries should not be told of any right possessed by them to question a witness. 2. A juror who wishes to put, or have put, a question to a witness has a right for that to be done provided that the question or questions is or are limited to the clarification of evidence given or the explanation of some matter about which confusion exists. 3. It is not essential that the question asked be formulated by the foreman. 4. It is highly desirable that the question sought to be asked first be submitted to the judge so that he may consider its relevance and admissibility.

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5. If the judge allows the question it is immaterial whether it is actually asked by the juror or the judge. However, if the judge puts the question there will be removed the risk that exists when a layman is the questioner of the generation of a spontaneous exchange of questions and answers in the course of which improper material may emerge. (p 702) [50] Those propositions arose in the circumstances of a case in which the foreman of the jury had been permitted directly and extensively to question three prosecution witnesses, and another member of the jury appears to have been permitted to intervene (p 700). Notwithstanding those propositions, and the extent of questioning, the court dismissed an appeal against conviction. [51] The High Court refused to grant special leave to appeal against the decision, saying: On the issue arising from the questioning of witnesses by members of the jury, we are not persuaded that there is a firm rule of law prohibiting the asking of questions by jurors. Clearly enough, such questioning is undesirable and in this case it seems to have been permitted to an extent which we find surprising. However, it did not result in any miscarriage of justice. (Lo Presti v The Queen (1994) 68 ALJR 477) Counsel was not able to identify any case in which this Court has explicitly adopted the rather prescriptive statements in R v Lo Presti (in the Victorian Court), and it may be that, at least in propositions (1) and (2), it is overly prescriptive. [52] The question for present determination is whether the adoption of the process of having the questions submitted to the judge, subjecting them to a voir dire process, and having those deemed permissible asked by the Crown prosecutor was sufficient to avoid the adverse concomitants of questioning by the jury that renders direct questioning of witnesses impermissible. That question must be considered in the wider context of authorities dealing with the role of the judge and the proper limits on his or her participation in the questioning of witnesses. As has been seen, the law has taken a narrow view of the extent to which a judge may participate in the process of adducing evidence. There is no reason why that narrow view should not apply also to the participation of the jury. [53] Mr Angelov, counsel for the appellant, helpfully provided to the Court copies of a number of decisions of courts of the United States of America in which a similar question has arisen. It is necessary only to refer to one of those, State of Minnesota v Gerard J Costello 646 North Western Reporter, 2d Series 204 (Minn 2002), which sets out the competing arguments in favour of and

Part 2 — Adducing Evidence

Tootle v The Queen (Australia) Ltd cont. against permitting jury questioning of witnesses. As the opinions demonstrate, what had occurred in the relevant trial was not dissimilar to what occurred in the present trial. The trial judge began by informing the jury that they would be allowed to submit questions for the witnesses, in writing. The judge would determine whether the question could or could not be asked. The jury took up the invitation. In my view, the opinions in Costello set out with clarity both sides of the argument, but are persuasively against the case for allowing the jury to involve itself in questioning witnesses, whether directly or through the judge. The reasons given are sufficiently compelling to warrant careful consideration. Rather than attempt a restatement or paraphrase of the reasoning, I set out below what the court said. [54] The arguments in favour of permitting jury questioning were identified as: (1) trials are a search for truth and juror questions facilitate that search; (2) jurors may need clarification in complex cases to understand the facts; (3) the jury is the finder of fact and these questions help the jury perform that function; (4) increased juror attentiveness; and (5) increased juror satisfaction. [55] However, the court found the counterarguments to be more persuasive. After referring to a number of previous authorities (not directly concerning jury questioning), the court said: Each of these cases reflects a deep concern that jurors maintain independence from those involved in the case, objectivity with respect to the evidence, and a clear understanding of their role as deciding whether the state has met its burden of proof. Juror questioning must be evaluated in light of its effect on these principles.

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[56] The court went on: To maintain independence and objectivity, it is a tenet of our criminal justice system that adjudicators should “postpone or suspend the final formation of opinion until the parties have ‘had their day in court’ and have presented all the information that they consider relevant in the context of adjudication”. ... This principle is particularly important in criminal trials, in which the state presents all of its evidence first, and it is sometimes only after several days of listening to mounting evidence against a defendant that the jury may hear any exculpatory evidence ... But in order to ask a question, a juror must first develop a hypothesis or, at the very least, respond to a perceived flaw in a party’s presentation of the case before the time to deliberate has arrived. To the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form “at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case”. ... “Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability.” ... In addition to our concern about the impact that juror questioning will have on juror impartiality, we also are concerned that the practice may affect the burden of proof and production. Due process requires that the state prove beyond a reasonable doubt the existence of every element of the crime charged ... Allowing jurors to pose questions could, in some cases, elicit testimony from a witness that sufficiently proves an element of a crime, therefore relieving the state of its burden. The assistance provided to the state by juror questioning may be direct or indirect. Juror questioning can directly assist the prosecution when – as the state approvingly exclaimed in its brief – “evidence could be revealed by a juror question!” Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors ... ... Whether one side is benefited more than the other is of secondary concern. Our concern is not in equalizing the number of notches in the belts of advocates but, rather, whether the jury is being lured into a role that is inconsistent with its responsibility to be an impartial arbiter of justice. As we have previously said:

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Tootle v The Queen (Australia) Ltd cont. [T]he jury’s role is not to enforce the law or teach defendants lessons or make statements to the public or to “let the word go forth”; its role is limited to deciding dispassionately whether the state has met its burden in the case at hand of proving the defendant guilty beyond a reasonable doubt. [57] Recognising the limitations upon the use of statements of principle from jurisdictions in which law and procedures may be very different, the reasoning strikes me as persuasive and applicable to the present circumstances. [58] In this State, it is customary, at the commencement of a trial, and usually immediately after the jury is empanelled, for the trial judge to give a series of general directions concerning procedure, evidence, and the role of the various participants. Some judges include in those directions a caution to the effect that the jury can expect the evidence to unfold gradually and, therefore, that its members should withhold judgment until the evidence is complete. To give such a direction is, in my opinion, a wise and fair precaution. It is often (and, in my opinion, ought to be) reinforced at the conclusion of the Crown case, especially so if it is known that the accused will go into evidence. It may be given again at the end of the Crown’s address, if there is to be a break before the defence address commences. These warnings are scarcely compatible with an invitation to the jury to participate in the questioning, which potentially involves anticipation of evidentiary issues.

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[59] It is true that, in modern times, it is seen as important that the jury be accorded respect, and not treated as passive recipients or mere observers of the trial process. Demonstration of that respect may involve providing explanations for procedural decisions that are made during the course of the trial, and attempting to ensure that the jury is fully informed (so far as it can be, consistently with laws of evidence and procedure) of the course the trial is taking and the reasons therefor. The demonstration of that respect does not, however, include drawing the jury into the process of questioning. [60] Juries are also frequently (and wisely) told (if and when told that they may ask questions) to bear in mind that the parties’ legal representatives have a complete overview of the case (which the jury cannot have during the course of evidence), an appreciation of the issues between the parties, and an understanding of the rules of evidence. Juries are commonly, and properly, told that, in the ordinary course, counsel can be expected to ask all relevant questions, and that if a question is not asked which might appear to a jury or juror pertinent, there is probably a very good and legal reason for that omission. These are directions that keep the jury informed, but without inviting them into a role that is incompatible with their function. [61] It is not to the point that the questions asked by the jury may not indicate that they had, at the time of asking, adopted any particular position. As suggested in Costello, the mere fact of their involvement in the eliciting of evidence can, and can be seen to, compromise their function. [62] Nor is it necessary, to reach the view I did in joining in upholding Ground 1, to examine the content of the jury’s questions, although such an examination is capable of raising concerns that that questioning may have steered the trial in a direction different from that that the parties had anticipated. For example, there was no hint in the Crown opening of a case to be made by reference to tendency evidence. Yet the tenor of some of the questions posed by the jury was susceptible to the interpretation that the jury were thinking along tendency lines. And the willingness of the Crown prosecutor to accept questions along those lines (see [23]) is demonstrative of the very thing that should not be allowed to happen – the diversion of the case the prosecution proposes to make to one influenced by the exposure of the jury’s thinking. [63] I was satisfied that the process undertaken in the present trial crossed the boundary to the point in which the very nature of the trial was altered in a fundamental respect (Lee, cited above at [40]). The trial was not a trial according to law. That in itself constitutes a miscarriage of justice. [Appeal allowed and new trial ordered.]



Part 2 — Adducing Evidence

Order and form of questioning witnesses [2.230] Section 28 regulates the order of questioning witnesses. Section 29 deals with the manner and form of questioning in general, but is subject to more specific provisions in the Act and to the general powers of the court. Interpreters [2.240] Sections 30 and 31 regulate the use of interpreters. Section 22 deals with the oath or affirmation made by an interpreter.

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Examination-in-chief [2.250] Examination-in-chief (or direct examination) is the questioning of a witness by the party that called the witness and prior to any cross-examination (cl 2(1) of Pt 2 of the Dictionary). Section 37 prohibits the use of “leading questions” in examination-in-chief, unless the court gives leave for such questions or one of the specified situations in s 37(1) applies. One situation where leave may be granted would be in relation to an “unfavourable witness” under s 38 (see [2.280]). Reviving memory [2.260] Section 32 deals with attempts by a witness to use a document to revive memory while giving evidence (usually in examination-in-chief). Section 33 deals specifically with police officers reading their statements when giving evidence-in-chief for the prosecution in a criminal proceeding. Section 33 was utilised in Dodds v The Queen (extracted at [2.270]). The Act does not attempt to regulate attempts by a witness to revive memory before giving evidence, other than s 34 which gives the court power to require production of a document or thing used in an attempt to revive memory. However, the court’s general powers may be utilised, as under the common law: see R v Da Silva [1990] 1 WLR 31. In R v Da Silva a judge invited a witness to attempt to refresh his memory from a previous statement during an adjournment in the trial and the witness then testified without the statement, the English Court of Appeal stated at 36: In our judgment, therefore, it should be open to the Judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of events in question, even though it does not come within the definition of contemporaneous, provided he is satisfied: 1.

that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place;

2.

that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it;

3.

that he had not read the statement before coming into the witness box;

4.

that he wished to have an opportunity to read the statement before he continued to give evidence.

If the abovementioned procedure was adopted then the requirements of s 32 would not apply as the witness would not be reviving memory “in the course of giving evidence”. The proceeding would be adjourned to permit the witness an opportunity to read the statement.

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Further, the general discretions to exclude evidence in Pt 3.11 may be used in this context (eg in relation to the use of hypnosis in an attempt to improve memory).

Dodds v The Queen [2.270] Dodds v The Queen (2009) 194 A Crim R 408; [2009] NSWCCA 78 Facts [The appellant was tried and convicted of a charge that he conspired to commit an armed robbery between 6 May 2006 and 2 July 2006. The Crown case relied on the record of multiple intercepted telephone conversations to prove that the appellant planned to rob a bank. The intercepts began in May 2005. Some of the telephone conversations were spoken in code identified as “Pig Latin”. A police officer, Murray, gave evidence and translated the intercepted conversations. One of the grounds of appeal was that Officer Murray should not have been permitted to use his previous statements (documents made prior to court) in the witness box because they did not satisfy the temporal requirement in s 33.] Judgment McCLELLAN CJ at CL (Simpson and Harrison JJ agreeing): ...

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[16] Some of the telephone conversation between the alleged conspirators was spoken in code identified by the Crown as “Pig Latin.” The evident purpose was to avoid any intercepted conversation being understood by the police. Pig Latin is commonly used by persons seeking to mask their true conversation and, so the evidence indicated at the trial, is commonly used by persons intent upon criminal activity. [17] In order to assist the jury in understanding relevant passages in the intercepted conversations the Crown called a police officer, Officer Murray who gave evidence that, although he had no formal training in understanding Pig Latin, he had acquired a knowledge of it since joining the robbery squad. He said that he had been with the squad for about 4½ years and in that role had monitored conversations recorded in over 40 telephone intercept warrants and that in about 85 to 90 percent of those conversations variations of Pig Latin were used. Of course, each warrant authorised the interception of many conversations. He said that he was familiar with the fact that users of Pig Latin commonly removed the first letter of a word and placed in at the end adding “ay” or “ecans” after it. The word “pump” becomes “umpay”. Sometimes “sn” is placed at the start of a word turning “pump” into “snumpay” or “snumpecans.” Other variants are also employed. [18] The Crown relied on 101 of the intercepted conversations of the alleged conspirators. During a voir dire hearing Officer Murray said that he used his knowledge of the language to translate about 20 to 30 Pig Latin words. ... ... [63] The Crown sought to lead evidence from Officer Murray pursuant to s 33 of the Evidence Act 1995. That section provides, inter alia, in s 33(1): A police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. [64] However, such evidence “may not be so given unless: (a)

the statement was made by the officer at the time or soon after the occurrence of the events to which it refers;

(b)

the officer signed it when it was made; and

Part 2 — Adducing Evidence

Dodds v The Queen cont. (c)

a copy was served on the accused person or his lawyer a reasonable time before the hearing of the prosecution’s evidence.”

[65] The appellant submitted that the evidence of Officer Murray should not have been admitted as provided by s 33 because his statements were not made “at the time of or soon after the occurrence of the events to which it refers”. [66] Particular objection was taken to the statements of the officer which were made on 30 October 2006, which was about 18 months after the surveillance and investigations were conducted. The other statement relied upon by the prosecution was made on 9 August 2005. This latter statement related to events on and after 1 July 2005.

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[67] The essential contents of the statement dated 30 October 2006 was a summary of records relating to the interception of telephone calls including the recordings and transcripts tendered in evidence at the trial. Although, of course, the statement was not made at the time that the interception was effected, it was made when the officer reviewed that material for the purpose of giving evidence at the trial. The statement includes the conclusion that it was the voice of the appellant which could be identified as one of the speakers in the telephone call. Accordingly, in the relevant sense the statement was in relation to matters which were contemporaneous to its making. The interception of the relevant calls and the making of the transcript was established by other evidence at the trial. In these circumstances there was no error in her Honour permitting the officer to read from his statement in the course of giving evidence. [68] The statement of 9 August 2005 relates to events on or after 1 July of that year. As with the other statement the statement was made when the officer was reviewing relevant material including the application for the telephone warrants, his own notes and information contained in the police computer database. Accordingly, in the relevant sense the statement was made in relation to matters which were contemporaneous to its making. (Appeal dismissed.)

 Unfavourable witnesses [2.280] Section 38 permits “cross-examination” (ie the use of leading questions and chal-

lenges to credibility) of a witness called by a party if the witness gives “unfavourable” evidence, appears not to be “making a genuine attempt to give evidence” or has made a prior statement inconsistent with his or her in-court testimony. The provisions in the Act dealing with cross-examination of witnesses would apply to cross-examination of a witness called by the party under s 38 (this means leading questions can be asked, s 42 and cross-examination on prior inconsistent statements needs to comply with s 43). The term “unfavourable” is not defined in the Act. In Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57, the joint judgment stated at [27] that: The trial judge said, when the application for leave was made in front of the jury, that he was satisfied that the provisions of s 38(1)(a), (b) and (c) were satisfied and he granted leave under both s 38(1) and s 38(3). As has already been noticed, the evidence which Thaier Sako gave to the jury did not assist the prosecution. The judge formed the view, on the voir dire, that he was not making a genuine attempt to give evidence and went so far as to find that the version he had given in the interviews “more probably than not reflected his observations on the night”. It may be doubted that it was necessary for the judge to form a view about where the truth probably lay. The finding which his Honour made was, however, a finding which clearly bore upon the question presented by s 38(1)(b):  was the witness, in examination in chief, making a genuine

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attempt to give evidence? Given that the witness had made prior inconsistent statements, there is no doubt, then, that pars (b) and (c) of s 38(1) were satisfied. It is not necessary in those circumstances to consider whether par (a) was also met. There appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without “making a genuine attempt to give evidence”, is to give evidence “unfavourable” to that party.

[Sako was an unfavourable witness called in a murder trial. This case is extracted in Chapter 11.] In Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941, Graham J stated at [9]:

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In the case of s 38(1)(a), that about which the questioning may so proceed is “evidence given by the witness that is unfavourable to the party” who called the witness. In R v Souleyman (1996) 40 NSWLR 712 at 715 Smart J held that, where the evidence of a witness did not, in significant respects, come up to a prior statement, his evidence was unfavourable. I must say that I have some difficulty with the proposition that one can characterise evidence given as unfavourable if, to do so, one has to go beyond the pleadings and the evidence itself. I do not think that “unfavourable” should be construed, as suggested by Smart J, as simply “not favourable”. (see also R v Lozano, unreported, NSWCCA, 10 June 1997 per Hunt CJ at CL, R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465 at [59] and R v Taylor [2003] NSWCCA 194 at [74]). As I see it, for evidence to be characterised as “unfavourable” it would have to detract from the case of the party calling the witness. I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in Klewer v Walton [2003] NSWCA 308 at [20] (and [30]) where his Honour expressed the view that evidence which was simply “neutral” did not come within the word “unfavourable” as used in s 38(1)(a). In Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 at [27] Gleeson CJ, McHugh, Kirby and Hayne JJ seem to me to be suggesting that for evidence to be characterised as unfavourable, it must have an unhelpful quality about it, as opposed to a neutral quality.

R v Hogan (extracted at [2.290]) and R v Le (at [2.300]) provide examples of the application of s 38. In R v Hogan, s 38 did not permit general cross-examination but rather was limited to the three matters listed in s 38(1). However, in R v Le, Heydon JA held that cross-examination could be permitted on the three subjects described in s 38(1) and could be “about a matter going only to credibility with a view to shaking the witness’s credibility on the s 38(1) subjects”: [67]. In granting “leave” to cross-examine under s 38(1)(a) and/or s 38(1)(b) and/or s 38(1)(c), a court needs to take into account the matters in s 38(6) and s 192(2).

R v Hogan [2.290] R v Hogan [2001] NSWCCA 292 Facts [Hogan was convicted of maliciously inflicting grievous bodily harm upon Matthew Gray while Matthew was visiting his girlfriend Rachel Golby. Hogan appealed on a number of grounds including that the prosecution should not have been allowed under s 38 to cross-examine Crown witnesses and introduce evidence that was inconsistent with parts of their evidence.] Judgment GREG JAMES J (Giles JA and Badgery-Parker AJ basically agreeing): … [24] Rachel Golby’s evidence-in-chief plainly diverged substantially and in many respects from an original statement she had given to police. It was clearly open to the trial judge to consider that her evidence was, in a number of those respects, at least, to be unfavourable as well as inconsistent with her prior accounts.

Part 2 — Adducing Evidence

R v Hogan cont. [25] In her evidence-in-chief, before leave to cross-examine was given, she referred to the appellant as someone she had had a previous relationship with, some two and a half to three years ago; he was a good family friend. She referred to the appellant coming to her room on the morning of 21 June but gave a version of the conversation that ensued which was materially different from that given by the complainant. Her evidence did not include the appellant saying anything to the complainant other than, “How are you going, mate”. Similarly, her evidence was inconsistent with that of the complainant as to the conversation between herself, her mother and the complainant. She contended she had rung the complainant to ask him to purchase drugs for her and that he had returned to the house with a cap of heroin which she shot up. … [31] At this point of the trial, the Crown Prosecutor made what is referred to as “an application under s 38 of the Evidence Act 1995 to cross-examine the witness”. Defence counsel is recorded as opposing the application. The following appears in the transcript: As I held last week, I consider that s 38 is applicable and I propose to let the Crown Prosecutor cross-examine this witness as I did last week. Mr Cruickshank you might be right about one thing, about us getting another story next week if there was another trial, but that doesn’t mean s 38 doesn’t apply. [32] At the commencement of the previous trial, the Crown Prosecutor had foreshadowed applications were to be made under s 38 “re unfavourable Crown witnesses” and there was some consideration of whether the Crown should be permitted to open representations made to police by Rachel Golby. [33] The Crown had declined to call her father as an unreliable witness and had succeeded on an application to issue a bench warrant for the arrest of her mother as she had not attended on subpoena. [34] At p 43 of the transcript on 13 March 2000 in first trial appears the following: Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

…

CROWN PROSECUTOR: Your Honour I seek the leave of the court to be allowed to crossexamine this witness under the three heads outlined under s 38(1) of the Evidence Act, that the witness is unfavourable to the Crown, that the witness may reasonably be supposed to have knowledge about which it appears to the court the witness is not in examination in chief making a genuine attempt to give evidence and (c) that the witness had made prior inconsistent statements to the evidence she is now giving. The prior inconsistent statements your Honour are detailed in her statement to the police dated 23 June 1998. HIS HONOUR: Have you got a copy of it? CROWN PROSECUTOR: Yes, your Honour. MFI 1–STATEMENT OF RACHEL GOLBY DATED 23 JUNE 1998 HIS HONOUR: You said statements, are there others? CROWN PROSECUTOR: There are your Honour. I’ll have my solicitor hand you a full copy of the brief with the different statements marked. HIS HONOUR: I only want the three statements that you say she’s made. … HIS HONOUR: Look I’m not here assessing the witness. I’m considering whether or not the Crown falls within s 38 of the Evidence Act. Clearly the evidence given by the witness so far is unfavourable to the Crown. … HIS HONOUR: Well that doesn’t mean that she’s not giving evidence contrary to s 38 of the Evidence Act. Seems to me frankly to be without argument that she is in breach of s 38 and I propose to let the Crown cross-examine her. On this application the statements that I have been given will be marked for identification and will remain with the papers. … HIS HONOUR: I think Mr Cruickshank in view of the fact that the complainant had said that she was present at the door when things occurred and that thereafter she did things, it

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R v Hogan cont. would have been unwise for the Crown to have called her, not to call her and suffered the request from you for a Jones v Dunkell [sic] or Regina v Buckman inference. As you say it is for the Crown to make the decisions and he has decided to call her. [35] It is notable that his Honour gave no further reasons for his ruling nor did he identify the factors to which he had regard when granting leave. There was no analysis of which factors pursuant to s 38(1)(a), (b) or (c) were the bases or basis of leave. … [40] Thereafter, the Crown Prosecutor embarked on a further cross-examination, not limited to the topics canvassed by defence counsel but including whether she had lied when she had asserted she had caught the appellant sleeping with Rebecca Jones three weeks earlier and the circumstances of her mentioning that observation. She was further cross-examined about her “retraction interview” and her drug taking. The lack of objection seemed to suggest that the opportunity to further cross-examine and the ambit of that cross-examination were thought to have been within the trial judge’s earlier rulings. …

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[47] … the Crown cross-examined Mrs Golby about her evidence at the previous trial and concerning what had happened in the backyard. An account was put to her of a conversation it was asserted she had with the complainant’s mother incriminating the appellant. She denied it. She denied telling the complainant’s mother that the complainant had been assaulted on the beach. She denied that the complainant’s mother asked Rachel if she had been able to recognise the men who assaulted her son. She denied telling the complainant’s mother on 22 June that she had lied the night before and that it was her daughter’s ex-boyfriend that had assaulted the complainant. She denied telling the complainant’s mother that the appellant was hiding in the backyard, that Rachel was out the back screaming and her husband pulled Garry off Matt. Mrs Golby said she had no idea what happened until she spoke to her daughter a couple of days after the assault. [48] Defence counsel cross-examined her principally about her daughter’s drug taking. The Crown Prosecutor again was permitted further cross-examination about what she could see in the backyard and her evidence at the earlier trial. By leave, the defence counsel was permitted further questions about what the witness had formerly said about her daughter being affected by drugs. … [54] It was submitted that the trial judge had erred in permitting the cross-examinations I have referred to in failing to have regard to various sections of the Evidence Act 1995, including s 192 (matters to be considered on the question of leave), ss 135 and 137 (rejection in discretion of prejudicial evidence), ss 102 and 103 (inadmissibility of credit evidence) and s 60 (hearsay evidence). Further, that his Honour failed to have regard to s 38(6) and to restrict cross-examination to those areas to which s 38 refers. [55] When one examines his Honour’s reasons, there was no advertence to those matters and particularly those which s 192 of the Evidence Act 1995 provides nor was there any limitation such as is suggested by s 38 on the ambit of cross-examination expressed by his Honour or observed by the Crown Prosecutor. Indeed, the matters which may be taken into account under s 38(6) were not adverted to. [56] The cross-examination of necessity raised questions as to whether or not Rachel Golby might have committed such criminal offences as were involved in attempting to mislead the police. But no reference was made to the prospect of having to inform her of her right to object under s 132 and her rights in respect of possible self-incrimination under s 128. … [61] Questioning a witness called by a party “as though the party were cross-examining the witness” (s 38(1)) would presumably include the technique of using leading questions. Division 5 of Pt 2.1 deals with cross-examination. Section 42 permits the use of leading questions unless the court disallows the question or directs the witness not to answer it. [62] In considering the matters the court may take into account on those questions, the court is directed by s 42(2) to take into account: … [the section was reproduced] [63] What may be done in cross-examination about a prior inconsistent statement is provided for by s 43. Section 44, except as provided by that section, does not permit questioning of a witness about a previous representation alleged to have been made by another, unless evidence of the representation

Part 2 — Adducing Evidence

R v Hogan cont. has been admitted or will be admitted. The procedure for cross-examination on another’s document is provided for by s 44(3). [64] In Stanoevski v The Queen [2001] HCA 4 (8 February 2001), the High Court considered the application of s 192 as an expression of matters to be considered on the grant of leave in relation to a crossexamination on character. It held that s 192 applied to such applications for leave to cross-examine. It referred to the mandatory requirement that the matters referred to in s 192 be taken into account. The approach taken there is, in my view, validly applied to the analogous situation of considering a grant of leave under s 38, notwithstanding under that section further particular matters are to be considered. Section 192 applies generally to applications for leave. [65] In the judgment of Gaudron, Kirby and Callinan JJ, the following appears: Section 192 applies to this case, and in particular to the exercise by the trial judge of his or her discretion under s 112 of the Act. It should be noted that the leave required under s 112 is not leave to adduce evidence, but to cross-examine about the character of a defendant. In addition to matters which may be relevant in a particular case, in all cases the court must take into account the matters prescribed by s 192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably have been relevant to the way in which his discretion ought to be exercised had he adverted to them. [66] Those words are of direct applicability in my view to this case. Their Honours continued at par 43: The cross-examination on the report raised a very grave possibility of unfairness to the appellant within the meaning of s 192(2)(b). By giving permission for that cross-examination to take place the trial judge was allowing the undertaking of an extensive collateral inquiry by the prosecutor. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[67] Their Honours continued at paragraph 47: It follows that matters of the kind which s 192(2) provides should be considered were of relevance to this case and to the trial judge’s decision to permit the prosecutor to cross-examine as he did. In not taking properly these, and matters of weight and relevance into account, and in not therefore exercising his discretion in accordance with s 192 of the Act, the trial judge fell into error. [68] It was held that the trial had miscarried to the extent that it was not possible to say no substantial miscarriage of justice had occurred. ... [72] It is clear that the cross-examinations were of great significance in the conduct of the present case. Rachel Golby’s evidence was of great importance. It was not clear independently of Rachel Golby whether it could properly be asserted that she did see the incident. Neither her brother nor her father was called, and her mother’s credit was similarly assailed. An assumption seems to have been made that her initial account had to be a true one. That account did not entirely accord with the account of the complainant in that his account did not make clear that she saw the incident. [73] It can be accepted that the account Rachel Golby gave at trial was “unfavourable” to the Crown case in a number of respects. It can be accepted that that account contained important inconsistencies with the initial prior account she gave to the police. The account given by her mother was also, but to a lesser extent, unfavourable. But the course taken by the trial judge in granting leave does not seem to have included examination of those matters required to be considered by s 38(6) and those under s 192 the High Court held should be considered, nor did his Honour have regard to the discretions referred to in Regina v Lozano (CCA, unreported 10 June 1997) per Hunt CJ at CL, Sperling and Barr JJ at 7 or those adverted to in Regina v GAC (CCA, unreported 1 April 1997) at 15-16. In each of those decisions both s 192 and the provisions of the Evidence Act 1995 relating to discretionary rejection were referred to as appropriate to be examined on the consideration of the grant of leave. [74] The criteria under s 38 and the discretionary considerations, as well as the matters required to be considered under s 192, are adverted to in Regina v Fowler [2000] NSWCCA 142.

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R v Hogan cont. [75] It is to be noted that defence counsel had submitted that the witness should not be called due to her lack of credit. The cross-examination ranged widely and evidence was called from Miss Francis and Miss Jones so that the effect, in my view, was to shift the focus of the trial from the witness’ testimony as to what had occurred to matters collateral to the issue at trial, although plainly of great significance to the witness’ credit. [76] The cross-examination was general in nature. It included cross-examination about what the witness had had to drink, whether or not she had taken heroin, whether she was on drugs and what drugs, including heroin, speed and “pills” such as Serepax and Valium and marijuana she had taken. It developed into a wholesale attack on credit as well as dealing with those matters in relation to issues that were at least peripherally relevant at the trial or might have been relevant to the witness’ opportunities and capacity to observe what had occurred. She was specifically cross-examined on a number of occasions by the proposition being put to her that she was lying to protect the accused. The questioning asserted the content of prior inconsistent statements whether relevant to issues or on credit. Much of the cross-examination was prejudicial to the appellant. [77] There was cross-examination which ranged so widely as to question her about whether the complainant and Rebecca Jones had been sleeping together which had caused a rift in her friendship with Rebecca Jones. There were questions put as to whether she had caught the two sleeping together and as to the nature of the house in which this had occurred. This was entirely collateral and far from the issue.

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[78] The cross-examination of Kathleen Golby raised matters as to the credit of Rachel Golby, hearsay as to the events in the backyard and assertions of her having denigrated the character and disposition of the appellant. Some of it was highly prejudicial to the appellant and of limited relevance. [79] The evidence that was led from Rebecca Jones, Kerry Francis and Mrs Robertson of prior inconsistent accounts included matters that, at best, might have been relevant only as to credit on collateral or peripheral questions. There appears to have been no separate consideration of whether that evidence or any of it should have been permitted to be led. Much, it seems to me, should have been excluded. [80] The important matter is not whether such cross-examination might have elicited, amongst other evidence, evidence which might properly have been used in the trial. The issue, rather, concerns whether or not the questions as to such matters as were explored should have been permitted to be asked. It is necessary, when giving consideration to the grant of leave, to have regard to the effect on the trial of the ambit of questioning and of the matters that might be raised. It is essential when considering the grant of leave to consider how far, at least initially, cross-examination might be permitted to extend, having regard to the bounds set by s 38, to the matters to which regard must be had when granting leave in s 38(6) and s 192 and to whether prejudicial matters to which ss 135 and 137 might apply might be raised. [81] Leave might be further extended as a consequence of a further application, but lest the crossexamination should divert the focus of the trial as, in my view, it did here, it is necessary for a trial judge to take considerable caution in considering the matters the legislation and the High Court has held he or she must consider and to give consideration to those matters by confining, at least initially, leave to that then seen as necessary, reconsidering the ambit in accordance with the criteria, if further leave is sought. [82] Regrettably what happened in this trial did not meet the statutory criteria. I conclude that the trial judge fell into error and each of the grounds of appeal I have referred to is made out … [83] I consider that the trial miscarried when his Honour granted leave, as he did, notwithstanding there was a basis on which in each case leave might have properly been granted. [84] Even if leave would almost certainly have been granted, it could not be successfully argued that would necessarily have permitted as wide an ambit of cross-examination as occurred. I conclude there was a miscarriage. (Appeal allowed. Conviction quashed. New trial ordered.)

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Part 2 — Adducing Evidence

R v Le [2.300] R v Le (2002) 130 A Crim R 44; 54 NSWLR 474 Facts [Le was convicted of supplying heroin. One ground of appeal was that the trial judge should not have granted leave pursuant to s 38 to the prosecutor to cross-examine a witness, Amber O’Brien. Le argued that the trial miscarried because of the unfair prejudice caused by this cross-examination. The appeal on these grounds was unsuccessful.] Judgment HEYDON JA (Dunford and Buddin JJ agreeing): … The arguments of Crown counsel on the s 38 application [7] Crown counsel commenced the application by saying: My application is in respect of section 38(1)(c) that the witness has made a prior statement inconsistent with her in-court testimony and I would be seeking to cross-examine her in relation to matters that are contained in her evidence. Her evidence your Honour on the ERISP I should say indicates 17 July but it was indeed Friday 18 July [1997], the same day of the search, ERISP, and the interview commenced at 11.49 and if I could hand up a copy of that interview. ... The trial judge’s reasons for judgment on the s 38 application

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[12] The trial judge delivered judgment acceding to the application in the following terms: Section 38(1) provides that a party who calls a witness may, with leave of the court, question the witness as though the party were cross-examining the witness about certain matters. The two matters which would appear to be relevant here are sub-paragraph (a) evidence given by the witness that is unfavourable to the party or (c) about whether the witness has at any time made a prior inconsistent statement. Dealing with the latter, there is no doubt that on 18 July 1997 during the course of an electronically recorded record of interview the witness Amber O’Brien, the subject of this application to cross-examine, made statements which are diametrically opposed to the evidence that she has given in the witness box thus far in chief today. Accordingly, I would give leave to the Crown to cross-examine her about whether she has, at any time, made a prior inconsistent statement. As to sub-paragraph (a) it seems to me that the evidence given by the witness thus far, particularly when one takes into account the interview to which I have just referred, is certainly unfavourable to the Crown and I would give leave to the Crown to cross-examine her in respect of that evidence as well. The extent to which the cross-examination is allowed relates only to the evidence that she is giving and whether she has made a prior inconsistent statement. The Crown has already outlined the basis upon which he wishes to cross-examine the witness and I grant leave on that basis. In granting leave I have taken into account sub-paragraph 6 which requires the court to take into account whether the party, namely the Crown, gave notice at the earliest opportunity and also the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. Leave to cross-examine is therefore granted. McCOLM: Your Honour does that include leave to cross-examine about what was said on the voir dire, or not said on the voir dire, or at a trial at Port Macquarie in May ‘99? That’s one thing I think my friend himself raised your Honour – COLES: That’s so. I’d seek that leave your Honour.

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R v Le cont. HIS HONOUR: Yes. Yes I think that falls into category (a) which seems to be a much more general provision for facility to cross-examine than paragraph (c). LUNCHEON ADJOURNMENT HIS HONOUR: Just in relation to that application, which I have granted. I should also say that so far as the proposed cross-examination of the witness is concerned, as to all matters raised by the learned Crown Advocate, I grant leave under subs 3 of s 38 of the Evidence Act to cross-examine as to credibility only, should that be the only issue raised. The appellant’s position in outline [13] In essence the appellant’s arguments were that the trial judge erred in granting leave under s 38 on a basis as wide as he did; that leave under s 38 must be granted in specific and narrow terms so as to avoid the risk of unfair prejudice to the accused; and that the actual questioning that followed the grant of leave extended beyond the grant of leave and was itself prejudicial, particularly because it concluded by suggesting that Amber O’Brien had changed her story at the instigation of the appellant and in return for the gift of a car. … [25] The appellant submitted that the trial judge should have controlled “this uninhibited excess” by the use of s 38(6), s 135, s 137 and s 192(2). He submitted that by the end of the re-examination the trial had miscarried and no redirection could have cured the mischief. In any event the trial judge did not tell the jury that despite the Crown prosecutor’s questioning of the witness to suggest that she was covering up for the appellant, there was no evidence to suggest that she was lying to protect him at his instigation.

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The appellant’s arguments to this Court [26] The appellant placed considerable reliance on R v Hogan [2001] NSWCCA 292 as being a very similar case in which a conviction was overturned by reason of a mis-application of s 38. [The facts and judgment were set out.] … [35] The appellant submitted to this Court that the examination of Amber O’Brien: went to issues that were solely issues of credit outside of the terms of the statements and in particular the cross-examination was crafted so as to demonstrate that it was given false evidence as part of an arrangement with the appellant. Part of that arrangement, it was submitted, was that the appellant had transferred the registration of a motor vehicle into the name of the witness so that she would give false testimony in his aid at the time of the trial. None of that was the subject properly of a grant of leave because it raised fundamental issues of fairness. It should have [been] disallowed because of the operation of s 135 and/or s [137] at the very least. Ultimately, the focus of the prosecutor’s crossexamination of the witness was not whether or not the witness could be accepted or rejected but whether the appellant had acted with her in concert to performing in the proceedings. The trial miscarried in exactly the same way as the trial miscarried in Hogan’s case and the comment of Giles JA and Greg James J in that case are pertinent in this case … [36] Referring to the last part of the passage quoted from Giles JA’s judgment, the appellant in this appeal said: That is exactly what happened here. The prosecutor cross-examined a witness, pointedly, about the fact that she was lying and lying at the insistence of the appellant. There was no evidence at all to support that contention. Not even the evidence that a car had been registered in her name. The trial judge’s failure to consider the provisions of the Evidence Act [37] In relation to the decision to grant leave, the appellant’s written submissions state: In his ruling, His Honour did not have regard to s 192, 135, 137, 102, 103 and 60 of the Evidence Act. The terms of the judgment seem to suggest that the scope of the cross-examination for

Part 2 — Adducing Evidence

R v Le cont. which leave was granted was limited to cross-examination on the prior inconsistent statements and the evidence that the witness gave at Port Macquarie. Despite the terms of the ruling, the cross-examination that the Crown Prosecutor embarked upon was wide ranging and extended well outside the narrow scope of the terms of the grant of leave. [Reference was made to Stanoevski v The Queen (2001) 202 CLR 115 and R v Fowler [2000] NSWCCA 142.] … The trial judge’s alleged errors in the procedure for granting leave [38] The appellant’s oral argument to this Court on the procedure that should have been adopted when the trial judge granted leave under s 38 was as follows:

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What should have happened was that the judge should have granted leave to cross-examine the witness on the prior inconsistent statements, then following upon such cross-examination, if the Crown sought to ask particular questions about credit only, there should have been demonstrated some basis for the grant of leave. It would have required the Crown to outline what they intended to ask at least by way of topics so that the judge could consider whether there was a need to limit the questioning either by refusing leave under Subs 3 or limiting its terms, but by granting leave at the outset under Subs 3 without specifying what could or could not be asked, that then gave the Prosecutor free rein to ask any questions on credit that occurred to them and that then led to numerous instances of questions that went solely to undermine the credit of the witness, some of them included questions that were designed to suggest to the jury that the witness was acting as an agent of the appellant when there was no proper basis for such questions. [39] The appellant submitted that when the Crown called Amber O’Brien it believed she was not a witness of truth, that it had no obligation to call her and that it “could have made her available to the accused”. Section 38 permitted the Crown to call her and obtain leave to put prior inconsistent statements to her, but s 38 was a new facility in the law of evidence which had to be handled with care and not used in “demolition of a straw person that is designed not [to advance] the prosecution case but to taint the accused”. In particular, care had to be employed where the Crown “consciously and deliberately” called a witness believed by it to be untruthful. It was desirable to proceed in stages. The first stage was to permit questioning about the inconsistent statements. If the Crown wished to proceed further, it should make another application. If the Crown wanted to establish that when the prior inconsistent statements were given to the police, the witness had had time to reflect about the matter, and her mother was present to assist, as the Crown prosecutor actually did, that might be permissible, but only after a further grant of leave. If the Crown wanted to establish that the 18 November 2000 police statement, inconsistent with that given to the police on 18 July 1997 but consistent with the evidencein-chief, was made much later than the 18 July 1997 interview, it might be permitted to do so, but only after the grant of further leave. The same applied to inquiries into why the witness’s version changed – whether because of some faulty recollection, or because of being under great stress at one time rather than another, or because of some disease, or because of some particular motive, or because of a sudden attack of conscience. On each application the counsel seeking leave had to be particular as to the terms of the application, and the court had to be particular as to the terms in which it was granted. [40] The appellant submitted that if counsel desired to suggest that a witness under s 38 examination was lying to protect the accused, either of that witness’s own volition or at the instigation of the accused, it was incumbent on the trial judge to consider whether the evidence had probative value and whether there was a risk of unfair prejudice to the accused. The risk arose from suggestions that Amber O’Brien had been brought to court by the accused to give evidence in his favour by reason of some corrupt relationship, whereas it was the Crown who had brought her to court believing she was dishonest, intent on prejudicing the appellant by tainting him with her dishonesty, and not possessed of any evidence of a corrupt relationship.

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R v Le cont. [41] These circumstances made it necessary to consider with care the terms of s 38 leave and to grant the leave only in a confined way. Even though the witness denied what was put to her in various prejudicial and inflammatory questions, the very nature of the questioning was so inflammatory as to make the trial unfair. [42] In short, the appellant submitted that before s 38 was enacted, the Crown could not crossexamine its own witness. He submitted that in order to avoid a dangerous revolution in the law, s 38 should be read narrowly so as to permit leave only in precisely identified circumstances. He submitted that what the Crown might do in cross-examining the witness had she been called by the accused was no guide to what it might do in asking s 38 questions, because, if called by the accused, she was being held out by the accused as a witness of truth, and excessive s 38 questioning of a witness called by the Crown who was favourable to the accused would cause the jury to jump to the conclusion that the accused was guilty because the witness who was favourable to him was demonstrably dishonest. …

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Would the trial judge, directing himself properly, have made a s 38 order? [50] Had the trial judge considered s 192, it is likely that he would have reasoned, and reasoned legitimately, as follows. In relation to s 192(2)(a), though a s 38 order would obviously lengthen the hearing, it would not do so unduly: the s 38 examination in fact only took up eleven pages of transcript. In relation to s 192(2)(b), leave to cross-examine at least on the differences between the evidence-inchief and the record of interview would not have been unfair to either the witness or the appellant. As to s 192(2)(c), the evidence was very important. As to s 192(2)(d), the nature of the proceeding was a neutral fact. There was no relevantly useful power of the type referred to in s 192(2)(e). Turning to s 137, the probative value of concessions by the witness about what she had said to the police (in an electronically recorded interview) was potentially very high; that value might be reduced by any explanation given by the witness, but that was a matter for jury evaluation. The potential probative value wholly outweighed the danger of unfair prejudice to the appellant; and if the evidence turned out to be of low probative value, there would be no unfair prejudice to the appellant. The application of s 135 could not lead to any different outcome. [51] The appellant’s written submissions do not in terms deny that the trial judge, had he had all relevant provisions in mind, would have granted leave to cross-examine the witness about her evidence at Port Macquarie in May 1999. In so far as that evidence did not disclose that she was the owner of the drugs, and questions addressed to her would, if truthfully answered, have revealed that she was not, it could be described as being inconsistent with her evidence-in-chief. In so far as her evidence at Port Macquarie asserted that the appellant was the owner of the drugs, it would have been explicitly inconsistent with her evidence-in-chief. Accordingly, subject to its precise terms, the Port Macquarie evidence did not fall into a different category from the record of interview of 18 July 1997. Its terms were not tendered to the trial judge in the s 38 application, but counsel for the appellant then appearing took no point about that. [52] The appellant’s written submissions conceded that there “is no doubt that leave would have been granted to cross-examine the witness if regard had been paid to s 192(2)”. But they go on to contend that the leave should not have permitted questioning about whether the witness was lying to protect the appellant, or lying to protect the appellant at his instigation. In oral argument the appellant also submitted that leave to examine on credit should not have been given; and also that leave in relation to Port Macquarie should not have been given without more precision being introduced. … The significance of the appellant’s non-objection [53] The arguments of the appellant in support of these grounds had a double aspect, though it did not always sharply emerge. One element was that the s 38 examination extended beyond the scope of the actual leave granted. Another was that the s 38 examination extended beyond any permissible leave which might have been granted. The distinction could be important, because over the eleven pages of impugned s 38 examination, counsel for the appellant interrupted only four times: once to

Part 2 — Adducing Evidence

R v Le cont. say he could not hear one answer (an experience shared by the Crown prosecutor), once to object after seven pages and twice to object near the end. An examination which was not objected to which, while it went outside the scope of the leave granted, remained within the scope of the leave which the court had power to grant, might be less likely to cause an appeal to be allowed than an examination which was not objected to but which went wholly outside the scope of the court’s power under s 38. The latter type of examination would be an examination beyond what parliament contemplated as being compatible with an appropriately conducted trial. [54] There may be some significance in the fact that counsel for the appellant at the trial had been in practice for thirteen years – that is, he was experienced. It is a common perception of experienced counsel that frequent interruptions of cross-examination often irritate judges and juries because they can often have the effect, and sometimes, regrettably, have the purpose, of putting the cross-examiner off, giving the witness an opportunity to think of a convenient answer, or simply giving the witness a rest. They also have the effect, and, even more regrettably, on occasion the purpose, of feeding to the witness an answer which objecting counsel desires the witness to give. Section 38 examinations are much rarer than true cross-examination, but to the extent that they are a limited kind of crossexamination, counsel at a trial might well wish to be prudent and selective in the extent to which a s 38 examination should be interrupted, lest judge and jury react adversely. Judgments of this kind have to be made question by question in trials conducted orally, and the soundness of those judgments is not readily to be impugned by minute textual analysis conducted at leisure with hindsight.

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The meaning of “about” [55] There is an assumption underlying the appellant’s submissions which, though not clearly articulated, is important. The submissions start with the incontrovertible proposition that leave under s 38 does not justify general cross-examination, using the leading questions (s 42) and aggression characteristic of cross-examination, on any subject relevant to an issue or to credit. Section 38 permits the party who obtains the leave to question “as though the party were cross-examining a witness”, but only “about” the three subjects described in paragraphs (a)-(c). The assumption on which the appellant’s submissions proceeded is that those three subjects are narrow and that the word “about” is not a word denoting an extensive connection between a question and each of the subjects. [56] Though in terms the application to him was only based on s 38(1)(c), the trial judge made it plain that the leave he granted was based on s 38(1)(a) (in relation both to the record of interview and the Port Macquarie trial) but apparently also on s 38(1)(c) at least so far as the record of interview as concerned. Though there were arguably signs in the examination-in-chief before the s 38 application was made that s 38(1)(b) might apply, the application was not advanced on that basis and the trial judge did not mention it. [57] It is important to bear in mind that so far as s 38 examination elicits evidence of prior inconsistent statements containing hearsay, though they can be admitted merely on credit, they can also be admitted to prove the facts asserted by reason of s 60, which provides: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. … [58] … If the court gives leave under s 38(3), the questioning must be in accordance with Pt 3.7, and in this case in particular ss 102 and 103: Adam v The Queen (2001) 183 ALR 625 at [24] per Gleeson CJ, McHugh, Kirby and Hayne JJ. … [Reference was made to the Interim Report, par 625, the Report on Evidence (ALRC 38), par 114(a).] … [65] In short, the Commission was concerned to limit the topics on which the examination of unfavourable witnesses could take place, but wished to permit cross-examination relating to those topics even though it went only to the credibility of the witness’s evidence about those topics.

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R v Le cont. [66] One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence-in-chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity. [67] In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness’s credibility on the s 38(1) subjects.

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Did the Crown adopt the right course in calling Amber O’Brien? [68] There is no reason to suppose that the Crown believed Amber O’Brien would tell untruths in the sense of departing in chief from the answers given in her police interview of 18 July 1997. Obviously the Crown saw that as a possibility, perhaps a strong possibility, and had prepared itself to deal with that possibility. But it was not a certainty. Contrary to some of the suggestions advanced by the appellant, it was not improper for Amber O’Brien to be called by the Crown. No ground of appeal complained of her having been called, and no amendment to the Notice of Appeal was applied for when this circumstance was pointed out. In fact it was the Crown’s duty to call Amber O’Brien, and if it had not called her that fact would have been made the subject of a ground of appeal. It was the Crown’s duty to call her because of her 18 July 1997 record of interview, her occupancy of the room where drugs equipment was found, and her presence in the townhouse where the drugs themselves were found. She was essential to the unfolding of the narrative underlying the Crown case. Obviously she was a reliable witness in the sense that one of her two versions must have been reliable: the question was – which? She was not an unreliable witness who had given many versions, all of questionable reliability; or a person whose single version was demonstrably false; or a person whose reliability was doubtful because of some mental disturbance. It was not correct to describe the calling of Amber O’Brien as an improper introduction of a “straw person” simply for the purpose of tainting the accused. The whole history of the matter made it inevitable that she be called. The obligation to call a witness does not create an obligation to embrace and accept whatever that witness says: the very existence of s 38 reinforces an obligation to test what is said in the interests of justice. Defence counsel did not protest at the calling of Amber O’Brien by the Crown, no doubt for the very good reason that she afforded him a highly unusual and potentially powerful weapon. Her evidence-in-chief cannot have surprised him, and he could have made considerable progress towards an acquittal by pointing out to the jury what she might lose by giving her evidence (without any protection under the Evidence Act s 128), and that so young and vulnerable a woman had no reason to damage her own interests unless she was telling the truth. For the Crown to have permitted that possible line to remain open in an unqualified way without legitimate testing of her position in a s 38 examination would have been damaging to the public interest and the administration of justice. The appellant suggested that if the Crown were to call her it should have done no more than call her, elicit her name, address and occupation, and leave her to be cross-examined by the appellant. Had this been done, she would no doubt have given the evidence in cross-examination which she in fact gave in chief exculpating

Part 2 — Adducing Evidence

R v Le cont. the appellant, and it might have been very difficult for the Crown to obtain leave to conduct s 38 questioning in re-examination: see s 38(4). It is hard to see how in any sense justice would have been furthered by the course proposed by the appellant. Evaluation of the appellant’s suggested procedure [69] In R v Novac (1976) 65 Cr App R 109 at 119 Bridge LJ, Wien and Jones JJ said: In jury trial brevity and simplicity are the hand-maidens of justice, length and complexity its enemies. [70] One factor tending to make jury trials longer and more complex is the practice of excessive applications being made in the absence of the jury. Ideally the evidence tendered to the jury will flow not only logically but smoothly. Conventional court sitting hours are appropriate periods within which the jury can concentrate on the evidence as it is given. Concentration is enhanced if interruptions of indeterminate and unpredictable length are avoided. That is why judges customarily endeavour to channel applications into periods of short adjournments during the day, or periods at the end of or the start of each day’s proceedings.

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[71] Another reason for that approach is that the frequent sending of jurors out of court is likely to exacerbate unduly a sense on the part of the jurors that they are not participating fully in the trial and that important matters are being discussed secretly in their absence. That in turn may provoke a desire to speculate, perhaps misleadingly, about what it is that is being discussed in their absence. [72] Further, the position of counsel must be considered. Though counsel conducting questioning under s 38 are not strictly cross-examining, the witness being questioned is ex hypothesi a witness over whose credibility there is a cloud and who may give quite unpredictable answers. It is not easy for counsel to be sure, at the time when any s 38 application is made, whether the terms of the leave requested will be adequate to cover all circumstances. Section 38 questioning, like cross-examination, must be permitted to have a measure of freedom. Truth will often out when counsel who is asking the questions turns out to be a little more quick-witted than the witness. The legitimate exploitation by counsel of any advantages they have in this respect is wrongly impeded if their questioning is artificially interrupted, whether by events external to the trial, or non-responsive answers from the witness, or captious objections, or the need to seek further grants of leave under s 38 at short intervals. Counsel questioning pursuant to s 38 must be able to adjust to meet new circumstances quickly, without the witness being able to take advantage of intervals in which new s 38 applications are made as opportunities to have a rest or reconsider the posture to be adopted in manoeuvring to meet the different challenges made by the questioner. [73] The technique advocated by the appellant cuts across all these considerations. No doubt it will often not be right to grant leave to ask s 38 questions on the widest possible basis at the outset. But it will often not be right for the court to distribute small dollops of leave in response to repeated smallscale applications. That would produce a stop–start approach to questions which is likely to be ineffective, likely to distract the jury as they go in and out, likely to lengthen the trial, and likely to make it more complex. It is a question of judgment to be made in the circumstances of each case what the extent of a particular grant of leave should be, and how far the questioner should be forced to make more than one application. Where was the prejudice alleged? [74] Here there were virtually no objections to the questions now said to be prejudicial. There was no attempt to clarify the extent of the leave granted and no attempt to contend that particular questions as they were asked went beyond the leave granted. It is a fair inference that in the atmosphere of the trial defence counsel did not perceive the questioning to be unfairly prejudicial. [75] The appellant’s submission that the questioning of the witness, in view of her dishonesty, would have a prejudicial effect on the appellant ignores the necessities of the circumstances. At trial, the

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R v Le cont. appellant’s position was that notwithstanding what he said to the police, the drugs were not his. At the trial, Amber O’Brien’s position was that notwithstanding what she said to the police, the drugs were hers. On 18 July 1997 each had adopted a position which was the opposite of that adopted at the trial. The two versions at the different times were so interwoven that a consideration of one necessarily had an impact on the other. The central issue was: “Was the accused innocent because she is guilty?” Her evidence went directly to that issue, and that made a s 38 examination of a searching kind justifiable. It is inaccurate to describe the s 38 examination, as the appellant’s written submissions repeatedly did, as going merely to “credibility” in the sense in which that expression is generally understood. Not only did she change her version, but it coincided with a change in his version in the sense that as early as the Port Macquarie hearing in May 1999 he was contending that his confession was false and she, according to her evidence before Coolahan DCJ, told the accused’s lawyers that the heroin was not his. There was an identity of motive alleged, too: each said at the trial that their records of interview on 18 July 1997 were false because of police pressure, though in addition he said he wished to protect her; by the time of the trial, she said she wished to protect him. In Palmer v R (1998) 193 CLR 1 at [51] McHugh J said that “in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where … the witness is a participant in the very facts-in-issue or the only eye witness to them”. This is a case of that kind. She lived in the appellant’s townhouse, she slept in the room where drug-related equipment was found, and she was present when the police found the drugs.

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[76] The trial judge, though he erred in the process by which he decided to grant leave under s 38, did not err in granting leave on too wide a basis. It was legitimate to grant leave which would permit an examination of what was said and what was not said on particular occasions, what the circumstances affecting the various occasions were, and what particular reasons the witness might have for having behaved in particular ways on particular occasions. [77] It is, of course, possible that even though leave was granted in appropriate terms, the particular questioning pursuant to that leave might have led to a miscarriage. It is also possible that questioning going beyond the terms of the leave might have led to a miscarriage. That depends upon an analysis of the particular questions. [78] So far as the appellant complains about questioning to do with the fact that before her police interview on 18 July 1997 Amber O’Brien was able to wait in the foyer of the police station for her mother to arrive, had an opportunity to think about the morning’s events, had a further opportunity to do so in the hours before being interviewed, and did not tell either the police officers or her mother that it was she and not the appellant who was guilty, the questioning was permissible. It went to the reliability of the two versions. It showed that she had every opportunity to consider her position and tell the police the truth at a time when the relevant events were fresh in her mind. It was not unreasonable to suggest to the witness that if she was in truth the owner and primary intended user of the heroin and if she in truth obtained it from someone other than the appellant, it was surprising that she did not protest to the police and exculpate the appellant there and then. After all, she was cohabiting with him. Her failure to protest, unless explained, increased the probability of her record of interview being correct, and the improbability of her evidence-in-chief being correct. It was not unreasonable to elicit from the witness the fact that she had had time to collect her thoughts both before her mother arrived and before the interview began. Even if it can be said that the questions “went solely to credibility”, the judge’s order permitted that. In a sense they did not go “solely” to credibility, because the material was clearly connected to what had actually happened in preceding days at the witness’s flat. But if they went solely to credibility, they were capable of adducing evidence of substantial probative value, because one factor which s 103(2)(a) makes relevant to the court’s decision about whether the evidence has “substantial probative value” within the meaning of s 103(1) is whether the evidence tended to prove that the witness knowingly made a false representation while under an obligation to tell the truth. The evidence elicited did tend to prove that – and not on some wholly unrelated occasion, but in the course of her own evidence-inchief a handful of questions earlier.

Part 2 — Adducing Evidence

R v Le cont.

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[79] While in the circumstances a person in the position of the witness might panic and choose not to tell the police what she much later said was the truth, it would have been likelier that she would have told her mother that the heroin was hers. The explanations which she gave were for the jury’s consideration in relation to issues at the heart of the case. The question about whether the mother had made a statement to the police might be objectionable, but it was not objected to and was of no prejudicial effect. [80] The next controversial group of questions concerns what happened at court at Port Macquarie. The leave granted was leave to ask questions about “what was said on the voir dire, or not said on the voir dire, or at a trial at Port Macquarie in May ‘99”. Some of the questioning in relation to Port Macquarie went beyond this. To some extent the questioning also assumed that the witness had complete freedom as to what she might say. Failure to disclose a matter in answer to questions at a judicial hearing might be significant if an answer to a particular question in purported compliance with a duty to tell the truth, the whole truth and nothing but the truth on the subject of that question did not comply with that duty by reason of the failure. But there could be compliance with that duty even though the witness did not disclose everything she knew. The s 38 examination of the witness elicited the answer that though she was about the same distance from Luland DCJ as she was from Coolahan DCJ, she did not tell him that the heroin was hers. Whether that was significant, and whether it was within the leave granted, depended on whether she was asked a question which, had she complied with her duty, should have called for disclosure of that fact. This is a matter which could have been, and was, cleared up in cross-examination of the witness by counsel for the appellant. The witness also admitted that she had failed to tell the appellant’s solicitor or barrister that the heroin was hers (as distinct from not being the appellant’s). That was not a matter on which s 38 leave had been granted in terms. However, the questioning was relevant to the bases on which leave was granted, because the witness’s silence was inconsistent with her evidence-in-chief so far as she said in chief that the heroin was hers, and inconsistent with the record of interview so far as she said it was not the appellant’s. This was legitimate questioning as to credit on subjects very closely connected to both her evidence-inchief and the record of interview. If it had been thought that the questioning went beyond the terms of the leave granted, an objection could have been made, but probably the only consequence would have been a widening of the terms of the leave. And again, the cross-examination by counsel for the appellant established that no lawyer appearing for either Crown or defence asked her any questions outside the court. [81] So far as the questioning related to events in the witness’s flat after the police arrived, it was permissible even though it may have been outside the terms of the leave. So far as it challenged the witness’s credit, it assisted the jury in deciding whether her evidence-in-chief about heroin possession and her statements in the record of interview about not possessing heroin, were reliable or not. [82] So far as the questioning concerned her grogginess on the morning of 18 July 1997, it was relevant to why she did not disclose her ownership of the heroin. The questioning tended to negate a possible explanation for the inconsistencies she was being cross-examined about. The questions about whether her explanation for the changed story was that she felt guilty about the position of the appellant, or was trying to cover up for him, were permissible. Her explanation that she changed her story because she had been tormented by conscience for years ever since 18 July 1997 was legitimately tested in view of her silence on 18 July 1997 and at Port Macquarie. [83] The questioning about the witness’s habit of weighing drugs for a dealer in return for being given drugs, and her use of plastic bags and scales to weigh horse food supplements, was legitimate testing of the substance of the difference between her versions, namely that on one version it was she who cut and possessed the heroin, while on the other she had no role. [84] So far as the appellant complained about the tone of the questioning, nothing in s 38 prevents questioning pursuant to leave granted under that section from being aggressive and confrontational. If there was any vice in particular questions, and in particular if particular questions contravened s 41,

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R v Le cont.

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that was a matter for particular objection, and by itself no offending question could have caused any risk of a miscarriage of justice. The same is true of the questions in re-examination. [85] So far as the appellant complained about the absence of any basis for suggesting a motive for the changed story, there was evidence capable of supporting the motive suggested. The witness made a prior written statement in November 2000, and gave a record of interview on 20 November 2000, departing from what she had told the police on 18 July 1997. Her evidence-in-chief conformed to the November statements. The car was transferred into her name in January 2001. There was documentary evidence that that was the fact. At one stage the witness said that the car was not her car, but the accused’s father’s car. Then she changed her evidence and said that it was in her name, but was the accused’s father’s car. The question to which she gave the earlier answer was one which permitted her to reveal the whole truth on the point if she had then desired to do so: indeed it compelled her to. This coincidence of events, coupled with the unsatisfactory manner in which the witness gave her evidence about car ownership, supported a circumstantial inference. Whether the witness’s denial that the coincidence was significant was acceptable and whether her assertion that she only wanted to tell the truth at the trial was to be accepted were matters for the jury. The circumstances must have caused the jury to inquire why the witness had changed stories. The appellant does not now complain of the putting before the jury of the inconsistent versions. What the Crown prosecutor did was no more than to explore possible reasons why the version may have changed. Further, the fact that the appellant and Amber O’Brien changed their versions in a manner paralleling each other must have given rise to a suspicion of collusion. The Crown was entitled to rely on that. The Crown submitted to the jury that there was collusion, aided by the gift of the car. If the Crown was to make that unsurprising submission of the obvious, namely that there was collusion, and give it concreteness by reference to the car evidence, it was obliged to put that line to Amber O’Brien as a matter of fairness, as it also did in relation to the accused. In short, the whole history of the matter left it open to the jury to ask: Why have both stories changed so radically? The Crown tactics in the s 38 examination and in address were fair, rather than unfair, because they brought out into the open, for consideration by Amber O’Brien and the appellant, and exposed for the jury one possible explanation of a specific kind. Were the questions intrinsically prejudicial? [86] To some extent the appellant’s argument concentrated on the form of the questions asked, without regard to the answers. The appellant submitted that where there was a witness like Amber O’Brien who was “demonstrably unreliable”, who had given “wildly inconsistent versions” of the facts in issue, and who had “some relationship” with the appellant, there was a risk of the jury being unfairly prejudiced by such questions as “you are here lying to protect him and he has given you a car to do it …”. The risk of prejudice lay in the fact of the questions because the jury might ignore a denial given in answer in view of the witness’s unreliability and friendliness to the appellant. [87] Sections 135 and 137 deal with prejudice. They do not control questions as such, only the evidence which may be given in answer to questions. If a question is likely to elicit an answer which is prejudicial, it may be objected to. If a question is likely to elicit an answer which is not prejudicial, it is not objectionable merely because a different answer would be prejudicial. In the s 38 examination Amber O’Brien generally gave answers which were favourable to the appellant. It is therefore hard to see that they were prejudicial, for if the jury accepted the answers the appellant’s position would be strengthened, not prejudiced. To assume, as the appellant’s argument does, that the jury would ignore answers favourable to the appellant is simply baseless speculation. It was open to the jury to reject the answers and form a correspondingly diminished opinion of her credibility. Contrary to the appellant’s submissions, that would not have been unfairly prejudicial to the appellant. It would have weakened evidence otherwise favouring him, but it would have cast light on where the truth, so far as Amber O’Brien could report it, lay. Not only was the actual evidence not unfairly prejudicial, but the questions were not either. Further, if there was any prejudice which was curable it could have been cured in the summing-up; if it was incurable, the jury could have been discharged. In [103] the

Part 2 — Adducing Evidence

R v Le cont. merits of the summing up are pointed out, together with the inferences which flow from the fact that experienced defence counsel did not seek either a redirection or a jury discharge. The relevance of R v Hogan

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[88] R v Hogan is not a case giving any strong guidance to the answer in the present case. It is true that in that case, like this, the trial judge erred in not taking into account s 192 in deciding whether to grant leave under s 38. But the case was radically different. The consequence of leave being granted in R v Hogan apparently was that numerous additional witnesses were called and several complex side issues arose about the criminal and other misconduct of members of the Golby family. The present case, in contrast, raised quite confined issues. Amber O’Brien and the appellant agreed in their interviews with the police on 18 July 1997 that the drugs were his not hers; in her later statement, her evidence-in-chief, and his evidence-in-chief, they reversed positions and said they were hers, not his. There was no difficulty in proving the inconsistent statements which were made to the police and recorded, whereas in R v Hogan some were made to third parties. There was significant evidence against the appellant by reason of what the police observed at the flat occupied by him and Amber O’Brien. The controversy was a confined one. An investigation of why Amber O’Brien might change her story was neither irrelevant nor excessively prejudicial. In short, as discussed in [75] above, this was a case where the credibility of Amber O’Brien and the issue of whether it was she or the accused who was guilty were closely entwined. [89] The aspect of R v Hogan on which the appellant relies is the allowing of the appeal on the ground that the application of s 38 caused the focus of the trial to shift from the issue whether the appellant was guilty of maliciously inflicting grievous bodily harm to the issue of whether Rachel Golby was lying to protect the appellant. Here the issue of the appellant’s guilt and the witness’s allegedly lying evidence-in-chief were much more closely linked. If she was telling the truth on oath, he was innocent. If she was lying on oath but telling the truth on 18 July 1997, he was not innocent. Whether she was lying was an issue partly turning on whether she had a motive to. Conclusion [90] Had the trial judge approached the questions properly, even if objections had been taken by counsel for the appellant appearing at the trial conforming with those which counsel appearing for him on the appeal said should have been taken, he would have ended up permitting questioning substantially to the effect of that which in fact took place (omitting a handful of excessively offensive or vague questions of no significance). In particular, he could legitimately, and would, have reached the following conclusions. Section 38 permits the testing of the evidence-in-chief with a view to establishing the probability of the truth of the matters asserted in the prior inconsistent statement. Hence it permits examination of the witness on matters of credit with a view to the jury accepting the prior inconsistent statement and rejecting the later sworn evidence. It also permits an examination of the background at the time with which the statements are dealing, the background at the time when the prior inconsistent statement is made, and the background at the time when the witness moves to a version different from the prior inconsistent statement. It permits an inquiry into the possible reasons for the change, including the motives for the change. Judicial rulings which prevented these techniques being employed where application is made for leave to question under s 38 would not be giving full effect to the section. Hence the failure of the trial judge to take account of s 192 or s 135 or s 137 is immaterial. So is the fact that the trial judge did not grant the leave in small, precisely defined segments. So is the possible extent to which the questions asked went beyond the leave actually given, for they were within the leave which could have been given. Independently of whether the parties raise the question, account must always be taken of s 192 and, in criminal cases, of s 137. In practice account will usually also be taken of s 135, though in criminal cases its operation overlaps very significantly with that of s 137. If leave is granted under s 38, the recipient should not go beyond it without a further application for leave. In these last-mentioned respects the trial did not proceed satisfactorily, doubtless because the trial judge received no assistance from the parties in these respects.

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R v Le cont. The different proposition advanced by the appellant that trial judges should grant leave in small precisely defined segments may apply validly in some cases. Indeed some support for a limited version of the appellant’s approach appears in R v Hogan [2001] NSWCCA 292 at [80]-[81]. But it has not been demonstrated that that approach is a sound criticism of the trial judge in the present case. However, whether the trial judge was technically open to criticism or not for the way in which the s 38 questioning was allowed and prosecuted, in my opinion no unfairness arose as a result of what happened. (Appeal dismissed.)

 Cross-examination [2.310] “Cross-examination” is defined in cl 2(2) of Pt 2 of the Dictionary to the Act to refer to the questioning of a witness by a party other than the party that called the witness. Section 40 prohibits cross-examination of a witness called in error. Section 41 permits a court to disallow certain types of improper question. The common law also characterises certain types of question as improper. In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Heydon J discusses different kinds of improper questions.

Libke v The Queen

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[2.320] Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Facts [This appeal to the High Court was brought on the basis of inappropriate cross-examination and comments made by the prosecutor. For example, sometimes the comment took the form of putting a proposition to the appellant (“I put it to you your evidence is just a tissue of lies”), or the prosecutor directly intruded his own views about the worth of the appellant’s evidence (“Look, I’ve heard all of that. I’m trying to convey to you I’m not buying it”). The cross-examination extended over 44 pages of transcript. A majority of the High Court (Gleeson CJ, Hayne and Heydon JJ, Kirby J and Callinan J dissenting) concluded that, in the absence of any defence objection to the cross-examination, the accused still received a fair trial and dismissed the appeal. However, Heydon J provided a useful discussion of the limits of permissible cross-examination.] Judgment HEYDON J (footnotes omitted): … [118] There were many respects in which the cross-examination of the appellant was in breach of ethical duties flowing from the position of the cross-examiner as counsel for the prosecution, and in breach of other ethical duties. For present purposes, what is important is that those breaches were also breaches of rules established by the law of evidence. While breaches of these evidentiary rules do not often result in appeals being allowed, while there are relatively few reported cases about them, and while writers have given less attention to them than to more fashionable or interesting subjects, there is no doubt that they exist and no doubt that they are well settled. [119] They are rules which necessarily developed over time once it came to be established that oral evidence should be elicited, not by means of witnesses delivering statements, and not through questioning by the court, but by means of answers given to a succession of particular questions put, usually by an advocate, and often in leading form. A cross-examiner is entitled to ask quite confined questions,

Part 2 — Adducing Evidence

Libke v The Queen cont. and to insist, at the peril of matters being taken further in a re-examination which is outside the crossexaminer’s control, not only that there be an answer fully responding to each question, but also that there be no more than an answer. By these means a cross-examiner is entitled to seek to cut down the effect of answers given in chief, to elicit additional evidence favourable to the cross-examiner’s client, and to attack the credit of the witness, while ensuring that the hand of the party calling the witness is not mended by the witness thrusting on the cross-examiner in non-responsive answers evidence which that witness may have failed to give in chief. To this end a cross-examiner is given considerable power to limit the witness’s answers and to control the witness in many other ways. [120] “Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness.” Hence the powers given to cross-examiners are given on conditions, and among the relevant conditions are those which underlie the rules of evidence contravened in this case. Offensive questioning [121] The most striking characteristic of the cross-examination in this case was its wild, uncontrolled and offensive character.

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[122] A prosecutor must “conduct himself with restraint and with due regard to the rights and dignity of accused persons. A cross-examination must naturally be as full and effective as possible, but it is unbecoming in a legal representative – especially in a prosecutor – to subject a witness, and particularly an accused person who is a witness, to a harassing and badgering cross-examination”. One reason why there is a rule prohibiting this type of questioning was put thus by Wigmore: An intimidating manner in putting questions may so coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to such demeanor and utterance that the impression produced by his statements does not do justice to his real testimonial value. (emphasis in original) Another was advanced by Lord Langdale MR when he deprecated “the confusion occasioned by cross-examination, as it is too often conducted”, for it tended to “give rise to important errors and omissions”. Yet another was suggested by an American judge: “a mind rudely assailed, naturally shuts itself against its assailant, and reluctantly communicates the truths that it possesses.” [123] In this case the questioning was conducted “without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law”, and, as a result, it was “indefensible”. The cross-examination was improper because it was “calculated to humiliate, belittle and break the witness”. Its tone “was often sarcastic, personally abusive and derisive”. It resorted to remarks “in the nature of a taunt”. It amounted to “bullying, intimidation, personal vilification or insult”, none of which is permissible. [124] The cross-examination not only offended these common law rules. Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977 (Qld). Comments [125] The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he “regularly injected his personal views and editorial comments into the questions he was asking”. One vice of comments made in the course of questioning is that although they may be potentially damaging in the jury’s eyes, they are not questions, and thus the witness has no opportunity of dealing with the sting in the comments. Another

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Libke v The Queen cont. vice is that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to the comments – particularly where it is counsel for the prosecution who chooses “to throw the weight of his office” into the case. The time for comments, at least legitimate ones – for disparaging comments based on evidence or the lack of it can be legitimate – is the time of final address. “Statements of counsel’s personal opinion have no place in a cross-examination.” The role of prosecution counsel in the administration of justice should not be “personalised”. Their own beliefs should not be “injected” into the case. Thus in R v Hardy junior counsel (the future Gibbs J) for one of the accused asked a witness who had attended certain allegedly seditious meetings: “Then you were never at any of those meetings but in the character of a spy?” The future Lord Ellenborough CJ, appearing for the prosecution, objected to this line of questioning. Eyre LCJ said to defence counsel: [Y]our questions ought not to be accompanied with those sort of comments: they are the proper subjects of observation when the defence is made. The business of a cross-examination is to ask to all sorts of acts, to probe a witness as closely as you can; but it is not the object of a cross-examination, to introduce that kind of periphrasis as you have just done. After junior counsel for the accused sent for leading counsel (the future Lord Erskine LC), and the point was debated further, Eyre LCJ upheld the objection:

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I think it is so clear that the questions that are put are not to be loaded with all of the observations that arise upon all the previous parts of the case, they tend so to distract the attention of every body, they load us in point of time so much, and that that is not the time for observation upon the character and situation of a witness is so apparent, that as a rule of evidence it ought never to be departed from … [126] Comments are particularly objectionable when they are sarcastic or insulting. They are even more objectionable when they are statements indicating the personal belief of prosecution counsel in the credibility or guilt of the accused: that is not something to be said in address, and a fortiori is not something to be said during questioning. Compound questions [127] Partly by reason of the interspersing of both comments and questions between the accused’s answers, and partly by reason of other defects in the form of the questions, some “questions” asked during this cross-examination were not single questions, but were compound questions. “A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address.” But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer – either “Yes” or “No”. Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. Some “questions” asked in this case contained at least four questions within them. Cutting off answers before they were completed [128] On occasion during his cross-examination the accused’s answers were cut off either by a comment or by some further question even though it was clear that there was more which the accused wished to say. “Evidence should ordinarily be given without interruption by counsel.” The cutting off of an answer by a further question, though always to be avoided as far as possible, can happen innocently when a questioner is pursuing a witness vigorously and the witness pauses in such a

Part 2 — Adducing Evidence

Libke v The Queen cont. fashion as to suggest that the answer is complete; it can happen legitimately if a witness’s answer is non-responsive. But very few of the interruptions here can be explained away on these bases. They were usually interruptions of responsive answers, often by offensive observations. The rule against the cutting off of a witness’s answer follows from the encouragement which the law gives to short, precise and single questions. It is not fair to ask a question which is disparaging of or otherwise damaging to a witness and to cut off an answer which the cross-examiner does not like. The right of a cross-examiner to control a witness does not entail a power to prevent the witness from giving any evidence other than that which favours the cross-examiner’s client. Questions resting on controversial assumptions

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[129] The cross-examiner on occasion alleged that the accused was inventing evidence when in fact the proposition supposedly invented corresponded with evidence given by the complainant in the prosecution case. The cross-examiner also put implicitly unfounded assertions that the accused was being evasive. And the cross-examiner, in putting a question about the accused’s dishonesty, wrapped up in it an assumption that there had been an earlier and different piece of dishonesty. [130] A question put in chief which assumes a fact in controversy is leading and objectionable, “because it affords the willing witness a suggestion of a fact which he might otherwise not have stated to the same effect”. While leading questions in the cross-examination of non-favourable witnesses are not intrinsically objectionable, “[w]itnesses should not be cross-examined on the assumption that they have testified to facts regarding which they have given no testimony. Such questions have a tendency to irritate, confuse and mislead the witness, the parties and their counsel, the jury and the presiding judge, and they embarrass the administration of justice”. This is because a leading question put in cross-examination which assumes a fact in controversy, or assumes that the witness has in chief or earlier in cross-examination given particular evidence which has not been given, “may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which is not his”. A further vice in this type of questioning is: “An affirmative and a negative answer may be almost equally damaging, and a perfectly honest witness may give a bad impression because he cannot answer directly, but has to enter on an explanation.” Questions of this character are misleading and confusing, within the meaning of both the statutory and common law rules. Argumentative questions [131] Another vice in the questioning in this case stemmed from the fact that some of the questions and observations of counsel for the prosecution did not seek to elicit factual information, but rather provided merely an invitation to argument. Examples include: “That doesn’t tell us much, does it?”, “Look, I’m giving you every opportunity?”, “I’ll shift to another topic whenever you’re prepared to finish it”, and “We want honesty at all times, of course”. In form these remarks seemed apt to trigger a debate about how much the accused’s hearers had been told, whether he was being given every opportunity, whether he had finished a topic, and whether he was being honest. The vice in a particular type of argumentative cross-examination was described thus by the English Court of Appeal: One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: “I suggest to you that …” or “Is your evidence to be taken as suggesting that …?” If the witness were a prudent person he would say, with the highest degree of politeness: “What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.” An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the

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Libke v The Queen cont. conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact. Like several other of the rules discussed above, the rule against argumentative questioning rests on the need not to mislead or confuse witnesses. The effect of the rules on the value of testimony [132] It is not unique in the law of evidence to find that the more closely the rules for admissibility are complied with, the greater the utility of the testimony from the point of view of the party eliciting it. It is certainly the case in this field. The rules permit a steady, methodical destruction of the case advanced by the party calling the witness, and compliance with them prevents undue sympathy for the witness developing. It is perfectly possible to conduct a rigorous, testing, thorough, aggressive and determined cross-examination while preserving the most scrupulous courtesy and calmness. From the point of view of cross-examiners, it is much more efficient to comply with the rules than not to do so.

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Role of the judge [133] It was open to counsel for the accused to object to the questions criticised earlier, but there was no objection. He could well have judged that it was prudent not to do so. However, the permissibility of questioning of the type criticised in this case does not depend solely on whether there are objections from counsel representing the party calling the witness. “The failure of counsel to object does not ... give Crown counsel carte blanche ...”. Trial judges have a responsibility independently of objections to prevent this type of questioning being employed. “If counsel begin to misbehave [the trial judge] must at once exert his authority to require the observance of accepted standards of conduct.” Here the trial judge occasionally intervened to control the witness’s answers, but never to control counsel’s questions.

 Cross-examination – leading questions and previous statements [2.330] Section 42 permits a “leading question” in cross-examination unless the court disallows it. Section 43 deals with cross-examination of a witness about a previous statement of the witness which is inconsistent with the evidence given by the witness. In Aslett v The Queen [2006] NSWCCA 49, Barr J (with whom Spigelman CJ and Howie J agreed) explained that s 43 imposes procedural requirements on the cross-examiner in circumstances where the crossexaminer wishes to adduce evidence of the prior inconsistent statement and the witness does not admit making the prior inconsistent statement. The admissibility of the prior inconsistent statement will depend on Ch 3 of the Act (in particular Pts 3.1, 3.2 and 3.7). Barr J said: [75] Section 43 lies in Chapter 2 of the Act, which is concerned with adducing evidence. The sections dealing with the hearsay rule and its exceptions fall within Chapter 3, which is concerned with the admissibility of evidence. Section 43(2) is not intended to cover every instance of reliance on a prior inconsistent statement of a witness or to deal in general terms with its admissibility. The purpose of the section is to ensure that if a party intends to adduce evidence of a prior inconsistent statement “otherwise than from the witness” that the witness refuses to

Part 2 — Adducing Evidence

acknowledge, that party may only do so after drawing to the witness’ attention the circumstances of the statement so that the witness can identify it and the inconsistency the crossexaminer is asserting. The purpose is to ensure that such a witness has a proper opportunity to consider precisely what he or she is asserted to have said and precisely how that is asserted to be inconsistent with what the witness now says. Subs (2) is in its terms limited to the things that must happen when a witness does not admit having made an inconsistent statement. It says nothing about what may or must or must not happen in other circumstances, for example, where the witness admits having made a prior inconsistent statement. [76] Subs (2) draws on pre-Evidence Act 1995 law about the use of prior inconsistent statements. Before the commencement of the present Evidence Act such statements, when admissible, were relevant only to the credit of the witness who made them. If their making was admitted, therefore, there was no purpose in tendering them:  Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498. Under the modern law, on the other hand, there is a purpose in tendering such statements beyond any attack on credibility, namely proof of the facts asserted: s 60. Nothing in s 43 is directed to the admissibility of any prior inconsistent statement to prove the truth of its assertions. All subs (2) does is ensure that a witness who is about to be attacked on credit is fairly dealt with. Nothing in s 43 purports to limit the effect of ss 38, 103 or 60.

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Section 44 deals with cross-examination of a witness about a statement made by some other person. Where a statement which has been the subject of cross-examination under either of these provisions is contained within a document, s 45 regulates the production and use of the document. The rule in Browne v Dunn [2.340] Section 46 deals with one possible consequence of a breach of the common law rule of procedural fairness usually referred to as “the rule in Browne v Dunn”: read MWJ v The Queen at [38] for a statement of the rule. The case from which the rule arose is provided at [2.350]. The appropriate remedy for a breach of the rule will depend upon the circumstances of the particular case. The cases provide examples of the different remedies that might be appropriate. In Payless Superbarn (NSW) Pty Ltd v O’Gara the trial judge refused to allow a party to tender evidence that would contradict the testimony provided by the other side. R v Birks and MWJ v The Queen demonstrate that the rule needs to be applied with care to the conduct of the defence in a criminal trial. Sometimes, as R v SWC demonstrates, breach of the rule may actually require the trial to be started again.

Browne v Dunn [2.350] Browne v Dunn (1893) 6 R 67 Facts [Appeal from the judgment of the Court of Appeal ordering that a verdict for the plaintiff be set aside and that judgment be entered for the defendant. A libel action was brought by the appellant against the respondent. The respondent was a solicitor. The appellant alleged that the libel was contained in the following document, which the respondent had had drawn up by his clerk and had exhibited to the persons who signed it, for the purpose of obtaining their authority to take proceedings against the plaintiff: To Mr Cecil W Dunn, The Vale, Hampstead. We, the undersigned residents in the Vale of Health, Hampstead, NW, hereby authorize and request you to appear before the magistrates sitting at the Hampstead Police Court

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Browne v Dunn cont. on Wednesday, the 5th day of August, 1891, and apply, on our behalf, respectively, in whatever way may seem proper and best, against James Loxham Browne, of Woodbine Cottage, The Vale, Hampstead, for a summons and order that the said James Loxham Browne, for the reason that he has continuously for many months past, both by acts and words, seriously annoyed us, and each of us, and other residents in the Vale aforesaid, whereby he has endeavoured to provoke a breach or breaches of the public peace or whereby a breach or breaches of the public peace has been in danger of being committed. That the said James Loxham Browne be bound over for such time as the said magistrates shall think fit, to keep the peace, or for such other order as the said magistrates shall deem proper to make. The document was dated 4 August, 1891, and was signed by the following persons: Samuel Hoch, S Jones, E Cooke, George McCombie, Thomas Henderson, William Schröder, Benjn Paine, R Henderson, H King. At the time this document was made the defendant and plaintiff were not on friendly terms, and the defendant knew that two summonses were to be heard the next morning before the local magistrates, one taken out by the plaintiff against Paine, one of the above signatories, for assault, the second taken out also by the plaintiff against Mrs Hoch, the wife of another signatory, for abusive language. On the morning appointed for the hearing, the defendant mentioned his application to the magistrates, but, at their request, postponed it until the summonses had been heard, and, on the hearing of a cross-summons by Paine, the plaintiff was bound over to keep the peace. The plaintiff subsequently discovered the document and brought, or threatened, actions of libel against all the parties to it.

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At the hearing of the action against the defendant, which was tried before Mathew J, it appeared that S Jones and E Cooke were a mother and daughter living together, and that Mrs Jones, the mother, had died before the trial. Mrs Cooke gave evidence for the plaintiff. All the rest of the signatories, except H King, who was not called, gave evidence for the defendant. At the trial, in the language of Lord Herschell, the case made on behalf of the plaintiff appears unquestionably to have been this, that the whole thing was a “sham”, that Mr Dunn did not draw up this document having information that people had this ground of complaint, and would desire to retain him as solicitor; but that it was a gratuitous affair, and merely carried out, without any honest or legitimate object, for the purpose of annoyance and injury to Mr Browne. The rest of the signatories who were called gave evidence (in the defendant’s case) which showed that they had really instructed the defendant as a solicitor, which had resulted in their signing the document. They were not cross-examined on this aspect of their evidence. McCombie and Hoch, whose evidence is set out in full in Lord Halsbury’s judgment, were not cross-examined at all, and the rest of these witnesses were only cross-examined as to the merits of the various quarrels they had had with the plaintiff. The only evidence as to King was that he had signed the document. The jury found a verdict for the plaintiff and assessed damages. The defendant appealed. The Court of Appeal set aside the verdict and entered judgment for the defendant. From this judgment the plaintiff now appealed.] Judgment (footnotes omitted) LORD HERSCHELL LC: [After reading the document, his Lordship stated the facts from which it arose, and said that it was hopeless for the appellant to contend, with regard to the six signatories who had given evidence for the defendant, that the document was not perfectly genuine, drawn up in a perfectly legitimate way, and really intended by the parties to be what it appeared on the face of it to be. On this subject his Lordship added:] These witnesses all of them depose to having suffered from such annoyances; they further depose to having consulted the defendant on the subject, and to having given him instructions which resulted

Part 2 — Adducing Evidence

Browne v Dunn cont.

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in their signing this document; and when they were called there was no suggestion made to them in cross-examination that that was not the case. Their evidence was taken; to some of them it was said, “I have no questions to ask;” in the case of others, their cross-examination was on a point quite beside the evidence to which I have just called attention. No, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. It seems to me, therefore, that it must certainly be taken that these witnesses, whether they were exaggerating somewhat Mr Browne’s acts towards them or not (that is immaterial), were telling the truth when they said, “We did bring before Mr Dunn the fact that we had these causes of complaint;” – that, at all events, was the impression which they produced on his mind; – “we did consult him about them, we did want him to act for us, and we did sign this document because we wanted him to act for us”. Now, my Lords, as regards all these persons, except the three whom I will deal with presently, the case is all one way. Having regard to the conduct of the case, it was not open to the learned counsel to ask the jury to disbelieve all their stories, and to come to the conclusion that nothing of the kind had passed. If that is so, there is an end of the case so far as it rests upon the whole of this transaction being a sham, and we start with this, that, as regards all these persons except three, it was a genuine transaction, because the solicitor was really asked to act by people who really felt themselves aggrieved. Now, my Lords, how is it possible to dispute that a communication of that sort was privileged? It seems to me, further, that there is no evidence of malice, because malice means making use of the occasion for some indirect purpose, that the transaction was not genuine, and was not really directed to that to which it appeared to be directed. Now it has been ingeniously argued that, as regards these persons, this document was shown to them before they signed it, and therefore before they retained Mr Dunn; that at that time he was not acting as their solicitor, and that therefore, although it was shown to them with a view to his acting, and although it resulted in their retaining him to act, yet there was a publication before any such relation existed between them. My Lords, of course that would not be true as regards the first signatory, and I refer to that because, as I threw out in the course of the argument, I am by no means prepared to adopt the view that was suggested and was said to extend even to the case of a shorthand writer, that a person to whom another communicated by word-of-mouth defamatory matter, and who wrote it down and merely handed it back to the person who made the communication,

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Browne v Dunn cont. would by so doing publish the defamatory matter. I am not prepared, as at present advised, to lay down such a proposition.

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But then it is said, as regards all except the first signatory (and no doubt with more plausibility in their case), that the document was shown signed already by certain people, and that when so shown at that moment there was publication, and at that moment there could be no privilege. Now, my Lords, I will assume that showing it under those circumstances was sufficient publication; but I cannot for a moment accede to the argument that the occasion was not a privileged one. I do not think that it was a point taken at the trial, because, as I say, the only point taken at the trial, as far as I can see, was that the whole thing was a sham: but it seems to me that when communications pass between a solicitor and those who he reasonably believes will desire to retain him, and to whom he makes a communication in relation to that, and who do retain him, the whole of those communications leading up to the retainer and relevant to it, and having that the whole occasion is throughout privileged. There is no authority. So far as I know, to the contrary, and it seems to me that to lay down any other doctrine would be very gravely contrary to the public interest. Therefore, my Lords, as regards this transaction the occasion appears to me to have been very clearly privileged, and I can see no evidence of malice. If the occasion was privileged in the sense to which I have alluded, and if the transaction was a genuine one, and what passed between people who were really desirous of retaining a solicitor, and that solicitor was not particularly friendly in his disposition towards the person against whom proceedings were to be taken does not take away the privilege or make the action a malicious action on his part in the eye of the law. Then it was said that the language of the document may be so extravagant and so much in excess of the necessities of the occasion that that of itself is evidence of malice. My Lords, I should not for a moment dispute that proposition; but in the present case I do not see anything in this document which is not strictly relevant to the purpose and object of the document. It may be that there were some unnecessary words in it, that a shorter form might have sufficed to serve the purpose; but the fact that the document is more full in its terms than is necessary certainly would not in itself be any indication of malice, unless you come to the conclusion that the words are put in such a way, or have such an effect, as to point to the conclusion that they were not put in for a legitimate purpose, but were put in with the object of defaming the plaintiff. I can see no evidence of that kind here. Now, my Lords, I for my own part conceive that when once that conclusion is arrived at there is an end of the case; because I do not think that any separate case was made at the trial as regards showing the document to Mrs Cook, Mrs Jones or Mr King. Nevertheless, that point having been made here, I will deal with it and will say a few words upon it. As regards Mr King, I will dismiss it at once; I see nothing in the point as regards Mr King. All that we know with respect to Mr King is that on the morning of the trial, or rather of the proposed application to the magistrates, Mr King signed this document at the Court. There is no suggestion that his reason for signing it was not that he was anxious to retain Mr Dunn. There is no evidence that he had never previously made any complaints or that he had not been a person who to Mr Dunn’s knowledge would be likely to sign such a document because he had represented himself as an aggrieved person. Having no evidence of that, we must take the document and the signatories. As regards Mrs Cook and Mrs Jones, we have certain facts proved by Mrs Cook. Mrs Cook’s case, as stated in her evidence, is that she did not know what was in this document at all, that she never read it, that something was said to her about Mr Browne but that as to the terms of the document and as to her assenting to them she did not assent to them because she did not read them. As regards Mrs Cook’s case, I confess that the dilemma seems to me to be complete. If she read this document and signed it, she has not even herself said that she did not understand what she read, or that she did not mean what she signed. Her only case is that she did not read it. If she signed it, she must be taken to have understood it, and to have meant what she said. If she did not read it, then there was no publication. Therefore it seems to me that, as regards her case, there is this absolute dilemma: either it was not published to her, or if it was published to her, she is in exactly the same position as the

Part 2 — Adducing Evidence

Browne v Dunn cont. other signatories, and she is not a person who can be regarded as a stranger to the entire transaction, because she herself had brought it home to Mr Dunn’s mind, not that she had been annoyed – she will not use that word – but that she had been at least worried, because she had been informed by the neighbours that Mr Browne had been in the habit of haunting her house, and she thought that it might prejudice her if her lodgers came to known of it. Therefore it is natural, as it seems to me, and in no way improper, that Mr Dunn having had that communication from her, and finding that other people thought that the nuisance had grown too intolerable to be submitted to, he should go to see Mrs Cook to ascertain whether she also would desire to put the matter into his hands, and to have the same steps taken. In that view of the case, as regards Mrs Cook, it seems to me that there is either no publication, or that her case is the same as that of the other signatories with whom I have already dealt. And so as regards Mrs Jones. We do not know the circumstances under which Mrs Jones signed. She was the mother of Mrs Cook, and living in the same house she would be certain to go and talk to her daughter about it; and, if she was confined to the house, she was at least as likely as any other inmate of the house to be annoyed. Under those circumstances she signs this document and I say that she must be taken to have intended Mr Dunn to act for her. What passed in relation to her signing the document was strictly confined to the matter relevant to the question of her employing him, as others had employed him, to act for her on account of Mr Browne’s proceedings. Therefore, my Lords, I cannot see anything here to entitle the plaintiff to rest his case upon the transactions with Mr King, Mrs Cook and Mrs Jones, unless it be a fact which would cut away the whole foundation for his case by showing that there was no publication. Under these circumstances, I submit to your Lordships that the judgment appealed from ought to be affirmed and the appeal dismissed. LORD HALSBURY:

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My Lords, I am entirely of the same opinion. [His Lordship then referred to a misdirection by the learned judge at the trial, which does not call for report and continued.] My Lords, I cannot but think that this case, although the amount involved is small, raises very important questions indeed. Amongst other questions, I think it raises a question as to the conduct of the trial itself, and the position in which people are placed, when, apart altogether from the actual issues raised by the written pleadings, the conduct of the parties has been such as to leave one or more questions to the jury, and those questions being determined, they come afterwards and strive to raise totally different questions, because, upon the evidence, it might have been open to the parties to raise those other questions. My Lords, it is one of the most familiar principles in the conduct of causes at Nisi Prius, that if you take one thing as the question to be determined by the jury, and apply yourself to that one thing, no Court would afterwards permit you to raise any other question. It would be intolerable, and it would lead to incessant litigation, if the rule were otherwise. I think Dr Blake Odgers has, with great candour, produced the authority of Martin v Great Northern Railway, which lays down what appears to me to be a very wholesome and sensible rule, namely, that you cannot take advantage afterwards of what was open to you on the pleadings, and what was open to you upon the evidence, if you have deliberately elected to fight another question, and have fought it, and have been beaten upon it. My Lords, so far as regards the conduct of the trial, it appears to me that nothing could be stronger than what the learned Judge himself said at the very commencement of his remarks in the presence of the learned counsel, who, if it was not accurate, were bound then and there to intervene and say so. The learned Judge says at the commencement of his summing-up, after he has introduced the fact to the jury: “We have to deal with the law in this matter and the case is fairly put by Mr Willis in the only way in which he could put it. He cannot ask you to treat this as a libel, unless you are satisfied that the whole thing was a sham got up by the defendant for the mere purpose of disparaging the character of the plaintiff.” My Lords, after that statement by the learned Judge, which is at the commencement of his summing-up, the learned counsel, not intervening at all, but allowing the learned Judge to leave that as the one question to the jury, it appears to me that it is absolutely hopeless, in any other Court,

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Browne v Dunn cont. afterwards to attempt to raise any other question than that which the learned counsel deliberately elected to allow the learned Judge at all events to leave to the jury as the only one which was to be put to them.

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My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. In this case I must say it would be an outrageous thing if I were asked to disbelieve what Mr Hoch says, and what Mr McCrombie says, after the conduct of the learned counsel when they were examined at the trial. Mr George McCombie is called and asked: “(Q) Did you give him any instructions? – (A) I said, could nothing be done to prevent Mr Browne annoying us as he was every night? (Q) Did you receive advice from him as to what could be done? – (A) Yes. (Q) Will you look at this document? Is that your signature? – (A) (Looking at the document.) Yes, Sir. (Q) Was that document brought to you by Mr. Dunn? – (A) I went around to his house. (Q) There you saw the document. Did you read it? – (A) I did. (Q) And signed it? – (A) Yes, I signed it. (Mr Willis) I have nothing to ask you.” My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff’s proceedings, that he did receive advice, that he went round to Mr Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all. My Lords, the same course was pursued with regard to Hoch. He says “Ever since the year 1888 he has constantly annoyed and insulted me, but only when there were no witnesses by – when I have been walking quietly out. He has sneered, grunted, sputtered, and occasionally burst into a brutal guffaw. That has been going on until the time when he was bound over to keep the peace, when it ceased. But since that time he has tried to resume these performances, only for a whole year and more I have persistently avoided meeting him, and so I have not given him any opportunity of insulting me.” “(Q) Did you give instructions to Mr Dunn to act for you? – (A) On that account. (Q) That was before the month of August, 1891? – (A) I forget the date. (Mr Willis) I have nothing to ask you, sir.” Therefore, here are two witnesses, who may be taken as examples of others, as to both of whom it cannot be denied that, if their evidence is true, they went to Mr Dunn and gave him instructions, and that the retainer was drawn up for the purpose of embodying the authority to Mr Dunn to act. Under those circumstances what question of fact remains? What is there now for the jury after that? If Mr Willis admits before the jury – as I say, by the absence of cross-examination, he does admit – that these statements are true, what is there for the jury? It is impossible, as it seems to me, therefore, to dispute for a moment that, in the manner in which this cause was conducted, that absolutely concluded the question. [His Lordship then expressed concurrence with the Lord Chancellor’s view as to the signatories who had not been called.] Now with all the materials before us, what has been suggested as otherwise than proved by these facts? As I have already said, the conduct of the cause seems to me to amount practically to an admission that there was, I will not call it a retainer, but an employment of Mr Dunn; I will not use any technical phrase, because I think Mr Willis, rightly enough, abandoned any argument derived from any particular force in the word “retainer” and used the word “employment”. I think there was an employment, because these witnesses, if they speak truly, did employ Mr Dunn to do the thing he did, and he did, and he did nothing but what he was employed to do, and so, then, as Mr Willis very candidly admitted yesterday, if he was really employed, there was an end of the case. That was the question on which the whole case turned at the trial, and if your Lordships were to send this case

Part 2 — Adducing Evidence

Browne v Dunn cont. now to a new trial it would only be sending it to be tried again with the direction to the judge that he must not, upon this evidence (for that is the test which we must apply, not upon any new evidence, but upon this evidence), leave the question of malice to the jury. I am of opinion that, if he did that, he would do wrong. That there was actual employment was admitted at the trial, because the learned counsel for the plaintiff refused to cross-examine the witnesses, who proved that which, if proved and correctly stated, did amount to employment. Therefore, my Lords, I entirely concur in the motion that this appeal be dismissed. LORD MORRIS: My Lords, I entirely concur with the judgment of the Lord Chancellor and of my noble and learned friend opposite. There are only one or two points upon which I should like to offer a few observations.

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In the first place, it appears to me that the learned Judge put the real question to the jury as to whether this alleged employment of Mr Dunn was a real and bona fide employment, or an unreal and sham employment in order to enable him maliciously to libel the plaintiff. That appears to me to have been the point which was put by the learned Judge, and it appears to me to have been the point upon which the whole trial went, and upon which the trial properly went, because, when one publication is proved that goes to the root of the entire controversy: the question was, was the employment a real one? If so, Mr Dunn was privileged. If it was an unreal one, he had no privilege – the whole thing was a sham, and he was acting maliciously. My Lords, there is another point upon which I would wish to guard myself, namely, with respect to laying down any hard and fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of the opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit. (Appeal dismissed.)

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Precision Plastics Pty Ltd v Demir [2.360] Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 Facts [Demir, a right-handed mother of four, suffered an injury at work where all four fingers and part of her thumb had to be amputated from her right hand. She successfully sued her employer for negligence. The jury’s award of damages was increased by the Court of Appeal. The employer appealed. The majority of the High Court found that the jury were bound to accept the uncontradicted and unchallenged evidence from the plaintiff that she would work until age 55. Barwick CJ dissented.]

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Precision Plastics Pty Ltd v Demir cont. Judgment BARWICK CJ (in dissent): [5] In ascertaining what was the view of the facts which the jury were reasonably entitled to take, having regard to the summing-up, it cannot properly, in my opinion, be said that there are any admitted facts or that there is relevant documentary material which make it unreasonable for the jury not to accept all that the plaintiff said in evidence. For instance, I am unable to accept the view in this case that the jury were bound to believe that the plaintiff would work till she was 55 years of age as she said she would. Nor were they bound to believe that, being a migrant, she was likely to do as some or perhaps the majority of migrant women do in relation to employment. The jury were, of course, bound to act reasonably. Evidently from their verdict they did not believe the plaintiff as to her working intentions. I could not accept the proposition that they were unreasonable in so doing. The trial judge in his summing-up told the jury: “You ask yourselves what would have happened if she had not been injured. She says she would have worked until she was at least fifty-five and I think she indicated she wanted to work until she died. It is a matter for you to use your commonsense about such a claim as that. On the one hand, as her counsel put to you, there are many many women in our community who do go on working for the rest of their lives. On the other hand, counsel for the defendant put to you that you might think it more probable this lady, having come here with her husband and with a young family, naturally would be able to work and would need to work for some years but as the children grew up and left school it may be her desire and need to work to earn money would fall off. It is a matter for you to consider that” (at p 365).

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[6] In my opinion, in obedience to this instruction, the jury could reasonably have taken the view that had the accident not happened, the plaintiff would not have continued in employment for more than a few years, assuming that in the ordinary course employment remained available to her – something which could not be regarded as certain (at p 365). GIBBS J (Stephen and Murphy JJ agreeing): 6... An important matter for the jury’s consideration was how long she would have been likely to remain in employment if she had not received her injuries. The respondent was asked in her examination-in-chief: “How long did you intend to continue working?” and replied: “I like to work very much. Until the age of fifty-five years old. Of course, until the last day until I died I like to work as far as work is concerned.” If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have had an opportunity of explanation (cf Browne v Dunn (1893) 6 R 67, at pp 76-77), but she was not in fact cross-examined on her answer. The respondent’s evidence that she intended to work until she reached the age of fifty-five was not inherently incredible. She had in fact been engaged in employment for most of the time during which she had been in Australia before the accident, and had only given up employment when it was necessary to care for her child. In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five. Of course, the jury were entitled to think that she might have changed her mind if her circumstances had altered, or that for one of many reasons she might have been unable to remain in employment for the whole of that period. Nevertheless, they would have been unreasonable to have taken any view other than that her loss of earning capacity was likely to cause her substantial economic loss. It was common ground that if she had remained in employment her net earnings at the date of the trial would have been about $66 per week (at p 371). (Appeal dismissed.)

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Part 2 — Adducing Evidence

Payless Superbarn (NSW) Pty Ltd v O’Gara [2.370] Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551 Facts [Mrs O’Gara slipped and fell down at Payless Superbarn, Goulburn. O’Gara injured her back and sued the supermarket for negligence. She gave evidence that she slipped upon grapes scattered on the floor. She was not cross-examined about the presence of grapes. The defence then called the supermarket manager who gave evidence that “there was nothing on the floor”. The trial judge directed the jury to disregard the manager’s evidence in accordance with the rule of Browne v Dunn. A jury found for O’Gara. The appellant appealed on the basis of the judge’s direction to disregard the store manager’s evidence that “there was nothing on the floor”.] Judgment CLARKE JA (at 553):

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The first ground [of appeal] asserts a wrongful rejection of evidence. This ground falls to be considered in the light of the course of the proceedings. Following the opening address the respondent was called and she said that whilst walking towards the weighing bucket she slipped and fell down. Immediately that occurred someone called out “Get the manager” whereupon a man loomed up and assisted her. He asked her: “What happened?” She said that she slipped and fell. Both of them then looked at the floor and saw a large skid mark, which was moist, where the respondent had fallen. The respondent then noticed that there were some grape seeds sticking to her shoe. She also saw that there were grapes scattered along the floor, some close to her and about 2 kilograms of grapes about 6-8 feet away. According to her the manager must have seen these grapes for he said: “Those damn school kids again.” He then angrily shouted at a chap wearing overalls: “Get that bloody mess cleaned up.” When the time came for the appellant’s counsel to cross-examine the respondent he did not challenge her assertion that there were grapes on the floor. All that he did was to inquire as to the number of grapes there. The apparent purposes of this cross-examination was to mount an argument of contributory negligence upon the basis that there were so many grapes on the floor the respondent should have seen them. She repelled this attack saying that there were only a few in close proximity to the place at which she fell but there were about 2 kilograms of grapes about 6 or 8 feet away. Nowhere during the cross-examination did counsel suggest to her that she was mistaken in stating that there were grapes on the floor. In other words there was no suggestion that the parties were at issue as to the presence of grapes which had caused her to slip. This was understandable in the light of a public liability incident report which had been written out and signed by Mr Barbaro, the manager of the appellant’s store, and which had been tendered before any oral evidence was called. In this document Barbaro noted that the respondent claimed she had slipped on a grape on the floor but in addition had answered a question under the heading “Slips and falls analysis” as follows: “Foreign substance on floor? Yes.” Beneath this question were listed a number of materials which could have constituted the foreign substance and at the end of the list the word “other” appeared. Opposite this word Barbaro had written “grape on floor (fruit)”. Immediately following this entry a question appeared: “Where did this come from?” In answer Barbaro had written: “Fallen off section during cause [sic] of trade of the day.” Any remaining belief that the appellant was putting in issue the cause of the respondent’s fall must have been dispelled during the evidence given by her husband. He said that after waiting for his wife for some time he went to the supermarket where he had a conversation with the manager. In this conversation he asked the manager, “What happened to my wife?” and he received the reply that “she had fallen down on some grapes that kids had thrown on the floor”. This went unchallenged in cross-examination. No other evidence was called by the respondent on the issue of liability. The evidence of the respondent that there were grapes on the floor on one of which she had slipped and the evidence of her

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Payless Superbarn (NSW) Pty Ltd v O’Gara cont. husband that the manager [at 554] had informed him that she had slipped on grapes on the floor which had been thrown there by children appeared to have been accepted. Certainly cross-examining counsel neither tested nor challenged the relevant evidence of either witness. The appellant, however, called Mr Barbaro to give evidence and during the course of his examinationin-chief he was asked: “Did you look at the floor?” He answered: “Yes.” He was then asked “What did you see?” and he replied: “There was nothing on the floor.” The question was objected to and argument then ensued in the absence of the jury. At the conclusion of the argument, his Honour had the jury called back into court and he made the following statement:

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Counsel for the plaintiff has objected to that evidence, and the reason is because of a rule of evidence known as the rule in Browne v Dunn, and you will recall that when the plaintiff gave evidence she was not cross-examined in any way to suggest that what she said about grapes being on the floor was in any way incorrect, and because she was not cross-examined unless the Court gives leave to the party wishing to lead evidence such as there not being any grapes on the floor, that evidence will not be allowed. I uphold the objection made because of that rule, because of the failure of the defendant’s counsel to cross-examine Mrs O’Gara in any way to suggest that what she said about grapes being on the floor was not correct and, therefore, you have heard that question and that answer, but since I am disallowing it, you can put it right out of your minds. There will be no evidence as to whether there were grapes on the floor, and the evidence given by Mrs O’Gara about grapes on the floor will, if you accept it, be the only evidence in respect of that particular matter in this case. The judge was wrong, according to the appellant, to reject this evidence. There had been no breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), and as the evidence was relevant and admissible the trial judge was bound to admit it. The submission raises a number of considerations the first of which is whether there had been a breach of the rule. The rule, or, as it has sometimes been described, the so-called rule, in Browne v Dunn is a rule of practice and procedure which is essential to fair play at the trial and fair dealing with witnesses. [at 555] I have referred to the totality of the evidence in the respondent’s case concerning the presence of grapes on the floor at the time the respondent fell. Nowhere is there to be found in that evidence any challenge to her assertion. Nor was there any cross-examination of her husband which suggested, or even tended to suggest, that there were no grapes on the floor in the area where the respondent fell. Accordingly, the evidence which was fundamental to her case was left unchallenged with the consequence that she was entitled to proceed upon the basis that there was no issue between the parties on that matter. In this context it is important to observe that it was critical to the defendant to challenge her evidence on this aspect if it wished to contradict it. Any challenge would have enabled her, for instance, to explain why it was that she was so sure that there were grapes on the floor. More importantly, it would have put her on notice of the need to call any witnesses who could corroborate her evidence on that issue. As the evidence was left at the end of her examination no such need appeared for her evidence on the issue had not been challenged. The Court does not know whether she had available any other witnesses who could have corroborated her. But once the respondent had abstained from contesting her version of the incident the necessity for calling corroborating evidence, for all practical purposes, disappeared. Her husband gave evidence that he went to the store and it is possible that he may have been able to proffer corroboration. He simply was not asked whether he saw grapes on the floor. This was understandable in the absence of any contest on that issue. It may be that he was unable to corroborate the respondent, and it also may be that there were no other witnesses who could corroborate her, but the point is that in the light of the tactical stance taken by the appellant no occasion arose for the respondent to call corroborating evidence. In these circumstances I am of opinion that the appellant breached the rule in seeking to lead evidence from Mr Barbaro contradicting the respondent’s version when its counsel had failed to challenge the

Part 2 — Adducing Evidence

Payless Superbarn (NSW) Pty Ltd v O’Gara cont. respondent in cross-examination. In taking that tactical stance counsel for the appellant had deprived the respondent of the opportunity to provide persuasive responses to relevant challenges and had rendered it unnecessary for her to support her case by corroborative evidence. Counsel should, if he wished to contest her version of the accident, have challenged her evidence as a matter of simple fairness and in order to ensure that the trial was fairly contested. This breach created a difficult situation. Once the appellant sought to lead contradictory evidence from Barbaro his Honour was called upon to make a ruling the effect of which was likely to cause some prejudice to one or other side to the litigation. If he rejected the evidence he deprived the appellant of the opportunity of inviting the jury to consider the competing evidence of Barbaro and the respondent on that issue. On the other hand he would, if he allowed the evidence to be given, be permitting the appellant to call contradictory evidence in respect of an issue which had not been in contest until that stage of the trial and in respect of which the respondent had been deprived of the opportunity of giving an explanation and, in addition, she may have been led unwittingly not to call corroborating evidence. His Honour decided that in accordance with rules of fairness, and in the light of [at 556] the fact that the problem arose as a consequence of the default of the appellant, he should reject the evidence.

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Senior counsel for the appellant submits that his Honour took an unjustified course. Even if it was correct to conclude that the appellant had breached the rule in Browne the trial judge had no power to reject relevant and admissible evidence. Accordingly he had erred, a miscarriage of justice had occurred and a new trial should be ordered. It is true that in general a judge has no power to reject the tender of relevant and admissible evidence in civil proceedings. This is so whether or not the evidence is central to a critical issue in the trial. In this case it must be accepted that the evidence the appellant wished to lead was absolutely fundamental to the issue which it, for the first time, sought to litigate in the trial. But the appellant’s counsel had failed to abide by the rule in Browne which, as I have sought to point out, is a rule of procedural fairness designed to ensure that trials do not miscarry. Once he sought to lead the evidence the trial judge was placed in the dilemma of deciding by what means he could ensure that, notwithstanding what had occurred, the parties obtained a fair trial. Although counsel may be correct when he says that there has been no case in which a judge has reacted to a breach of the rule by declining to allow the offending party to lead contradictory evidence (cf Reid v Kerr (1974) 9 SASR 367 at 374 per Wells J), there is no universal rule laying down the consequences of a failure to comply with the rule in Browne. Obviously breaches of the rule may occur in many different circumstances and it would be quite inappropriate for the courts to endeavour to lay down a specific procedure to remedy the problems flowing from a breach no matter in what circumstances the breach occurs. Different situations will call for different remedies and in my opinion the precise procedures to be adopted when a breach of the rule occurs lies within the discretion of the trial judge. It is for him to determine whether a breach has occurred and, if so, what steps should be taken to ensure that the trial does not miscarry. He may, for example, require the relevant witness to be recalled for further cross-examination before allowing the contradictory evidence to be given or he may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined: see, eg, Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362. The decision will, in each case, involve a balancing of competing considerations and lies essentially within the discretion of the trial judge. These points are well illustrated in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 some passages of which should, in the light of the fact that it has not been reported (for reasons which are obscure to me), be set out here. In his judgment (with which Reynolds JA agreed) Glass J said (at 225): … Since the rule is designed to prohibit the unfair conduct of trials, it is obvious that breaches of it may occur in many different circumstances and no uniform sanction can be laid down. Depending on the nature of [at 557] the infraction, the remedy is essentially a matter in the discretion of the trial judge.

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Payless Superbarn (NSW) Pty Ltd v O’Gara cont. Mahoney JA said (at 235-236): … Browne v Dunn provides an illustration of the principle that a trial must be conducted fairly and so as not to defeat its purpose as a means of ascertaining where, in the case as developed by the two parties, the truth lies. If a trial is not so conducted, it may be held to have miscarried. Whether a trial has miscarried will depend upon all of the circumstances of the case. The matter is one of impression and it is in this sense that, in such cases, the grant of a new trial is said to be discretionary: a new trial will be granted on the ground of miscarriage of justice when the court is satisfied that, for whatever reason and after balancing up all relevant factors, justice requires that there be a re-trial. Browne v Dunn provides an illustration of one of the ways in which a trial may miscarry. Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, as was there decided, in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness’s evidence should not be accepted.

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And later (at 236-237): … Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness’s evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. In this case the judge exercised his discretion in a particular way and his decision can only be overturned if an error is shown in accordance with the well-understood principles governing the limited right of an appellate court to intervene where what is in question is the exercise of a discretionary judgment: House v The King (1936) 55 CLR 499. Although I regard the denial of a party’s right to call admissible and relevant evidence as an extreme step and a consequence which will not normally attend a breach of the rule in Browne, I find it difficult to conclude in this case that the trial judge has been shown to have exercised his discretion erroneously. When objection was taken to the leading of the evidence the jury withdrew from the courtroom and counsel for the parties made submissions in its absence. Those submissions have not been recorded. Nor does his Honour, in giving his reasons for rejecting the evidence, explain the particular considerations which led him to that conclusion. It may be, for instance, that the respondent’s counsel submitted that if the evidence were allowed to be given his client would suffer irreparable prejudice as a [at 558] consequence of the unavailability of persons who would have been called as corroborating witnesses but who had been excused. Or it may be that the trial judge concluded that the consequence of the infraction required him to take the extreme step either of discharging the jury or rejecting the evidence. Where there is a choice between those two courses of action normally the former course should be preferred. However, there are infrequent sittings of the court at Goulburn and the consequence of a discharge of the jury may have been that the disposition of the respondent’s claim would have been greatly delayed. These are but some of the considerations which might have led his Honour to take the course he did. (No error in the trial judge’s direction.)

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Part 2 — Adducing Evidence

R v Birks [2.380] R v Birks (1990) 19 NSWLR 677

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Facts [Birks was convicted of 18 offences including maliciously inflicting bodily harm with intent to have sexual intercourse and having sexual intercourse without consent. The prosecution case was that Birks broke into the complainant’s farmhouse and threatened her and her children with violence. Birks then orally, vaginally and anally raped the complainant. Birks claimed that the complainant consented. Defence counsel was very inexperienced and failed to cross-examine the complainant on two aspects of the accused’s instructions, namely that there had been no anal sexual intercourse and that the facial injuries on the complainant were the result of non-intentional conduct by the accused (ie a torch had fallen on her). Birks gave evidence that the oral and vaginal sexual intercourse was consensual. Birks also gave evidence that no anal intercourse took place and that the complainant’s facial injuries were caused by the torch. The prosecution then extensively cross-examined the accused that he was lying and had recently invented these matters as the complainant was not cross-examined on them. The prosecutor cross-examined Birks on his instructions to his lawyers. In summing-up, the jury was invited to take account of the prosecutor’s cross-examination of the accused when assessing his credibility. In other words, the jury could draw an adverse inference from the failure of defence counsel to cross-examine the complainant on these two matters. This direction was given to remedy the breach by defence counsel of the rule in Browne v Dunn. Only after the jury had retired did defence counsel inform the judge (in the jury’s absence, while the jury was considering their verdict) that his failure to cross-examine the complainant about the two matters (anal intercourse and the torch incident) was due to his own inexperience and oversight rather than the accused’s failure to instruct him. The barrister had “hoped that the problem would become submerged in the mass of other detail but the consequences of his error became more and more obvious during the course of the address of the Crown Prosecutor and the summing-up”. The barrister sought advice from a colleague at the bar and was advised to inform the judge of his oversight. The judge refused to discharge the jury. The jury returned verdicts of guilty. The accused appealed on the grounds that the trial miscarried.] Judgment GLEESON CJ (McInerney J agreeing and Lusher AJ in substance agreeing (at 688)): Browne v Dunn was a civil case. There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial. Furthermore an accused at a criminal trial may be unrepresented, and it would ordinarily be quite inappropriate to expect such a person to be bound by, and suffer the consequence of a breach of, what was originally described in the House of Lords as “a rule of professional practice” … [at 689] The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In a [at 690] judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236-237): This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness’s evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination.

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R v Birks cont. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. In other cases, the problem may arise only on appeal. This, in my opinion, is what happened in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362. The appellant had argued successfully before the Court of Appeal that the amount awarded to her by the jury was so small that it was out of proportion to her injuries. The respondent defendant had apparently argued before the High Court that the amount awarded would not have been out of proportion if the jury had concluded that the plaintiff, uninjured, would not have continued to work as she had sworn that she proposed to do. Gibbs J (at 370-371) pointed out that the plaintiff had not been cross-examined upon her evidence in that regard and that therefore it would not have been open to the jury to reject that part of her case. It would have been “unreasonable” for them to have taken a contrary view, and his Honour concluded that it was not open to the respondent to support its case upon the basis that it had.

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The abovementioned passage indicates the variety of circumstances in which a failure to observe the rule can manifest itself, and the ways in which a significant unfairness may be avoided. However, as in the present case, it is often suggested that the practical effect of the rule goes a good deal further. It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interests of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a “comment” following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person’s counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, eg, R v Robinson [1977] Qd R [at 691] 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution. What happened in the present case is an excellent illustration of those considerations. They were referred to by King CJ in the Court of Criminal Appeal in South Australia in R v Manunta (28 July 1989, unreported). In that case a trial judge had drawn attention to the fact that the accused’s counsel had failed to put in cross-examination certain exculpatory matters to which the accused later made reference. The trial judge drew the jury’s attention to the rule in Browne v Dunn and said: You are entitled, for example, to ask yourselves, ladies and gentlemen, could these be matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity of contradicting this proposition? King CJ said: It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he thought it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or to his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for the consideration of the jury; its weight was for them to determine.

Part 2 — Adducing Evidence

R v Birks cont. However, his Honour also went on to say: I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing-up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. I would respectfully adopt those views. (Appeal allowed. Convictions quashed. New trial ordered.)

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MWJ v The Queen Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[2.390] MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 Facts [MWJ was convicted of three sexual offences against a child by judge without a jury. The three offences occurred at Jeffries Street. The appellant was acquitted of two offences that allegedly occurred at Sutcliffe Street. Three people gave evidence at the trial: the complainant, the mother (who gave evidence of complaint) and the appellant. Supposed inconsistencies between the evidence of the complainant and her mother were not put by defence counsel to the complainant in cross-examination. The inconsistencies related to complaint evidence given by the mother. The complainant was not recalled and cross-examined on the inconsistencies. The trial judge did not use the mother’s evidence as evidence of a prior inconsistent statement because it would be unfair to the complainant as she had not been cross-examined about the inconsistencies (in breach of Browne v Dunn). On appeal to the South Australian Court of Criminal Appeal, Doyle CJ said that if there had been an inconsistency, it would have been unfair to use it to impugn the credit of the complainant as she had never been given an opportunity to explain any inconsistency between her evidence and her complaints. However, Doyle CJ also found that the trial judge had “wrongly treated the failure to cross-examine” the complainant. Doyle CJ said: The fact that the inconsistencies were not put to [the complainant] was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to [counsel for the appellant] to have [the complainant] recalled for further cross-examination. She did not do that. The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to [the complainant] that has to be taken into account.

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MWJ v The Queen cont. The appeal was based on the way that those inconsistencies were dealt with at trial.] Judgment ... GLEESON CJ and HEYDON J (footnotes omitted): [17] The comments of Doyle CJ did not go either to the actual basis upon which the trial judge decided the case, or to the ultimate ground of decision of the Court of Criminal Appeal. Neither the trial judge nor Doyle CJ made specific reference in their reasons to the “rule of professional practice” discussed by the House of Lords in Browne v Dunn. Nevertheless, the comments of Doyle CJ, made as they were in passing, became the foundation of an argument directed to the scope of that rule in criminal cases generally.

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[18] The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings. [19] In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant’s credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make. GUMMOW, KIRBY and CALLINAN JJ: ... [36] The appellant’s grounds of appeal to this Court are variants of two propositions: that the Court of Criminal Appeal erred in the application of the principle established in Browne v Dunn, and that the inconsistency to which reference has been made, invalidated the convictions. The former proposition is correct, the latter is not. [37] Something should first be said of the trial judge’s criticism of the appellant’s failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother’s evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant’s assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were

Part 2 — Adducing Evidence

R v Birks cont. competition between the avoidance of unfairness to the complainant and a “technical view of the rules of evidence” (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial.

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[38] We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice’s reference to the appellant’s counsel’s failure to seek to have the complainant recalled for further cross-examination. The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’s credit. [39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination. In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother’s evidence of her daughter’s assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution. [40] Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice. [41] The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant’s account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant’s objection to the evidence intended to be adduced from the complainant’s mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused

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R v Birks cont. in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country. (Appeal dismissed.)



Khamis v The Queen [2.400] Khamis v The Queen [2010] NSWCCA 179 Facts

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[An alleged sexual assault occurred when the complainant was at home with her mother, her two brothers (Kamal was the elder brother) and a woman who was in a relationship with Kamal (Angelina). The prosecution case was that Omer Khamis came to the complainant’s house at 5am and telephoned the complainant to request that she open the front door. She did that and went back to bed. Sometime later, she woke to find Khamis sexually assaulting her. She tried to call for help and pushed Khamis away. She went to her brother’s room and told Angelina what occurred, Angelina then told Kamal. Thereafter, Kamal confronted Khamis. Khamis denied doing anything wrong. Kamal threatened he would get a knife. Khamis then admitted that he was in the complainant’s room but said he would marry her. The defence case was Khamis entered the complainant’s room, spoke of marriage and there was consensual sexual contact, however the complainant’s family sought to extract money from him and went to the police when he refused to pay. During his trial for sexual assault, Khamis sought to give evidence about a matter relevant to his defence. Before the jury, Khamis testified that Kamal said to the complainant, “You will have to say that you had sex with Omer or otherwise I am going to kill both of you”. The prosecutor objected to the evidence on the basis that the conversation had not been specifically put in cross-examination to the complainant or to members of her family. A voir dire was held to determine the admissibility of the evidence and Khamis gave evidence that Kamal said, “Have you had sex with Omer in the room? And he repeatedly asking [sic] her and she kept quiet and silent and then slapped her until she fell on the ground”. The trial judge ruled and excluded the evidence based on the rule in Browne v Dunn and directed the jury to forget the conversation because it was not part of the evidence. The trial judge did not consider other mechanisms to deal with the breach of the rule.] Judgment WHEALY J (with Campbell JA and Simpson J agreeing): … [16] There was undoubtedly an unusual feature in the trial. This appeared to emanate from cultural sensitivity and traditions surrounding marriage customs between people born in the Darfur region in Sudan. For example, when the complainant’s mother was told of the fact that there had been some type of sexual incident between the appellant and the complainant during the early morning, it was she who then insisted that the appellant must marry the complainant. Secondly, there was undoubtedly a considerable amount of conversation (back and forward), concerning the issue as to whether the complainant should marry the appellant. It was ultimately her decision, late on the Sunday afternoon, that she did not want to marry the appellant. It was after that position had been made clear that the family contacted the police. Thirdly, Kamal insisted that the appellant write out a version of the events and, it seems, this was done twice but the notes were destroyed. It was against the background of these unusual negotiations, reticence and discussions that a particular matter emerged that was important for the defence case. Finally, much of the evidence was taken through Sudanese

Part 2 — Adducing Evidence

Khamis v The Queen cont. interpreters and there were numerous instances of problems arising in the taking of evidence because of dialect difficulties. … (a) Did the rule in Browne v Dunn apply? [30] The rule in Browne v Dunn was formulated as long ago as 1893. It has been the subject of judicial analysis on many occasions, and indeed, the subject of considerable academic discussion, since the rule was first enunciated. It is, plainly enough, an important rule of practice. In Allied Pastoral Holdings Pty Limited v FCT (1983) 1 NSWLR 1 at 16 it was formulated as follows by Hunt J: It has in my experience always been a rule of professional practice that unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.

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[31] In a recent decision of the Court of Criminal Appeal (RWB v R; R v RWB [2010] NSWCCA 147), Simpson J (with whom Johnson and McCallum JJ agreed) comprehensively analysed a good deal of the important judicial writing on the subject. I am indebted to her Honour for her analysis. There is no need for me to repeat the detail of her Honour’s remarks, although the Court, in that case, was more concerned with the requirement that a trial judge exercise considerable caution in relation to directions to the jury concerning the failure of an accused counsel to comply with the rule of practice. [32] The issue of the proper approach to the rule in Browne v Dunn in criminal trials has been examined recently by the High Court of Australia in MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74. At [18] Gleeson CJ and Heydon J stated: The principle of fair conduct on the part of an advocate stated in Browne v Dunn is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial is adversarial. Murphy J, in this Court even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trials. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings. (case reference omitted) [33] The matter was also the subject of comment in the joint judgment of Gummow, Kirby and Callinan JJ at [38]-[40]: [38] We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice’s reference to the appellant’s counsel’s failure to seek to have the complainant recalled for further cross-examination. The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party or a witness’ credit.

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Khamis v The Queen cont. [39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rules that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be mad against him or her. An offer to tender a witness for further cross-examination will however, in many cases, suffice to meet or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination… [40] Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to out a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

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[34] These comments echo the earlier statements of Gleeson CJ (as he then was) in R v Birks (1990) 19 NSWLR 677 at 688-690 where his Honour emphasised that while the rule does apply in New South Wales to criminal as well as civil proceedings, its practical content needs to be related to the circumstances of each particular case. Gleeson CJ referred to a judgment of Mahoney JA in Seymour v Australia Broadcasting Commission (1977) 19 NSWLR 219 where his Honour had said (at 236-237): This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness’s evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. [35] See also R v Liristis [2004] 146 A Crim R 547 at 562 per Kirby J (with whom Studdert and Hislop JJ agreed); and R v Zorad (1990) 19 NSWLR 91; for the position in civil trials, see Payless Superbarn v O’Gara (1990) 19 NSWLR at 556-7. [36] In my opinion, the rule in Browne v Dunn applied to the situation that arose in the present trial. It was not submitted, nor could it have been, that the rule does not apply in criminal cases. Mr Corish had faintly argued, however, that, because the complainant denied that Kamal had said anything to her at the time she was slapped by him, this relieved counsel for the appellant from putting to her the precise statement allegedly made by Kamal. It was, however, a matter of such importance that the rule of professional practice required, in my opinion, that it be put precisely. In the same way, it needed to be put to Kamal, the complainant’s mother and Angelina. They were each asked whether Kamal had “slapped” the complainant and it was a matter of procedural unfairness not to put the precise statement in the questions asked of those witnesses. The conversation between trial counsel

Part 2 — Adducing Evidence

Khamis v The Queen cont. and trial judge clearly showed that the failure of counsel to put the alleged statement to each of the witnesses did not occur as some kind of tactical consideration. Rather, counsel candidly admitted that she had taken the view that the answers she had received in her questions to the complainant did not require that the precise matter be put to the witnesses. In that regard, as I have said, counsel was, in my opinion, mistaken. The consequences of the breach of the rule in the present matter [37] There is authority in New South Wales to support the proposition that a trial judge may exclude evidence which is sought to be adduced by or on behalf of an accused person following upon a failure to put a matter required by the rule in Browne v Dunn. In Schneidas (No 2) (1981) 4 A Crim R 101 the rule was applied even in circumstances where the accused was a lay person conducting his own defence. Schneidas had been charged with the murder of a prison officer. During cross-examination of a Crown witness Workman, who was another prisoner, Schneidas put to him, in general terms, that Workman had spoken to certain other prisoners, Armstrong, Munday and Williams, and that the content of these conversations indicated that the only reason Workman was giving evidence against Schneidas was because he disliked him. The accused later sought to adduce evidence of these conversations from the three prisoners but was not permitted by the trial judge to do so.

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[38] That ruling was upheld by the Court of Criminal Appeal. The Court appeared to be much influenced in its decision by its perception of unfairness to the Crown and an unfair advantage to the appellant which could only have been overcome by the trial judge departing from the usual procedure and allowing the Crown the opportunity of recalling Workman in reply. In its decision, the Court noted that the appellant, although unrepresented, appeared to be “well versed in the art of crossexamination and general court procedure”. [39] Schneidas was discussed by Hunt J in Allied Pastoral Holdings Pty Limited v FCT at 22 without dissent. [40] In R v Body (Unreported, NSWCCA Gleeson CJ; Carruthers and Bruce JJ, 28 August 1994) followed the decision in Schneidas. The Court upheld the decision of the trial judge that evidence sought to be adduced by the accused should be rejected on the basis of the unfairness caused to the Crown by contravention of the rule in Browne v Dunn. [41] As a matter of interest, the position is otherwise in Victoria. In R v Allen (1989) VR 736 McGarvie J refused to followed Schneidas and held that a trial judge in Victoria does not have the power to refuse to admit defence evidence that, in a criminal trial, was not put to prosecution witnesses in accordance with the rule in Browne v Dunn. His Honour held that the evidence was not inadmissible because of the breach. Further, he held that counsel for the prosecution and the trial judge would be entitled to make comments at the time of final address and summing-up upon the failure to put the substance of the evidence to the prosecution witness. In more recent times, Bell J agreed with McGarvie J’s decision and held that, in Victoria a court cannot prevent the defence from giving otherwise admissible evidence, even in circumstances where the rule in Browne v Dunn has been breached (Tomasevic v Travaglini [2007] VSC 337). [42] It may be said, however, there are a number of sanctions generally available for a court’s consideration where, in a criminal trial, there has been a breach of the rule in Browne v Dunn. The more recent authority to which I have referred, makes it clear, however, that a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it. This will be largely determined by the particular circumstances involved in the case and the course of the proceedings. I will mention, without attempting to be exhaustive, a number of the available responses. [43] First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour, although that was a civil case.

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Khamis v The Queen cont. [44] Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness’s evidence, particularly if it is uncontradicted by other evidence. Where, however, a witness’s evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence (Bulstrode v Trimble [1970] VR 840 at 8489); Precision Plastics v Demir (1975) 132 CLR at 371). Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act 1995). Quite apart from the ability to grant leave under this section, a trial judge may require the relevant witness to be called for further cross-examination or grant an application for the recall of the witness (Payless Superbarn (NSW) Pty Limited v O’Gara at 556; R v Burns (1999) 107 A Crim R 330; MWJ v R at [40]. [45] Fourthly, as indicated by cases such as Schneidas there is, at least in this State, a power in criminal trials to exclude evidence sought to be relied upon by an accused to support a point not put in crossexamination of a witness called by the Crown. This option, in my opinion, should (in this situation), generally speaking, be a last option and not one of first resort.

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[46] Finally, if an accused’s evidence is allowed, and there has been a breach of the rule, there may be a need for appropriately fashioned directions to be given to the jury. This option, and the care and caution needed to be taken in respect of it, was the subject of this court’s decision in RWB v R [2010] NSWCCA 147 to which I made reference at the commencement of these reasons. There is no need for me to say anything further on that subject. Did the trial judge fall into error? [47] In my opinion, the trial judge fell into error in the present case. The evidence sought to be led from the accused, as I have said, should have been precisely put to the complainant, to Kamal and the other family members present in the bedroom. It was clearly important evidence. It was clearly capable, if accepted, of undermining in an important respect, the credibility of the complainant, Kamal and Angelina. It went to the core of the nature of the complaint made by the complainant to the brother’s girlfriend. Equally, if accepted, it was powerfully capable of supporting the appellant’s credibility in relation to the defence case. His principal assertion before the jury was that there had been no act of penetration. If the complainant’s statements to Angelina and her brother did not suggest that penetration had taken place, but were concerned with acts of lesser intimacy, that would have been a powerful matter for the jury to take into account in assessing whether the appellant was guilty of the charge. [48] The importance of the evidence required that it be permitted, not excluded, provided that a satisfactory technique could be fashioned, in the circumstances, to prevent unfairness to both sides. [49] The general structure of the Evidence Act (NSW) is clear. Evidence that is relevant in a criminal proceeding is, except as otherwise provided by the Act, admissible in the proceeding (Section 56(1)). Equally, evidence that is not relevant in the proceedings is not admissible. The test of relevance is plainly stated in s 55(1). Evidence is not taken to be irrelevant because it relates only to the credibility of a witness. Where evidence is admissible (and not excluded by any other provision of the Act) it should be admitted unless the court decides, in the exercise of its discretion under s 135, it ought not to be admitted, or where the court is bound to exclude it under s 137 of the Act. There are, of course, other exclusionary and discretionary provisions bearing on the issue as to whether evidence should be admitted in a criminal trial, but they are not relevant to this discussion. [50] It is, I trust, not an unfair reading of the argument that took place before the trial judge, and her brief reasons for her decision, to state that the view was taken that a breach of the rules in Browne v Dunn required, as a matter of admissibility, the exclusion of the evidence. That, in any event, is the way in which I read the argument and her Honour’s remarks. [51] In fairness to the trial judge, it must be stated that nobody appears to have flagged the possibility that the witnesses could have been recalled. There was a general power to do so, and in addition,

Part 2 — Adducing Evidence

Khamis v The Queen cont. there was a specific power under s 46 of the Evidence Act. The latter section appears to be designed to bring about a consequence that non-compliance with the rule in Browne v Dunn will not result in the exclusion of the evidence (Australian Law Reform Commission, Evidence, Report No 38 (1986) Ch 7, item 115 (h)). It has been noted that one “curious” aspect of s 46 is that it places the burden of rectifying a breach of the Browne v Dunn duty on the innocent party, not upon the party in breach (Cross on Evidence (8th ed, 2010 [17460] fn 647)). Be that as it may, when the problem arose in the present trial, as I have said, neither the Crown nor defence counsel made any application for the recall of witnesses. They should have done so. It appears to have been accepted, however, by all concerned that there was no option beyond that of exclusion of the evidence.

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[52] Had the general range of options available in the situation that developed been entertained, consideration could have then been given to the question as to whether leave should have been granted to recall, either under s 46 of the Evidence Act or under the court’s general power. If s 46 had been relied on for that purpose, this in turn would have required the court to consider the various matters listed in s 192 of the Evidence Act, together with any other matter that the court regarded as appropriate. Relevant considerations would have necessarily included any practical problems in securing the reattendance of the witnesses, the importance of the evidence and any issue of unfairness to the Crown. The trial judge would have also been required to consider the issue as to whether any directions should be given to the jury, if leave were granted. In the present matter, her Honour had in fact perceived that the evidence was “significant” and, in that regard, her reasoning was plainly correct. In addition, quite about from the matters that might be considered on a leave to recall application, the evidence sought to be adduced by the appellant, if otherwise admissible, had to pass through the discretionary filter of s 135 of the Evidence Act. Prejudice and unfairness could also be examined in that context. [53] It must be said, however, that none of these matters were considered simply because the court, no doubt influenced by the parties reticence on the point, did not consider that any option other than exclusion was available. The parties argued the matter as if the rule in Browne v Dunn was an exclusionary rule of evidence and the ruling was essentially made on that basis. The rule is not a preclusive rule of evidence. Its breach does not necessarily dictate that evidence may not be called in contradiction. (Scalize v Bezzina [2003] NSWCA 362). A rule that is grounded in fairness should not be used, except as a last resort, to exclude evidence going to the question whether a person is guilty or not guilty of a criminal charge. That would be to respond to procedural unfairness by imposing substantive unfairness. It is, of course, recognised in this State that a power to exclude the evidence exists but, in my opinion, in a criminal trial, concerning evidence that an accused seeks to adduce, it is a power that should, generally speaking, be used sparingly, and only in circumstances where no other option is available. [54] The Crown’s essential submission on the appeal was that, if the Court should find that her Honour erred in her application of the rule in Browne v Dunn, it had not been demonstrated that the result was detrimental to the appellant’s case, or that a miscarriage of justice was occasioned by the exclusion of the evidence. I accept, as the Crown submitted, that her Honour made no reference to the credibility of the appellant in her remarks to the jury at the time the evidence was excluded and the comment she did make, of itself, would not have warranted a finding that a miscarriage of justice had been occasioned. [55] I do not agree, however, that, in the circumstances of the case, recalling the witnesses would not have assisted the case for the appellant. The complainant had said in her evidence-in-chief that she had told Angelina, in the bedroom, the appellant had been trying to kiss her and “like he put his penis like in my vagina”. In her evidence, Angelina was equivocal about the terms of complaint. Her evidence was that the complainant had said to her that “she fell asleep and then after…Omer was on top of her and she started feeling something that was hurting her and when she woke up she found like Omer on top of her, naked, and he said ‘Oh nothing’s happened’ ”. She later alleged that she told

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Khamis v The Queen cont. Kamal that Omer had been “sleeping with” his sister…“in other words like raping your sister”. Kamal in his evidence stated that Angelina spoke to him: She told me that as along you say that he is something like a relative or a friend, why he goes inside your sister’s room to have sex with her. To attack her. … [56] He then said he spoke to his sister and she told him: Omer was naked and he pulled her panties down and she felt something getting in. [57] The Crown argued that all this was not just “word against word”. There was corroboration of the complaint’s evidence.

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[58] It will be seen, however, from the foregoing that it was highly significant in the trial to assess the credibility of the complainant and the details of what she had told Angelina and the information then provided by Angelina to Kamal. The evidence sought to be led on the appellant’s behalf demonstrated on one view of it, that the slapping of the complainant by her brother, and his threats and statements to her, seriously put in issue the version of the complaint given by Angelina in her evidence and hence the accuracy of the report to Kamal. It had the capacity to undermine the complainant and the other members of the family. [59] Against the background of the cultural overtones in the trial, together with the negotiations for marriage and the talk of a financial settlement, the conversation alleged by the appellant might well have been seen by the jury as an important part of the events of the day in question. In my opinion, it was critically important in the trial for the jury to hear the evidence that was excluded. Equally, it would have been important for the jury to hear what the complainant and the other witnesses had to say about his assertion. Presumably, they would have denied it, but the matter had not been put to them and the entire topic was, by virtue of her Honour’s ruling, simply shelved. The appellant’s case had focused on his denial that there had been penetration. He admitted that his conduct was “wrong” but that may well have been simply an admission that he had breached a cultural protocol, as the mother was later to suggest in her evidence. He had not consulted the family before raising the question of marriage, and his presence in the bedroom, even with a minor degree of consensual intimacy, may well have been perceived as culturally inappropriate and wrong. [60] At least on the complainant’s evidence, there was no doubt that she had been slapped by her brother. The jury, in the end, were not able to take into account the accused’s evidence as to the full circumstances of the slapping. In my view, that deprived the appellant of a substantial part of the case he was seeking to advance. It led to a clear miscarriage of justice. [61] The Crown further submitted on appeal that the appellant’s credibility had been rather severely damaged by the answers he gave during his ERISP interview. It is true that, when questioned by the police, the appellant gave a story that differed quite substantially from the evidence he gave at trial. He said that he and the complainant were just “hugging and kissing” and that he left the bedroom shortly thereafter. The ERISP interview did provide a real difficulty for the appellant at trial, although he attempted to explain before the jury that he omitted details of the events in the bedroom because “it was a shame like to talk about her…I thought like no need to talk about these embarrassing things”. He also explained that there had been no interpreter available when he spoke to the police. He suggested he had been badly treated by the police. I agree with the Crown’s submission, however, that a full reading of the cross-examination of the appellant on the subject scarcely assisted his credibility. However, I consider that the shaky state of his credibility, arising from the ERISP, really demanded that the particular evidence in issue in this appeal, critical as it was to the credibility of all the principal witnesses, should have been allowed to remain before the jury, provided that the relevant witnesses were able to be recalled. There was ample scope within ss 135 and 192 of the Evidence Act to allow for any possible unfairness if that situation were to arise for any reason relied upon by the Crown. (Appeal allowed, conviction quashed and new trial ordered.)

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Part 2 — Adducing Evidence

R v SWC [2.410] R v SWC (2007) 175 A Crim R 71; [2007] VSCA 201 Facts [The accused was charged with a number of sexual offences in relation to his 16-year-old niece, (J) and his 13-year-old daughter (K). At his trial he was convicted by the jury on all five counts]. Judgment MAXWELL P, KELLAM JA and KAYE AJA: [5] The course taken by counsel for the accused at trial was, to say the least, most unusual, and gave rise to extraordinarily difficult problems for the trial Judge. Both complainants gave evidence. They were cross-examined particularly briefly. The main thrust of the cross-examination was directed to the lack of recent complaint. It was not put to either complainant in cross-examination that the applicant denied the allegations she made. But, after both had given their evidence, and apparently at the request of the applicant’s counsel, the complainants were recalled. The applicant’s counsel put to each complainant that the applicant denied her allegations. Each complainant took issue with that denial.

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[6] In addition to the two complainants, other witnesses were called for the prosecution, including the applicant’s brother, (M), and M’s wife, (A). M gave evidence of an incident which occurred when he visited the applicant’s home, and made observations from which it would be inferred that the applicant was in the shower with his 13-year-old daughter, K. There was no cross-examination at all of M. A gave evidence, which supported the evidence of her daughter, J, that at the time at which the applicant’s wife was dying, J regularly visited the applicant and assisted in his home. That evidence was not challenged in cross-examination. [7] The applicant gave sworn evidence. He denied all of the allegations made by the two complainants. Further, he gave three other pieces of evidence which should have been, but had not been, the subject of cross-examination of Crown witnesses. First, the applicant denied that his niece J had come to help in his home when his wife was dying. He described J’s evidence to that effect as “absolute rubbish”. That denial should have been, but was not, the subject of cross-examination of J and of her mother, A. [8] Secondly, the applicant stated that, at the time at which J alleged the incident comprising count 1 had occurred, a friend, (G), was residing at his home, and was sleeping on the lounge room couch. That evidence was inconsistent with the evidence of J that, at the time of the incident referred to in count 1, her aunt was sleeping in that room. The proposition that G was sleeping there should have been, but was not, put to J in cross-examination. Thirdly, the applicant stated that he had ceased showering with his daughter, K, when she turned seven years of age. That evidence by the accused was inconsistent with the evidence of his brother, M. As noted earlier, no questions were asked of M in cross-examination. [9] At the conclusion of the applicant’s evidence-in-chief, the prosecutor raised with the trial Judge the deficiencies in the cross-examination of the Crown witnesses to which we have just referred. His Honour stated that he had noted the same deficiencies. Counsel for the accused accepted that the prosecutor was entitled to cross-examine concerning the matter relating to G. He conceded that that matter had not been put to the relevant Crown witnesses. [10] The prosecutor then proceeded to cross-examine the applicant. In the first stanza of that crossexamination, the applicant agreed with the prosecutor’s suggestion that, based on his evidence, K, J, M and A had all lied in their evidence. … [12] The substantial failure of the accused’s counsel to comply with the rule of practice commonly referred to as the rule in Browne v Dunn placed the trial Judge in an impossible position. Realistically,

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R v SWC cont. the problem could not have been remedied by permitting the four Crown witnesses to be recalled for further cross-examination after the completion of the accused’s evidence. Such a course would only have exacerbated the problem. [13] Although the rule in Browne v Dunn must be applied with caution and a degree of moderation in criminal trials, the present case involved such an extraordinary failure to comply with the rule that it was legitimate for the prosecutor to cross-examine the accused about it. The cross-examination by the prosecutor demonstrated just how significant had been the failure of counsel for the accused to challenge key parts of the Crown case. In addition, because of that failure, the Crown witnesses had been denied the opportunity to respond to the allegations subsequently made by the applicant in his evidence. [14] The trial Judge was clearly well alert to those problems. At the conclusion of the evidence, his Honour read to counsel a draft of the direction which he proposed to give to the jury concerning this matter. Counsel for the applicant did not object to the proposed direction. [15] In the brief direction he gave to the jury, the judge outlined the matters in respect of which defence counsel had failed to cross-examine Crown witnesses. His Honour told the jury that that failure was relevant for two reasons. First, the witnesses were not given the opportunity to respond to the allegations, and the jury had been deprived of the benefit of seeing and assessing their responses in cross-examination. With respect, that direction (or comment) was impeccable and the absence of any criticism on appeal is unsurprising.

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[16] Secondly, his Honour stated, “... [s]uch a situation may – not necessarily must – affect your assessment of the weight and credibility of the accused’s claim ...”. It is to that short passage that ground 1 is directed. [17] In some respects, the passage is ambiguous. On one reading, his Honour was telling the jury that, when they assessed the evidence of the particular Crown witness on the relevant matter, that assessment might be affected by the circumstance that the witness had not been challenged on that matter in cross-examination. If that was all his Honour meant, then the direction or comment by his Honour was correct, and accorded with the principles stated in cases such as Bulstrode v Trimble. [18] Alternatively, the passage might be regarded as a direction or comment that the failure of defence counsel to cross-examine on the three matters identified by the judge reflected on the credibility of the evidence which the applicant gave on those matters. … [23] Counsel for the applicant acknowledged the difficulties faced by the trial Judge but maintained that his Honour’s direction did not cure the problem which had arisen. He submitted that, because the prosecutor had cross-examined the applicant quite extensively on the evidence which he had given, but which had not been put to the Crown witnesses, the trial Judge ought to have directed the jury as to possible explanations of defence counsel’s failure to put the salient allegations to witnesses in cross-examination. [24] This submission highlights the real basis upon which ground 1 should succeed. Once the applicant gave evidence on key issues which had not been the subject of cross-examination of Crown witnesses, the problem was simply incurable. No direction could have cured the miscarriage of justice which flowed from the failure of the applicant’s counsel to cross-examine on those matters, so adverse was its inevitable impact on the jury’s view of the accused. We appreciate that we have, in large measure, recast ground 1, but it is in the interests of justice that we do so. For those reasons we would allow the applicant’s appeal.

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Part 2 — Adducing Evidence

Ward (a Pseudonym) v The Queen [2.420] Ward (a Pseudonym) v The Queen [2017] VSCA 37 Facts [RW was convicted of three charges of indecent act with a child under the age of 16 and three charges of sexual penetration of a child under the age of 16. All charges were committed on J. RW contended that the verdict of guilty on each of the six charges was “unsafe and unsatisfactory”. He relied on what are said to be inconsistencies between J’s evidence in her recorded interview (VARE) and her answers to questions during cross-examination at the hearing. RW’s contention was that these inconsistencies so damaged J’s credibility and reliability that none of the convictions can stand. The prosecutor in response submitted that J’s answers on the VARE were clear, coherent and vivid, and the detail consistent with J’s initial complaints to her parents. He drew attention to the fact that it was not put to J that she had lied in her VARE, nor was it suggested to her that specific events she described in her VARE did not take place.] Judgment (Some footnotes omitted) MAXWELL P and REDLICH JA (Whelan JA agreeing): …

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[9] The question thus arose as to how counsel cross-examining a young child might discharge their obligation under the rule and also achieve their forensic objective of seeking to undermine the credibility or reliability of a child witness. In what follows, we intend no criticism of trial counsel for RW, who discharged her difficult task with obvious care and diligence. [10] As the parties acknowledged, the cross-examination of a child complainant in a case such as this is a task of considerable complexity, requiring great care and sensitivity. Where the purpose of the cross-examination is to undermine the child’s credibility and/or to cast doubt on the child’s account of the accused’s conduct, defence counsel face two related forensic challenges. Both are governed largely by the dictates of fairness to a child witness. [11] The first challenge is to formulate questions which are age-appropriate. This is necessary as a matter of basic fairness to the child witness, so that he or she can understand the questions and respond. But it is equally important in the interests of the accused. Unless the questions are age-appropriate, answers which appear to create inconsistencies in the evidence are unlikely to serve the desired purpose of creating a doubt in the minds of the jury or – on appeal – of persuading this Court that the jury “must have had a doubt” about the evidence. [12] The second challenge is that, so far as practicable in the circumstances, the child witness must be given the opportunity to say whether something they have said, and which the accused disputes, is true. This is the obligation of fairness to which expression is given in the rule in Browne v Dunn. The content of this obligation is, of necessity, different in the case of young children, who will not generally respond with understanding or accuracy to a formal challenge to their evidence, or “puttage” as to the accused’s case. As a result, there is a significant risk that they will accept suggestions made to them by cross-examining counsel without understanding their implications. … Inappropriate types of questioning [109] The likelihood of self-contradiction by a child, or misleading or inaccurate answers to certain types of questions, is now relatively well recognised. There is a range of possible innocent explanations for inconsistency of testimony. They encompass: intimidation; confusion; lack of understanding of the question; inability to process what is being put; acquiescence; and an over-willingness to agree with suggestions. There are numerous reported decisions in which apparent inconsistencies in the evidence have been attributed to the inherent difficulties in cross-examining children, rather than to

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Ward (a Pseudonym) v The Queen cont. any specific deficiencies in the evidence itself. [ See, for example, R v M [2000] QCA 20; R v DP [2007] VSCA 219; (2007) 176 A Crim R 382, 389 [32]; Bowles v State of WA [2011] WASCA 191 [61]; SLJ v The Queen (2013) 39 VR 514, 522 [33]; Martin v The Queen (2013) 46 VR 537, 544 [27], 546 [35], 551–2 [64]–[66], 553 [73]. ] [110] We referred earlier to the AIJA Bench Book [The Australasian Institute of Judicial Administration Incorporated, “Bench Book for Children Giving Evidence in Australian Courts” (Bench Book, Australasian Institute of Judicial Administration Incorporated, December 2012)] first published in 2009. [ Updated to 2015.] It explores two studies which “raise serious issues about the appropriateness of cross-examination in order to test the accuracy of evidence of children aged between five and 13”. The Bench Book summarised the findings as follows:

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A study of court transcripts of the evidence of children in this age bracket in sexual abuse cases and controlled studies done in respect of children aged 5 to 6 years, demonstrated that the use of closed questions simulating cross-examination and usual cross-examination techniques resulted in 75% of the children studied changing at least one aspect of their evidence. In the controlled studies, which involved a true situation, closed questions, and a younger age group, 85% changed at least one aspect of their statement. [111] In 2004 the Victorian Law Reform Commission published its final Report on Sexual Offences [Victorian Law Reform Commission, Sexual Offences: Final Report, Report No 78 (2003–2004)]. Chapter 5 dealt with “Improving the System for Child Complainants”. The Report noted that “barristers are not trained to question children and may unintentionally confuse a child by using complex or inappropriate language”. The VLRC also reported on the communication techniques used in crossexamination, such as leading questions, repetitive questioning, closed statements requiring affirmation or rejection, double-barrelled questions or questions phrased negatively, which have been shown to confuse and mislead children. The UK Bench Book similarly explored the types of questions most likely to produce unreliable answers from children [Judicial College, Equal Treatment Bench Book 2013 (Bench Book, Judicial College UK, September 2015)]. It states: Cross-examination techniques such as complex vocabulary and syntax and leading, multipart questions have been demonstrated to mislead and confuse ordinary adult witnesses, undermining the accuracy and completeness of their evidence. [112] The AIJA Bench Book provides a section involving “good practices” for questioning children [AIJA Bench Book, 75 [3.6]]. The suggestions appear under the following headings: Phrasing questions positively rather than negatively; Using active rather than passive voice; Separating questions on separate topics; Children’s conceptualisation of time, frequency and ordering of events is gradually acquired; Use the child’s words to describe people, actions and objects; Avoid “front loading” questions that use a number of qualifying phrases before asking the crucial part of the question; Using signposting; Discuss events in a logical sequence; Include only one query in each question; Avoid questions that may be taken too literally. [113] The Uniform Evidence Manual, published by the Judicial College of Victoria, contains an appendix entitled “Child Witnesses: Testing Competency and Questioning – A Practical Guide”[Judicial College of Victoria, Uniform Evidence Manual (at 2016) Appendix A: “Testing Competency and

Part 2 — Adducing Evidence

Ward (a Pseudonym) v The Queen cont. Questioning – A Practical Guide”]. This Guide has been developed by the College in conjunction with the Child Witness Service operated by the Office of Public Prosecutions. It outlines “overarching principles to guide all questioning of all child/young witnesses”, and then provides age-specific advice for questioning children.

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[114] Similar suggestions, with helpful illustrations, are contained in a 2011 report of the Inns of Court College of Advocacy, entitled “Raising the Bar: the handling of vulnerable witnesses, victims and defendants in court”[Advocacy Training Council, “Raising the Bar: The Handling of Vulnerable Witnesses, Victims and Defendants in Court” (Report, Advocacy Training Council, March 2011).]. That report is aimed at providing best practice guidance in questioning a vulnerable person or someone with communication needs. The report made the following suggestions as to the types of questions which should be avoided: Tag questions make a statement then add a short question inviting confirmation, for example, “John didn’t touch you, did he?” or “John didn’t touch you, right?” They are powerfully suggestive and linguistically complex. Judicial guidance recommends that this form of question be avoided with children and that a direct question be put instead, for example, “Did John touch you?”; “How did John touch you?” Questions requiring a yes/no response: a series of propositions or leading questions inviting repetition of either “yes” or “no” answers is likely to affect accuracy. These questions carry a risk that an acquiescent person (ie someone with a tendency to answer “yes”, regardless of the question) will adopt a pattern of replies “cued” by the questioner and will cease to respond to individual questions, leading to inaccurate replies. If only “yes”/“no” questions are asked, it is difficult to determine if the person is having problems with the questions. Questions in the form of statements (assertions), for example, “You’re not telling the truth, you wanted Jim out of your house”, may not be understood as requiring a response. Better alternatives include: “Did you want Jim out of your house?” Questions/assertions repeated by authority figures: whether asked/stated consecutively or interspersed with others, these risk reducing the overall accuracy of a vulnerable person or someone with communication needs. For questions, this is because the person is likely to conclude that their first answer is wrong or unsatisfactory because somebody in authority is repeating the question. This may make the person “go along” with the suggested answer, even if the person disagrees with it. If a question must be repeated (even with changed wording) for clarity, explain that you just want to check your understanding of what the person said, without implying the first answer was wrong: for example, “Thank you, but I want to be sure I understand. Tell me again” (followed by the question). For assertions, when someone in a position of authority formally suggests that something is a fact, it becomes extremely difficult for a person to disagree if necessary and to maintain verbally what they believe to be true. The person is likely to have a particular problem with an assertion in the form of a statement, viewing this as a comment and not appreciating that it requires a response. Forced choice (closed) questions: these questions (eg “When you went to the flat, did John or Bill open the door?”) create opportunities for error if the correct alternative may be missing. If asked open, free recall questions (eg “What happened?”), vulnerable people or those with communication needs can provide accounts with accuracy rates broadly similar to the general population. In instances where forced choice questions are necessary, offer “I don’t know” as a last alternative. Questions containing one or more negatives: these questions make it harder to decipher the underlying meaning. Negatives increase complexity and the risk of unreliable responses. Questions suggesting the witness is lying or confused: these questions are likely to have an adverse impact on concentration and accuracy of responses because of the heightened anxiety often associated with vulnerable people. [115] As discussed in Part I of these reasons, an evaluation of the probative force of a child witness’s testimony must take account of the form of the questions, as that may have affected the nature and

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Ward (a Pseudonym) v The Queen cont. quality of the answers. The need for such an evaluation arose in the UK Court of Appeal in R v W and M [[2010] EWCA 1926]. The two appellants were 10-year-old boys, who had been convicted of raping an eight-year-old girl. The girl had told her mother that the boys “had sex with her” and, when asked what she meant by sex, she said that they had “put their willies inside her”. This account was repeated to two police officers, and then during a police interview. During the course of cross-examination, counsel for the first defendant had put the following questions: Q: [Defendant] did not put his willing in your bum, did he? N: No Q: [Defendant] did not put his willy in your Minnie, did he? N: No

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[116] Similar questions were posed by the second defendant’s counsel. Counsel submitted that the abovementioned answers contradicted her earlier reports, and effectively constituted a retraction. The trial judge disagreed, and eventually both boys were convicted of attempted rape. The boys appealed, on the ground that it was not properly open to the jury to conclude that the offences were proved. In dismissing the appeal, the Court of Appeal said: There is undoubtedly a danger of a child witness wishing simply to please. There is undoubtedly a danger of a child witness seeing that to assent to what is put may bring the questioning process to a speedier conclusion than to disagree. To say that those risks plainly exist is not, as may have appeared at times during the argument in the court below, to offer any criticism whatever of the manner of cross-examination. It is particularly important in the case of a child witness to keep a question short, and even more important than it is with an adult witness where it also matters to avoid questions which are rolled up and contain, inadvertently, two or three at once. ... We want to make it clear that we are quite sure that neither counsel cross-examined this child inappropriately. However, the risks which we have identified plainly existed. Most of the questions which produced the answers which were chiefly relied upon, unlike many others, constituted the putting of direct suggestions with an indication of the answer: “This happened, didn’t it?” Or: “This didn’t happen, did it?” The consequence of that is, as the judge remarked, that it can be very difficult to tell whether the child is truly changing her account or simply taking the line of least resistance. Task of cross-examining counsel [117] As we said earlier, cross-examination of a child presents particular challenges for counsel. Counsel will not wish to cross-examine aggressively, first because they will not wish to unduly distress the witness, and second because such cross-examination is likely to have a negative effect on the tribunal of fact. In the 2004 VLRC Report, the Commission recognised the difficult balance which must be struck between a “rigorous testing of the evidence” on the one hand, and not intimidating or frightening the child witness on the other. [118] The 2011 “Raising the Bar” report (above) made a number of observations in relation to appropriate questioning of child witnesses, while emphasising that the obligation remains for counsel to explore the defendant’s case with the witness: Particular care and preparation is necessary when considering how to put the defendant’s case to a child complainant. In R v B, the Court of Appeal recognised the need for an advocate to adapt his approach to employ forensic techniques suitable for questioning a child witness. The judgment, however, needs to be examined with considerable care: there is no suggestion on the part of the Court of Appeal that defence advocates should be prevented from putting the defendant’s case to a child witness, or from asking any other relevant questions that can only be dealt with by that particular witness. Key to a successful approach is recognising that one size does not fit all, and that where the advocate’s technique requires modifying,

Part 2 — Adducing Evidence

Ward (a Pseudonym) v The Queen cont. training should explore means of challenging evidence without confusing the witness. The real skill of formulating short, simple questions can be taught and learnt, and the practice in formulating such questions repays the effort – and sometimes, humility – involved. [119] Despite the particular forensic difficulties in cross-examining a child, the primary purpose of cross-examination is to “ ‘cast doubt upon the accuracy of the evidence in chief given against” that party. [The Hon D Heydon, Butterworths, Cross on Evidence, vol 1 (at Service 185) [17430].] That purpose also coincides with counsel’s obligation of fairness as expressed in the rule in Browne v Dunn. In Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, this Court said that the rule rests upon notions of fairness and is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge. [120] Importantly, the rule also facilitates the tribunal’s assessment of the reliability and accuracy of the witness. Consequently, if matters in controversy are not “put” to the witness in cross-examination, the tribunal’s capacity to assess the merit of the allegation, and the credit of the witness, is likely to be impeded. In R v Morrow (2009) 26 VR 526 these purposes of the rule were repeated in the context of a criminal trial. Redlich JA (with whom Nettle JA and Lasry AJA agreed) said:

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The rule, resting upon notions of fairness, is designed to give the witness, and the party calling that witness, an opportunity to meet that challenge and to facilitate the tribunal’s assessment of the reliability and accuracy of the witness. Any relaxation of the obligation to comply with this rule increases the risk of injustice to the witness and the party calling that witness, and diminishes the tribunal’s capacity to assess the merits of the issue. [121] It is assumed that an adult witness has the cognition, and the independence of will, to reject questions which contain a suggestion or assertion of the existence (or non-existence) of a particular fact. Such assumptions cannot be made in the case of a child witness. As already noted, a child’s vulnerability and the likelihood that they will assent to suggestive questions increase the risk that the child will give answers that are contradictory. As Bowden, Henning and Planter observed: The rule in Browne v Dunn requires all relevant propositions that will later be relied on to be put to a witness. However, it is established that children and persons with intellectual disabilities are likely to become confused and either change their version of events or acquiesce in a contradictory account when challenged. Challenging a vulnerable witness’s testimony in accordance with Browne v Dunn and suggesting an alternative version of facts may not advance the pursuit of truth [Bowden, Phoebe; Henning, Terese; Plater, David “Balancing fairness to victims, society and defendants in the cross-examination of Vulnerable Witnesses: An impossible triangulation?” [2014] MelbULawRw 1; (2014) 37(3) Melbourne University Law Review 539]. [122] As we said at the outset, cross-examining counsel seeking to impugn the credibility or reliability of the child’s account has two overlapping obligations to discharge. The first is counsel’s obligation to the accused person, to seek to cast doubt on the complainant’s evidence. The second is the obligation of fairness to the child complainant, expressed in the rule in Browne v Dunn. Discharge of that obligation requires that the child be given a fair opportunity to make clear whether he or she adheres to the account given in the VARE. The obligation being an aspect of procedural fairness, its content varies according to the circumstances of the case [Eastman v The Queen (1997) 76 FCR 9, 101-2]. We are concerned here with its content in the case of a child witness whose age or capacity renders them vulnerable. [123] In our view, discharge of these obligations will ordinarily require counsel to address those specific allegations made by the child which the defence disputes. Simply to “ ‘put” matters which the child accepts will be unlikely, for the reasons already explored, to discharge either obligation. [124] As we have said, a child cannot be expected to respond to option-posing, suggestive or assertive questions in an explanatory or expansive way. Thus, acceptance of a proposition by the child may not result in any forensic gain to the cross-examiner. As Maxwell P observed during oral argument, it will not ordinarily be fair unless the cross-examiner in an appropriate way asks the child whether what

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Ward (a Pseudonym) v The Queen cont. she has said is true or whether the alleged act occurred. If that is not done, the child is not given the opportunity to make their position clear. [125] Although it is ordinarily a matter for counsel how they choose to cross-examine, fairness dictates that counsel should only ask questions in a form that is appropriate to the age of the child. As to compliance with the rule in Browne v Dunn, if counsel does not give the child a fair opportunity to respond to the attack that is to be made on their evidence, counsel runs the risk that their opponent, or the judge, will take the view that there has been a breach of the rule. Moreover, if they do not give the child the opportunity to state whether they maintain their initial account, the tribunal’s ability to assess the merits of the issue is thereby diminished. As a result, counsel will not have satisfied their forensic purpose, which is to elicit evidence which may cause the tribunal to doubt the child’s primary allegations.

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[126] Of course, to ask the child whether their allegation is true, or whether the event they have described actually happened, may result in the child confirming the allegation. But that is a risk which always inheres in the discharge of the rule with every witness, whether adult or child. In the case of an adult, however, leading questions, and direct “puttage”, are permitted because the law presumes that the adult witness is able to understand that their account is challenged and can respond accurately to such a form of question. [127] If counsel employ indirect or subtle methods in order to produce arguable inconsistencies with the child’s primary allegations, the risk remains, as Whelan JA observed on the hearing of the appeal, that the jury will not be persuaded that the nature of the inconsistencies is such as to cause them to doubt the child’s account. Counsel still have considerable latitude in the way in which they can explore the child’s primary evidence. But, if the questions are unclear, or move suddenly from the specific to the general, or are suggestive or assertive, the jury may treat the evidence-in-chief (the VARE) as untouched by the cross-examination and hence as the witness’s accurate and reliable account. The same risk exists if the answers elicited are ambiguous or can be viewed as not definitively stating the child’s position on a matter of controversy. [128] Whether the inconsistencies that emerge do raise a doubt about the witness’s allegations will depend upon the circumstances of the case. But the forensic risk should be recognised that jurors, applying their common sense and aided by closing submissions and the judge’s directions, may take the view that, because of the circumstances in which the particular inconsistencies have emerged or are expressed, they are not to be viewed as a material qualification or retraction of the witness’s primary allegations. Role of the trial judge [129] The trial judge has an overarching duty to ensure a fair trial [Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 577 [35]]. Their judicial authority, independent of objections, requires them to ensure that counsel observe accepted standards in the manner in which evidence is elicited [Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478, 504]. A primary function of the trial judge is to control questioning that could jeopardise a fair trial [Libke [2007] HCA 30; (2007) 230 CLR 559, 577 [35] (Kirby, Callinan JJ), 590 [84]-[85] (Hayne J with whom Gleeson CJ and Heydon J agreed)]. [130] Section 41 of the Evidence Act 2008 empowers the court to disallow an “improper question” put to a “vulnerable witness” (defined to include a witness under the age of 18). The question will be improper if it is “misleading or confusing”. An identical provision was described by the Tasmanian Law Reform Commission last year as having an “element of uncertainty”. [Tasmanian Law Reform Commission, Facilitating Equal Access to Justice: An Intermediary/Communication Assistant Scheme For Tasmania, Issue Paper No 22 (2016).] The Commission considered that “control of cross-examination was critical if reliable evidence is to be obtained from people with complex communication needs”. It explored the feasibility of instituting a “communication assistant/intermediary scheme” in Tasmania for people with “complex communication needs” involved in the criminal justice system, similar to that in NSW.

Part 2 — Adducing Evidence

Ward (a Pseudonym) v The Queen cont. [131] Section 42 of the Evidence Act 2008 provides a trial judge with ample power to disallow leading questions having regard to the age of the witness. Where the judge concludes “that the facts concerned would be better ascertained if leading questions were not used” the judge is to disallow leading questions. [132] Some County Court judges as a matter of practice hold a pre-evidence hearing, at which the parties can discuss the capacity of the child witness. With respect, the introduction of such hearings seems to us to be a most enlightened initiative. There are obvious benefits in a pre-hearing of this kind, which is similar to the “ground rules” hearing in the UK. [133] The applicable Practice Note [Supreme Court of Victoria PNCR 1-2015.] requires the prosecution to inform the court, in the case of a child complainant, about the child’s “ability in giving evidence”. It may become apparent at the pre-hearing that an expert (to be engaged by the Crown) will assist the Court in better understanding the capacity of the child. The parties may agree as to what types of questions will be appropriate in cross-examination. Failing agreement, the judge may foreshadow a disposition not to allow certain types of questions. Or, where it is clear from the material available to the judge, including the child’s VARE, the judge may disallow particular questions because of their form or content. Such a pre-trial hearing will in most cases reduce the prospect of the judge having to intervene during the trial. And it will provide defence counsel with guidance as to the form which the cross-examination may take. Re-examination as to allegations made on the VARE

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[134] The ability by re-examination to clarify matters left uncertain, re-establish credit or remove doubts about reliability is often overlooked. If the cross-examination bears upon facts initially referred to in evidence-in-chief (such as the VARE), the witness may be re-examined to ascertain whether they adhere to those facts. [135] Where the purpose of the cross-examination was to discredit an allegation made by a child in evidence-in-chief, or to raise questions as to its reliability, prosecuting counsel may in re-examination ask the child whether a particular statement made on the VARE is true or false. Particularly when defence counsel has elicited arguable inconsistencies, but has not taken the child to the terms of her allegations on the VARE and asked whether they are true, it would be entirely appropriate to do that in re-examination. … [Appeal dismissed.]

 Re-examination [2.430] Re-examination is defined in cl 2(3) of Pt 2 of the Dictionary to the Act as “the questioning of a witness by the party who called the witness to give the evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party”. Section 37 prohibits the use of “leading questions” in re-examination, unless the court gives leave for such questions or one of the specified situations in s 37(1) applies. One situation where leave may be granted would be in relation to an “unfavourable witness” under s 38 (see [2.280]). Section 39 imposes limitations on the matters which may be the subject of re-examination. Drabsch v Switzerland General Insurance Co Ltd provides an example of how s 39 operates in practice.

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Drabsch v Switzerland General Insurance Co Ltd [2.440] Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 765 Facts [Hamilton J provided reasons why he allowed counsel to ask further questions in cross-examination after re-examination.] Judgment HAMILTON J: [1] There has been controversy over the admissibility of a number of questions asked of a witness this morning in re-examination and also over leave granted by me to Mr Drabsch to have Mr Shand of Queen’s Counsel ask two further questions in cross-examination after the re-examination of the witness. [2] In cross-examination Mr Shand showed the witness a document which contained a schedule of events proposed to take place on 15 July 1991. He then asked the following questions and received the following answers: That was in a series of actions which you were scheduled to take part in, wasn’t it? A. Yes. Q. Did you? A. No, not personally. Q. Well, did you know that you were intended to take part in them before they happened? Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

A. No. Q. You weren’t told? A. No. Q. Were you present when those actions took place? A. I was there when it happened in the head office area, yes. Q. Did you know why it was happening? A. Not specifically, no. Subsequently, the following transpired in the cross-examination: Q. Did you not indicate to this Court on your oath at the time you saw these things happening you didn’t know why they were happening? A. I would like to revise that if that’s the case. Q. Did you not swear that only a few minutes ago? A. I’d like to revise that answer if that’s – Q. First answer my question. Did you? A. Yes, I did. Q. That’s what you swore, isn’t it? HIS HONOUR: Is the answer yes? THE WITNESS: Yes. SHAND: Q. And you knew it was false when you gave the answer, didn’t you? A. Yes.

Part 2 — Adducing Evidence

Drabsch v Switzerland General Insurance Co Ltd cont. [3] In re-examination, Mr Hollo of counsel sought to ask the witness what was in his mind when he gave the answer he subsequently admitted was false, what the revision was that he subsequently wanted to make and why he admitted that the previous answer was false. These questions were objected to. I allowed those questions and indicated I should give my reasons, which I now do … [4] … It seems to have been the intention of the legislation to repeat the common law as to reexamination: see the Report of the Australian Law Reform Commission on Evidence, ALRC 26, Vol 1, pars 628-9; Odgers’ Uniform Evidence Law (3rd ed, 1998) [39.3]. The section seeks to achieve this end by employing the expression “matters arising out of evidence given by the witness in cross examination”. [5] Authorities have made plain that the re-examiner is not limited solely to eliciting clarifications or giving explanations where there is an ambiguity, but is allowed: … wherever an answer in cross examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it:

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Cross on Evidence (Aust ed, 1996) par 17,605; Wojcic v Incorporated Nominal Defendant [1969] VR 323 at 326; Wentworth v Rogers [No 10] (1987) 8 NSWLR 389 at 409; and see Wigmore on Evidence (Chadbourn Rev) s 1896. It has been specifically decided by the Full Court in South Australia that these matters extend to subjective considerations going to the mental state of the witness at the time of answer: R v Lavery (No 2) (1979) 20 SASR 430 at 435 and 451, R v Szach (1980) 23 SASR 504 at 511-9; 566-70; 587-8. In the Evidence Act 1995 this broad approach is in my view adopted by the wording of s 39(1) and confirmed by s 108(1). [6] There have been various statements in the past as to limitations upon re-examination. It has been stated that the re-examiner may not cross-examine his own witness: Phipson on Evidence (14th ed, 1990) par 12-28. This is no doubt true if it means that, having obtained an answer from a proper question in re-examination, the re-examiner attempts, particularly if by leading questions, to deflect the witness from that answer or get him to modify it. It is also sometimes said that in re-examination one cannot get the witness to alter or reverse an answer, or a clear answer, given in cross-examination, but I can find no authority for a proposition in those terms. [7] Whilst modern authority rejects the proposition that re-examination is limited to clarifications and explanations of ambiguities, it may be that it is correct that, where the question in re-examination is put upon the basis of making a necessary clarification or explanation, and it appears to the Court that there is no lack of clarity or ambiguity, then the question may be rejected, particularly if the result of allowing it may well be that the Judge would feel obliged in his or her discretion to allow considerable further cross-examination as a result of the answers: see Hadid v Australis Media Ltd SCNSW Sperling J 5 November 1996 unreported; Shipp v Cameron (No 2) SCNSW Einstein J 13 October 1997 unreported. [8] I came to the conclusion that, the credit of Mr Lepparde, having been compromised by answers that he gave to Mr Shand in cross-examination, the questions that I allowed in re-examination this morning fell within the broader principle set out above and ought be allowed. They were proper questions tending to re-establish the witness’ credit within the general principle in the cases referred to. I did not admit them simply by reference to an apparent lack of clarity or ambiguity, although, in coming to my decision, I did advert to the fact that some lack of clarity may have arisen from the use of the singular pronoun “it” in the question leading to the impugned answer, whereas the antecedents of that preposition, in the questions and answers immediately before and immediately after the impugned question, appeared to be plural antecedents. I also adverted to the fact that the witness had attempted, when cross-examined, to say that he sought to revise his earlier answer. Mr Shand quite properly had not allowed him to do so, as such revision was not an answer to the questions Mr Shand had chosen to ask. Nonetheless, the answer was not struck from the record, there being

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Drabsch v Switzerland General Insurance Co Ltd cont. no application to do so, and stood as part of the cross-examination, from which judgment had to be made as to whether or not the re-examination sought arose. [9] For those reasons I did allow in re-examination the questions referred to. Because of the vexed nature of the question of the antecedent to the preposition “it”, I thought it proper, after the witness had given his answer in re-examination, to allow Mr Shand to ask two further questions in crossexamination on that subject-matter only, in the exercise of my discretion and as a matter of ensuring fairness to both the opposing parties in relation to this matter.



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Rebuttal and reopening [2.450] The Act is silent on parties reopening their case. This is left to the common law. The leading case in a criminal setting is R v Chin (1985) 157 CLR 671, which provides a basic rule that the prosecution should present its case completely and not split its case by calling evidence in reply to the defence case where it could have anticipated that the defence would raise such an issue. It is unfair for the prosecution to reopen its case after the defence case has been heard, as the defence must know what case it has to answer. This also gives the defence a tactical advantage of being able to bring in the last evidence heard. There is discretion for a judge to allow the prosecution to reopen its case, and the guiding principle will always be fairness to the accused. Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 provides that the guiding principle in civil cases is whether it is in the interests of justice to allow a party to reopen its case.

R v Chin [2.460] R v Chin (1985) 157 CLR 671 Facts [Chin and Choo were tried jointly for offences relating to heroin. Chin was tried with being knowingly concerned in the importation of heroin. Choo was tried with possession of heroin. The prosecution case was that Chin and Choo had a pre-existing relationship prior to meeting in Sydney to transfer heroin. Choo’s defence was that he had brought a suitcase in for a friend, not knowing that it contained heroin. Choo claimed he had been asked to deliver the suitcase to Chin. Both Chin and Choo claimed not to know each other. The issue was whether the Crown could reopen its case to tender Choo’s visa application form after both defendants had closed their cases (Chin’s form was not admitted). Choo’s form showed that Chin and Choo had included the same phone number on their visa application forms, which would help prove a prior association between the two. The Crown had not sought to tender Choo’s application form in the Crown case, it sought to tender the form in a case in reply after the Crown had cross-examined Chin briefly on its contents (but had not cross-examined Chin on the telephone number in the form). Choo was cross-examined on his application form and he agreed that he signed it but denied filling it out. The trial judge allowed the application form to be admitted as evidence in reply. The defence then recalled Chin and he was cross-examined on the number on both visa forms. Chin gave evidence that the phone number was his father’s escort agency. Chin was convicted and Choo was acquitted. Chin appealed. The New South Wales Court of Criminal Appeal set aside Chin’s conviction on the basis that the Crown had split its case by tendering the form. The High Court dismissed the appeal by the Crown.]

Part 2 — Adducing Evidence

R v Chin cont. Judgment DAWSON J (Mason J agreeing (at 684)): The rule (sometimes referred to merely as a practice), which governs the reopening of the prosecution case after the close of the case for the defence, was examined in Shaw v The Queen (1952) 85 CLR 365 and was reconsidered recently in Killick v The Queen (1981) 147 CLR 565 and Lawrence v The Queen (1981) 38 ALR 1. The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the [at 685] prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula. In Shaw’s Case, at p 380, Dixon, McTiernan, Webb and Kitto JJ expressed the view that:

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It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence. The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs as, for example, where the defence of insanity is raised or evidence of good character is called by the accused. Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its case in order to call rebutting evidence. Thus it was held in Killick’s Case that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. Where evidence which the prosecution seeks to call by way of rebuttal is also confirmation of the case which it has sought to make, the trial judge must exercise his discretion to ensure the observance of the principle which finds its expression in the rules which have been laid down. See Killick’s Case, at p 576. If the evidence was only of marginal, minimal or doubtful relevance to the prosecution case, it may properly be admitted to rebut the defence case. There is also authority for the proposition that the prosecution may be permitted to reopen its case to repair omissions of a formal, technical or noncontentious nature. See Archbold, Criminal Pleading, Evidence and Practice, (41st ed, 1982), par 4-414, and the cases there cited. The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the [at 686] prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence. The principle of fairness which underlies the general rule that the prosecution must lead the evidence, upon which it relies to establish its case, in the course of presenting that case, has an application beyond the exercise of the discretion to allow the reopening of the prosecution case. If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence-in-chief,

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R v Chin cont. then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case. See R v Kane (1977) 65 Cr App R 270. [Appeal dismissed.]



Urban Transport Authority of NSW v Nweiser [2.470] Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Facts

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[Nweiser sued his employer (Urban Transport Authority) for negligence and claimed damages for injuries suffered at work. At the hearing, the plaintiff and defendant had each closed their cases. The employer disputed that the accident occurred. The employer then sought to reopen its case to call two further witnesses who were co-workers. The co-workers’ evidence was that Nweiser had told them that he had hurt his back five years earlier, he would simulate an accident and “go for compo” and he asked them to support him. This application was made on the day after the defendant had closed its case and when the defendant had commenced its final address. The trial judge refused the defendant’s application to reopen its case on the grounds that the witnesses were not called as a result of a deliberate decision by counsel and the evidence was not of such importance as to require that the defendant be permitted to reopen its case. A verdict was made in the plaintiff’s favour. The employer appealed.] Judgment CLARKE JA (Mahoney and Meagher JA agreeing (at 475)): … The first observation I would make is that the respondent would not have been prejudiced in any way by the grant of the application [to reopen the case]. Although his Honour indicated that the respondent had raised prejudice in opposition to the application it is difficult to discern upon what basis such a claim could have been founded. The evidence concluded when the appellant closed its case and all that occurred between the closing of the case and the application was that the appellant’s counsel addressed his Honour. In this respect the case is to be distinguished from one in which the plaintiff seeks leave to reopen his case in chief after evidence has been called by the defendant or one in which the defendant seeks leave to reopen its case after evidence has been called in reply by the plaintiff. In either of those cases events may have occurred which might render it unjust to allow the party seeking the indulgence to call further evidence. Here all that occurred was that some time had passed between the closing of the defendant’s case and the application by the defendant to call a witness. In these circumstances it is difficult to perceive any reasons which would support the conclusion that the interests of justice favoured the refusal of leave. Further it is difficult to conceive that the grant of the application would have subjected the respondent to additional costs. The case was adjourned part heard on 8 May and the consequence of granting the appellant’s application would simply have been that the parties would have been required to be before the court for longer on 9 May than otherwise they may have been. In this respect it is pertinent to point out that the appellant’s counsel had challenged the respondent in cross-examination upon the subject matters upon which it was proposed to lead the evidence and there could be no question of surprise. Nor does it seem that any question of this nature was raised. Where, as here, a defendant announced the closing of its case and, there being no case in reply, a short time later sought leave to reopen because its counsel realised he had made a mistake it is difficult

Part 2 — Adducing Evidence

Urban Transport Authority of NSW v Nweiser cont. to discern how the interests of justice would be furthered by disallowing an application to reopen to call evidence which was clearly relevant to, and may have had a significant impact on, the issues in the case. It is true that the fact that there has been a deliberate decision not to call the witness whose evidence it is later sought to lead in a reopened case is a relevant consideration. But there may be a number of reasons why a deliberate decision is made. It may, for instance, be made for tactical reasons. On the other hand, it may be that in the heat of the moment counsel has inadvertently overlooked facts proven in the opponent’s case or has otherwise acted on some misapprehension. Where the failure to lead evidence from a witness whom it is afterwards desired to call results from a [at 476] tactical decision by counsel the courts will usually be disinclined to grant an application to reopen. Even in these circumstances, however, the court has a discretion to grant an application by a party to reopen its case and the interests of justice may dictate that the application be allowed. In short the fact that a deliberate decision was taken for tactical reasons is not decisive but remains an important factor.

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If, however, counsel inadvertently fails to call a witness different considerations arise and, as it seems to me, if counsel makes a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client or the admissibility of the evidence which he seeks to call the justice of the case may well point to the granting of the application. The decision made by counsel in this case although a deliberate one stands in a very different category from one based on tactical grounds. It is more appropriately regarded as one in which counsel had made a mistake or failed to appreciate the relevance and admissibility of the evidence which he omitted to lead. The primary purpose for the rules pursuant to which cases are contested in this State is the furtherance of the interests of justice. For this reason the exercise of the discretion to allow an application to reopen depends essentially upon the trial judge’s view as to whether the interests of justice are served better by granting than refusing the application. Of course, there needs to be finality in litigation and a limit upon the number of issues which it is open to the parties to contest at a hearing. For this reason evidence contradicting a witness’s testimony in cross-examination on matters going to credit is, generally, excluded. But that is because it is seen as desirable to confine the ambit of the inquiry within reasonable limits in the overall interests of justice. For my part I can see nothing in the facts of this case which would indicate that, provided that the evidence sought to be led was relevant and admissible, the interests of justice would be better served by excluding the evidence. On the contrary on the assumption that the evidence was admissible I would have concluded that all the factors in the case favoured the grant of the application. The appellant would, if the application had been granted, have gained no tactical advantage and the respondent would not have been prejudiced in any way. All that had relevantly occurred was that the appellant had sought to call the evidence some time after it had formally closed its case rather than before it had done so. In taking the course which he did I think his Honour erred in so far as he placed significant, if not overwhelming, weight upon the fact that the failure to call the witness resulted from a deliberate decision. This view may have been justified if that decision had been a deliberate one based on tactical grounds. Where, as here, the decision flowed from a misapprehension as to the relevance and admissibility of the evidence I would regard the fact that the decision was a deliberate one as of limited weight. [at 478] … The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party’s case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his

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Urban Transport Authority of NSW v Nweiser cont. or her counsel’s deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel … [at 479] … I would conclude, therefore, that the evidence which the appellant sought to lead was relevant and important and his Honour erred in failing to allow the appellant to reopen. (Appeal allowed. New trial ordered.)



[2.480]

Questions

Read the material above, together with the relevant sections of the Evidence Act 1995. Then answer the following: Witnesses generally

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1.

Are the following propositions about witnesses true: • witnesses testify on oath; • witnesses testify to facts not opinions; • witnesses testify orally from memory; • out-of-court statements by witnesses are inadmissible; • witnesses testify through being examined in chief and cross-examined? Calling witnesses

1.

Read ss 11 and 26 of the Evidence Act 1995. What effect do they have?

2.

What are the prosecutor’s ethical obligations outlined in R v Apostilides (1984) 154 CLR 563

3.

How should a prosecutor proceed if he or she is of the view that a witness should not be called?

4.

Why did the majority in Velevski v The Queen rule that there had not been a miscarriage of justice in the prosecution’s failure to call all expert witnesses?

5.

Alison has been convicted of a drug offence. During the trial, the prosecutor refuses to call any of Alison’s flatmates, Fred, Ginger and Harry. The prosecutor does not wish to ask them any questions, as she was sure Alison was guilty. Alison’s counsel asks the judge to call them as witnesses, but the judge refuses and so Alison’s counsel is obliged to call them. The prosecution cross-examines them to attack their credit. Can Alison appeal? Competence and compellability

1.

What does “competence” mean in relation to witnesses giving evidence?

2.

What does “compellability” mean in relation to witnesses giving evidence?

3.

What were some reasons why witnesses were incompetent at common law in the past?

Part 2 — Adducing Evidence

4.

What is the effect of s 12?

5.

When can a witness give unsworn evidence?

6.

How does a witness give sworn evidence?

7.

Does sworn testimony need to be on oath?

8.

What can unsworn evidence be used for?

9.

Fill in the following table indicating whether each section of the Evidence Act 1995 applies to civil or criminal cases, the effect of each section, and the applicable test. Section

Crim/civil

Effect

Test

12 13(1) 13(3) 13(5) 14

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17(2)

10. Refer to Strom v Council of Cremorne in Chapter 20 and answer the following: • At [12] of the judgment, there is a reference to Mr Jones, who was called as witness for the plaintiff. Assume Mr Jones is Jack Strom’s step-brother and did not want to give evidence for him. How could Jack force Mr Jones to testify? • Refer to Document 9 in Chapter 20, the statement by Miriam Strom, Jack’s sister. Assume the defendant objected to her giving evidence on the basis that she was not competent. When she was called to give evidence by the judge, the following was said: Judge: Miriam, do you think you are competent to testify here today? Miriam: I know what happened to Jack. Judge: Will you tell the truth, or will you lie to help your brother? Miriam: Of course I want to help him. But I will tell the truth. Judge: I do not think that Miriam Strom is competent to testify. Is there any problem with what the judge did? If so, what should have happened?

11. In R v Gulam Mohammad Khan, the defendant had been charged with murder. There was a strong possibility that provocation would be a major issue in the case. Hidden J was asked to compel the wife of the accused, who had witnessed the events leading up to the murder, to give evidence. Read the case, and answer the following: • Which sections of the Evidence Act 1995 were relevant to the case? • What considerations did Hidden J take into account in accordance with those sections? • Were there other considerations that he took into account? • Did Hidden J compel Mrs Khan to give evidence? Do you agree with his decision? 12. Complete the following table, explaining whether the sections apply to civil or criminal cases, the effect of each section, and the appropriate test.

Witnesses

Section

Crim/civil

Effect

CHAPTER 2

Test

15 16 17(3) 18 19

13. Thomas and Eric are charged with the sexual assault and murder of Tulip. The prosecution counsel seeks advice as to what the outcome is likely to be if the defence objects to the prosecution plan to call as witnesses in chief the following witnesses: • the eight-year-old brother of Tulip who witnessed the crime; • the 85-year-old grandmother of Tulip who also witnessed the crime but who was so shocked by the event that she suffered an irreversible mental breakdown so that she does not now recognise the members of her own family; the wife of Thomas who may or may not be willing to testify but who would be able to give evidence about two matters: • a conversation she overheard between Thomas and Eric; • her seeing Eric disposing of the murder weapon when her husband was not present.

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14. Read the following and discuss the evidentiary issues that arise. M, whose name has been suppressed to protect the victim of the offence, is charged with having sexually assaulted his nine-year-old daughter, Anna. The marriage between M and Anna’s mother ended in divorce but all questions including custody, access and maintenance were resolved by agreement. The assault is said to have occurred during a weekend when Anna was staying with her father and his mother on an access visit. At the trial, Anna is called to testify for the prosecution. The prosecution asks that she should be sworn in the same manner as an adult witness but the trial judge rules that she should instead simply make a promise to tell the truth. Over defence objection Anna is seated behind a screen which prevents her from seeing the accused while testifying. Counsel for the prosecution asks the following questions: PQ1: You are nine years old, aren’t you? PQ2: You went to visit your father last September, didn’t you? The defence objects to these questions but the judge overrules the objections. PQ3: On the Saturday night, your father did something you didn’t like. Isn’t that correct? The defence objects again and this time the judge upholds the objection. The examination-in-chief of Anna continues, information about the offence is elicited and the defence commences cross-examination. Among the questions defence counsel asks are: DQ1: You told us that your father was watching a cowboy and Indians movie on TV when you entered the room. That’s not right, is it? A: I think that’s what he was watching. DQ2: I put it to you that there was no cowboy and Indians movie shown on television that night. A: I don’t know.

Part 2 — Adducing Evidence

The prosecution objects to this line of questioning on the grounds of relevance, but the judge allows the questions to stand when assured that the defence will introduce evidence that the movies shown by the television channels on that night did not include any westerns. The prosecution also calls Mrs M, Anna’s grandmother. She was living with her son at the time of the alleged assault. Mrs M speaks very broken English, as she immigrated to Australia very late in life. She applies to the judge for permission to use an interpreter but this permission is refused. Mrs M tells the court that on the evening in question her son was watching television alone in the lounge room. She had gone to bed early because she had a headache. Anna was playing with her dolls in her bedroom when Mrs M went to bed. In cross-examination by the defence Mrs M is asked: DQ3: Is your son a good father? A: Oh, yes, he loves Anna very much. DQ4: Do you think your son would ever do anything to hurt his child? A: He would not hurt a hair on her head.

15. Refer to R v Eagle in Chapter 20, and consider the evidentiary issues that arise from the following: The prosecution calls Jeremy Eagle as a witness. Jeremy has made a statement to police. The defence counsel objects to him giving evidence because of his incompetence. The trial judge states:

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I am satisfied that Jeremy can give evidence, any seventeen-year-old knows the difference between truth and lies and I direct that Jeremy gives evidence in the crown case.

The trial judge directs that Jeremy swear on the Bible. Jeremy swears on the Bible. The Crown Prosecutor commences examination-in-chief of Jeremy. Crown Prosecutor: Are you Jeremy Eagle? Jeremy: Yes. Crown Prosecutor: What happened on 21 January 2015? Jeremy: I don’t know, I can’t remember, I don’t want to give evidence. Crown Prosecutor: Jeremy, did you read the statement that you made to the police officer on 28 February 2015? Jeremy: No. Crown Prosecutor: Your Honour, I seek leave for the witness to refer to his statement and read it aloud. Refreshing memory 1.

What does s 32 provide?

2.

When would a witness need to revive memory?

3.

How could memory be revived?

4.

What are the consequences if a witness attempts to revive his or her memory out of court?

5.

Cindy has defaulted on a loan given to her by Big Bank. Cindy claims she is not liable, as Big Bank misled her as to the terms and conditions of the loan. Her father, Colin, was

Witnesses

CHAPTER 2

with her when she went to Big Bank and signed the documentation. He is called by Big Bank to give evidence. In examination-in-chief he is asked: “What discussions did you have with your daughter concerning the loan?” He replies: “I don’t know. I don’t remember that time at all. I’m getting a bit old and my mind is a blank.” When questioned further he persists in saying he is unable to recall anything. In examination-in-chief, what steps can the lawyer for Big Bank take to try to overcome Colin’s apparent lack of memory? What steps can the lawyer for Cindy take in response to the steps the lawyer for Big Bank takes to overcome Colin’s apparent lack of memory? Examination 1.

What was the result of the trial judge’s questioning of the accused in R v Esposito (1998) 45 NSWLR 442?

2.

What is a leading question? Read the questions asked by the trial judge in R v Esposito and identify whether they are leading or not.

3.

What are the limits on the examination of witnesses?

4.

When does s 37(1)(e) apply?

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“Unfavourable” witnesses 1.

What does “unfavourable” mean in the Evidence Act 1995?

2.

Does s 165 have any role to play in relation to s 38?

3.

What is the procedure to be followed when using s 38?

4.

What discretion is given to the judge in relation to s 38 in s 38(6) and s 192?

5.

If a party has called an “unfavourable” witness and has a prior inconsistent statement made by that witness, can the statement be introduced into evidence if it is only relevant to credibility? If so, how? (See ss 38(1)(c), 102, 103, 43, 106.)

6.

Read R v Hogan and answer: (a) What was the ground of appeal that concerned s 38? (b) How did the trial judge apply s 38 to Colby’s evidence, that is: • Why did s 38 apply to Colby’s evidence? • What cross-examination was allowed by the trial judge? (c) Did the Court of Criminal Appeal (CCA) find that the cross-examination pursuant to s 38 was permissible? (d) What did the CCA find that the trial judge should have done?

7.

Read R v Le and answer: (a) What did the appellant submit was an error in the trial? (b) Did the CCA allow the appeal? Why? (c) What is the effect of [67] of the judgment?

Part 2 — Adducing Evidence

Cross-examination 1.

What does s 40 provide?

2.

What is an improper question in cross-examination?

3.

Can leading questions always be used in cross-examination? See s 42.

4.

Can a cross-examiner raise matters which have not been raised by the witness in examination-in-chief?

5.

Are there limits on the way a cross-examiner questions a witness?

6.

Identify the types of documents that could be used to cross-examine a witness.

7.

What provisions in the Evidence Act 1995 apply to the adducing of cross-examination on documents?

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Browne v Dunn 1.

What is the rule in Browne v Dunn (1893) 6 R 67?

2.

Why does the rule exist?

3.

What are the remedies for a breach of the rule?

4.

How was the rule breached in Payless Superbarn (NSW) Pty Ltd v O’Gara? How was it breached in Precision Plastics Pty Ltd v Demir?

5.

How was the rule breached in R v Birks?

6.

Which remedy was applied in Payless Superbarn (NSW) Pty Ltd v O’Gara? Which one in R v Birks? Which remedy in Khamis v The Queen?

7.

What factors might be relevant to explain the difference between the outcome in Payless Superbarn (NSW) Pty Ltd v O’Gara and the outcome in R v Birks?

8.

How should a trial judge determine the consequences for a breach of the rule in Browne v Dunn (1893) 6 R 67 in criminal cases where defence counsel has breached the rule?

9.

What does s 46 provide?

10. Who recalls a witness under s 46? 11. Does s 46 replace the rule in Browne v Dunn (1893) 6 R 67? 12. What is a common way in which a lawyer phrases a question to cover the effect of the rule? 13. Does the Evidence Act 1995 permit the court to direct the jury to reject relevant evidence due to the breach of the rule? 14. You are defence counsel in a sexual assault trial. After you have completed crossexamining the complainant, you realise that you have forgotten to put a vital part of your client’s instructions to the complainant in cross-examination. What should you do? 15. Refer to Strom v Council for the Shire of Cremorne in Chapter 20. If the Council planned to call Mr Sam Ross (see Document 8), should they mention the substance of his testimony to Jack Strom when they are cross-examining him? Would there be any consequences if the Council does not, and then wants to call Sam Ross?

Witnesses

CHAPTER 2

Interpreters 1.

Read R v Eagle in Chapter 20. What application should the Crown Prosecutor make due to the fact that Maria-Rosa Dominguez speaks “broken English”? Re-examination

1.

How can a witness be re-examined?

2.

At what stage in the proceedings is a witness re-examined?

3.

Can leading questions be asked in re-examination?

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Reopening the case 1.

In what circumstances can a party reopen its case in civil proceedings?

2.

What is the test for the prosecution being able to reopen its case?

3.

Give examples of the circumstances where the prosecution may seek leave of the court to reopen its case.

4.

When can a defendant in a criminal trial reopen its case?

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CHAPTER 3

Documents [3.10]

INTRODUCTION ....................................................................................................... 131

[3.20]

OVERVIEW ................................................................................................................ 131

[3.30]

COMMON LAW RULES ABOLISHED .......................................................................... 132

[3.40]

PROOF OF THE CONTENTS OF DOCUMENTS .......................................................... 132 [3.50] Butera v DPP ........................................................................... 132 [3.60] Foreign Media v Konstantinidis .................................................... 134 [3.70] Wade (a Pseudonym) v The Queen............................................... 139 [3.80] NAB v Rusu ............................................................................. 140 [3.90]

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) ........................................................ 141

[3.100]

DOCUMENTS IN FOREIGN COUNTRIES .................................................................... 145

[3.110]

PROOF OF VOLUMINOUS OR COMPLEX DOCUMENTS ........................................... 145 [3.120] Re Idylic Solutions Pty Ltd ........................................................... 145

[3.130]

CALLING FOR A DOCUMENT.................................................................................... 148

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INTRODUCTION [3.10] Apart from witness testimony, documents form a large part of evidence admitted in

trials. Part 2.2 of Ch 2 of the Evidence Act 1995 deals with the means of proving the contents of a document by means other than tendering the original document. This Part does not deal with the question of the admissibility of the document, which is determined by the application of Ch 3.

OVERVIEW [3.20] Section 51 provides that the principles and rules of the common law that relate to the

means of proving the contents of documents are abolished. Section 48 deals with the various methods by which the contents of a document may be proved by adducing evidence of a copy of the document or, in some cases, oral testimony. The provision applies to various kinds of information storage, including electronic recordings and computers. Section 49 qualifies the operation of s 48 in respect of documents in foreign countries. Section 50 permits a court to allow a party to adduce evidence of documents “in the form of a summary” if the court “is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume and complexity of the documents in question” and other parties have been served with a copy of the summary and given a reasonable opportunity to examine or copy the documents. Division 2 of Pt 4.6 (ss 170–173) permits evidence of a fact that is required to be proved in relation to a document or thing for the purposes of s 48 to be given by affidavit (or written statement in the case of a public document) by a person permitted under s 171

Part 2 — Adducing Evidence

to give such evidence. Section 35 provides that neither “calling for” a document during court proceedings, nor inspecting it if it is produced, requires the party making the call to tender the document in evidence.

COMMON LAW RULES ABOLISHED [3.30] Section 51 provides that the principles and rules of the common law that relate to the

means of proving the contents of documents are abolished.

PROOF OF THE CONTENTS OF DOCUMENTS

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[3.40] Section 48 deals with the various methods by which the contents of a “document in

question” (defined in s 47(1)) may be adduced in court. The term “copy of a document” is defined in s 47(2). Division 2 of Pt 4.6 (ss 170-173) permits evidence of a fact that is required to be proved in relation to a document or thing for the purposes of s 48 to be given by affidavit (or written statement in the case of a public document) by a person permitted under s 171 to give such evidence. Section 48 is wider than the common law used to be. The following cases of Butera v DPP (1987) 164 CLR 180; [1987] HCA 58 and Foreign Media v Konstantinidis [2003] NSWCA 161 concern the question of the admissibility of tape recordings and transcripts. In Butera v DPP, the taped conversation was in foreign languages and there was the added issue of whether the transcripts of translations were admissible. The High Court held they were, but only to assist the understanding of the testimony provided in court. Foreign Media v Konstantinidis provides a useful summary of what use can be made under the Evidence Act 1995 of tape recordings and transcripts. However, the judges take slightly different approaches to admissibility where the transcript involves a translation from a foreign language. NAB v Rusu (1999) 47 NSWLR 309 highlighted what was accepted as a continuing requirement that documents be authenticated by a person introducing the documents. That view has been questioned in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448 where Perram J indicated that there was no provision of the Act which requires that only authentic documents be admitted into evidence, and instead, the requirement is that evidence be relevant. His view was that s 48 did not incorporate any further requirements in terms of the form of the evidence and instead that where authenticity is in issue it is dealt with by sections of the Act concerning relevance.

Butera v DPP [3.50] Butera v DPP (1987) 164 CLR 180; [1987] HCA 58 Facts [Butera and four others were convicted of conspiring to traffic in heroin. At the trial a tape recording of a conversation among some of the accused was played. The tape was mostly in Punjabi, partly in English and Thai or Malay. It was partly muffled and indistinct. The tape was played to the jury. Two interpreters, one for the accused and one for the prosecution, gave oral evidence of their translations and verified written translations were admitted as documentary exhibits and went into the jury room.

Documents

CHAPTER 3

Butera v DPP cont. Butera sought special leave to appeal on the basis that the judge erred in admitting the transcripts. Special leave was granted, but the appeal was dismissed.] Judgment MASON CJ, BRENNAN and DEANE JJ (at 185): [7] What is a transcript of a tape recording? It is a document setting out words which can be heard on playing over the tape. It is not a copy of the tape, but a written record of what has been heard. Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, not by tendering evidence, whether written or oral, of what a witness heard when the tape was played over out of court. That is the consideration which weighed with Street CJ in Conwell v Tapfield [1981] 1 NSWLR 595 when he said (at p 598):

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What is the best evidence of the sounds entrapped in the record? It seems to me that there can be only one answer to this question, namely, the best evidence is the reproduction of those sounds as sounds when the record is played by appropriate sound reproducing equipment. Much of the confusion that has crept into the cases stems from the fact that normally it is the human voice that is recorded and, when reproduced, this is commonly done in writing. But if, say, the relevant evidence was a screech of tyres before a collision and that had been recorded, there would be no denying that the best method of placing this evidence before the court would be by playing the record. There is not the slightest difference in basic principle where the recorded sound is the human voice. [8] That view is clearly right, and its cogency is strengthened rather than weakened by the invocation of the traditional term “best evidence”. That is not to say that the tape is itself the admissible [at 186] evidence of what is recorded on it. A tape is not by itself an admissible object for by itself it is incapable of proving what is recorded on it: it is admissible only because it is capable of being used to prove what is recorded on it by being played over. By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact. [9] If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence. That evidence is not open to the same objection as the evidence of a witness who repeats what he was told out of court by another person who is not called as a witness. In the latter case the credibility of the other person cannot be tested; in the former case, assuming the provenance of the tape is satisfactorily proved, no question of its credibility can arise. Nevertheless, when the tape is available or its absence is not accounted for satisfactorily, there can be no reason to admit the evidence of an out-of-court listener to the tape recording to prove what the tape recorded: it should be proved by the playing over of the tape. Prudence and convenience combine to support the application of the best evidence rule in such a case. … [12] Although evidence derived from a tape recording is not subject to some of the frailties of human testimony, it may exhibit deficiencies from which human testimony is usually free. A tape recording which is indistinct may not yield its full content to the listener on its first playing over. It may need to be played over repeatedly before the listener’s ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation [at 186] or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape … Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation. As Everett J said (at p 280):

Part 2 — Adducing Evidence

Butera v DPP cont. To deny the jury the benefit of reading with their eyes the same words as they heard with their ears seems to me to put the law into an ill-fitting straitjacket. [at 180] … The jury should be instructed that the purpose of admitting a transcript is not to provide independent evidence of the conversation but so as to aid them in understanding what conversation is recorded on the tape, and that they cannot use the transcript as a substitute for the tape if they are not satisfied that the transcript correctly sets out what they heard on the tape. In Hopes v HM Advocate (1960) JC104; (1960) SLT 264, the evidence (set out in a transcript) of a person who listened to an indistinct tape played over out of court was held to be “very doubtfully competent” on the ground that it was primary evidence by an ad hoc expert of the tape’s content. With respect, it seems better to acknowledge that such a transcript is merely an aid to the jury’s understanding of the evidence derived from playing over the tape in court. …

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[14] [at 188] [As to the translations] The tendering and playing over of the tape was the foundation for the expert evidence of the interpreters. Although the contents of a document written in a foreign language or an oral statement in a [at 189] foreign language cannot be proved without a translation into English of what is written or spoken, the translation must itself be given as evidence sworn to by the person who makes the translation: Fakisandhla Nkambule v The King (1940) AC 760 at p 771. The interpreters’ evidence was contained in their respective translations of the Punjabi, Thai or Malay words recorded on the tape. The written translations were not copies of the tape in any relevant sense and they could not have been made admissible as an aid to the jury’s understanding of the sounds recorded on the tape. Prima facie, the interpreters’ evidence should have been given orally, as other testimonial evidence is given in a criminal trial. … [18] [at 190] In the present case, as we were informed, over 500 pages of trial transcript were taken up in cross-examination of the interpreters on the text of the written translations to which they had respectively sworn. It would have been all but impossible for the jury to appreciate the crossexamination not to speak of the difficulty of conducting the cross-examination – if the translations had not been [at 191] reduced to writing. It was a case in which a departure from the ordinary practice was justified and in which it was appropriate to admit the translations in evidence and permit the jury to have them in the jury room. In the circumstances of the case it may well have been preferable for the written transcript of the cross-examination of the interpreters also to have been made available to the jury, in the course of their deliberations, to supplement and modify the written translations which, in effect, represented their evidence in chief. No request was made of the learned trial judge to follow that course however and, having regard to the absence of any such request and to the other circumstances of the case, it cannot be said that the trial judge’s exercise of his “inclusory” discretion (cf per Cosgrove J in Reg v Migliorini (1981) Tas R 80 at p 90; 38 ALR 356 at p 362) miscarried for that reason. Nor did his Honour’s exercise of that discretion occasion any miscarriage of justice.



Foreign Media v Konstantinidis [3.60] Foreign Media v Konstantinidis [2003] NSWCA 161 Facts [The plaintiff sued the operator of the radio station “Voice of Greece” for defamation arising from two overlapping broadcasts in Greek on 28 August 1996. A jury was empanelled to try the issues of defamatory meaning under s 7A(3) of the Defamation Act 1974. The trial Judge, over objection

Documents

CHAPTER 3

Foreign Media v Konstantinidis cont. from counsel for the defendant, admitted transcripts of translations of the two broadcasts. The jury found that a particular imputation was conveyed by the longer broadcast but not by the shorter. The defendant sought leave to appeal contending that the transcripts were not admissible and the jury’s verdicts in relation to the particular imputation were inconsistent. The NSW Court of Appeal dismissed the appeal.] Judgment HANDLEY JA: [4] Levine J said that the question: “Where the publication sued upon is a transient publication in a foreign language, [do] the interests of justice permit the jury to have available to it an agreed translation?” raised a novel point. The Judge ruled that if the tapes were admitted into evidence the transcripts would be admissible under ss 29(4) and 48(1)(c) of the Evidence Act. … [7] In my judgment the transcripts were admissible under these sections. The trial Judge also had the discretionary powers conferred by ss 135 and 136 to exclude this evidence, or to limit its use. He was also bound to give directions to the jury about the use they could properly make of the transcripts. However, there has been no challenge to the summing-up, and it has not even been included in the materials before this Court. … ...

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[13] The admissibility at common law of the transcript of a six-minute radio broadcast in English was considered in the defamation case of Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 (Parker) where three imputations were in issue. Clarke JA said (472-3): It is appropriate that I make some observations in relation to a ground of appeal in which the appellants asserted that his Honour erred in admitting into evidence a transcript of the broadcast. It was submitted that the transcript could only have distracted the jury from their task of determining whether defamatory imputations were conveyed ... There is some force in this submission for there is a degree of inappropriateness in … having the members of the jury pore over that transcript in deciding what was conveyed during the broadcast. What is, or may be, drawn from a broadcast by the reasonable listener is in many cases a matter of impression. In this respect the transient nature of the broadcast and its short duration is of no little relevance ... I can see no legal basis for receiving into evidence a transcript of the broadcast given that there is no difficulty in understanding the tape that was played before the jury .... [14] Cripps JA and I agreed with Clarke JA. See also TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397, 400-1 per Kirby P. [15] The present case was more complicated than Parker because the first two broadcasts overlapped, and the plaintiff also sued on a third. He pleaded the same five imputations in relation to each of the first two broadcasts and three imputations in relation to the third. There was no evidence of the length of the broadcasts. [16] Whatever the position in a case like Parker, since the Evidence Act, this jury had to have before it an English translation in some form. [17] Even if the broadcast had been in English it would have been difficult for the jury to decide whether the first two broadcasts conveyed so many imputations, each differing slightly from the others, without the benefit of the transcripts. However, if the broadcast had been in English, the Jury would at least have been able to replay the tapes in the jury room as often as they wished. The tapes in the Greek language could not assist this jury. [18] The trial Judge was bound to direct the jury that they had to decide whether the imputations were conveyed to the ordinary reasonable listener who heard each broadcast only once. They were therefore bound to use the transcripts only for the purpose of placing themselves, in thought, in the

Part 2 — Adducing Evidence

Foreign Media v Konstantinidis cont. position of such a listener. They were not entitled to answer the questions before them by deciding whether the imputations were conveyed by the written words. [19] I would therefore reject all challenges to the admission of the transcripts. … GILES JA: Admission of the transcript [29] The respondent proved the publication of the defamatory matter by the tender of the tapes of the broadcasts in Greek. It was necessary, and therefore relevant, that the jury have evidence of the meaning in English of the broadcasts in Greek. That the translations from Greek into English were agreed in the form of the transcripts did not remove the relevance, and the appellant’s argument founded on s 191(2)(a) of the Evidence Act 1995 is misconceived. [30] The respondent tendered evidence of the meaning in English of the broadcasts in Greek in the form of the transcripts. He could have tendered the evidence in the form of viva-voce recitation by a witness or in the form of tapes in English, but he chose to tender it in the form of the transcripts. I doubt that either s 29(4) or s 48(1)(c) of the Evidence Act applied, since the transcripts were neither explanatory material nor transcripts of the Greek words in the tapes of the broadcasts.

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[31] Neither provision was needed. The respondent was entitled to prove the meaning in English of the broadcasts in Greek in the manner he chose, because the evidence in the form of the transcripts was relevant, and therefore admissible, and no evidentiary rule excluded it. [32] No exclusionary rule under the Evidence Act applied. The effect on admissibility of transient publication principles considered in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472-3 had no application, since translation was necessary in order that the jury understand the tapes of the broadcasts in Greek. The judge was not asked to exclude or limit the use to be made of the transcripts in the exercise of the discretions in ss 135 and 136 of the Evidence Act. No complaint is made as to the directions to the jury, and in the absence of an application invoking s 135 or s 136 in relation to admission or qualified admission of the evidence it can not now be said that there was discretionary error as to admission. [33] The transcripts were properly admitted, and the appeal in this respect should be dismissed. TOBIAS JA: [35] I agree with the orders proposed by Handley JA and substantially with his reasons. However with respect to the challenge to the ruling of Levine J to admit an agreed transcript of the English translation of an audio tape of the Greek-language broadcasts, I would wish to add some observations my of own. [36] The opponent submitted, and his Honour accepted, that it was appropriate that there should be tendered a transcript of the translation of each broadcast. The claimants contended before his Honour, and repeated that contention before this Court, that the more appropriate course or, more accurately, the only admissible course, was for the jury to have the translation read to them (but not be provided with a copy thereof) or, alternatively, an audio tape should have been made of the translation which could then have been played to the jury. [37] In support of their contentions, the claimants relied upon a passage from the judgment of Handley JA in Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 at 474A where his Honour said: I agree with Clarke JA that where as in this case no issue of identification arises and the plaintiff only relies upon the natural and ordinary meaning of the words, a written transcript of the broadcast is not admissible on these threshold issues. The “threshold issues” to which his Honour was referring were whether the imputations pleaded were conveyed by the broadcast and were defamatory of the plaintiff.

Documents

CHAPTER 3

Foreign Media v Konstantinidis cont. [38] The passage in the judgment of Clarke JA with which Handley JA, as well as Cripps JA, agreed is in the following terms (at 472G-473C): Because there will be a new trial of the action it is appropriate that I make some observations in relation to a ground of appeal in which the appellants asserted that his Honour erred in admitting into evidence a transcript of the broadcast. It was submitted that the transcript could only have distracted the jury from their task of determining whether defamatory imputations were conveyed by a transient broadcast and whether what was conveyed was comment or fact. There is some force in this submission for there is a degree of inappropriateness in putting before the jury the transcript of the broadcast and having the members of the jury pore over that transcript in deciding what was conveyed during the broadcast. What is, or may be, drawn from a broadcast by the reasonable listener is in my many cases a matter of impression. In this respect the transient nature of the broadcast and its short duration is of no little relevance. Indeed I have earlier expressed the opinion that the evidentiary material may well have coloured the jury’s understanding of what was said in the broadcast. The problem of which I am speaking is not, of course, limited to broadcasts for courts in the past have commented upon the fact that while the reasonable reader would be unlikely to analyse the published material in depth a great deal of time is taken up during the court hearing in just such analysis. For this reason it seems to me that there is much to be said for the view that where a plaintiff relies on the natural and ordinary meaning of the published words the questions whether the words convey the imputations pleaded and, if so, whether they are defamatory should be submitted to and decided by the jury prior to the leading of any further evidence.

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[39] The foregoing passage was subsequently referred to by Kirby P in TCN Channel Nine Pty Limited & Ors v Mahony (1993) 32 NSWLR 397 at 400-401 where his Honour observed: The point that concerned Clarke JA and which I believe is of legitimate concern was that a broadcast (whether by radio or television) is typically heard once only. Unlike the print media, the texts of broadcasts are not usually available to be pored over. They are momentary, transitory things. Whether words and images contained in such broadcasts actually convey the imputations pleaded, and whether such imputations are defamatory of the particular plaintiff, depend upon the impression received by the viewer or the listener. It is to distort that initial impact, to comb through transcripts (which the ordinary viewer or listener would never have) and to spend day upon day of lengthy defamation trial returning over and over again to the words, repeating the reviewing or listening to and examining the written text. The danger in this procedure, inherent in the orthodox approach to defamation trails, is that it may become impossible for the jury to recapture the initial impression, which is the equivalent of the impression which the ordinary viewer and listener received and for which, if at all, the person defamed is entitled to damages. [40] Of course, the decisions referred to above concerned broadcasts in the English language. Further, they were decided before the enactment of the Evidence Act 1995 and, in particular, s 48(1)(c) … [41] In his reasons for ruling the transcript of the translation of each broadcast admissible, his Honour relied upon this provision. There would appear little doubt that s 48(1)(c) affects a change in the common law position under which a transcript of an audio tape in the English language would not, unlike the tape itself, be the best evidence of its contents. The sub-section now permits the transcript to have equal status with the tape in proving its contents. … [43] … read literally, s48(1)(c) refers only to the tendering of a document that is or purports to be a “transcript of the words” of the recording which, in the present case, would be no more than a transcript of the words of the broadcasts in Greek. However, that would achieve nothing in terms of the jury’s ability to comprehend the opponent’s case. It is no doubt for that reason that the claimants

Part 2 — Adducing Evidence

Foreign Media v Konstantinidis cont. concede that the jury was entitled to be informed as to the English translation of the words used in the offending broadcasts, the only issue being the form or manner in which that translation should be conveyed. [44] Accepting as I do that a radio broadcast is typically heard once only and that, therefore, the text of such broadcasts is not usually available to be pored over by the listeners, nonetheless it is common ground that an audio tape of the broadcast would be available to a jury to take into the jury room where they would be free to play and replay it as often as they deemed fit. No doubt the jury should be instructed by the trial judge before they retire as to the use to which they could put the tape and, in particular, as to the transitory nature of the broadcast and the fact that whether the broadcast conveyed the alleged imputations to the ordinary, reasonable listener depended upon the impression received by the listener at the time of the broadcast.

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[45] The claimants submitted that in the present case the form taken by the translation of the subject broadcasts should have been either by way of the reading of the translation to the jury before they retired (no doubt in counsel's closing address) or by playing to them an agreed recording of the translation. Given the entitlement of the jury to take the audio tape of the broadcast into the jury room and there to play it themselves, a single reading of the translation to them or the single playing to them of a recording of the translation before they retired would have placed the jury at an obvious disadvantage as there would then have been no point in them playing the audio tape to themselves in the jury room after they retired. They would not have understood its contents. [46] In my opinion, it is plain that if the jury was to gain any benefit from the playing of the audio tape in the jury room after they retired, it was necessary to have provided them with a translation of the contents of the tape so that they could follow the broadcast and thereby gain some appreciation, in an intelligible way, of “the emphasis, tension and intonation of the original broadcast” which the claimants assert, in my opinion correctly, was necessary for the jury to consider in their deliberations. Further, the alternative suggestion of the claimants that there be a tape recording of the translation of the broadcast would, as the opponent submits, have had its own undesirable features as it would have none of the idiosyncrasies of the original broadcast which the claimants contend was an important part of the jury’s consideration. [47] In these circumstances, I agree with Handley JA that his Honour was correct in admitting into evidence a transcript of the English translation of the subject broadcasts and that the jury was entitled to have access to those transcripts together with the audio tape of the original broadcasts. [48] The foregoing conclusion is, however, subject to the following rider. The admission of such evidence is, of course, subject to the discretions referred to in ss 135 and 136 of the Evidence Act particularly, in the context of the present case, the latter. I would have thought that it would have been appropriate, had his Honour been so requested by counsel for the claimants, to have limited the use to be made of the transcript pursuant to s 136 so as to ensure that it was utilised by the jury more as an aide-mémoire to facilitate their comprehension of the original broadcasts and so as to emphasise that it was the initial impact of the broadcast which was critical and that that impact was not to be distorted by the jury combing through the transcripts as the primary evidence of the broadcasts. However, as Handley JA notes in [8] of his judgment, no such request was made. [49] Finally, I note that the Court was not provided with a transcript of his Honour’s instructions to the jury and I have therefore assumed that either his Honour instructed the jury as to the proper use they could make of the transcripts or, if he did not, no objection was taken to the absence of any such instruction so that once the transcripts were admitted counsel for the claimants was content for the jury to utilise them in the jury room as they saw fit whether in conjunction with the playing of the audio tape or otherwise.



Documents

CHAPTER 3

Wade (a Pseudonym) v The Queen [3.70] Wade (a Pseudonym) v The Queen [2014] VSCA 13 Facts [The applicant was found guilty at a special hearing of one offence of armed robbery and one offence of attempted armed robbery. He appealed his conviction, one ground being that evidence of CCTV footage ought not to have been admitted into evidence.] Judgment NETTLE, REDLICH and COGHLAN JJA Ground 3 ─ Error under s 48(4) of the Evidence Act 2008 [22] Proposed Ground 3 of appeal is that the judge erred in treating the CCTV footage of the Charge 2 offence as a document within the meaning of s 48 of the Evidence Act 2008 (“the Evidence Act”) and so in admitting testimony of Detective White as secondary evidence of the CCTV footage. [23] I think that argument to be untenable. “Document” is defined in Pt 1 of the Dictionary in the Evidence Act as follows: document means any record of information, and includes –

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(a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph; Note See also clause 8 of Part 2 of this Dictionary on the meaning of document. [24] According to the plain and ordinary meaning of the words of that definition, CCTV footage of the commission of an offence is a “document” because it is a medium from which images of the offence can be reproduced with the aid of an appropriate playback machine. [25] Counsel for the applicant submitted to the contrary that, in order to amount to a “document”, an electronic record must be a “record of information” and that “information” in that context denotes “the use of words, symbols or created images to express a record of information conceived of by a person … the key aspect being that a document records language of some kind”. In counsel’s submission, that was supported by the common law’s conception of a document which he submitted was of an object upon which is visibly inscribed intelligible writing or figures or more precisely something on which thoughts are represented by means of a species of conventional mark or symbol. [26] I reject that submission. Security camera footage of the commission of a crime is a photograph or perhaps more accurately a series of photographs comprising a “visual and permanent record of what could have been seen by a person positioned where the camera was” [R v Goodall [1982] VR 33, 37]. As such, it falls squarely within the conception of “photograph” in par (d) of the definition of document. Whether or not that accords with common law conceptions of documentary evidence is largely immaterial. But, if it matters, I note that, even at common law, a video cassette was and is recognised as a document for some purposes [Radio Ten Pty Ltd v Brisbane TV Limited [1984] 1 Qd R 113]. [27] Additionally, even if there were any substance in the point, it would make no difference to the outcome of the case; as indeed counsel for the applicant ultimately conceded. … [31] Accordingly, I reject Ground 3.



Part 2 — Adducing Evidence

NAB v Rusu [3.80] NAB v Rusu (1999) 47 NSWLR 309 Facts [The case concerned the admissibility of bank account statements (pages 25 and 26) of a particular bank account from which it was alleged an employee, Ms Rusu, had stolen money.] Judgment BRYSON J: [15] Tender of pages 25 and 26 appears to me to raise a question of their authentication; that is whether there is evidence that they truly are what counsel alleges they are; that is copies of bank statements which record dealings between the second defendant and the Advance Bank. No witness from the Advance Bank and no other witness have said in oral evidence or on affidavit that that is what they are.

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[16] The plaintiff’s counsel asked me to find that the documents tendered are bank statements of the Advance Bank relating to an account conducted by the second defendant, on the basis of the contents of those documents and on some other documents which show the manner in which pages 25 and 26 come to be available. [17] Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the Common Law and under statutes for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by ss 170 and 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business’s records, or can recognise it as one of the records of the business. … [24] Pages 25 and 26 are Xerox copies of documents produced by the Advance Bank to the Court in answer to a subpoena … Section 51 in Pt 2.2 provides: The principles and rules of the Common Law that relate to the means of proving the contents of a document are abolished. This abolishes the previous law relating to secondary evidence and proof of copies to show the contents of documents. Part 2.2 Documents, including s 48, puts a different scheme in its place. [25] The fact that a copy is tendered has no significance for admissibility, and the admissibility of the documents is in the same position as if the plaintiff proceeded under the opening words of sub-s 48(1) – A party may adduce evidence of the contents of a document in question by tendering the document in question … [26] Section 51 does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be, and sub-s 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is. Sub-section 48(1) is not an enactment to the effect that documents are to be received in evidence on the basis of what appears on their own face. Sub-section 48(1) prescribes the means of adducing evidence of the contents of documents, and leaves untouched the need to establish that a document is what it purports to be; it does not mean that documents prove themselves, as if judicial notice must be taken of them.

Documents

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NAB v Rusu cont. [27] If sub-s 48(1) meant that all that had to be done to establish the authenticity of a document was to tender it, it would dispense with the need to prove the authenticity of a document and put the Court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect. I would regard an enactment to that effect as absurd, and I would look for other constructions; however, I do not think that sub-s 48(1) has that effect. [28] So far as I am aware, there is no judgment which has decided that under the Evidence Act 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom. … [29] The Law Reform Commission appears not to have regarded their drafts as bringing about that result. See LRC 26, Vol 1, par 31 particularly par 654; the comments in par 654 appear to assume the continuing need for proof of authenticity; see text at Note 16 in the final sentence. …

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[33] Section 152 of the Evidence Act 1995, which relates to documents more than 20 years old produced from proper custody, appears to deal with authentication. Its presence in the Act is inconsistent with there being a wider general presumption of authenticity. The reference in sub-s 144(1)(b) to “a document the authority of which cannot reasonably be question” is also inconsistent with a wide general presumption of authenticity. [34] If the Court is to find a significant fact on which a large liability may depend, there is a need for the Court to have some measure of confidence in the source of the Court’s belief that the fact exists. The Court acts almost always on narrations which must have a human origin; not usually on the Court’s own knowledge or on states of fact which are taken to be incontestable. The balance of probabilities is not a demanding standard, as the possibility that the less probable state of fact may be the true one is very obvious, and makes civil justice very vulnerable to error. For the Court to feel confident that it should act on any narration it is very important to have a human witness who has pledged, by oath or affirmation, that the narration is true: someone who is responsible for it. Business records may be incomplete; they often are. They record what there is perceived to be a business need to record, and that may be a small part or an oblique aspect of the objective event. … [42] I am not satisfied on the balance of probabilities that pages 25 and 26 are what they are alleged to be; that is I am not satisfied and do not find for the purpose of their admissibility that they are business records being bank statements of the account conducted by the second defendant with the Advance Bank.



Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [3.90] Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 Facts [Perram J was asked to give rulings on objections taken to documentary tender by the ACCC.] Judgment PERRAM J

Part 2 — Adducing Evidence

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) cont. Sixth objection: authenticity [89] AirNZ object to a number of documents upon the basis that they had not been authenticated. AirNZ points to two examples. The first is ACCC.011.006.0215. This document appears to be a spreadsheet. I will not set out its entire contents, but it contains six fields which appear to summarise the position in relation to the fuel surcharge out of various international airports including Hong Kong, Jakarta, Denpasar and Singapore. [90] The ACCC did not submit to me that this document was obtained from any particular airline or pursuant to any particular process. Strictly, I do not know directly where the document comes from or who produced it. [91] For reasons which follow, AirNZ’s authenticity objection should be rejected.

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[92] It is useful to begin with some basic propositions: 1.

There is no provision of the Evidence Act which requires that only authentic documents be admitted into evidence. The requirement for admissibility under the Act is that evidence be relevant, not that it be authentic. On some occasions, the fact that a document is not authentic will be what makes it relevant, that is, in a forgery prosecution. In other cases, there may be a debate as to whether a particular document is or is not authentic, for example, a contested grant of probate where it said that the testator’s signature is not genuine.

2.

In cases of that kind, the issue of authenticity will be for the tribunal of fact to determine. In cases heard by a judge alone, this will be the judge at the time that judgment is delivered and the facts found. In cases with a jury, it will be the jury.

3.

The question of what evidence will be admitted is a question of law for the tribunal of law, which will be the Court.

4.

Since authenticity is not a ground of admissibility under the Evidence Act, the issue of authenticity does not directly arise for the tribunal of law’s consideration at the level of objections to evidence.

5.

What does arise for its consideration is the question of relevance under s 55. If the evidence is relevant it is admissible: s 56. It will be relevant under s 55 if the evidence is such that “if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue”.

6.

The question of a document’s authenticity is relevant only to the tribunal of law’s consideration of relevance under s 55. It has no other role.

7.

In that inquiry, the question for the tribunal of law is not whether the document is authentic but whether receipt of the document could, to paraphrase s 55, rationally affect the assessment of the probability of a fact.

8.

If there is raised a question about the authenticity of a document (and assuming that, if authentic, it would otherwise be relevant to an issue) then there will be an issue in the proceedings about its authenticity. This will be a question for the tribunal of fact to resolve, if the document is admitted.

9.

The question for the tribunal of law, by contrast, will be whether the document is relevant to a fact in issue under s 55. That is, the question will be whether the document can rationally affect the assessment of the probabilities of the fact, including its authenticity.

10.

What materials may be examined in answering this question? The answer is provided by s 58: 58 Inferences as to relevance (1)

If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

Documents

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Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) cont. (2)

Sub-section (1) does not limit the matters from which inferences may properly be drawn.

11.

The position then is clear. In answering the only question before the tribunal of law – relevance – the tribunal may examine the document to see what may be reasonably inferred from it (s 58(1)). It may also examine other material (s 58(2)).

12.

The tribunal of law does not find that the document is authentic. It finds that there is, or there is not, a reasonable inference to that effect and hence that the document is, or is not, relevant. If there is a reasonable inference that the receipt of the document will rationally affect the probability of a finding of fact, then the matter may go to the tribunal of fact which will then determine at the end of the trial whether the document is authentic and whether the fact is proved.

13.

At no time does the tribunal of law determine that the document is or is not authentic because this is not a question for it. It may, however, determine that no reasonable inference to that effect is open and thereby conclude that it is not relevant. In a jury context, that will be similar to taking the question of authenticity away from the jury. Analytically, it will be the same where the tribunal of fact is a judge.

14.

In deciding relevance (ie whether the tribunal of fact could reasonably infer that the document (otherwise relevant) was authentic), the tribunal of law is explicitly authorised by s 58(1) to ask what inferences as to authenticity are available from the document itself. That is what s 58(1) says.

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[93] It will follow that AirNZ’s submission that “no inference as to authenticity can be drawn from the face of these documents” ought to be rejected. In determining a relevance objection, that is precisely what s 58(1) permits. [94] AirNZ’s submission is, however, supported by authority. In National Australia Bank v Rusu (1999) 47 NSWLR 309 at 313 [19] Bryson J said of s 58(1): In my opinion, a question of authenticity is not a question as to the relevance of documents within s 58(1), which treats authenticity as part of the material on which relevance may be determined. [95] His Honour concluded at 312 [17] that a document could not be used to authenticate itself. This reasoning involves the following problems: (a)

since authenticity is not a question which arises for the tribunal of law under the Evidence Act, it is not clear what the “question of authenticity” to which his Honour refers is, if it is not the question of relevance; and

(b)

it leaves s 58(1) with no work to do. If Rusu is correct, a party may ensure that recourse may not be had to the content of a document in determining admissibility by calling the objection “Authenticity” rather than “Relevance”, and it may do this even though the former does not appear in the Act and the latter does.

[96] Apart from those problems, the reasoning led his Honour to this corollary at 312 [17]: Before a business record or any other document is admitted into evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves. [97] The passage involves, with respect, a confusion between the role of the Court as the tribunal of law in admitting relevant evidence and the role of tribunal of fact in determining, if it be an issue, whether a document is authentic. [98] The question for the former is not, as Rusu suggests, whether the document proves itself. The question is whether it is relevant. If it is alleged not to be authentic it will still be relevant as long as there is material from which its authenticity may reasonably be inferred. By s 58(1), that material expressly includes what may reasonably be inferred from the document itself.

Part 2 — Adducing Evidence

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) cont. [99] I ought not to depart from Bryson J’s interpretation of s 58(1) unless persuaded it is plainly wrong, and this is particularly so in the case of a provision operating in more than one jurisdiction, such as the Uniform Evidence Acts: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190 at 206 [52] per French J. The “plainly wrong” test requires me to ask whether the disposition of the earlier controversy (here Rusu) has somehow miscarried: compare BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at 253 [83]-[84] per Greenwood J. In my opinion the decision in Rusu satisfies the test because it: (i) overlooks and confuses the different functions of the tribunals of fact and law, eliding them; (ii) overlooks the fact that the Act does not make unauthenticated documents inadmissible. The criterion the Act operates on is relevance; and (iii) concludes that only authentic documents may be admitted into evidence with the consequence that (a) all forgery prosecutions must fail and (b) no jury ever gets to decide whether a document is authentic. [100] These suggest, and I conclude, that the reasoning in Rusu, with respect, is plainly wrong. Rusu has been criticised before. It was doubted by Gyles and Weinberg JJ in O’Meara v Dominican Fathers [2003] ACTCA 24 at [85] and it was described as “controversial” by Madgwick J in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 at [25].

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[101] Rusu is also inconsistent with ALRC Report 26 on Evidence (Australian Law Reform Commission, Evidence, Report No 26 (1985)). That report discussed at [979]-[981] the previous position at common law where self-authentication was not possible (as Rusu holds) and then recommended at [985][986] that the position be liberalised by making the issue of authentication one of relevance. At [985] it said this: Self-Authentication. There is a strong case for liberalizing the law by permitting the courts to take content of the proffered evidence into account together with the surrounding circumstances in determining its authenticity. This is particularly so in relation to writings. The existing standard of authentication creates only a slight obstacle to the witting or unwitting presentation of forge writings. The present “agnostic” approach imposes unnecessary and considerable cost burdens. Further, authentication difficulties usually arise where the writing did not originate with the party tendering it and the opposing party has the knowledge as to its origins. As to objects, self-authentication or identification is not likely to be possible. Proposals are included [in the draft legislation annexed to the report] which permit inferences to be drawn from a document in determining its authenticity. In this way the proposals recognise the reality that most documents produced in court are authentic. (Footnotes omitted, emphasis added.) [102] Section 58(1) is the fruit of that recommendation. It is almost identical in terms to cl 46 of the draft legislation annexed to ALRC 26 and cl 53 of that annexed to ALRC 38 (Australian Law Reform Commission, Evidence, Report No 38 (1987)). Rusu’s interpretation results in the entire point of s 58(1) being thwarted and a return to the common law position which s 58(1) was explicitly intended to alter. I note the learned author of Odgers shares the same opinion (S Odgers, Uniform Evidence Law (Thompson Reuters, 10th ed, 2012) at [1.3.480]). [103] It is true that the critical passage in Rusu was apparently approved by the NSW Court of Appeal in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [46] per Heydon JA (Priestley and Sheller JJA agreeing). However, that was an obiter dictum and does not bind me. It is also true that Rusu was followed by Austin J in ASIC v Rich (2005) 191 FLR 385; [2005] NSWSC 417 at [116], but even his Honour thought that Rusu was intended to be “illustrative rather than comprehensive”: see [99]. For the reasons I have given, I do not share that view. Rusu is an accurate statement of the common law, but s 58(1) was intended to alter that position.

Documents

CHAPTER 3

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) cont. [104] In those circumstances, I decline to follow Rusu. Accordingly, I do not accept the objection to the first document. It is reasonable to infer from its contents that it is a document generated by Thai Airways about fuel surcharges. [105] AirNZ also pointed to ACCC.001.016.0258 as an example of a document with the same problem. This is a document headed “Conference Call 22 Dec 2004”. There is set out in the document an apparent reporting by the cargo manager for each airport in the preceding week. It is not expressly apparent which airline is involved although the mentioning of the names of various competitors shows to an extent which airlines are not. Mr Halley told me during the course of his opening that it was a Qantas meeting.

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[106] It is reasonable to infer from this document that: (a)

it was generated by an airline operating in Asia and the United States in the cargo business;

(b)

it competed with at least Polar Air and Singapore Airlines;

(c)

the document was prepared by a person attending a telephone conference in which the relevant cargo manager reported the position in that manager’s airport;

(d)

that person heard what the cargo managers said;

(e)

what the cargo managers said about the position in their respective airports was very likely to be accurate;

(f)

the document was stored electronically on the airline’s computer;

(g)

if tendered, it will be relevant in the Ahern sense for the non-hearsay purpose of showing agreement or understanding.

[107] It is reasonable to infer that it is what it appears to be. AirNZ then submitted that, when the nature of the document was not apparent from its face, it could not satisfy the business records provisions. In light of my conclusion that s 58 permits me to draw reasonable inferences as to authenticity from the terms of each document, the minor premise of this submission is not made good.



DOCUMENTS IN FOREIGN COUNTRIES [3.100] Section 49 qualifies the operation of s 48 in respect of documents in foreign countries.

PROOF OF VOLUMINOUS OR COMPLEX DOCUMENTS [3.110] Section 50 deals with this issue and was considered in Re Idylic Solutions Pty Ltd

[2012] NSWSC 568.

Re Idylic Solutions Pty Ltd [3.120] Re Idylic Solutions Pty Ltd [2012] NSWSC 568 Facts [ASIC made an application for leave pursuant to s 50 of the Evidence Act 1995 (NSW) to adduce, as evidence of the contents of over 6,000 documents, a number of summaries that have been prepared either by a senior investigator of ASIC, or by a chartered accountant and registered liquidator.] Judgment WARD J

Part 2 — Adducing Evidence

Re Idylic Solutions Pty Ltd cont. [19] What constitutes a summary of the contents of documents, for the purposes of an application under s 50, and the operation of the section itself, has been considered in relatively few authorities (Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding [2004] NSWSC 768 by Einstein J; Beattie & Sutherland v Osman (No 3) [2009] NSWSC 824 by White J; and Thackray v Gunns Plantations Ltd (2011) 85 ACSR 144 by Davies J in the Supreme Court of Victoria). The section has also been the subject of comment in Odgers, Uniform Evidence Law (9th ed, 2010) at [1.2.5220]. [20] Most recently, in Thackray, Davies J approached the construction of the Victorian equivalent to s 50 on the basis that it should not be given a restrictive or narrow interpretation, bearing in mind that the intended purpose of the section is to permit summary evidence “in the event that the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question, so long as the other party has seen the summary and been given a reasonable opportunity to examine or copy the documents” (at [66]). ... [30] … on their face the ASIC scheme statements do not purport to be anything more than a recitation of information in relation to particular transactions (which information Mr Connor deposes was summarised from the underlying documents). If it were to be shown that the column headed Characterisation involved the exercise of judgment as to the nature of the transaction so recorded, then the position might be different, but as I understand it the information recorded in this column is drawn from what appears on the underlying documents in relation to each particular transaction (and there was no suggestion otherwise by the Hobbs interests after their representatives had carried out an initial review of the spreadsheets).

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... [63] There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, eg, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point). [64] The second of those matters can be disposed of with little difficulty. There can be no doubt that the volume of the underlying documents of the kind which would otherwise be required to be tendered individually in the quantities in question (5,007 in the case of the information sought to be adduced by way of the Connor spreadsheets and 1,479 in the case of the Taylor schedules, some of which documents are of many pages in length) is sufficient to attract the operation of s 50. The more contentious issues are the first and third. • Are these summaries for the purposes of s 50? [65] In Gate Gourmet, Einstein J considered that it was a misconception to suggest that a summary, to fall within s 50, must include every detail or fact or feature of the documents purporting to be summarised (at [19]). [66] It is submitted by ASIC that it follows a summary of documents under s 50 may properly be limited to the specific primary facts otherwise being sought to be adduced by that party from the underlying documents (without purporting to summarise the whole of the contents of those documents); in other words that a summary of one aspect or part only of the content of the underlying documents can fall within s 50. In principle, I agree with that submission. Were it to be otherwise then it might well be that there was no real benefit obtained by the production of the summary as evidence of the underlying documents, since the summary might be almost as voluminous as the documents themselves. (Of course, if the summary was only of partial contents of a document and by reason of that

Documents

CHAPTER 3

Re Idylic Solutions Pty Ltd cont. fact were to present a misleading picture of the contents then that would be a reason not to permit the said summary to be adduced in lieu of the underlying documents themselves.) [67] In Beattie, at [25], White J expressed the view that a summary, to be within s 50, should be in the form of an abstract or compendium or epitome or a brief statement of the matters set out in the documents. (His Honour there did not expressly address the question whether a summary of part of the contents of the relevant documents was permissible.) In Beattie, what had been sought to be admitted as a summary in that case (having initially been rejected as a statement of opinion for which no basis had been laid, being inadmissible under s 76, not admissible as expert opinion evidence under s 79 and liable to be excluded under s 135) was a schedule annexed to an affidavit sworn by the finance manager of the alleged creditor. The schedule purported to summarise, as at a particular date, the debt owing or estimated to be owing to the creditor.

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[68] White J noted that the schedule listed a number of items (for some of which there was reference in the schedule to other documents referred to as in the schedule as “supporting evidences”). The items in question included stated balances apparently said to be referable to “Past loan agreements signed”; various items described as payments by the creditor on behalf of the debtor company (advertising charges; purchase of computer and mobile handsets; payment in relation to deed settlement); an item stated to be a loan advance with reference to supporting evidence in the nature of “loan application forms with approval and disbursement details”; and then a number of items for credit to be given to the alleged debtor. Those listed items were followed by a stated total debt position, which was then further adjusted by various debits (including management fees, commission and loan interest) and credits (one of the latter being described as a debt reconciliation). The schedule then contained a statement that the estimated debt owing, after “other adjustments” (presumably those earlier referred to) was in a particular amount. [69] His Honour considered that, in at least some respects, the schedule was not a summary of the contents of two or more documents in question but a calculation of amounts claimed to be due under the underlying documents (such as the items in relation to the operator service fee, management fee and loan interest). As I understand it, the difficulty in this regard was, for example, that the underlying document contained a provision for, say, interest to be calculated at a particular rate after a net adjustment of revenues and the corresponding item in the schedule represented a calculation of that amount, rather than summarising the content of the document as such (ie summarising the provision requiring payment of interest). [70] Perhaps more relevantly to the circumstances of the present case, his Honour considered that the item representing a total of advertising charges paid over the relevant period (which was the sum of charges in numerous individual invoices for that period) was a calculation of the total sum stated in each of the invoices rather than a brief statement of the contents of the invoices and hence was not a summary for the purposes of s 50. It was in this context that his Honour said (at [25]) that: A summary of the contents of two or more documents to fall within s 50 should, I think, be an abstract or compendium or epitome or a brief statement of the facts or matters set out in the documents. [71] His Honour rejected the tender (indicating that he would have done so in any event on the ground that there had not been a reasonable opportunity for the examination or copy of the underlying documents – there having been only a week during which the documents had been made available to the debtor). [72] That approach was the subject of criticism by Odgers Uniform Evidence Law (9th ed, 2010) [1.2,5220] as being “an unduly narrow approach to the provision, particularly bearing in mind the policy behind it and the fact that the provision refers to adducing evidence of the contents of documents ‘in the form of a summary’”. [73] In Thackray, Davies J considered the approach to the equivalent provision in Victoria. In so far as there was a difference in approach emerging from Gate Gourmet and Beattie, her Honour preferred the

Part 2 — Adducing Evidence

Re Idylic Solutions Pty Ltd cont. view of Einstein J in Gate Gourmet and said that she did not consider the section should be construed restrictively to require a summary of each document in question, placing emphasis on the fact that s 50 contemplated a summary of the evidence sought to be extracted from the underlying documents. [74] In Thackray, as it appears from her Honour’s judgment, the summaries sought to be relied on as evidence contained an epitome of each source document, the key transaction data (amount, date, expense description, supplier and payment details for each transaction) being recorded in the pages of the spreadsheets. There is thus a clear similarity with the content of the ASIC scheme spreadsheets, from which the summary tables are derived, which also set out key information said to be sourced directly from the underlying documents. (At [69], having noted that the sheer volume of documents made it impractical to adduce the evidence in a way that would have probative value, her Honour observed that an analysis and summary of the documents would have been required in any event.) Her Honour admitted the summaries into evidence under s 50 as to the contents of the documents summarised therein (though not for the purpose of establishing that the method of allocation of expenses and remuneration among the schemes was fair and reasonable). [75] The reference by White J in Beattie to an abstract, compendium or epitome of the contents of underlying documents accords with the Macquarie Dictionary definition of “summary”. That definition also includes “a brief and comprehensive presentation of facts of statements”. (To the extent that only a partial presentation of facts is summarised from the source documents an argument might arise that this was not a comprehensive summary. However, for the reasons adverted to earlier, I consider that a comprehensive summary of particular facts (such as, eg, a listing of all payment transactions to or by a particular entity or on a particular date or in relation to a particular investment) would be a summary falling within s 50.)

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[Her Honour concluded that some of the summaries fell within s 50 and were admissible as such, others were to be treated as submissions.]



CALLING FOR A DOCUMENT [3.130] A party may, during the hearing of a proceeding, “call” for production of a document

which is in court or in the possession or control of a person who is present at the hearing. Commonly, the person will be a witness in the proceeding. Section 35 provides that neither calling for a document, nor inspecting it if it is produced, requires the party making the call to tender the document in evidence. Where there is no consensual production of a document on a “call”, the party seeking the document may apply for the court to use its powers under s 36. [3.140]

Questions

Read the material in this chapter and answer the following: 1.

What does s 51 do? Why?

2.

How is “document” defined in the Evidence Act 1995?

3.

What must be the purpose of introducing a document for the rules under the Evidence Act 1995 to apply? See s 47.

4.

If you are using documentary evidence for identification purposes, do the rules for introducing a document still apply?

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CHAPTER 3

5.

Consider the different parts of s 48. How can the contents of a document be proved under s 48?

6.

If you have a transcript of a tape, can you play the tape in court?

7.

What did Butera v DPP decide in relation to the admissibility of tape recordings and transcripts?

8.

How did the different judges approach the admissibility of transcripts of foreign language that had been translated in Foreign Media v Konstantinidis?

9.

What can you do to prove a document if the original document is not available or is not in dispute? See s 48(4).

10. What does “unavailable” mean in s 48? 11. What are the requirements of authentication? See NAB v Rusu (1999) 47 NSWLR 309 and Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355. 12. What does s 50 say about proof of voluminous or complex documents? 13. Are the following admissible as documents? Why or why not? • • •

a photo of a letter; a tape recording; a CD-ROM containing business records?

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14. Refer to R v Eagle in Chapter 20 and consider whether the following exhibits would be admissible in light of Ch 2 of the Evidence Act 1995: • • • • • • • • •

hospital records produced on subpoena; photographs of the samples of the fibres from the car; copy of Abby Star’s will; video security surveillance from 21 January 2015 in video tape form; English translation of Dominguez’s taped conversation (in Spanish) to the police on 21 January 2015; autopsy photos; copy of accountant’s calculations which form basis of report; Abby Star’s demo tapes from “Suicide Brunette”; prescription from chemist for insulin.

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CHAPTER 4

Real Evidence [4.10]

INTRODUCTION ....................................................................................................... 151

[4.20]

OVERVIEW ................................................................................................................ 151

[4.30]

INSPECTIONS, DEMONSTRATIONS AND EXPERIMENTS ........................................... 152 [4.40] R v Ivan Robert Marko Milat ....................................................... 152 [4.50] Evans v The Queen ................................................................... 154 [4.60] R v Skaf ................................................................................. 159 [4.70] Experiments ............................................................................................. 165 [4.80] Kozul v The Queen ................................................................... 166

[4.90]

OTHER ISSUES........................................................................................................... 169 [4.90] Requests to produce documents or witnesses ................................................. 169

INTRODUCTION [4.10] In general, the Evidence Act 1995 does not attempt to regulate the way in which evi-

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dence other than witnesses or documents is adduced in a proceeding. It is left to the common law to regulate the admission of pieces of “real” evidence, such as murder weapons, blood or machinery that is the subject of a contract.

OVERVIEW [4.20] Part 2.3 deals with procedural rules relating to evidence other than by witnesses giv-

ing evidence or documents being tendered in evidence. Examples include physical objects admitted as exhibits, the physical characteristics and demeanour of witnesses and “views” of relevant locations. Although s 52 states that the “Act … does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way” that includes tender of physical objects, it is not clear whether the rules of admissibility in Chapter  3 apply. In any event, under the existing common law, requirements of relevance and authentication apply. Section 53 permits a court to order a demonstration, experiment or inspection after taking into account such matters as whether it will assist the court in resolving issues of fact or understanding the other evidence in the case and any danger that it “might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time”. The parties must be given an opportunity to attend, and the judge and jury (if any) must be present. In Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 the High Court held that this provision does not apply to demonstrations, experiments or inspections conducted inside the courtroom. However, the requirement of relevance must be met and s 135 and, where applicable, s 137 allow the court to ensure that unduly prejudicial in-court demonstrations or experiments do not occur. Section 54 permits the court (including, if there is a jury, the jury) to draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. Section 53(4) provides that “the court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations”.

Part 2 — Adducing Evidence

INSPECTIONS, DEMONSTRATIONS AND EXPERIMENTS [4.30] Section 53 permits a judge, on application, to order that an inspection, demonstration

or experiment be held, subject to a number of procedural safeguards. The reference in s 53 to an “inspection” is to be understood in the common law sense of a “view”, given that it does not include an inspection of an exhibit (s 53(5)). Section 54 makes it clear that reasonable inferences may be drawn from what is perceived at an inspection/view, just as with a demonstration or experiment. Before a view is ordered, the judge must be satisfied that s 53 is satisfied and that there will be no unfairness. This issue was considered in R v Ivan Robert Marko Milat. In Evans v The Queen the High Court held that this provision does not apply to demonstrations, experiments or inspections conducted inside the courtroom. Generally, a jury should not do its own experimentation or go on a view itself. What is appropriate jury behaviour was considered in R v Skaf.

R v Ivan Robert Marko Milat [4.40] R v Ivan Robert Marko Milat (unreported, NSWSC, 12 April 1996) Facts

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[Milat was charged with the murder of several backpackers, whose bodies were found in the Belanglo State Forest. Both the prosecution and the accused indicated they wished the jury to inspect the areas where seven bodies were found, so the jury could see the remoteness of the area and see where a substantial amount of property and ballistics evidence was found. The jury would also see places on the Hume Highway before the turn-off into the forest, which were talked about in evidence. The trial judge needed to be satisfied that s 53 of the Evidence Act was satisfied.] Judgment (on application for view) DAVID HUNT CJ at CL: … Section 53 requires me to be satisfied, first, that the parties will be given a reasonable opportunity to be present at any such view. At the request of counsel for the accused. I had a discussion last week with a senior officer of the Department of Corrective Services responsible for security concerning the presence of the accused at such a view. I am satisfied that the accused could be taken to the view in the Belanglo State Forest area if he wished to attend, although the obvious problems indicated by the nature of the terrain there require a level of security somewhat greater than that which is required here in court … I am therefore satisfied that the accused will, in the particular circumstances of this case, have a reasonable opportunity to be present. I have, however, been informed that the accused does not wish to be present at the view. His absence is a matter which I must take into account. According to the Crown, it is usual for accused persons to take that attitude. Such an attitude may no longer be the usual case, as a jury is now permitted by s 54 to draw any reasonable inference from what they see, hear or otherwise notice during a view. What happens on a view accordingly now constitutes evidence, contrary to the position before the Evidence Act. Nevertheless, the view in this case is intended to be no more than an inspection of a static site. It is not intended to conduct any demonstration, and the pointing out of the various sites in the Forest where things were found and various sites just outside the Forest where incidents occurred does not constitute a demonstration. I see no real danger that the absence of the accused is likely to lead to that evidence being misused. Should anything happen during the inspection which will subsequently need to be explained, I am satisfied that the legal representatives of the accused (who will be attending the view) will be able to deal with it in conference with him on their return. The voluntary absence of the accused certainly does not render the evidence created by the view inadmissible. Moreover, although what happens on a view now constitutes evidence, it remains sufficiently distinct from the

Real Evidence CHAPTER 4

R v Ivan Robert Marko Milat cont. trial itself as not to require, at least in felony cases, the presence of the accused at that view in order for the trial to be effective. This is recognised by s 53, which proceeds upon the assumption that, although the accused must be given a reasonable opportunity to be present at the view, he need not in fact be present. Section 53 also requires me to be satisfied, secondly, that both the judge and the jury will be present. That requirement is satisfied. There are other matters specified in s 53 which I must take into account in deciding whether to make an order. Evidence has been given concerning some alterations which occurred to the physical nature of the Belanglo State Forest area since the time of the first of the disappearances. The effect of that evidence is that the fire trails have become more well worn from use, although in a few instances (which do not concern us in this case) they have become more difficult to use. Some areas have been graded and upgraded. Generally, however, the trails have become easier to use and, whereas previously they could be used only by four-wheel drive vehicles or a utility with a sufficient clearance and driven by someone experienced in driving in the bush, they can now be used as well by other vehicles. Det (Tech) Sen Const Grosse suggested that the police activity at the time when the searches were made for bodies has caused some reduction in the density of the undergrowth in some areas, but Mr Hoare from State Forests suggested that the scrub in the immediate areas where the bodies were found is now the same as it was at the time of the disappearance of the various victims. The scrub beyond the immediate areas in each case, except that where Simone Schmidl’s body was found, is now a lot thicker than it was at that time. In relation to the site where Simone Schmidl’s body was found, the scrub beyond the immediate area is the same as it was at that time.

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The plantation area which is shown on the plan in Ex D has changed a lot, in that it has been mostly cleared over the last two years. At the time of the disappearances, that was a heavy and deep pine forest. I do not think that these alterations affect the probative value of the proposed inspection. The jury are aware of them from the evidence which was given, and I shall remind them of that evidence. Whatever the difference in appearance is now to what it was previously, it favours the accused. Both parties submitted that the evidence should not affect the making of the order sought. Arrangements have been made to cover up a memorial to the victims which has been erected in the Forest. I am satisfied that I will myself obtain material assistance in relation to understanding the evidence already given from such an inspection of the areas within the Forest. If that is so, I am satisfied that the jury will likewise obtain such assistance. There has been no suggestion made of any danger that such an inspection might be unfairly prejudicial, misleading or confusing, and I can see no such danger for myself. It certainly will not cause any undue waste of time. … The question which then arises is whether the view should take place in the absence of the public. The inherent power of the Court to make such an order is recognised by the provisions of s 80 of the Supreme Court Act 1970. The special and exceptional nature of the circumstances required in order to justify such an order has been discussed in many cases. I apply the considerations discussed in Scott v Scott. Both parties have requested that an order be made pursuant to s 80. I have received a very helpful submission made on behalf of all the Sydney-based television stations, which appear to be anxious to avoid the complete circus which apparently took place when the magistrate conducting the committal proceedings carried out a view of the Belanglo State Forest in 1994. I am grateful for the thoughtful proposals made. However, notwithstanding those proposals, I am satisfied that the danger of any filming at all of the inspection must necessarily identify the jurors and destroy the anonymity to which they are entitled by statute. The only way in which such filming can be avoided to is make the order that the view take place in the absence of the public, as has been requested by both parties. There is, of course, an abundance of footage of the Forest already available to the television stations, which is regularly

Part 2 — Adducing Evidence

R v Ivan Robert Marko Milat cont. shown by them every time a reference is made in the evidence to that area. I order that the inspection be held in the absence of the public. Arrangements have been made to have the Belanglo State Forest closed to the public on Monday and to have the airspace above it restricted. If any filming does take place of what happens outside the Belanglo State Forest area, I point out that the jurors will not be leaving their bus until it reaches inside the Belanglo State Forest, and I remind the media that the jurors must not be filmed in any way – from the front, the back, sideways or from above. Their identity cannot be revealed either now or at any later time, so there is no point in filming them with any claimed intention of distorting their faces when the film is telecast at the present time. If anyone attempts to film them in any way, it must be assumed that they are doing so deliberately, and they will be reported to the authorities.



Evans v The Queen [4.50] Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59

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Facts [Security cameras had photographed an armed man wearing overalls, sunglasses and a balaclava robbing persons of money. Similar overalls and a similar balaclava were found at the home of the appellant. Before the jury in court, he was required to wear those overalls and balaclava, as well as a pair of sunglasses similar to those worn by the robber and seen on the video, and say the word “serious”, as there was evidence given about the voice of the robber. The suggested purpose was for comparing his appearance and voice with the appearance and voice of the robber in the security photographs and descriptions of the robber given by witnesses.] Judgment (footnotes omitted) HEYDON J: [189] The law which pre-existed s 53. The starting point in construing s 53 must be the common law. [190] At common law a “view” was an out-of-court examination of land, or of chattels too large to be taken into court and tendered as exhibits. The purpose of a view was to assist the trier of fact, by enabling an examination of the dimensions, appearance and relative positions of the features of the things viewed, “to understand and weigh the oral evidence”. A “view” was distinguished from an out-of-court demonstration or reproduction of a past event which had been described by witnesses in court. According to Fullagar J, the court could not treat a demonstration or reproduction as in truth a demonstration or reproduction of what witnesses had described unless one of two conditions was satisfied. The first was that the parties specifically admit that “the demonstration was, or [agree] that it should be treated as, a reproduction of what the witnesses had attempted to describe”. The second was that it be “proved by evidence … that the demonstration really did reproduce what the witnesses had attempted to describe”. On the other hand, Dixon CJ, Webb, Kitto and Taylor JJ favoured a stricter test: apart from power under rules of court, they said experiments or demonstrations (as distinct from views) could not be taken into account unless they took place “at the request of or with the complete concurrence” of all parties. [191] A demonstration was described thus by Lord Denning (delivering the judgment of the Privy Council) in Tameshwar v The Queen: It is very different when a witness demonstrates to the jury at the scene of a crime. By giving a demonstration he gives evidence just as much as when in the witness-box he describes the place in words or refers to it on a plan. Such a demonstration on the spot is more effective than words can ever be, because it is more readily understood. It is more vivid, as the witness

Real Evidence CHAPTER 4

Evans v The Queen cont. points to the very place where he stood. It is more dramatic, as he re-enacts the scene. He will not, as a rule, go stolidly to the spot without saying a word. To make it intelligible he will say at least “I stood here” or “I did this”, and, unless held in check, he will start to give his evidence all over again as he remembers with advantages what things he did that day. But however much or however little the witness repeats his evidence or improves upon it, the fact remains that every demonstration by a witness is itself evidence in the case. A simple pointing out of a spot is a demonstration and part of the evidence. In Karamat v The Queen, Lord Goddard (delivering the judgment of the Privy Council) gave the following example of a demonstration: … the evidence of a police constable or other witness who might testify that he was keeping watch on a certain place and saw an incident might be challenged on the ground that from the place where he was concealed he could not possibly have seen what he said he had. It might be of the utmost value then to let the jury see the place with the witness in the position to which he had spoken; he might well be able to demonstrate that while a shorter man would not have been able to see the incident or a taller man might have been exposed to view, he could, though concealed, have seen what he said he did. Hence the expression “demonstration” includes the operating of a machine said to have caused an injury. [192] A reproduction or reconstruction goes further. Examples include the repetition of a pantomime and the screening of a film simultaneously with a performance by a band.

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[193] The common law, then, draws a distinction between views, demonstrations and reconstructions: It seems to be generally accepted that a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the machine or other object in operation. A reconstruction goes further still and is an attempt to recreate the incident (whether in full or part) with witnesses and testimony. [194] The subject-matter of s 53. Section 53 uses the expressions “inspection”, “demonstration” and “experiment”, but none of these expressions is defined in the Act. Section 53 deals with views in the common law sense, although it calls them inspections: whether “inspection” in s 53 extends more widely, to any examination of an exhibit by a witness in court, is considered here. Section 53 also deals with demonstrations. It does not deal with reconstructions under that name, and the word “experiment” is not apt to cover an attempt to recreate an incident, since it would seem that “experiment” in s 53 means a test or trial or tentative procedure or other operation for the purpose of discovering something or testing a principle or hypothesis. But s 53(3)(d) suggests that reconstructions fall within the expression “demonstrations”, since that paragraph assumes that the goal of a demonstration is to reproduce a particular piece of conduct or event. [195] The true construction of s 53. Section 53 does not apply to what happens in the courtroom at the trial, for the following reasons. [196] First, if the word “inspection” in s 53 has the same meaning as “view” at common law – and it is hard to see how it can have any wider meaning – in that application s 53 is limited to visits outside the courtroom to inspect some place or some thing which cannot conveniently be brought to court. This suggests that s 53 does not apply to what happens in the courtroom in any of its applications. [197] Secondly, if s 53 did apply to conduct in the courtroom, s 53(2) would be otiose in that application of s 53. That is because in all litigation (except ex parte applications) the parties have a reasonable opportunity to be present in court, and the judge, and if there is a jury, the jury, will be present. The absurdity of imposing as a precondition to an order under s 53 a state of affairs which inevitably exists points against a construction of s 53 which would extend to courtroom conduct.

Part 2 — Adducing Evidence

Evans v The Queen cont. [198] Thirdly, if s 53 did apply to conduct in the courtroom, s 53(3)(a) would almost always be otiose in that application of s 53. That is because in most litigation (leaving aside special cases like those involving accused persons who have absconded, and leaving aside cases where defendants in civil cases have failed to attend the trial, or where an ex parte application is made), the parties will be present. There is serious implausibility in a construction of s 53 which would require the court to take account of a factor which almost always will exist. [199] Fourthly, s 53(3)(e), so far as it concerns “places” to be inspected, points against the application of s 53 to conduct in the courtroom. The requirement that the judge take into account the extent to which a place to be inspected has materially altered is wholly inapplicable to conduct in the courtroom, for trials about the condition of a courtroom are rare, and are unlikely to take place in that courtroom. [200] Fifthly, at common law the trier of fact could draw any reasonable inference from all evidentiary material in court. There was a restrictive common law rule adopted in some but not other English cases, and in this Court, preventing an out-of-court view being used as evidence in its own right, as distinct from being an aid to understanding evidence given in court. That rule is abolished by s 54, but it was a rule which applied only to out-of-court activities. The enactment of s 54 thus points to the conclusion that s 53 only applies to out-of-court activities: the rule enacted by s 54 already existed for in-court activities.

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[201] Sixthly, all but the simplest “experiments” are impossible to perform in court. If they are to be performed at all, they have to be performed outside the courtroom. That suggests that no part of s 53 applies to in-court activities. [202] Seventhly, where s 53 applies, counsel for the accused submitted that it would be necessary for the court to comply with s 192. This submission would rest on the view that the “application” for an “order” under s 53(1) is an application for “leave” or “permission” or “direction” within the meaning of s 192(1). If sound, this would mean that the court must take into account the matters described in s 192(2). This submission does appear to be sound. Bearing in mind the need to construe s 53 in its context in the Act, it is desirable to examine what consequences the need to comply with s 192 would have. [203] It was part of the argument advanced by counsel for the accused in this Court that when the accused was asked to say sentences containing the word “serious”, s 53, and hence s 192, applied. Yet at common law a witness could be required “to speak … so that the jury or another witness may hear his voice …”. There was no common law equivalent to the s 53/s 192 procedure, and the question arises whether a construction of s 53 which leads to the delays and inconveniences attendant upon the need to comply with that procedure is reasonable. Similarly, at common law a witness may be required “to write so that the jury or another witness may … compare his handwriting”. It has been held permissible, at least with the witness’s consent, for a witness to demonstrate that he could type a record of interview in less than 36 minutes. It has been held permissible for a witness, who claimed in the past to have signed his signature upside down and in reverse, to demonstrate this before the jury after also signing his ordinary signature. Where an offender is said to have walked with a limp, it is permissible to ask the accused to walk a short distance in front of the jury. Subject to questions of exclusion on grounds of prejudice, it is permissible for injured persons to be invited to show the extent of their injuries or for experts to explain them or for the evidence of paralysis or numbness to be revealed by inserting pins into injured plaintiffs and for injured persons to indicate what their capacity to perform bodily movements was before the injury and after it. A jury has been invited to feel a plaintiff’s skull to assess whether a hole caused by trepanning was filled by bone or a softer tissue. At common law a witness may be required “to show his face or some other part of his body so that he may be identified”. At common law a witness can be compelled “to submit his foot for comparison with a foot print”, or to demonstrate its formation. It is permissible at common law for a tailor claiming payment for making a suit for a customer who resists the claim on the ground that the suit did not fit to ask the customer, while testifying, to try it on in the presence of the jury. It is

Real Evidence CHAPTER 4

Evans v The Queen cont.

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also permissible for an accused to demonstrate his inability to pull neither of two balaclavas left at the scene of a crime over his head. Where the defence called evidence that clothing left at the scene of a crime did not fit the accused, it was permissible to require the accused to wear the clothing in order to see whether it fitted him. The “wearing of a piece of clothing connected with a crime to see if it fits” is “commonplace” and “entirely unexceptional”. It has been held permissible for a witness to leave the witness box in order to demonstrate how the accused committed an act of indecency on him or to demonstrate the position in which a murdered person was found. A witness who gave evidence about the effect of burning the horsehair stuffing of a chair was permitted to demonstrate that effect by setting on fire a hand full of horsehair from the chair. During the present trial, without objection, the accused was asked to take off his jacket, revealing his stomach, as part of a cross-examination directed to showing that he was fair skinned, and was also asked to show the jury his discoloured and scarred arms; yet in this Court it was said that the jury’s “inspection of the stomach” was something which “perhaps” fell within s 53. Counsel for the accused submitted that while he could see no unfairness in an accused person being asked to roll up a sleeve to see whether there was a distinctive tattoo there, s 53 would apply (and therefore s 192). [204] In short, “[d]emonstrations are frequently given in the witness box …, both by ordinary witnesses and by professional witnesses such as medical or pathological experts. It is common for an ordinary witness by physical actions … to support oral evidence of an observed action …”. On the accused’s argument, “demonstrating” how a car accident occurred by the use of models, “demonstrating” distances by the use of the hands, or “demonstrating” distances by the making of comparisons of the distances between features of the courtroom, “demonstrating” with an arm how high something was, or “demonstrating” what the posture of a person was, or how a knife or a gun was held, or how a blow was struck, or where an organ in the body is, or what kind of blow may have caused a particular kind of injury – all these common forensic events, which are illustrations of witnesses communicating more clearly by actions than they can in words, would call for a s 53/s 192 inquiry. It would be extraordinarily cumbersome if s 192 had to be complied with in relation to the very common and speedy methods of eliciting evidence just set out. That points against the application of s 53 to courtroom conduct. … [221] Section 53 did not apply in its terms. The second of the two arguments advanced by the prosecution was that the three events complained of were not demonstrations, experiments or inspections. The argument is sound in relation to inspections, for that refers to the inspection of land or chattels. The argument is also sound so far as experiments are concerned, for what happened could not be described as an experiment. But is the argument sound in relation to demonstrations? Prosecution counsel in this Court argued: [A demonstration] involves an attempt to reproduce the conditions or features of the thing demonstrated to provide information about that thing, usually because the thing itself is not available or directly observable. The information provided by the demonstration allows the jury, or the fact finder, to draw some inference about the actual condition or features of the thing the demonstration was designed to recreate. However, that is different to the situation where the thing is directly observable and there is no need to provide information or evidence about it. The submission continued: [T]he appearance of the items as worn by the [accused] was not a demonstration of some thing, it was not designed to provide information about a thing not directly discernible. His appearance in the items was the thing itself and the jury could observe it for themselves. They were not being asked to infer from the appearance of the [accused] wearing the items something about the condition or appearance of something else, the presentation was not evidence about something not available to them. It was the very thing the jury were to observe so that they could have a direct perception of that appearance.

Part 2 — Adducing Evidence

Evans v The Queen cont.

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[222] Prosecution counsel said that the jury were being invited to compare what they could gather about the offender’s appearance and voice from the evidence of the witnesses, the security video and the still photographs with what they could see of the accused. The accused agreed that there were similarities between his physical characteristics at the trial and those he had on 28 February 2002. When he was asked to don the balaclava and sunglasses to face the jury and turn side on to the jury, to don the overalls, to walk in the overalls, and to say “serious”, an appeal was being made to the jury’s direct observation of the accused so that the jury could weigh that direct observation against the evidence about the offender. The accused was not asked to point out any particular features of a place or an object. He was not asked to describe by reference to a place or object what happened at that place or to that object. Nor was he asked to recreate or repeat some event which had happened in the past. All that happened was that an attempt was made to highlight some features of the accused so that the jurors could judge for themselves whether they were features which the other evidence revealed the offender to have. The process is what Wigmore characteristically called “autoptic proference”. [223] This argument of prosecution counsel is correct. The evidence of the eyewitnesses about what they saw and heard, and the video film and photographs, were admitted without objection. In evaluating it (and counsel for the accused was correct to submit that the video film and photographs were of very poor quality), the jury were entitled to look at the accused in the dock – noting his age, the colour of his hair and skin, his build. When he walked from the dock to the witness box, they could take note of his style of walking. The evidence elicited by prosecution counsel about his age, hair colour, skin colour and build was admissible and not objected to. As he answered questions, the jury could compare his voice with the descriptions given by eyewitnesses of the offender’s voice. All these matters could be taken into account because the “events that occur in the presence of a jury in the regular course of a trial are material which the jury can – as it no doubt does – take into account in the finding of contested facts”. The three events to which exception is taken were nothing more than techniques for highlighting particular features of resemblance which the accused may or may not have had with the offender. They did not involve him demonstrating anything about what happened; they simply involved him revealing particular features of his appearance, gait and pronunciation, as revealed in sentences similar to those the offender was said to have uttered. Even if s 53 applies to in court conduct, they were not “demonstrations” designed, in the language of s 53(3)(d), to “reproduce the conduct or event to be demonstrated”. [224] Were common law rules as to the three events complied with? Counsel for the accused submitted that if s 53 did not apply, there were common law rules which did. That is correct. Section 9(1) of the Act provides: This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment. Section 11(1) of the Act provides: The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. Nothing in Pt 2.3 provides that any common law rules which apply to in-court conduct of the type challenged in this appeal are abolished, and that is so even if, contrary to the conclusion just stated, that conduct is characterised as being a demonstration, experiment or inspection. [225] Counsel for the accused then submitted that the impugned events were demonstrations, and the common law rules which applied were similar to those stated in s 53(3). That is true to the extent that even if the evidence were tendered under a common law rule, s 135 would have to be complied with, and its meaning in substance is the same as s 53(3)(c); and it is also true to the extent that the factors listed in the other paragraphs of s 53(3) are material at common law, for they go to relevance. However, contrary to a submission by the accused, if the evidence were tendered under a common law rule, it would not be necessary to comply with s 192.

Real Evidence CHAPTER 4

Evans v The Queen cont.

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[226] One difficulty with the submission that common law rules similar to s 53 apply is that for reasons given above the three events were not “demonstrations” or, more correctly, “reconstructions”. It is true that if the attire the accused was asked to wear, the actions he was asked to perform and the things he was asked to say were significantly different from what the eyewitnesses had said the offender had worn, done and said, the requests that the events in court take place should have been refused – but on grounds of relevance, not any special rule about “demonstrations” or “reconstructions”. However, there was evidence that the offender had worn a balaclava and overalls similar to those which the accused was asked to wear. There was evidence of how he walked and how he pronounced “serious”. The jurors were entitled to make findings – by assembling a mosaic from small pieces of evidence given by different witnesses if they saw fit – about what the offender was wearing, how he walked and how he pronounced “serious”. If what the accused looked like, walked like and spoke like corresponded with that mosaic, it would assist the prosecution case. If it did not, it would assist the accused. The evidence was sufficiently relevant. No specific “reconstruction” rule requiring equivalence to, substantial similarity with, or a faithful reproduction of, some earlier condition or event applied. The evidence was therefore admissible unless s 135 or s 137 applied. Putting aside the unduly long time during which the accused wore the balaclava, there was no unfair prejudice: the three impugned events took place very briefly; it was reasonably necessary for the case which the prosecution wished to advance for them to take place, and the conduct of prosecution counsel did not exceed those legitimate necessities; the events appeared to have generated evidence favourable to the accused in one respect, and defence counsel contended to the jury that they did so in more than one respect; and so far as they were prejudicial, the prejudice lay in their probative value. It is true that, as was submitted for the accused, the trial judge did not refer to s 137 (or, if it was relied on, s 135); nor perhaps did the trial judge analyse the issues coherently. But her decisions to allow the impugned events to take place were correct. [The other members of the High Court agreed with Heydon J’s conclusion that s 53 did not apply. However, there was disagreement as to whether the evidence so adduced was relevant and/or admissible (see Chapter 5 [5.10]).]



R v Skaf [4.60] R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 Facts [The appellants are appealing against convictions following their joint trial. Bilal Skaf was convicted of two counts of aggravated sexual intercourse without consent. His brother, Mohammed Skaf, was convicted of one count of being an accessory before the fact to his brother’s two counts. The victim of each count was Ms D. The two counts of aggravated sexual intercourse without consent occurred at Gosling Park, Greenacre on 12 August 2000. The Crown case was that Mohammed Skaf’s part in his brother’s crime was to entice Ms D to accompany him in a car, then take her to Gosling Park, then seek to induce her to engage in sexual activity and then, when she proved unwilling to do so, to persuade her to remain in the park until Bilal Skaf and the other men, with whom he had been in constant communication by mobile phone, arrived in the park to seize her. There were many grounds of appeal. All failed except the ground that the trial miscarried by reason of juror misconduct. On 10 July 2003, the day before verdict, the jury went home early. The foreman called one of the other jurors and they decided to visit Gosling Park. They arrived at the park at about 8.15pm and spent about 15-20 minutes at the park. Bilal Skaf argued that “the trial miscarried by reason of a juror attending the scene of the alleged crime and informing himself as to the state of the

Part 2 — Adducing Evidence

R v Skaf cont. lighting at the scene of the alleged crime”. Mohammed Skaf argued that he had adopted his brother’s submissions because if his brother succeeded so must he, as he was charged with being an accessory to his brother’s offence.] Judgment [194] On about 24 February 2004 the Registrar of the Court of Criminal Appeal was notified of information indicative of possible juror misconduct. A solicitor, unconnected with the parties, had written to the Public Defender with information about a conversation with a man known to her who said he had been on a jury involving “the Lebanese guy” who got 55 years for rape. The conversation had given the solicitor the impression that the juror had taken into account information obtained when he “went to the park” that was not evidence in the trial. [195] The solicitor should be commended for her professional responsibility in bringing this matter to the attention of the proper authorities. The admissibility of the juror’s statement [204] The juror said this about the visit to Gosling Park:

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…

4. I was the jury foreman for the Skaf trial. After all the evidence had been given, the jury were considering the verdict. We were doing this for about 9 days; I think we started this on 1 July 2003 [sic]. One afternoon, maybe the 10th of July, as the foreman, I asked the Judge if we could go home early, as there was a little bit of frustration between the jurors. I think it was the day before the verdict. He let us go home early at about 2-2:30pm. 5. I went home. I was thinking about the trial. I didn’t say anything about the trial, not even my family. At about 7pm, I called one of the other jurors whose number I had. We had a discussion and both decided to visit the Gosling Park in the vicinity of Bankstown. I prefer not to divulge this person’s name unless the court directs me to. 6. He came to my place here and both went to Gosling Park in my vehicle. We got there about 8.15pm. I parked on either Chiswick Road or Hillcrest Avenue where there was a parking area. In the park, there was a cricket ground and a picnic area with tables and stalls, a gazebo. I also saw two concrete tanks. 7. We had a look around, walked through the park; we walked together the whole time. There was some people there playing cricket and a few people playing soccer with each other near the car park. 8. The weather was calm, it was dark. It was a beautiful night; I had a light jacket on and was comfortable. It wasn’t cold. 9. Where we walked is shown as a dotted line on the diagram (marked annexure “A”) attached to this statement. I saw the lighting of the park. I saw that the lighting was very clear. I could easily see the other juror at all times. On two or three times at several different spots on the park, I don’t recall exactly where but he and I separated a short distance from each other, say about 2-3 metres. I asked him “Can you see me clearly?” He said, “Yes”. At other times he asked me the same question and I would answer. On each occasion, our answer was “yes”. 10. We spent about 15 to 20 minutes there. We got back into the car and went back to my place. We arrived back about 8.45-9pm. The other juror left soon after we arrived back. 11. I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right. I wanted to be sure my decision was not in any doubt before the verdict. I did not tell anyone else in the jury about this visit. The only juror who knew about the visit was the one who was with me. … [210] Since as long ago as Lord Mansfield’s judgment in Vaise v Delaval (1785) 1 TR 11, 99 ER 944 courts have refused to receive evidence from former jurors as to their deliberations in the jury room.

Real Evidence CHAPTER 4

R v Skaf cont. That was a motion to set aside a verdict, upon an affidavit of two jurors who swore that a coin was tossed to break a deadlock. Lord Mansfield CJ said: The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means. [211] The principle is well established (see eg R v Rinaldi and Kessy (1993) 30 NSWLR 605 at 61011, R v Mirza [2004] 2 WLR 201). The exclusionary rule is based on considerations of public policy that should inform decisions as to its scope and application (see generally R v Pan [2001] 2 SCR 344 at [48]-[52]). The exclusionary principle is based on the need to promote full and frank discussion amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisals, and (to a degree) to maintain public confidence in juries. …

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[214] It is equally well established that there is no blanket exclusion of evidence of matters extrinsic to jury deliberations directed, nevertheless, at establishing miscarriage based on jury misconduct or the consideration of material not admitted into evidence (see eg R v Emmett (1988) 14 NSWLR 327, Mirza at 234-5 [102]-[107]). In R v Minarowska and Koziol (1995) 83 A Crim R 78 the authorities were reviewed by Gleeson CJ, who summarised them as follows (at 85): A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury, and evidence, sometimes described as relating to “extrinsic matters”, which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury (Rinaldi (1993) 30 NSWLR 605; 68 A Crim R 284), or that a sheriff’s officer wrongly intruded into the jury’s deliberations and expressed a view that the accused were guilty (Emmett (1988) 14 NSWLR 327; 33 A Crim R 340), or that a jury bailiff suggested to a jury that an accused had previous convictions (Brandon (1969) 53 Cr App R 466), or that a juror was drunk, or could not speak English, or refused to participate in deliberations (Tuia [1994] 3 NZLR 553). [215] Recently, this Court set aside a conviction in light of evidence that jurors had conducted internet searches disclosing inadmissible and prejudicial material about the accused (R v K [2003] NSWCCA 406). Wood CJ at CL (with whose reasons Grove and Dunford JJ concurred) drew a distinction (at 13) between the material which related to the internet searches made by individual jurors and then communicated to the remaining jurors; and material relating to the use which was made of that information by the jurors, either individually or collectively, in coming to their verdict. [216] The case law reveals that the distinction between material extrinsic and intrinsic to deliberations may not always be easy to draw in practice. Questions might also arise as to whether the jury are deliberating at times and places other than when the jury as a whole has retired to consider their verdict. Sometimes distinctions are suggested between things said and things done or observed during deliberations. [217] These difficult questions are not thrown up in the present case. … [220] In R v Locchi (1991) 22 NSWLR 309, the jury had retired and commenced their deliberations. On a day when one of its number did not attend through illness, the remaining jurors were directed by the trial judge that they were permitted to discuss the case if they wished, “provided that you do not come to any final conclusions until you are all together as a full jury”. It is not known what the jury did during the absence of one of its number, who returned two days later. After further directions and a further two days of deliberations the jury returned verdicts of guilty. This Court rejected the argument that the trial had miscarried. Samuels JA said (at 315) that: … it is the experience of all those who have been involved in jury trials, particularly criminal trials where there are juries of twelve, that sometimes a juror is late and the other jurors

Part 2 — Adducing Evidence

R v Skaf cont. spend some time together in the jury room. Always the jurors of necessity arrive at different times, so that assembling in sequence, in series as it were, in the jury room is routine. It can scarcely be presumed that as they come in, they do not talk about the case. So that it is very likely that in almost every trial there is some discussion about the case, not involving the whole of the jury. Similarly, even after retiring a jury now, by s 54 of the Jury Act 1979, is permitted, if the judge so orders, to separate; and it might very well be that two jurors might travel home together or three jurors or any number of jurors might stop at a hotel on the way and have a drink together and discuss the case. I do not think that any proposition could be framed which would turn discussion about the case between less than the full number of jurors into a miscarriage of justice. But it is unnecessary to express any general principle in this case and I do not attempt to do so. I exclude also the effect of any admonition by the judge that the jury should discuss the case only when they are all together. No such direction was given here. The question is whether what occurred in this case establishes a miscarriage of justice which requires the intervention of this Court. I do not think that it does.

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[221] Locchi provides no support for the notion that the activities of the two jurors in the present case formed part of the deliberations of the jury within the letter or spirit of Lord Mansfield’s exclusionary rule. The English Court of Appeal decision of R v Young [1995] QB 324 is authority to the contrary in so far as it points to the location of the putative deliberations of part of the jury. Evidence was received that four members of the jury used a ouija board in the course of an overnight stay in a hotel, seeking guidance from the deceased murder victim as to key issues. The occasion was held to fall on the “extrinsic” side of the line and the evidence was admissible (see also Minarowski and Koziol at 86, Mirza at 219 [45], 235 [106]). … [224] We agree that “deliberations” may take place outside the jury box or jury room and that they may occur when less than the whole number of jurors are present. For example, deliberations are not interrupted because a juror goes to the toilet. There will be matters of degree and the line may not always be easy to draw. But there is no authority that we know of that suggests every discussion that takes place between a juror and a third party or between a handful of jurors represents deliberations whose nature cannot be examined because evidence will not be received from a juror or third party about what took place. The policies informing the preclusive rule must always be kept in mind. … [229] The evidence of Juror 3074295 as to what he and his fellow juror saw and did at Gosling Park related to events occurring after the jury had been sent out to consider their verdict. But on no account could they be considered part of the deliberations of the jury or even of the two jurors who went to the park. The discussion between the trial judge and the foreman recounted earlier indicates that the present jury were released from their deliberations when they were sent home early, albeit to the slight bemusement of the judge. This is not to suggest that any information improperly garnered by the two jurors was incapable of impacting upon their deliberations and, if communicated to their fellow jurors, upon the deliberations of the jury as a whole. (No one submitted that the verdict could stand if even one juror was privy to inadmissible material giving rise to a miscarriage.) [230] The portions of pars 9 and 11 of the juror’s statement to which particular objection is taken by the Crown and the Solicitor General do not, in our view, offend the preclusive rule, although par 11 comes close to the line. No part of the juror’s statement revealed what he or any other juror had said to each other in their deliberations earlier that day. Nor did it reveal the basis upon which the juror arrived at his verdict the following day. At its highest, it reveals his private thinking at the time of the visit to the park. The last sentence does not, in our view, assert anything about the state of mind of the other jurors referable to their verdict or deliberation processes. We later explain that no regard has

Real Evidence CHAPTER 4

R v Skaf cont. been taken of any possibly reflective light that par 11 offers as regards the individual juror’s deliberative processes. … [232] From time to time trial judges who become aware of irrelevant material coming to the attention of jurors may question the jurors to satisfy themselves that the information (such as a newspaper report) was not seen by the juror or, if it was seen, had no impact on the fairness of the trial. [233] In our view, a statement by a juror as to the positive or negative impact of extraneous material upon his or her deliberative processes would be inadmissible in accordance with the rule of preclusion discussed earlier. To the possible extent that par 11 of the juror’s statement addresses the influence of his observations at the park upon his decision the next day to participate in a guilty verdict, we have excluded such information from our own deliberations. … The nature of the irregularity [235] The juror’s statement reveals that the two jurors engaged in an inspection and experiment of the lighting at the park with a view to considering how clearly a person could be recognised at night from close quarters (up to about 2-3 metres). This was relevant to the issue whether Bilal Skaf was the first assailant, a critical element of all three counts. [236] In our view it is unproductive to debate whether what happened was an “experiment” as well as an “inspection”, although we think that it was both (cf Evidence Act 1995, s 53). It is the potential impact of what actually happened, not its label, that is vital to this issue in the appeal. [237] If there had been an experiment in the course of jury deliberations, there would have been a direct contravention of s 53(4) of the Evidence Act …

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However, the very basis upon which the juror’s statement is admitted as evidence in this appeal cuts across the argument that the inspection and experiment formed part of the deliberations of the jury. [238] What is the legal characterisation of the material disclosed? [239] We put aside the issue whether the conduct of the jurors amounted to a contempt of court. That matter lies outside the questions for determination in these appeals. We mention it only to indicate, for the information of jurors in other trials, the potential seriousness with which the law views this type of misconduct. [240] It seems to us that what has been revealed in the present case does not amount in itself to a departure from fundamental requirements as to the procedure of a criminal trial before judge and jury. The matter is not to be viewed as if it were evidence that there were a 13th unsworn juror in the jury room or that the verdict proceeded from deliberations involving less than 12 persons moving towards a unanimous decision. [241] Rather, the characterisation of the proven incident is that some (at least) of the jury had regard to information that was not evidence in the trial, or otherwise properly put before them by the judge to the knowledge of the parties. Such information as the jurors obtained was not evidence and it was obtained in circumstances amounting to a want of procedural fairness (denial of natural justice) in that the accused were unable to test the material, comment upon it or call evidence to rebut or qualify it. The Court needs to weigh the possible prejudicial impact of this extrinsic information upon the minds and deliberations of (at least) the two jurors directly involved. … The impact of the irregularity [248] The submissions of the two appellants were generally to similar effect as regards the impact of the unauthorised view. Each submission confined itself to the issue whether Bilal Skaf was properly identified by the complainant as the man who first sexually assaulted her. [249] It was common ground that the impact of the juror’s visit to the park had to be weighed against the issues fought at trial and the evidence led in relation to them.

Part 2 — Adducing Evidence

R v Skaf cont. [250] It is also common ground that the principal issue in the trial was whether the complainant had correctly identified Bilal Skaf as the man who first sexually assaulted her at Gosling Park and who was present assisting when the second (unidentified) man did so. [251] The adequacy of the lighting where the alleged assaults took place was clearly relevant. Evidence was called by the Crown and presented by way of cross-examination of Crown witnesses on behalf of the accused which touched on this issue. … [253] Bilal Skaf was a stranger to the complainant. The relevant events occurred around 10pm on 12 August 2002, when it was dark. [254] In the nearer field where the assault occurred, the floodlights were off. In the further field there was a soccer game going on with people watching. The complainant gave evidence about the lighting (Tr pp116-7), although she could not be sure what the lighting was like (Tr p58). It was however sufficient, she said, for her to see “quite perfectly well”, including faces (Tr p116). There was also lighting near the cement cylinders, because she could see faces clearly at that point. [255] Detailed evidence was given at trial from Sean Mooney, a maintenance and construction coordinator for Bankstown City Council. He described the lighting at Gosling Park in so far as he knew of it. He said that the council floodlights were not turned on at the time (Tr p286). There were however lights, controlled by Energy Australia, operating from sundown to sunrise in the street adjoined to the park and in the car park itself. There were also lights near the storage tank (Tr pp 286-7, Ex C38).

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[256] Bilal Skaf’s case at trial was that he had been wrongly identified by the complainant. The lighting issue was treated as relevant, both in that evidence was called about it and that the directions to the jury included (SU 36): You take into account the opportunity she had for observing him. How long were they together on that night in that park. What was the lighting like? Was she able, as she said, to clearly see him? [257] The Crown prosecutor had put submissions at trial about the lighting (Tr pp328-9). [258] Mohammed Skaf adopted Bilal Skaf’s submissions in this Court, adding some of his own. [259] He pointed out, correctly, that his appeal on this ground must be allowed if his brother’s succeeds, because he was charged with being an accessory to his brother’s offence. [260] In his submission, the jury foreman’s statement revealed that two members of the jury engaged in a view and conducted experiments. This was a material irregularity. The jury had been instructed by the trial judge at the beginning of the trial that you cannot “go and do your own research” (Tr p30). The two jurors’ disobedience of this instruction meant that they obtained and took into account information that was not evidence. Because this was not conveyed to the judge and parties no one had the opportunity to deal with the material, or to make submissions in respect of it, and the trial judge could give no directions about its use. Kozul v The Queen (1981) 147 CLR 221 at 227 was cited. [261] Each appellant submitted that it was not possible to exclude the possibility that the lighting conditions, at the time of the jurors’ view, were significantly different from the conditions at the time of the assault. [262] The appellants submitted that the very fact that the jurors thought it appropriate to go to the park points to the materiality of the lighting issue in their consideration of the Crown case. Compare the remarks of Eichelbaum J in Bates, quoted earlier. The appellants also rely on the timing of the view and the promptness of the guilty verdict that followed the next morning. Whatever the cause of the “frustration” mentioned by the foreman to Finnane DCJ on the afternoon of 10 July 2002, a clear consensus as to guilt emerged early the next day. …

Real Evidence CHAPTER 4

R v Skaf cont. [268] The Crown submitted that the conditions experienced by the two jurors when they visited the park on the evening of 10 July 2002 were for all relevant purposes the same as the evening of the alleged offence of 12 August 2000. The alleged offences occurred on a clear night between 9.59pm and 10.37pm. The two jurors visited Gosling Park on a clear night between about 8.15pm and 8.35pm. Without objection, the Crown tendered further evidence of Sean Mooney and information obtained from the Bureau of Meteorology which effectively established the latter propositions. [269] The appellants, however, drew attention to the possibility that lighting conditions were markedly different when the jurors visited, because, if Juror 3074295 was 10 minutes out in his estimated time of visiting Gosling Park, he would have been there when the floodlighting was switched on at the relevant part of the park. The upshot is, we think, that the possibility of lighting conditions having been different is one that cannot be excluded. The problem of an uncontrolled view and the issues of procedural fairness that it may generate remain live. … [273] In our view there must, regrettably, be a new trial because of this ground.

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[274] The Court cannot be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. The juror treated what was seen and done at the park as information that he took into account in arriving at or confirming his conclusion that guilt had been established beyond reasonable doubt. The case is analogous to Gillespie. [275] Attempts to reconstruct material events or to conduct experiments are fraught with danger, even if conducted under the control of the court. Conditions may be different in perceptible and imperceptible ways. This is especially the case where there may be movement and potentially variable lighting conditions or perspectives of view (cf R v Quinn [1962] 2 QB 245 at 257, R v Neilan [1992] 1 VR 57 at 74-5). These dangers increase exponentially when a view, coupled with an experiment, takes place in private and where its impact comes to be assessed years after the event. [276] The misconduct of the jurors caused the trial to miscarry. [277] The law of evidence may be amended from time to time. But its essential function is constant and vital. In a criminal trial, guilt must be established beyond reasonable doubt based upon admissible evidence. The rules of evidence are the sieve through which information must pass before the jury is required or entitled to consider it. Parties cannot rely upon information that is not proved according to these rules. This is no mere technicality. The rules embody significant policies designed to achieve fairness and efficiency. The need to satisfy those rules in a criminal trial ensures that those policies are met and that all parties know what is being taken into account and are able to address its significance.



Experiments [4.70] Section 53(4) prohibits the court (including a jury) conducting an “experiment” in

the course of its deliberations. In Kozul v The Queen, the judge allowed the jury to take an unloaded revolver into the jury room and test it there when considering whether the gun could have discharged accidentally. The question was whether this was inappropriate experimenting, or just testing of evidence.

Part 2 — Adducing Evidence

Kozul v The Queen [4.80] Kozul v The Queen (1981) 147 CLR 221; [1981] HCA 19 Facts [Kozul was convicted of maliciously shooting at Rajcinoski with the intent to do grievous bodily harm, and of recklessly discharging a firearm so as to endanger the public. Kozul, who ran a cabaret, refused to allow Rajcinoski into the cabaret. He claimed that Rajcinoski had then made a movement that made Kozul think he was reaching for a knife. Kozul then drew a revolver, allegedly for self-defence, but said that Rajcinoski struck him on the hand, causing the revolver to discharge into the street. The Crown alleged the revolver had been deliberately fired. A ballistics expert presented evidence on the ease with which a revolver would accidentally discharge under such conditions. In the course of summing up, the judge invited the jury to examine and test the (unloaded) revolver. On appeal, it was contended that such an invitation was wrong.] Judgment

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GIBBS CJ (at 226): [9] The revolver was an exhibit in the case, and was just as much part of the evidence as the oral testimony of the witnesses. The jury were of course entitled to examine it, and to have regard to it in reaching their verdict. However, the jury trying issues of fact are not restricted merely to looking at material objects (such as a revolver) that have been produced in evidence. They may if necessary touch and handle them, and they may, within limits that are readily understood in practice if difficult to define with precision, engage in a limited amount of simple experimentation with them. For example, if the question was whether a piece of paper found in the possession of the accused had been torn from a letter found at the scene of the crime, the jury might fit the two pieces together. If the question was whether one container held less than another, the jury might pour water from one to the other. If the weight of an object were in question, members of the jury might lift it. And, to come to the present case, it would have been perfectly proper for the members of the jury to pull the trigger of the revolver, both when it was cocked and when it was not, so that they might judge for themselves how much pressure was necessary to cause it to discharge. In experimenting in this way, the jury are doing no more than using their own senses to assess the weight and value of the evidence. [10] In Scott v Numurkah Corporation (1954) 91 CLR 300, at p 313, it was said: The statement that “the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence” is fully supported by authority. Cases which deal with the extent to which a tribunal may derive assistance from a view in reaching its conclusion provide some analogy, but whatever be the position of a view, it is clear that material objects produced in evidence and admitted as exhibits [at 227] are themselves part of the evidence. The result of an examination of the exhibits does not stand in place of the evidence; it is the result of the perception of the evidence itself. It is clear that the jury can prefer the evidence provided by the material object to that given orally by the witnesses: see Hodge v Williams (1947) 47 SR (NSW) 489, at pp 492-3 and Scott v Numurkah Corporation. If the question is whether a knife is sharp or a club is heavy, or whether one object resembles another, the jury can prefer their own observation to the evidence of the witnesses. Of course, it may be necessary to warn the jury of the possible dangers that may exist if they act on their own observation. For example, the present condition of the object may not be the same as its condition at the relevant time, or the fact to be observed may be such that an unskilled layman might need to have his observation assisted by expert evidence. [11] In Hodge v Williams (1947) 47 SR (NSW), at p 493, Davidson J, after saying that the tribunal may “with its own powers of observation and general knowledge” estimate the value of the evidence of witnesses directed to issues concerning articles in evidence as exhibits, and if necessary refuse to accept that evidence, went on:

Real Evidence CHAPTER 4

Kozul v The Queen cont. Nevertheless, it is not permissible for the Judge or jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional evidence, and apply it in the determination of the issue, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel. When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible.

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[12] If, as was considered in the Court of Criminal Appeal, the jury were invited to do no more than test the mechanical properties of the pistol, it is clear, in the light of the foregoing discussion, that the direction of the learned trial judge was perfectly proper. However, the argument for the applicant was that the invitation went further, and that the jury were really invited to conduct an experiment into the question whether a finger would move if a blow was struck to the hand when holding a revolver. One or two sentences in the summing up provide some support for that submission – particularly the invitation to the jury to use their common sense in “determining whether or not, while it is uncocked some blow to the hand can cause the finger to move that distance back, and the gun to go off”. [13] [at 228] The case for the applicant was that the revolver had discharged accidentally, after he had been bumped on the hand. There was no explanation in the evidence of the way in which the bump caused the revolver to fire. However, there are a number of possibilities. In the first place, the revolver may have been cocked. Of course the applicant had sworn that the revolver was not cocked, but the learned trial judge, at the request of the applicant’s counsel, directed the jury that they were not bound to accept the applicant’s evidence, and that they might consider that the revolver may have been cocked. Secondly, if the revolver was not cocked and the applicant’s finger was not on the trigger, the mechanism of the revolver may have been so sensitive that a blow might have caused it to discharge. The jury would only have taken that view if they had rejected the evidence of the ballistics expert, but it was open to them to do so, particularly if an examination of the revolver convinced them that the expert was wrong. Thirdly, the revolver may not have been cocked, but the applicant’s finger may have been on the trigger, and a blow to the applicant’s hand may have caused his finger involuntarily to tighten on the trigger with sufficient force to cause it to fire. Such an involuntary movement of the finger may have been a reflex action in the strict sense (ie an involuntary action of a muscle caused by the excitation of a nerve), or it may have been a sudden involuntary response to surprise or fear. There was no evidence that in fact the applicant’s finger did move in either of those ways. The jury had to decide whether they were satisfied that the weapon did not discharge for any of these reasons, without any willed act of the applicant. In considering that question it was relevant to determine how sensitive the trigger was to pressure, and proper for the jury to examine the revolver, and to feel for themselves how much pressure was required to discharge it. [14] In so far as the learned trial judge suggested that the jury should conduct an experiment designed in part to discover the extent to which a blow to the hand might cause a finger to move, whether by reflex action or in spontaneous response to emotion, he fell into error. In the circumstances of this case an experiment conducted by the jury for such a purpose would have gone beyond an examination and evaluation of the evidence provided by the revolver, and would have had the purpose of gathering additional evidence. However, this error was largely, if not entirely, corrected by the direction which the learned trial judge subsequently gave to the jury. He had already, by his questions to the ballistics expert, shown the jury that an experiment of this kind conducted upon a subject who was not affected by fear or [at 229] other emotion and who knew what was about to take place would provide no useful guide to the reactions of a person under stress who was apprehensive or surprised. He reminded the jury of this in his summing up when he indicated to them that an experiment conducted upon a subject “who is comfortable and at ease and has been assured that nothing possibly adverse can happen” would be “of little assistance at all”. In the light of this reminder, a reasonable jury may well have understood that the experiment which they were invited to conduct was for the purpose of testing the pistol, but if they did think that its purpose was to ascertain what reactions

Part 2 — Adducing Evidence

Kozul v The Queen cont. might be expected of a person who receives a blow when holding a pistol, they had been warned of the unreliability of an experiment for that purpose. STEPHEN J: …

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[19] [at 236] In these circumstances I would regard it as both permissible and prudent to tell the jury not only to handle the revolver and experience the respective trigger pressures but to experience for themselves the sensation of a blow to the hand holding the revolver. Without all this the jury would be largely left to decide the matter by mere speculation. With it they could at least apply their fund of common sense and common experience. The explicit warning that no accurate re-enactment was possible provided the necessary safeguard. [20] Juries must be free to use in their deliberations the qualities of judgment and of common sense which they bring into the jury room. They must not substitute what they may suppose to be their own special knowledge in place of the expert evidence given in Court; they must not substitute mere speculation in place of the evidence they have heard and the inferences which may properly be drawn from it. But in the words of the Full Court of the Supreme Court of South Australia in Reg v Hamitov (1979) 21 SASR 596, at p 598, “When exhibits are sent into the jury room it is understood that the jury are at liberty to inspect and experiment with them in any reasonable manner which occurs to them”. A striking illustration is furnished by the Brides in the Bath Case, (1915), to which a volume in the Notable British Trials series, “Trial of George Joseph Smith”, is devoted. A bath was an exhibit in court and evidence was given of the discovery of a body in it. As recounted verbatim at p 118, the foreman of the jury at that point requested that someone should be put in the bath “for ocular demonstration”. To this his Lordship replied “I can only suggest to you that when you examine these baths (Smith had murdered several women, using different baths) in your private room you should put one of yourselves in”. The highly unlikely possibility that this was no more than a jocular suggestion is dispelled by his Lordship’s next sentence “Get some one of you to try it who is about the height of 5 feet 9”. Marshall Hall, for the defence, then suggested that the prosecution should provide such a person, but his Lordship replied “I think it is much better the jury should try for themselves, Mr Hall. There are disadvantages in the French system of reconstructing a crime”. [21] Particular difficulties arise in areas which are essentially matters for expert evidence. Handwriting comparison is an instance of this; the English courts have stressed the difficulties which arise when there is no expert evidence yet the jury has before it examples of handwriting and much turns upon whether each is the product of the one hand. When there is expert [at 237] evidence, the jury must be told not to substitute for that evidence its own inexpert view; when there is none, the jury must be warned that they must not attempt a task requiring expert skills – Reg v O’Sullivan (1969) 1 WLR 497; (1969) 2 All ER 237; 53 Cr App R 274. The present would be such a case if what was in question was a precise reconstruction of events, culminating in the forming of an opinion about the physiology of the hand and concerning the forces which, when applied to it, might cause reflex movements of the index finger sufficient to discharge the revolver. But this was the very thing against which the judge had warned the jury. It is a very different thing for the jury merely to be able to experience the sensation, sworn to by the applicant, of holding the revolver and of receiving a blow to the hand. If prevented from experiencing it, the jury is the less able to understand and evaluate the evidence of the applicant.



Real Evidence CHAPTER 4

OTHER ISSUES Requests to produce documents or witnesses [4.90] Division 1 of Pt 4.6 (ss 166-169) contains provisions setting up a request procedure

designed to give procedural protection to parties against whom evidence may be adduced as a result of the abolition of the best evidence rule (Pt 2.2) and the reduced operation of the hearsay rule (Pt 3.2). [Application for special leave refused.]

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[4.100]

Questions

1.

What is “real evidence”?

2.

Does the common law have any operation for real evidence? See s 52 and Evans v The Queen.

3.

Section 53 is titled “Views”. Does it deal with anything else?

4.

What are “views”, “experiments”, “demonstrations” and “inspections”?

5.

When will a judge order a demonstration, experiment or inspection?

6.

What must the judge at least consider? See s 53(3).

7.

Can there be a view if the accused does not choose to be present? See R v Ivan Robert Marko Milat and give reasons for your answer.

8.

Does s 53 apply to in-court demonstrations, experiments or inspections? What are the common law requirements? Did Heydon J hold that they applied to what happened in court in Evans v The Queen?

9.

Can the jury experiment with evidence? See Kozul v The Queen and give reasons for your answer.

10. Can one party carry out experiments in court and present the results to the jury? Explain. 11. Was the conduct in R v Skaf part of the deliberations? Why or why not? 12. Was the conduct inappropriate? Give your reasons. 13. What use can be made of charts? See s 29(4). 14. Scott is on trial for the murder of Brown. In 1999, Brown was stabbed outside a cinema in Bourke. A witness saw Scott stab Brown in the arm and kick him in the stomach. The prosecution wishes the court to go and see the cinema. Scott is in custody for another offence. The defence will object to the view being conducted. Should the trial judge allow the view to take place? 15. Lee is on trial for kidnapping and attempted sexual assault upon a young boy named S. S alleges that while he was walking home from school, Lee forced him into a car and handcuffed him to the steering wheel. S also states that when Lee went out of the car to buy a drink he was able to escape from the cuffs and run to a nearby police station. The handcuffs, over defence objection, are tendered into evidence. In summing up, the trial judge directs the jury that they should examine the handcuffs and “see if they could escape their hold”. Discuss.

Part 2 — Adducing Evidence

16. In the judgment in Strom v Council of the Shire of Cremorne (see Chapter 20), the judge mentions that the court took a view of the lookout. What would have been involved?

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17. In R v Eagle (see Chapter 20), the Crown Prosecutor makes an application for the judge and jury to take a view where the alleged murder is said to have occurred. The basis of the application is to enable the court to have an understanding of the dimensions of the house. Provide reasons for the permitting or refusal of a view.

PART 3 — ADMISSIBILITY OF EVIDENCE 5 Relevance ......................................................................................................... 173

7 Hearsay ............................................................................................................. 251 8 Opinion ............................................................................................................. 337 9 Admissions ....................................................................................................... 391 10 Tendency and Coincidence ...................................................................... 437 11 Credibility ...................................................................................................... 481 12 Character ....................................................................................................... 521 13 Identification Evidence ............................................................................. 543

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14 Privilege ......................................................................................................... 561

PART3

6 Discretions to Exclude or Limit Use of Evidence ................................. 193

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CHAPTER 5

Relevance [5.10]

INTRODUCTION ....................................................................................................... 173

[5.20]

OVERVIEW ................................................................................................................ 173

[5.30]

RELEVANCE ............................................................................................................... 174 [5.40] Smith v The Queen ................................................................... 175 [5.50] Papakosmas v The Queen .......................................................... 178 [5.60] Evans v The Queen ................................................................... 184

[5.70]

PROOF AND INFERENCES ......................................................................................... 190

INTRODUCTION

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[5.10] Chapter 3 of the Evidence Act 1995 is titled Admissibility of Evidence. As the outline

of the Chapter in the Act indicates, this chapter deals comprehensively with the question whether evidence “adduced” by a party to a proceeding is “admissible” in the proceeding. As we saw in the preceding part of this book, Ch 2 of the Act deals with the various ways in which a party may introduce (or, using the language of the Act, “adduce”) evidence into a court proceeding. It prescribes various procedural requirements for different types of evidence, and non-compliance with those procedures will mean that the evidence in question cannot be adduced. However, simply because an item of evidence is adduced in accordance with the procedural requirements of Ch 2 of the Act, and the common law, does not mean that the court will take the evidence into account in deciding the factual issues to be determined in the proceeding. Whether the evidence will be used to decide factual issues will depend on whether it is “admissible” in accordance with the provisions of Ch 3 of the Act. If an item of evidence is not admissible, it cannot be “admitted” into the evidence which the court will take into account in deciding the case. If it is admissible, it may be admitted, and taken into account, unless “discretionary” or “mandatory” exclusion occurs pursuant to Pt 3.11 of the Act. While it may be admitted for one use or purpose, that does not mean it may be taken into account for all relevant uses or purposes. It may be inadmissible for a particular use, and thus not permitted to be used in that way. In order to facilitate understanding of the inter-relationship between the various parts and sections, this chapter does not follow exactly the order in the Act.

OVERVIEW [5.20] Part 3.1 in Ch 3 is titled Relevance. The key provision regarding the admissibility of

evidence in Ch 3 is s 56. If evidence is not relevant, it is not admissible in a proceeding. If it is relevant, it is admissible, “except as otherwise provided by this Act”. It may be excluded by one of the exclusionary rules in Ch 3, in the exercise of judicial discretion (see Pt 3.11), or under one of the procedural provisions in Ch 2 of the Act.

Part 3 — Admissibility of Evidence

A distinction should be drawn between admission and use of evidence. Evidence may be relevant in different ways (ie for different uses). For example, evidence that a person had made certain factual allegations may be relevant to prove the truth of the allegations (a hearsay use) but may also be relevant, if the person subsequently testifies, to his or her credibility as a witness (supporting credibility if the out-of-court allegations are consistent with the in-court testimony, diminishing credibility if inconsistent). If admitted evidence is not relevant for a particular use, it is not “admissible” for that use. Further, there are a number of provisions in the Act (eg ss 59, 76, 89, 91, 97 and 98) that enact that certain defined categories of evidence are “not admissible” for a particular use. The mere fact that evidence has been admitted does not mean that it may be used in all the ways it is relevant. If it is not admissible for a particular use, it cannot be used in that way (subject to the operation of the waiver provisions in s 190). Similarly, if the court has exercised its general discretion in s 136 to prevent a particular use of the evidence, it cannot be used in that way. Section 55 defines what is relevant evidence. Section 57 deals with provisional relevance. Sometimes the relevance of evidence will depend on the existence of a particular fact (eg that the evidence is what it is claimed to be, or that other evidence will be admitted in the proceeding). If relevance “depends on the court making another finding”, s 57 permits the court to make a finding of (provisional) relevance if it is reasonably open to make that finding or the party adducing the evidence undertakes to adduce further evidence that will make it reasonably open to make that finding. Section 58 provides that, in determining the relevance of an object (“a document or thing”), reasonable inferences may be drawn from it.

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[5.30] Relevant evidence is defined in s 55. The definition provides that evidence is relevant

if it is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. The definition requires a minimal logical connection between the evidence and a “fact in issue” in the proceeding (what facts are in issue is determined by reference to the substantive law and the pleadings). Whether such a logical, or rational, connection exists is an objective test grounded in human experience. The reference in s 55 to “if it [the evidence in question] were accepted” requires that relevance be determined on the assumption that the tribunal of fact will accept that a witness giving evidence is truthful and reliable. In Papakosmas v The Queen (1999) 196 CLR 297, McHugh J at [81] stated: The words “if it were accepted” in that section make it clear that a court assesses “the probability of the existence of a fact in issue” on the assumption that the evidence is reliable. In the Interim Report of the Australian Law Reform Commission that led to the enactment of the Act, the Commission pointed out that distinguishing between “legal” and “logical” relevance disguised the myriad policy considerations that contributed to the former. The Commission thought that, as a threshold test, relevance should require only a logical connection between evidence and a fact in issue. To the extent that other policies of evidence law, such as procedural fairness and reliability, required the strict logic of the relevance rule to be modified, that could best be done by the exclusionary rules – such as the hearsay rule and the credibility rule – and by conferring discretions on the court as in ss 135-137. The terms of s 55 indicate that it was intended to give effect to the Commission’s view as to the proper approach for determining the relevance of evidence.

This passage was approved by other members of the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [22] and in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39].

Relevance CHAPTER 5

Relevant evidence need not render a fact in issue probable – it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence (it “affects the probability” of the existence of the fact in issue). An indirect connection with a matter in issue is sufficient (eg evidence that a defendant expressed an intention to kill the victim supports an inference that he or she did in fact have such an intention and a further inference that he or she is more likely than others who did not express such an intention to have killed the victim). Similarly, where a witness has testified in relation to some fact in issue, evidence relating to the credibility of the witness will indirectly affect the assessment of the probability of the existence of the fact in issue. In some cases, the absence of evidence (eg the absence of evidence of a motive to commit a crime) will be relevant. Alternatively, the failure of a party to adduce certain evidence may permit an inference that the evidence would not have assisted that party (see Chapter 17 [17.10]). In Goldsmith v Sandilands (2002) 190 ALR 370 Gleeson CJ explained at [2] how evidence is relevant to a “fact in issue” in a civil case:

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The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but “to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial”. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive. The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality. (footnotes omitted)

Also, McHugh J observed in the same case at [31]: [E]vidence is generally admissible only if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact. Whether a fact is a fact in issue depends upon the pleadings and particulars of each party’s case. The facts in issue reflect the material facts that constitute the claimant’s cause of action – which may be defined as the set of facts to which the law attaches the legal consequences that the claimant asserts. The facts in issue also include those material facts that provide any justification or excuse for, or a defence to, the cause of action. (footnotes omitted)

In the three cases extracted here, Smith v The Queen, Papakosmas v The Queen and Evans v The Queen, the High Court considers the issue of relevance in relation to identification evidence, complaint evidence in a sexual assault case and “real” evidence respectively.

Smith v The Queen [5.40] Smith v The Queen (2001) 206 CLR 650 Facts [Smith was convicted of robbing two bank officers of bank money in the company of others. Bank security cameras showed what had happened. The prosecution’s case was that he was in the photographs keeping a lookout while his co-offenders took the money. The issue was whether Smith was the person in the photos. Two police officers gave evidence that they knew Smith and recognised him in the photos. The question on appeal was whether that evidence was properly admitted.]

Part 3 — Admissibility of Evidence

Smith v The Queen cont. Judgment (footnotes omitted) GLEESON CJ, GAUDRON, GUMMOW and HAYNE JJ: [6] As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant, do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore: None but facts having rational probative value are admissible, and All facts having rational probative value are admissible, unless some specific rule forbids.

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[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial, the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. [8] The issues which arose on the appellant’s trial were very narrow. There being no dispute that there had been a robbery, the only disputed fact was whether the appellant is depicted in the bank photographs. It is important to notice that the question is framed in the present, not the past, tense. Having regard to the fact that the photographs which were tendered in evidence at trial depicted the occurrence of the robbery with which the appellant was charged, the question for the jury was whether they were satisfied, to the requisite standard, that the person then standing trial before them is shown in those photographs. [9] The only evidence led against the appellant in relation to that disputed fact was the evidence of the two police officers and the evidence that demonstrated that the photographs which were tendered in evidence had been taken by the bank’s security cameras during the robbery. Neither police officer suggested that he had any basis for concluding that it is the appellant depicted in the bank photographs other than the knowledge that he had gained of the appellant’s physical appearance during those earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence. There was no suggestion that the physical appearance of the appellant had changed materially between the time when the photographs were taken and the time of the trial, or that the police, by reason of their previous observations of the appellant, were at some advantage in recognising the person in the photographs. It was acknowledged by counsel, in the course of argument in this Court, that, by the time the evidence had concluded, the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence. The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings. If such a member of the public had been called as a witness, the same question of relevance would have arisen. Thus, not only was the issue that was raised a very narrow issue, the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion. The police officers’ conclusions and the jury’s conclusion both depended upon combining their observation of the appellant’s appearance with their observation of the photographs. (Having

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Smith v The Queen cont. regard to the quality of the photographs we saw, it is not clear that the jury could not have compared them with the accused.) [10] The question of the relevance of the evidence of the police officers may be approached in this way. The fact in issue was, as we have earlier said, “Is the person standing trial the person who is depicted at the right-hand side of some of the photographs tendered in evidence?” Is an assertion, in evidence, by a witness that he now recognises, or has previously recognised, the person who is depicted in those photographs as the accused, relevant evidence? That is, in the language of s 55 of the Evidence Act, could that evidence, if accepted, rationally affect the assessment by the jury of the probability that it is the person standing trial who is depicted in the photographs? [11] Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision-maker permitting substitution of the view of another, for the decision-maker’s own conclusion.

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[12] In this case the evidence of the police was irrelevant and should not have been received. No question of admissibility had to be considered. [13] This is not to say that it will never be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph. The obvious case in which that will be relevant is where the witness deposes to having identified someone from a photograph, or collection of photographs, shown to the witness and the identity of the person depicted is proved in some other way (Alexander v The Queen (1981) 145 CLR 395). Difficulties may arise, however, when the photograph which is used for identification and is tendered in evidence is, as was the case here, a photograph taken of an incident which is the subject-matter of the proceeding. Even in such a case, a witness’s evidence of recognition of the person depicted may be relevant. [14] Sometimes the facts in issue will extend beyond the narrow question whether the accused is the person depicted in the photograph. In R v Goodall, the questions included whether the accused owned a jacket of the kind that the offender depicted in security photographs of a robbery was shown to be wearing. A jacket, which was tendered in evidence, had been found with other incriminating items. Two police officers gave evidence that they had seen the accused wearing this kind of jacket before the robbery. They gave further evidence that the man who was depicted in the security photograph was the accused, and that he was wearing a jacket of the kind they had seen him wearing before the robbery. The evidence was, therefore, relevant to link the accused to the jacket. It went beyond the bare assertion of recognition of the person on trial as the person shown in the photograph. [15] In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus, if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused’s appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant. Or if it is suggested that there is some distinctive feature revealed by the photographs (eg as a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness’s conclusion of identity would not be irrelevant. Similarly, if, as was the case in R v Tipene, there is an issue

Part 3 — Admissibility of Evidence

Smith v The Queen cont. whether photographs of different incidents depict the same person, evidence given about the identity of the person depicted may not be irrelevant. [16] Of course in any such case, further questions of admissibility would then arise. Those questions would very likely include questions about the application of the opinion rule (s 76) and the questions presented by the general discretion to exclude evidence under s 135, and the direction, in s 137, to exclude prejudicial evidence. It is, however, not necessary to consider those questions in this matter. Answers to them may depend, in part, upon the precise nature and form of the evidence. KIRBY J: [Kirby J dissented on the issue of relevance. He considered that the test of relevance in the Evidence Act is broad, taking into account the ALRC proposals and the structure of the Act (containing a series of exclusions to admissibility). Kirby J thought that in relation to most of the photographs, the police witnesses were better placed than the jury to identify the accused – this therefore could “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. However, he also found that the evidence the police were giving in this instance was opinion evidence, excluded by s 76 and not salvaged by s 78. Section 78 permits evidence of an opinion if that opinion was based on what the person saw, heard or perceived about an event. In a narrow reading of s 78, Kirby J held that since the officers were not at the event, their evidence was not admissible pursuant to s 78.] (Conviction quashed. Appeal allowed. New trial ordered.)

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

Papakosmas v The Queen [5.50] Papakosmas v The Queen (1999) 196 CLR 297 Facts [Papakosmas was convicted of sexually assaulting a fellow employee at a work Christmas party. The complainant alleged that the appellant forced her to have sexual intercourse. The issue at trial was whether the intercourse was consensual. The complainant and three other witnesses gave evidence at the trial of virtually immediate complaint. According to that evidence, as the complainant was leaving the bathroom she saw a workmate. The complainant was crying. The workmate asked her what was wrong, and the complainant said the appellant had raped her. That evidence was supported by the workmate. The workmate took the complainant outside to a table where she repeated her complaint to another woman. She was crying and holding her head in her hands, and appeared distressed. Shortly afterwards the complainant repeated her complaint to a third woman. The evidence of the third woman was that the complainant was crying uncontrollably and appeared extremely distressed. The complaint evidence was relevant in two distinct ways. It was relevant to proving the facts asserted by the complainant, that is to prove the absence of consent, and it was relevant to supporting the credibility of the complainant. The complaint evidence was admitted pursuant to s 66 of the Act. The trial judge directed the jury to use the complaint evidence to prove the truth of the facts asserted in the complainant’s previous representations. In other words, the jury could use the complaint evidence from both the complainant and the three women for a hearsay purpose by virtue of s 66(2). The appeal was on the basis that the trial judge should have directed the jury to limit the use of the complaint evidence in a manner that conformed to the way the common law permitted such evidence to be used (namely for a credibility purpose to support the consistency of conduct of the complainant). The appellant argued that the Evidence Act should be read in light of the common law.]

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Papakosmas v The Queen cont. Judgment (footnotes omitted) GLEESON CJ and HAYNE J: [1] The principal issue in this appeal concerns the effect of the Evidence Act 1995 (NSW) (the Act) on evidence of recent complaint in sexual assault cases. … [6] The issue at the trial was not whether sexual intercourse between the appellant and the complainant had occurred, but whether the complainant was a consenting party. … The position at common law – the hearsay rule and evidence of recent complaint [12] From ancient times, the common law permitted a court to receive evidence of recent complaint in cases involving alleged sexual offences. However, if such evidence had been treated as evidence of the truth of the facts asserted in the complaint, then it would have infringed the rule against hearsay. Whether or not evidence of a statement made out of court is hearsay depends upon the use that is sought to be made of the evidence. Under the rules of evidence developed by the common law, it was the potential use of evidence of a statement made out of court as evidence of the truth of what was asserted in the statement that made it hearsay. The common law did not create an exception to the rule against hearsay by permitting evidence of complaint to be used for a hearsay purpose. Rather, it permitted such evidence to be used for another purpose. The rule permitting such use was an exception to the rule relating to the admissibility of evidence of prior consistent statements.

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[13] The purpose for which such evidence could be received was explained in R v Lillyman [[1896] 2 QB 167 at 170]: It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains (emphasis added). [21] … Rules of exclusion of evidence, such as the hearsay rule, only arise in the case of evidence which is otherwise relevant. If evidence of complaint were irrelevant, it would not be necessary to invoke the rule against hearsay in order to exclude it, and reception of the evidence could not possibly be regarded as involving an exception to the hearsay rule or to the rule against reception of prior consistent statements. The primary rule of evidence is that what is not relevant is not admissible. It would have been unnecessary to go past that rule. The reason why evidence of complaint could not be treated as evidence of the facts asserted in the complaint was not that such evidence was irrelevant, but that to receive it for that purpose would be to receive it for a hearsay purpose. It was the rule against hearsay which produced the consequence that evidence of complaint could not be used in proof of the truth of the facts asserted in the complaint. When such evidence was received, it was dealt with in a manner regarded as consistent with the hearsay rule. [22] That evidence of complaint is at least potentially relevant, and is capable, depending upon the circumstances of the case, of having substantial probative value if it is received as evidence of the truth of what is asserted by the complainant, may be illustrated by reference to cases which were treated by the common law as a true exception to the hearsay rule: cases involving receipt of evidence as part of the res gestae. The law on this subject was considered by the House of Lords in R v Andrews [[1987] AC 281]. In his speech, Lord Ackner referred to the opinion given by Lord Wilberforce in Ratten v The Queen [[1972] AC 378]. He also referred to the well-known case of R v Bedingfield [(1879) 14 Cox CC 341]. In that case the accused was charged with murder. The defence was suicide. There was an attempt to lead evidence that the victim, who had been in a house with the accused, rushed out of

Part 3 — Admissibility of Evidence

Papakosmas v The Queen cont. the house with her throat cut, and said: “See what Harry has done.” That evidence was excluded, but Lord Ackner said that Bedingfield would be decided differently today. He also remarked that there could “hardly be a case where the words uttered carried more clearly the mark of spontaneity and intense involvement”. Although it may be necessary to exercise caution to guard against the possibility of fabrication, it cannot be doubted that the evidence in Bedingfield was evidence that could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Whatever view may be taken as to the policy of the law in relation to the reception of evidence that a mortally wounded woman immediately asserts that a named person did it, an argument that such evidence was irrelevant would be surprising. The Evidence Act 1995 NSW [23] Consistently with the common law, and with common sense, the scheme of Ch 3 of the Act, which deals with admissibility of evidence, begins with the proposition, stated in s 56, that, subject to the other provisions of the Act, evidence that is relevant in a proceeding is admissible, and evidence that is not relevant is not admissible. Section 55 states that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

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[24] Having established those fundamental propositions, the Act goes on to deal, amongst other things, with various exclusionary rules, and exceptions to those exclusionary rules. Part 3.2 of the Act deals with the subject of hearsay. Section 59 provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. Consistently with the common law, the operation of the exclusion depends upon the use which is sought to be made of the evidence in question. Evidence of a statement made out of court by a person, or other evidence that falls within the concept of evidence of a “previous representation”, is not admissible for what at common law would have been described as a hearsay purpose. [25] The Act then creates a number of exceptions to that exclusionary rule. The exception of present relevance is contained in s 66 … [26] The fact that hearsay evidence falls within one of the exceptions to the exclusionary rule contained in s 59 does not necessarily mean that it will be received, or used for a hearsay purpose. The Act confers on courts a general discretion to refuse to admit evidence in certain circumstances (s 135), and it obliges a court, in a criminal proceeding, to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant (s 137). Neither of those provisions was invoked on behalf of the appellant in this case … [28] Although [s 136] … was not invoked at the trial, it is now relied upon in support of a submission to which further reference will be made later. [29] There are other provisions of the Act which, depending upon the circumstances of an individual case, may affect the admissibility and use of complaint evidence, but the provisions set out earlier are those which bear directly upon the arguments advanced in the present case. The manner in which the legislation was interpreted and applied in this case, both at trial and in the Court of Criminal Appeal, was consistent with the decision of the Court of Criminal Appeal in R v BD and the course of authority in New South Wales. For the reasons that follow, the decision in BD was correct. [30] The evidence of the witnesses Stephens, Fahey and Ovadia as to what the complainant said to them was relevant. The evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceedings, the fact being that the complainant did not consent to have intercourse with the appellant. [31] The legislative provisions in question, in so far as they apply to evidence of complaint, are not limited in such application to evidence of complaint in cases of alleged sexual assault. In that respect, as in other respects, they involve a significant departure from the common law. It is possible to imagine circumstances in which evidence of the fact that a complaint of an alleged crime has been made

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Papakosmas v The Queen cont. might be evidence that could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. For example, the nature of the complaint, the circumstances in which it was made, or matters personal to the complainant, might provide a reason why that could be so. However, the present case does not raise an issue of that kind. As the trial judge warned the jury, the fact that an assertion is repeated does not make it any less untrue if it were untrue to begin with. Furthermore, some complaints may be made in circumstances which require particular attention to be given to the danger of fabrication. However, in the circumstances of the present case, it is impossible to deny that the evidence of the complaints made to the three witnesses in question could be regarded by the jury as affecting their assessment of the probability that there was no consent to the intercourse. [32] An argument was developed on behalf of the appellant which took as its starting point the common law on the subject, and which then relied upon sub-s (2) of s 55, which provides that evidence is not to be taken to be irrelevant only because it relates to the credibility of a witness. It was pointed out that, at common law, the evidence in question would only have been used for a purpose relating to the credibility of the complainant. The argument, however, in the context of the statute, leads nowhere. The reason why, at common law, the evidence could only be used for a purpose relating to the credibility of the complainant was the hearsay rule. It was not that such evidence could not rationally affect the probability that there was no consent to the intercourse. It was that to use the evidence as evidence of the truth of what the complainant was alleging would be to use it for a hearsay purpose. That was the background against which judicial statements as to the probative significance of complaint evidence were made.

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[33] The Act has changed that. Such evidence, if relevant, may now be used for a hearsay purpose if it falls within an exception to the exclusionary rule (subject to other provisions of the Act such as ss 135, 136 and 137). [34] It is to be noted that, if the exception to the hearsay rule created by s 66 is to apply, certain conditions need to be fulfilled. The person who made the representation (in a case such as the present, the complainant) of which evidence is to be given must be available to give evidence about the asserted fact. That condition was fulfilled because the complainant herself gave evidence that she did not consent to the intercourse. If the complainant had, for some reason, been unavailable as a witness, and the defence had not been able to cross-examine her, then the evidence of her out-of-court representations would not have been admissible under s 66. (Whether the evidence would have been admissible under s 65, which permits hearsay evidence to be adduced in criminal proceedings where the maker of the representation is not available in certain circumstances, is a matter that does not arise for decision.) Secondly, by reason of s 62, the operation of Div 2 of Pt 3.2 of the Act is restricted to firsthand hearsay, a condition that was satisfied in the present case. Thirdly, by reason of s 66(2), it is necessary that the occurrence of the asserted fact was fresh in the memory of the complainant. [35] These are important safeguards against two of the dangers which led the common law to exclude hearsay: unreliability; and unfairness to an accused person who may not have an opportunity to test an unsworn assertion made out of court. However, they are not the only safeguards provided by the Act. [36] The appellant’s second submission is that, even assuming the hearsay evidence in the present case was relevant, and fell within the exception created by s 66, nevertheless, there was a miscarriage of justice because the trial judge (although not asked to do so) failed to apply one of the additional safeguards, being that expressed in s 136. [37] In brief, the appellant contends that this was a case in which s 136 should have been applied to limit the use that could be made of the evidence of complaint to the use which could have been made of such evidence at common law, as explained in cases such as Lillyman and Kilby. The jury, it is argued, should have been given the standard common law direction in relation to the use of evidence of recent complaint in sexual assault cases.

Part 3 — Admissibility of Evidence

Papakosmas v The Queen cont. [38] Counsel went so far as to argue that, as a general rule, a court which receives evidence of complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose. [39] The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded. [40] There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation. [41] In the instant case, the facts and circumstances surrounding the complaint were not such as to make the use of the evidence for a hearsay purpose either unfairly prejudicial to the appellant, or misleading or confusing. The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant’s appearance and demeanour, meant that it was not unfairly prejudicial. There is nothing to suggest such evidence was either misleading or confusing in its use for a hearsay purpose. … [43] The appeal must be dismissed…. McHUGH J:

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[63] The appellant concedes that the complaint evidence was admissible, but he contends that it was relevant only to the credibility of the complainant. He submits that that evidence was not relevant to the issue of consent and that the trial judge erred in directing the jury that it was. The appellant also submits that a trial judge should allow recent complaint evidence in sexual assault trials to be used only to support the credibility of the complainant. … [74] The appellant claims that the pre-existing common law establishes that using complaint evidence to prove lack of consent or sexual intercourse is ordinarily unfairly prejudicial to a person accused of sexual assault and was so in the present case. As the judgment of Gleeson CJ and Hayne J demonstrates, it is doubtful whether the common law cases establish the major premise of the appellant’s argument. But, whether that be so or not, the scheme of the Act evinces a legislative purpose that evidence of recent complaint in sexual assault cases was henceforth to be admitted as evidence of sexual intercourse and as evidence of lack of consent to that intercourse. Once that is understood, few, if any, cases would require the trial judge to exercise the power conferred by s 136 of the Act and limit the use that the jury may make of the complaint evidence. [75] To understand the legislative scheme with respect to the admissibility of evidence, one must begin with ss 55 and 56 of the Act … [76] Recent complaint evidence or its absence is relevant to, but not decisive of, the credibility of the complainant’s evidence in sexual assault cases because the making of an early complaint is regarded as being consistent with what a complainant would do if he or she had been assaulted as alleged. At all events, the common law judges took that view of complaint evidence. Whether the credibility reason for admitting complaint evidence remains, or ever was, valid may be doubted. In R v King, Fitzgerald P pointed out, correctly in my opinion, that the admissibility of complaint evidence “is based on male assumptions, in earlier times, concerning the behaviour to be expected of a female who is raped, although human behaviour following such a traumatic experience seems likely to be influenced by a variety of factors, and vary accordingly”. However, the appellant did not dispute that complaint evidence was relevant to credibility. And the view that it is relevant to credibility has been stated so many times by judges that that aspect of the rule can probably only be changed by legislation, not judicial innovation. [77] In a trial for sexual assault, therefore, ss 55(2)(a) and 56(1) permit evidence to be adduced that, within a reasonable period of the alleged assault, the complainant had told one or more persons that she had been sexually assaulted. Having regard to the terms of s 55(1), it is difficult to see why

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Papakosmas v The Queen cont. complaint evidence is not also “relevant” to the issues of consent and intercourse. In almost every conceivable instance of sexual assault, evidence that the victim had complained about the assault at the first reasonable opportunity would “rationally affect … the assessment of the probability of the existence” of intercourse having taken place and of a lack of consent to that intercourse having been given.

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[78] So far as relevance is concerned, no distinction can be drawn between complaint of sexual assault and other forms of evidence that are always regarded as relevant to proof of the charge. Evidence of distress on the part of a complainant is always relevant, within the meaning of s 55(1), to a charge of sexual assault. A complainant who has been sexually assaulted may, but will not necessarily, display outward signs of distress after the assault. Evidence of distress tends to prove that the complainant had been sexually assaulted. Indeed, so much was conceded by the appellant, who also conceded that evidence by a complainant to the effect that “I did not consent” was also relevant and admissible, as was an out-of-court statement to that effect that was part of the res gestae. Yet in terms of relevance, it is difficult to see any distinction between the content of these concessions and the content of recent complaint evidence. [79] The appellant sought to distinguish recent complaint evidence from his concessions about evidence going to the issues on the ground that complaint evidence is self-serving and made in circumstances which permit fabrication. Consequently, he contended that complaint evidence is not as capable of rationally affecting the assessment of probabilities as other evidence which is accepted as going to the probability that the offence occurred. He argued that evidence falling within the res gestae exception is admitted because concoction is unlikely and that evidence of distress, by its very nature, is harder to fabricate than an out-of-court assertion. Pressed to explain why the law should treat the complainant’s in-court statement that he or she did not consent as going to the issues but not the complainant’s out-of-court statement to the same effect, the appellant said that it is to be found in the nature of our adversarial system of justice which requires that “the determination of criminal liability [be] based upon proceedings in court on the basis of sworn evidence”. [80] In my opinion, these arguments of the appellant must be rejected. The scheme and terms of the Act, the Law Reform Commission Reports which were its basis and the common law rules, show that the reliability of out-of-court statements is primarily addressed by the hearsay rule and is not the concern of relevance, a concept that is concerned with logic and experience. [81] Section 55 itself is a decisive answer to the appellant’s contentions. The words “if it were accepted” in that section make it clear that a court assesses “the probability of the existence of a fact in issue” on the assumption that the evidence is reliable. In the Interim Report of the Australian Law Reform Commission that led to the enactment of the Act, the Commission pointed out that distinguishing between “legal” and “logical” relevance disguised the myriad policy considerations that contributed to the former. The Commission thought that, as a threshold test, relevance should require only a logical connection between evidence and a fact in issue. To the extent that other policies of evidence law, such as procedural fairness and reliability, required the strict logic of the relevance rule to be modified, that could best be done by the exclusionary rules – such as the hearsay rule and the credibility rule – and by conferring discretions on the court as in ss 135-137. The terms of s 55 indicate that it was intended to give effect to the Commission’s view as to the proper approach for determining the relevance of evidence. [82] However, in making recommendations concerning complaint evidence, the Commission was not prepared to let the admissibility of such evidence be determined by applying the general principles of relevance set out in s 55. The Commission argued that the law in this area should be reformed by permitting complaint evidence to be received in certain circumstances as evidence of the facts in issue. The Commission said: The proposal would have the effect that complaints in rape trials which are at present received only as showing the consistency of the rape victim could be received as evidence of the matters stated, as long as they were made when the facts were fresh in the memory.

Part 3 — Admissibility of Evidence

Papakosmas v The Queen cont. [83] Section 66 of the Act gives effect to this proposal by making it a “firsthand” exception to the hearsay rule in s 59(1) which is headed “The hearsay rule – exclusion of hearsay evidence”, and declares that “[e]vidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation”. … [86] The distinction which the Act makes between relevance and probative value also supports the view that relevance is not concerned with reliability. Probative value is defined in the Dictionary of the Act as being “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. That assessment, of course, would necessarily involve considerations of reliability. “Probative value” is an important consideration in the exercise of the powers conferred by ss 135 and 137. An assessment of probative value, however, must always depend on the circumstances of the particular case at hand.

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[87] Whatever the dangers of admitting out-of-court statements into evidence may be, the scheme of the Act is to deal with them by the hearsay rule (s 59), by the discretions conferred by ss 135-137 and by the warning provision in s 165, not by reference to notions of relevance. Notions of reliability and procedural fairness play no part in testing the relevance of evidence for the purpose of s 55 of the Act. [88] In support of his argument that complaint evidence is relevant only to credibility, the appellant relied on a number of common law decisions, particularly R v Lillyman and Kilby v The Queen. But those decisions predated the Act. In my opinion, the plain words of Pt 3 of the Act indicate that the legislature intended to change the law with regard to complaint evidence by permitting such evidence to be admitted for the purpose of proving the facts in issue even though that meant proving guilt by hearsay evidence. When the hearsay rule was at its zenith, it is understandable that the common law judges would refuse to admit complaint evidence as evidence of the facts in issue. That does not mean that the common law judges had held or even thought that complaint evidence was not relevant to the facts in issue. As Gleeson CJ and Hayne J point out in their judgment, two of the cases upon which the appellant relies as establishing the modern rule regarding complaint evidence at common law, Lillyman and Osborne, themselves cast doubt on the appellant’s submissions, at least in so far as the issue of consent is concerned. The Act has made substantial changes to the law of evidence. Notwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful. [89] It follows that, in this case, the recent complaint evidence was relevant and satisfied the requirements of s 66(2). The complainant gave evidence and she made the complaints virtually immediately, thus satisfying the “fresh in the memory” test. … [Appeal dismissed.]

 [5.55] In Patrick v The Queen [2014] VSCA 89, the Victorian Court of Appeal held that

evidence from a complainant that she had interpreted an apology given by the accused as an admission of guilt was not relevant and thus inadmissible. The Court stated at [33]: The fact in issue was whether the appellant assaulted the complainant, a matter about which the complainant gave direct evidence. Her subsequent interpretation of his apology provides no greater support for her allegations than her direct evidence.

Evans v The Queen [5.60] Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 Facts [Security cameras had photographed an armed man wearing overalls, sunglasses and a balaclava robbing persons of money. Similar overalls and a similar balaclava were found at the home of the

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Evans v The Queen cont. appellant. He was required to wear those overalls and balaclava, as well as a pair of sunglasses similar to those worn by the robber, in front of the jury, for the suggested purpose of comparing his appearance with the appearance of the robber in the security photographs (and descriptions of the robber given by witnesses). One issue for the High Court was whether s 53 applied to this procedure (see Chapter 4). Another issue was whether the evidence was admissible under Ch 3.] Judgment (footnotes omitted) HEYDON J (CRENNAN J agreeing):

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[170] The physical features of the accused. Early in the cross-examination of the accused, he gave evidence that at the time of the crime he was 47, he was five feet eight inches tall, his hair was dark, his skin complexion was very fair and he weighed 73 kilograms. Without objection, he was asked to take his jacket off, roll up his sleeves and show the jury the insides of his arms. He said areas of pigmentation or discolouration were caused by industrial solvents and areas of scarring were caused by industrial accidents. [171] The balaclava and the sunglasses. The first event complained of related to Ex M (the balaclava) and some sunglasses. First, the accused was asked to place the balaclava over his face. After a defence objection was overruled, the accused complied. Prosecution counsel then began to make a statement about what those in the courtroom could see, to which defence counsel objected. In the presence of the jury, debate about that objection proceeded over more than two pages (which in this Court counsel for the accused contended took 10 minutes and which certainly took some minutes). The debate concluded with prosecution counsel withdrawing her question and the trial judge saying she would not interfere. At that point prosecution counsel asked the accused to remove the balaclava. She then asked him to take a pair of sunglasses. Defence counsel objected, and prosecution counsel made it plain that she wanted the jury to compare the appearance of the accused wearing the sunglasses and the balaclava with what they saw on the video and the photographs taken during the crime. After a debate about admissibility in the absence of the jury, the trial judge permitted the course proposed by prosecution counsel to take place. The essence of counsel’s objection was that it was “blatant unfairness” to dress the accused up so as to make him look like a robber. After putting on the sunglasses and the balaclava, the accused complied with requests to face the jury and turn side-on to the jury. [172] The Court of Criminal Appeal held that the trial judge erred in asking the accused “to put on sunglasses which had not been admitted into evidence, which had not been shown to any witness and which were produced for the first time when the prosecutor asked the [accused] to put them on”. That conclusion was not challenged by the prosecution on this appeal. [173] “Give me the serious cash.” The second event complained of followed soon after the accused had removed the sunglasses and the balaclava. Prosecution counsel asked the accused to say: “Give me the serious cash.” A strongly put defence objection was rejected. The accused then said, at the request of prosecution counsel, “Give me the serious cash” and “I want the serious cash”. It will be remembered that Mrs Gleeson had suggested that the offender may have pronounced “serious” as “sherious”. [174] Walking in overalls before the jury. The third event took place when prosecution counsel asked the accused to put on the overalls (Ex O). Defence counsel objected unsuccessfully. The court adjourned so that the accused could remove his outer clothing and put on the overalls. When the court resumed, prosecution counsel asked him to walk in front of the jury. [175] The accused’s arguments in this Court. The objections made by counsel for the accused in this Court were that the three events just described were irrelevant, should have been excluded under s 137, contravened s 53 of the Act (which was not mentioned at trial), or, if s 53 did not apply, contravened similar common law requirements. It is convenient to examine the admissibility of the three events (apart from the use of the sunglasses) under those four heads in that order. [176] The relevance of wearing the balaclava. In her final address, prosecution counsel submitted that there were several items of circumstantial evidence suggesting that the accused was the offender. She referred to them both being male, to their shared height, to their similar age, to their walk, to their

Part 3 — Admissibility of Evidence

Evans v The Queen cont. build, to the bagginess of the overalls on them, to their hair colour, to their skin complexion, to the resemblances between the features of the balaclava and overalls noticed by the witnesses and the features of Ex M and Ex O, and to the similarity between the offender’s way of walking as described by Mrs Gleeson and the way the accused walked in front of the jury and between the witness box and the dock. Counsel analysed the evidence on all these matters quite closely in her final address. It is against that background that the relevance of the three items of evidence must be considered.

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[177] Counsel for the accused in this Court submitted that the appearance of the accused in a balaclava which was not asserted to be the balaclava worn by the offender was irrelevant on the ground that it could not “rationally affect … the assessment of the probability of the existence of a fact in issue”, namely the identity of the offender. That is incorrect. If, attired in the balaclava, the accused had looked very different from the descriptions given by the eyewitnesses, that would have been material capable of raising a reasonable doubt. If, so attired, he had looked similar to the descriptions, it would, taken with other evidence, have been material capable of supporting a conclusion of identity. The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called. [178] The relevance of saying “serious”. The accused’s objection to the relevance of the sentences he was asked to repeat centred on the contention that the eyewitnesses gave different accounts of what was said, and the accent, tone and volume with which it was said; only four of the seven eyewitnesses said that the offender used the word “serious”; only Mrs Gleeson referred to the peculiar pronunciation; and she merely said that when the offender said: “ ‘This is serious’, it almost came over as, ‘sherious’, or something like that.” It was submitted that this did not amount to a demonstration of a speech idiosyncrasy by the offender; that the words which counsel asked the accused to say were not those recalled by Mrs Gleeson (“This is serious, give me the money”); and that the accused was not asked to repeat the words attributed to the offender by other witnesses, but only something similar to what they said. Counsel also noted that the jury asked to hear a tape of the accused’s evidence, noted that they asked for the written transcript of the accused saying, “Give me your serious cash”, and noted that there was no voice recording of the offender’s voice with which the jury could compare the accused’s voice. [179] In her final address to the jury, prosecution counsel apparently conceded that before the jury the accused had not mispronounced the word “serious”, and said “it is possible that word was just slurred at that time”. Prosecution counsel drew attention to Mrs Gleeson’s description of the offender’s voice as “very dull” and of other witnesses’ descriptions of it as having an Australian accent. [180] The relevance of what happened is not diminished by the differences – which, incidentally, the submission advanced for the accused exaggerates – in the accounts given by the eyewitnesses of what the offender said and how he said it. Prosecution counsel was entitled to invite the jury to accept Mrs Gleeson on the question of how the offender pronounced “serious” and on the dullness of the offender’s voice, and the jury were entitled to accept those invitations. If so, the offender could be said to have one or two speech idiosyncrasies, though it or they might well be shared by other people. The jury were entitled to conclude that the offender said something along the lines of what the prosecution counsel asked the accused to say, even though the precise phrases recalled by each of the four witnesses were not put one after the other: in the circumstances precise accuracy of observation, and of recollection after more than two years, could not be expected. [181] The accused’s submissions concede that if the offender did have a speech idiosyncrasy, it would be relevant that the accused shared it. An unusual pronunciation can be as much a circumstance which, taken with other circumstances, can point to identity as an unusual mode of spelling particular words, or a marked accent or a speech impediment. But the fact that the accused apparently did not share the idiosyncrasy of pronunciation – for there was no suggestion by the prosecutor in final address that he did – favoured the accused. The questions thus were capable of eliciting, and

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Evans v The Queen cont. apparently elicited, evidence that could have rationally affected “the assessment of the probability of the existence of a fact in issue”, namely that the accused lacked a trait which the offender was said to possess. Prosecution counsel’s requests were also relevant in being capable of eliciting answers favourable to the prosecution. [182] The accused submitted, apparently relying on Bulejcik v The Queen, that evidence of the speech idiosyncrasy shared by the accused and the offender was irrelevant unless the jury could compare the accused’s voice in court with an out-of-court recording. That case affords no warrant for the submission, which is contrary to principle.

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[183] The relevance of walking in overalls. Counsel for the accused submitted that a “demonstration” of what the accused looked like in overalls not asserted to have been worn by the offender was not relevant. That submission must be rejected. There was evidence of similarity as well as dissimilarity between what the offender wore and Ex O. There was evidence of many physical similarities between the offender and the accused. According to prosecution counsel’s submission to the jury, there was a similarity between the way the accused walked in the overalls before the jury (and indeed in the way he walked between the dock and the witness box) and the gait which Mrs Gleeson observed. The evidence was that the offender was wearing a shirt or T-shirt under the overalls, and that the overalls looked baggy. According to prosecution counsel’s final address, so did the overalls worn by the accused. And defence counsel said that the accused looked like “a Michelin man” in them. Prosecution counsel was careful to ensure, after the accused had expressed willingness to put the overalls on over what he was already wearing, that the accused remove his outer garments first. She was thus attempting to bring the conditions before the jury as close to the conditions described by the witnesses as possible. [184] The appearance of the accused walking in overalls in front of the jury was capable of making an impression on the jury which was favourable to the accused (as his counsel submitted in final address) as much as it was capable of causing an impression adverse to him (as prosecution counsel submitted). Either way the evidence was relevant. GUMMOW and HAYNE JJ: [20] Items of real evidence are often tendered and received in evidence. The balaclava and overalls found at the appellant’s house are but one example of the tendering of such evidence. The photographs taken by the security cameras, and the cap found at the scene of the robbery, are other examples. As Wigmore explained, there are many circumstances in which a tribunal of fact is asked to act upon what the tribunal itself perceives, rather than upon acceptance of testimonial evidence or inference from either testimonial or circumstantial evidence. Wigmore classified this as autoptic proference. (A party proffers something which the tribunal perceives for itself; Wigmore refers to the tribunal’s self-perception of the thing as its autopsy of that thing.) [21] Tender and reception of real evidence is one example of what Wigmore described as autoptic proference. But it is not the only example. Thus the tribunal of fact, asked to consider evidence about what kind of bladed weapon inflicted wounds, may look at a weapon found at the scene and tendered in evidence when considering evidence given that wounds were inflicted by a weapon with two sharp edges. In such a case the tribunal of fact may act, in part, upon what it observes for itself about the knife. Likewise, the tribunal of fact may act upon its own observation when a physically injured plaintiff is asked to show the tribunal of fact the injured part of the body. [22] Why then not dress the appellant in this case in the same way as the robber? Why then not let the jurors observe for themselves how the appellant looks, and compare that with not only what the witnesses have said about the robber’s appearance, but also what the jurors can see for themselves in the security photographs? [23] The answer to the questions just posed is provided by proper application of the test of relevance. As this Court’s decision in Smith v The Queen demonstrates, questions of relevance require careful analysis. In particular, they require careful identification of the process of reasoning that is invited. Only

Part 3 — Admissibility of Evidence

Evans v The Queen cont. then can it be seen whether the evidence in question could “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue” (emphasis added). In Smith, the disputed evidence was a witness’s assertion that the person standing trial was the man depicted in security photographs. The majority of this Court held that, because the witness’s assertion of identity was no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant was not relevant. The fact that someone else reached the conclusion provided no logical basis for affecting the jury’s decision when the conclusion was based on material not different in any substantial way from what was available to the jury. Knowing that another person had drawn the connection neither assisted nor hindered the process of reasoning that had to be undertaken. [24] Showing the jury what the appellant looked like when wearing the balaclava and overalls that were in evidence (with or without the addition of sunglasses that had not been received in evidence) could not “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. The central issue at the appellant’s trial was whether he was the robber. There was no dispute that there had been a robbery. There was no dispute that the robber had been wearing a balaclava, overalls and sunglasses.

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[25] No one asserted, however, that the person wearing the disguise of balaclava, overalls and sunglasses could be identified by looking at that person during the robbery or could be identified by looking at the security photographs. None of the witnesses, not even the witness who had seen the robber without the balaclava pulled down over his face, said that they could recognise the man who was thus attired. None of the witnesses, and neither trial counsel, asserted that the person depicted in the security photographs could be identified. [26] Looking at the appellant wearing the balaclava and overalls (with or without sunglasses) enabled a comparison between no more than the items he put on and what was depicted in the security photographs. But that comparison could be drawn without the appellant being asked to put them on. Dressing the appellant in the items provided no information to the jury that could rationally affect, directly or indirectly, the determination of any fact in issue because it revealed nothing about the wearer and nothing about the appellant that was not already apparent to the jury observing him in the dock. [27] Requiring the appellant to put on the balaclava, overalls and sunglasses may be contrasted with requiring him to walk in front of the jury and requiring him to speak certain words. Observing how the appellant walked and how he spoke certain words might bear upon the jury’s decision whether he was the man the witnesses had described. The jury could observe for itself these matters concerning the appellant; the jury could compare its observations with what the witnesses had said about the robber. This stands in sharp contrast with the balaclava, overalls and sunglasses, where the focus necessarily fell only upon the disguise and said nothing about who had worn it. Deciding who had worn the disguise was not assisted by having the appellant put on the items he was asked to put on. [28] It follows that dressing the appellant in the balaclava and overalls (and producing a pair of sunglasses for him to wear) proffered no relevant evidence for consideration of the jury. It should not have been done. It is, then, not necessary to consider how Pt 2.3 of the Act would apply to this use of these items. ... KIRBY J: [80] A new “relevance” issue: I now arrive at the point where I depart from the joint reasons. Those reasons conclude that no issue about the lawfulness of a “demonstration” arises (whether under the Evidence Act or the common law). For the joint reasons, an anterior legal question is presented. This is whether what was done at the prosecutor’s request was “relevant”. The joint reasons conclude that this is the “determinative” question. Those reasons answer the question adversely to the prosecution. That answer is fatal to the reception of such evidence. The evidence should not have been received not because it was unfairly prejudicial to the appellant but because it was legally irrelevant to the issues arising in the appellant’s trial.

Relevance CHAPTER 5

Evans v The Queen cont. [81] I disagree with this analysis. Its only merit, as I see it, is that it obviates consideration of questions otherwise arising as to how Pt 2.3 of the Evidence Act (or the residual common law) would apply to the use of any “demonstration” actually carried out. [82] Rejection of irrelevance: There are several reasons why, in my view, this Court should not adopt the analysis embraced in the joint reasons. [The first three reasons were procedural, particularly emphasising that the appellant’s grounds of appeal did not contend that the evidence was not relevant.] [94] Fourthly, the postulate of the “logically anterior question” embraced in the joint reasons does not appear convincing when it is remembered that the test of “relevance”, expressed in the Evidence Act, is an extremely broad one. Thus, s 56 of that Act states: (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. [95] The foregoing tests are stated in all their generality for application to millions of questions asked every year in the great variety of cases to which the Uniform Evidence Acts apply. According to s 55(1) of the Evidence Act, the test for relevance requires no more than that the evidence “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. That test must necessarily be given an extremely broad ambit.

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[96] Other provisions of the Evidence Act reinforce the impression that the test of relevance is not a narrow or stringent one (see eg ss 57, 58). A broad interpretation alone is the one compatible with the purpose of the Act which is to aid the court process (effectively of quelling controversies brought to the court for that purpose, taking into account all evidence which has a bearing upon the questions in issue) rather than to delay or needlessly complicate the resolution of that process. [97] What is, or is not, relevant to an issue in proceedings is much more likely to be perceived by advocates and judges of trial than by an appellate court. Still more so than by the ultimate national appellate court, concluding for the first time for itself that an issue, which everyone else has considered to be relevant, is irrelevant. [98] I cannot say that this course could not properly happen. Indeed, in the experience of this Court it has already happened, at least once, in Smith v The Queen. I disagreed with the approach on that occasion. In this appeal, I have considered whether the circumstances of the case are sufficiently analogous to require me to suppress my objection to the course favoured in the joint reasons and to conform to it. However, questions of relevance are always highly fact-specific. No general rule could be laid down that was not anchored in the proof of the facts in issue in the particular proceeding. [99] Many of the reservations that I expressed in Smith can therefore be repeated in this appeal: [There are] reasons for caution in permitting a case to take on a completely new complexion, especially where the new point concerns the relevance of evidence. Questions of relevance raise the logical connection between proof of a propounded fact and a conclusion about a matter having persuasive significance for an issue for trial. Notions about the relevance of particular facts to ultimate conclusions in a trial can vary as between the parties, who may see the issues differently. Perspectives of relevance may also develop during the course of a trial as the issues become clearer, as immaterial issues fall away and as understandings of the applicable law become more certain. This is why appellate courts ordinarily defer to the rulings of trial judges about the issue of relevance. Such deference also rests upon a recognition of the fact that practical considerations usually require such rulings to be made on the run … Rulings as to relevance therefore depend substantially upon judicial impression. In the face of the fact that relevance is, in part at least, determined by impression, it is significant that neither the trial judge, nor the appellate judges nor counsel earlier perceived the evidence in question to be irrelevant. In now expressing an opinion about relevance, this Court has

Part 3 — Admissibility of Evidence

Evans v The Queen cont. neither the advantages of an express ruling on the point by the trial judge nor analysis and opinion of the Court of Criminal Appeal. [100] Every word in this extract applies to this appeal. Even more so because here the question of relevance did not arise (as in Smith) in a preliminary ruling, made before the trial evidence was adduced. Here, the question fell to be decided at an advanced stage in the conduct of the trial when the prosecution case had closed, when the appellant had given his evidence-in-chief and when the issues for the jury’s verdict had been sharpened and clarified. It would be a bold decision for this Court to come to its own conclusion that the evidence proffered by the prosecution in the contested demonstration was irrelevant to the proof of a fact in issue (as distinct from unfairly prejudicial to the appellant or inadmissible on some other ground).

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[101] Fifthly, when one reflects on whether the evidence that the prosecutor was seeking to adduce could “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”, one such fact was clearly whether the appellant was the offender who had committed the crimes alleged. Relevant to that question was (to put it broadly) whether, when dressed in overalls and a balaclava; when walking in front of the jury; and when saying words ascribed to the offender at the scene, there were apparent similarities, in the jury’s view, between the appearance and conduct of the appellant and the earlier evidence and descriptions given (or viewed on videotape) concerning the offender. [102] Of course, there were differences. Thus, there was no relevant sound of the offender on the videotape; the words he was asked to utter were not exactly those said by the witness Mrs Gleeson to have been mis-stated by the offender. The video and photographic stills lacked sharpness and clarity. The circumstances of the appellant sitting (on one estimate) for 10 minutes in the witness box were seriously unfair. But depending on what evidence the jury accepted, it cannot be said that the evidence was irrelevant to the obvious purposes for which it was proffered by the prosecutor. It was open to the jury to consider that all or some of the evidence was relevant to their decision. Dangerous, unfair, humiliating and prejudicial, yes. But irrelevant, no. Some of the most prejudicial evidence in a trial is that which is potentially most relevant in the opinion of lay jurors. [102] As in Smith, it is, in my view, a mistake to attempt to get the relevance test to do the work of excluding evidence such as that of the demonstration that took place in the appellant’s trial. Such an approach would shift the debate of exclusion to unduly subtle preliminary argument. It would divert the decision-maker’s mind from the real grounds provided by the law for exclusion of evidence which, although relevant, is unfairly prejudicial and to be excluded on that ground. (However, Kirby J also concluded that the evidence should have been excluded under s 137.)



PROOF AND INFERENCES [5.70] Section 142 deals generally with the applicable standard of proof in relation to factual

findings which are a precondition to admissibility. However, s 57 deals with factual findings which are a precondition to relevance. For the purposes of determining relevance, s 58 permits inferences from a document or thing. [5.80]

1. To what must the test of relevance be applied? 2. Why do we have a test of relevance?

Questions

Relevance CHAPTER 5

3. What are the basic propositions about relevance adopted in s 56? 4. To what must evidence be relevant? See s 55. 5. What other sections of the Evidence Act 1995 play a role in relation to relevance? 6. What does s 57 provide? 7. What does s 58 provide? 8. Suncorp Pty Ltd is suing Jack Green for breach of contract. Suncorp wishes to tender the contract, a receipt book, a transcript of a tape recording and a photo. How can these documents be adduced as evidence? 9. Refer to R v Eagle in Chapter  20 and consider whether the following exhibits are relevant: • autopsy photo depicting the syringe mark on the deceased’s right arm; • pre-nuptial agreement which states that “in the event of a divorce, Robert Eagle does not receive any money”; • financial report prepared by Star’s accountant that states that Star’s wealth is $150 million; • autopsy report which states that the cause of death was intravenous injection of insulin. The accused does not dispute the cause of Abby Star’s death; • the red bag containing the needles and the vial of insulin;

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• expert certificate that the vial found in the bag contains insulin; • hospital records showing that the deceased was admitted to hospital in 2006, 2008 and 2009 for drug overdose caused by intravenous use of heroin.

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CHAPTER 6

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Discretions to Exclude or Limit Use of Evidence [6.10]

OVERVIEW ................................................................................................................ 193

[6.20]

GENERAL DISCRETION TO EXCLUDE EVIDENCE ....................................................... 194 [6.30]

“Probative value” ................................................................................... 194 [6.40] IMM v The Queen ................................................................. 195 [6.50] R v Dickman ........................................................................... 206 [6.60] R v Sood................................................................................. 211

[6.70]

“Unfair prejudice” .................................................................................. 216 [6.80] Ordukaya v Hicks ..................................................................... 218 [6.90] Ainsworth v Burden .................................................................. 219 [6.100] La Trobe Capital & Mortgage Corp v Hay Property Consultants .......... 221

[6.110]

PROSECUTION EVIDENCE IN CRIMINAL PROCEEDINGS ........................................... 225 [6.120] R v Sood................................................................................. 226 [6.130] R v Dann ................................................................................ 230 [6.140] Aytugrul v The Queen ............................................................... 231

[6.150]

GENERAL DISCRETION TO LIMIT USE OF EVIDENCE ................................................. 234

[6.160]

DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE .......... 235 [6.170] Robinson v Woolworths ............................................................. 237 [6.180] DPP v Marijancevic; DPP v Preece; DPP v Preece .............................. 241

OVERVIEW [6.10] Part 3.11 creates a number of “discretions” to exclude evidence. That term is used advis-

edly notwithstanding the heading to Pt 3.11 (“Discretionary and Mandatory Exclusions”), since the provisions that adopt mandatory language only apply after a judicial weighing or balancing exercise akin to the exercise of a discretion. Section 135 confers on a court in both civil and criminal proceedings a discretion to exclude otherwise admissible evidence where the probative value of the evidence is substantially outweighed by a danger that the evidence might be unfairly prejudicial to a party, misleading or confusing, or cause or result in undue waste of time. Section 136 confers a similar discretion to limit the permissible use of particular evidence. Section 137 requires a court in criminal proceedings to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Section 138 (which applies in both civil and criminal proceedings) provides that, where evidence has been obtained unlawfully or improperly, a court is required to exclude the evidence unless the considerations supporting admission of the evidence outweigh those supporting its exclusion, in the particular circumstances of the case. This balancing exercise is similar to that under the common law, weighing “the desirable goal of bringing to conviction the

Part 3 — Admissibility of Evidence

wrongdoer” on the one hand and, on the other, the avoidance of “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”. A number of considerations listed in s 138(3) (eg the probative value and importance of the evidence, the gravity of the impropriety or contravention and whether it was deliberate or reckless) must be taken into account in applying the discretion. Sections 138(2) and 139 provide for certain circumstances in which evidence of an admission is taken to have been obtained improperly.

GENERAL DISCRETION TO EXCLUDE EVIDENCE [6.20] Section 135 confers a discretion on a court to exclude evidence in civil and criminal

cases. No discretion exists at common law in civil cases to refuse to admit evidence where its prejudicial effect outweighs its probative value. At common law, discretion to exclude evidence in civil cases existed in the determination of whether evidence had “sufficient relevance”. The “unfair prejudice” discretion derives from the common law Christie [1914] AC 545 discretion which existed in criminal proceedings. It has been observed that “the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few”: R v Taylor [2003] NSWCCA 194 at [130] (Bell J with Spigelman CJ and Miles AJA agreeing).

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“Probative value” [6.30] An assessment of “probative value” is required in exercising ss 135, 137 and 138 (as well as other provisions in the Act). “Probative value” is defined in the Dictionary to the Act to mean: The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Given the definition of “relevant evidence” in s 55(1), “probative value” in substance means degree of relevance. However, it should be noted that while the definition of “relevance” refers to evidence that “if it were accepted” could rationally affect the probability of the existence of a fact in issue, the definition of “probative value” does not import this qualification. This would suggest that, in assessing probative value, the court is not required to proceed on the assumption that the evidence is credible and reliable. However, the High Court held in IMM v The Queen (2016) 257 CLR 300 that in assessing the “probative value” of the evidence of a witness for the purposes of a number of provisions in the UEL, including s 137, a judge must proceed on the assumption that the evidence “is accepted” and thus the evidence of the witness is to be regarded as both truthful and reliable. Nevertheless, the precise meaning of the proposition that a trial judge should not engage in any assessment of “truthfulness or reliability as a witness” remains controversial, given that the High Court has also held that identification evidence may be of low probative value because of such considerations as the circumstances of observation or the circumstances in which the identification is made (see R v Dickman [2017] HCA 24, (2017) 91 ALJR 686). A related issue is assessing the probative value of circumstantial evidence. In R v Sood [2007] NSWCCA 214, the NSW Court of Criminal Appeal held that a trial judge had erred in holding that evidence said by the Crown to support an inference of consciousness of guilt of the offences charged was “not strongly probative” because an alternative inference was much more plausible, on the basis that “it was no part of the trial judge’s function in assessing

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

probative value under s 137 to have regard to competing explanations for the respondent’s conduct, other than that upon which the Crown relied”. However, in DSJ v The Queen (2012) 215 A Crim R 349; [2012] NSWCCA 9, in the context of the test of “significant probative value” in s 98(1)(b), the same Court accepted that the court may have regard to any alternative explanation to that advanced by the prosecution if it arises on the evidence (Bathurst CJ at [10]; Whealy JA at [78]). Further, in R v XY (2013) 231 A Crim R 474; [2013] NSWCCA 121, it seemed that a majority of the court (Hoeben CJ at CL, Blanch J and Price J) held, contrary to Sood but consistently with DSJ, that the availability of alternative inferences may be taken into account when assessing probative value under this provision. Nevertheless, notwithstanding these two decisions, the NSW Court of Criminal Appeal held in R v Burton [2013] NSWCCA 335 that Sood was still good law and a court assessing the probative value of circumstantial evidence for the purposes of s 137 is required to assume that the inference(s) sought to be drawn by the prosecution will be drawn.

IMM v The Queen [6.40] IMM v The Queen (2016) 257 CLR 300

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Facts [IMM was convicted of two counts of indecent dealing with a child and one count of sexual intercourse with a child under 16 years. The child was IMM’s step-granddaughter. She alleged a course of conduct that occurred when she was about four years old and stopped when her grandmother separated from her step-grandfather when she was 12 years old. At the trial, the complainant gave evidence that on a previous occasion, the accused ran his hand up her leg while she was giving him a back massage. The evidence was relied on an tendency evidence, namely that it showed that the accused had a sexual interest in his step-granddaughter and was prepared to act on it. Hearsay evidence was also adduced of complaints made by the step-granddaughter to others about the accused’s sexual conduct. The accused had objected to the tendency and complaint evidence. The accused had unsuccessfully sought to have the complaint evidence excluded pursuant to s 137. The trial judge approached the question of “probative value” for the purposes of ss 97 and 137 in the same way, namely the trial judge assumed the jury would accept the evidence and did not take into account factors such as credibility or reliability. IMM appealed on the basis that the tendency evidence and the complaint evidence should not have been admitted in the trial.] Judgment French CJ, Kiefel, Bell and Keane JJ … The “probative value” of evidence under the Evidence Act [35] The issue here concerning a trial judge’s assessment of the probative value of the evidence in question arises in the context of a statute that was intended to make substantial changes to the common law rules of evidence. The statute’s language is the primary source [Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 302 [10]; [1999] HCA 37; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at 716-717 [78]], not the pre-existing common law. [36] Mention has been made earlier in these reasons of the structure of the Evidence Act and the fact that Ch 3, in dealing with the admissibility of evidence, follows the steps that are usually undertaken in the course of a trial. Questions that arise in connection with admissibility arise at the point when a piece of evidence is tendered, which is normally before all of the evidence is admitted and the witnesses examined, and therefore before the full picture has emerged. In a practical sense, a trial judge’s ability to assess the place and weight of the evidence in question when a ruling on its admissibility is

Part 3 — Admissibility of Evidence

IMM v The Queen cont. made will usually be limited. For the reasons which follow, it is to be inferred that the tests in question with respect to the admissibility of evidence under the Evidence Act acknowledge these limitations. [37] The first question, posed by Pt 3.1, is a threshold one for all evidence – whether it is relevant. Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences, especially in areas such as opinion evidence [Evidence (National Uniform Legislation) Act (NT), s 77] and tendency evidence. [38] By s 55, evidence is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. There can be no doubt that the reference to the effect that the evidence “could” have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its “rational” effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.

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[39] The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance. [40] Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, “probative”. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law [Festa v The Queen (2001) 208 CLR 593 at 599 [14]; [2001] HCA 72]. [41] Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised. The exceptions provided with respect to the exclusionary rules of the Evidence Act have the effect that if relevant evidence liable to be excluded comes within an exception, it may nevertheless retain its character as admissible. The condition to be met for the exception in s 97(1)(b) to apply is that the court must think that the evidence will “have significant probative value”. [42] Both s 97(1)(b) and s 137 require an assessment of the probative value of the evidence tendered. As mentioned, the Dictionary definition of the “probative value” of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which “could rationally affect ... [In s 55 the words “directly or indirectly” expressly qualify the words “could rationally affect”, whereas these words are not included in the definition of “probative value”. This is, for present purposes, of no significance.] the assessment of the probability of the existence of a fact in issue”. [43] The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence.

Discretions to Exclude or Limit Use of Evidence

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IMM v The Queen cont. [44] The assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as “significant”. 11 The use of the term “probative value” and the word “extent” in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.

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[46] Cross on Evidence suggests [Cross on Evidence, 10th Aust ed (2015) at 763 [21252]] that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding. [47] In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. [48] It has been explained that the basic enquiry as to whether evidence “could rationally affect [...] the assessment of the probability of the existence of a fact in issue”, which appears in both s 55 and the definition of “probative value” of evidence, is not altered by the further enquiry required by the definition as to the extent to which the evidence could have the effect stated. The assessment of extent does not import new and different considerations, such as might affect whether the evidence is accepted as credible or reliable. [49] The same construction must be given to the words “could rationally affect [...] the assessment of the probability of the existence of a fact in issue” where they appear in the definition of “probative value” as is given to those words in s 55. This requires an assessment of the capability of the evidence to have the stated effect. And because the question to which those words give rise remains the same for the passages of the definition of “probative value”, that enquiry must be approached in the same way as s 55 requires: on the assumption that the jury will accept the evidence. The words “if it were accepted”, which appear in s 55, should be understood also to qualify the evidence to which the Dictionary definition refers. It is an approach dictated by the language of the provisions and the nature of the task to be undertaken. [50] At a level of logic it is difficult to see how a trial judge could approach the question as to what the probative value of the evidence could be in any other way, for the reasons alluded to by Gaudron J in Adam v The Queen [(2001) 207 CLR 96 at 115 [60]]. It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by JD Heydon QC [Heydon, “Is the Weight of Evidence Material to Its Admissibility?” (2014) 26 Current Issues in Criminal Justice 219 at 234] was of an identification made very briefly in foggy conditions and in bad light by a

Part 3 — Admissibility of Evidence

IMM v The Queen cont. witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence. [51] At a practical level, it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility. As Simpson J pointed out in R v XY [[2013] NSWCCA 121; (2013) 84 NSWLR 363 at 400 [167], [170]], the evidence will usually be tendered before the full picture can be seen. A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not only on its place in the evidence as a whole, but on an assessment of witnesses after examination and cross-examination and after weighing the account of each witness against each other.

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[52] Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply. They are both subsumed in the jury’s acceptance of the evidence. [53] The Evidence Act itself creates a difficulty in separating reliability from credibility. The definition of “credibility”, which concerns both a person who has made a representation that has been admitted into evidence and a witness, includes the person’s or witness’s “ability to observe or remember facts and events” relevant to the representation or their evidence. These are matters which go to the reliability of the evidence. [54] The view expressed in Dupas v The Queen, which reserved a particular role for the trial judge with respect to the reliability of evidence, did not have its foundations in textual considerations of the Evidence Act, but rather in a policy attributed to the common law. The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by s 65(2)(c) and (d) and s 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165. [55] In arguing that a trial judge should nevertheless consider the reliability of evidence for himself or herself, the appellant placed reliance on what was said by the Australian Law Reform Commission in its report on the proposed Evidence Bill 1987 (Cth) [Australian Law Reform Commission, Evidence, Report No 38 (1987) at 81 [146]]. In that report the Commission expressed the view that “[t]he reliability of the evidence is an important consideration in assessing its probative value”. This view was volunteered somewhat out of the context of the issues with which the Commission was there dealing, which concerned the use of exclusionary discretions. Neither s 97(1)(b) nor s 137 fall into this category. In any event, a view of the Commission could hardly prevail over the language of the definition of “probative value” and the way in which it must be taken as intended to apply. [56] The appellant also placed weight on a statement made by McHugh J in Papakosmas v The Queen [[1999] HCA 37; (1999) 196 CLR 297 at 323 [86]]. After referring to the definition of “probative value”, his Honour said “[t]hat assessment, of course, would necessarily involve considerations of reliability”. This appears to have been a comment in passing when dealing with a different issue – whether reliability played any part in the test of relevance [see also Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 323 [87]]. It is not further explained. It is to be observed that the comment is made with reference to the importance of the probative value of the evidence to the exercise of the powers conferred in ss 135 and 137.

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IMM v The Queen cont. [57] In R v XY, Basten JA spoke [R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 at 376-377 [48]] of reliability being taken into account, but this was in the context of an assessment of the risk of prejudice under s 137, not as part of the assessment of the probative value of the evidence, which is the other side of the “weighing” exercise. In R v Shamouil, Spigelman CJ ventured [R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at 236 [56]] that there may be some limited circumstances in which credibility and reliability will be taken into account in determining probative value. His Honour referred in this regard to what had been said by Simpson J in R v Cook [[2004] NSWCCA 52 at [43]]. Her Honour there suggested that evidence that was obviously “preposterous” might be withheld from the jury. [58] It would not seem to be necessary to resort to an assessment of the reliability of evidence of this quality for it to be excluded under s 137. For the reasons already given, evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance. If it were necessary, the court could also resort to the general discretion under which evidence which would cause or result in an undue waste of time may be rejected.

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[59] Before turning to the application of ss 97(1) and 137 to the facts in this case, there should be reference to the appellant’s submission concerning the risk of joint concoction to the determination of admissibility of coincidence evidence. The premise for the appellant’s submission – that it is “well-established” that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen [[1988] HCA 50; (1988) 165 CLR 292 at 296 per Mason CJ, Wilson and Gaudron JJ; [1988] HCA 50] – should not be accepted [see the discussion in McIntosh v The Queen [2015] NSWCCA 184 at [42]-[48] per Basten JA, [172] per Hidden J agreeing, [176] per Wilson J agreeing]. Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the “rational view ... inconsistent with the guilt of the accused” test found in Hoch v The Queen [see R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at 714-718 [65]-[95]]. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting. The extent of the probative value of the evidence The tendency evidence … [60] The complainant gave evidence of an occasion which occurred shortly before the appellant and the complainant’s grandmother separated. There is no suggestion that there was anything untoward about the activity being undertaken at the time. The complainant and a granddaughter of the appellant were giving the appellant a back massage, as he had requested. The appellant was lying face down on a bed. The complainant was standing next to the bed. The complainant said that the appellant “ran his hand up my leg”. She was wearing shorts at the time, so his hand did not contact her skin. She said that she moved away. [61] It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value. [62] In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant’s unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value. [63] Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X’s

Part 3 — Admissibility of Evidence

IMM v The Queen cont. account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her. [64] For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b). The complaint evidence [65] SS was a friend of the complainant. She gave evidence that the complainant rang her and told her that the complainant’s grandparents had separated. The complainant was upset and crying and told SS that her step-grandfather had “touched me”, which SS took to mean in the area of the complainant’s vagina. [66] The principal issue concerning the probative value of this complaint concerned the time at which it was made. The prosecution case was that it was made in late 2010 or early 2011. The defence case was that it was made much later, after the complainant spoke to her mother about the appellant, which occurred in August 2011. It was accepted that the probative value of this evidence was affected by the time when it was made. It is not necessary to go into the reasons for that. …

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[71] The appellant submitted that an assessment of the probative value of the evidence should have been restricted to its effect upon the complainant’s credibility, which is to say by treating it as relevant to context, rather than as evidence that the offences took place. The appellant’s submission is reminiscent of the view of the common law that, because of the hearsay rule, evidence of recent complaint could only be used for a purpose relating to the credibility of the complainant. It was pointed out in Papakosmas v The Queen [[1999] HCA 37; (1999) 196 CLR 297 at 309 [33]] that the Evidence Act has changed that. [72] The Australian Law Reform Commission recommended that complaint evidence be received as evidence of the facts in issue [Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 383 [693] 49] in certain circumstances. The concern of the common law with respect to hearsay evidence of this kind was its potential to be unreliable. Section 65 addresses this by requiring a judge to consider the reliability of evidence, when the maker is not called. When the maker is called, as in this case, s 66 requires that the act complained of be fresh in the memory of the maker of the statement. [73] The complaint evidence was tendered for the purpose of proving the acts charged. Given the content of the evidence, the evident distress of the complainant in making the complaint and the timing of the earlier complaint, it cannot be said that its probative value was low. It was potentially significant. [74] The trial judge held that the evidence did not create the prejudice to which s 137 referred [R v IMM (No 2) (2013) 234 A Crim R 225 at 232 [30]]. Neither at trial nor in the Court of Criminal Appeal did the appellant suggest that there was a risk of the jury misusing the evidence or giving it more weight than it deserved, as he now seeks to do. In any event, it is difficult to see how the jury could misunderstand the use to which this evidence could be put. There is no reason to think that the jury would apply it as tendency evidence, when they have been directed that they may use it more directly. Conclusion and orders [75] The grounds of appeal respecting the complaint evidence are not made out, but the ground alleging error in assessing the tendency evidence for probative value is. The result is that inadmissible tendency evidence was admitted. The trial miscarried. … Gageler J … [83] The statutory assumption required by the words “if it were accepted” therefore has the result that, where the tribunal of fact is a jury, a judge determining whether evidence is relevant is “neither required nor permitted ... to make some assessment of whether the jury would or might accept it” [Adam v The

Discretions to Exclude or Limit Use of Evidence

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IMM v The Queen cont. Queen (2001) 207 CLR 96 at 105 [22]; [2001] HCA 57]. The judge is required instead to assume that the jury would find the evidence to be credible and otherwise reliable and to ask, on that assumption, whether the jury could rationally infer from the evidence that the existence of a fact in issue is more or less probable. [84] The particular conundrum of statutory construction at the heart of this appeal is whether the same assumption must be made for the purpose of determining probative value. Where the tribunal of fact is a jury, is a judge determining probative value required to assume that the jury would find the evidence to be credible and otherwise reliable and to assess, on that assumption, the extent to which the jury could rationally infer from the evidence that a fact in issue is more or less probable? Alternatively, is the judge required to examine whether the jury could rationally find evidence to be credible and otherwise reliable as a step in determining the extent to which the jury could rationally infer from the evidence that the fact in issue is more or less probable? [85] The underlying statutory ambiguity lies in the absence from the dictionary definition of probative value of an equivalent of the requirement contained in the statutory explanation of relevance that evidence must be assumed to be accepted. The ambiguity was shown up by countervailing statements of McHugh J in 1999 and Gaudron J in 2001. McHugh J thought that the omission was significant. He saw it as confirming that, within the scheme of the Uniform Evidence Acts, an assessment of probative value “necessarily involve[s] considerations of reliability” [Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 323 [86]; [1999] HCA 37]. Gaudron J thought that the omission was of no significance. Her view was that because “[a]s a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted”, “the assumption that it will be accepted must be read into the dictionary definition” [Adam v The Queen (2001) 207 CLR 96 at 115 [60]].

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… [94] Having laboured the point that the difference between the competing approaches is not often likely to be of great consequence, I turn squarely to address the underlying issue of statutory construction. My conclusion, like that of Nettle and Gordon JJ, is that the view of McHugh J is to be preferred to the view of Gaudron J. 95. Unlike Nettle and Gordon JJ, I gain no assistance in reaching that conclusion from construing the Evidence Act against the background of the common law. As Spigelman CJ observed in R v Ellis [[2003] NSWCCA 319; (2003) 58 NSWLR 700 at 716-717 [78]] in a passage which was given prominence in the report of the joint review of the Uniform Evidence Acts in 2005 [Australian Law Reform Commission, Report No 102, New South Wales Law Reform Commission, Report No 112, Victorian Law Reform Commission, Final Report, Uniform Evidence Law (2005) at 86 [3.30]]: It is ... noteworthy that the Act provides a definition of “probative value” ... Although the definition could well have been the same as at common law, the fact that such a term was defined at all suggests an intention to ensure consistency for purposes of the Evidence Act for the words, which appear in a number of different sections ... This suggests that the Act, even if substantially based on the common law, was intended to operate in accordance with its own terms. The common law did not employ the concept of probative value with statutory precision, and the common law developed no general rule to the effect that reliability (in the sense now used in the Evidence Act) was or was not to be assumed in assessing probative value for all purposes of determining admissibility. For some purposes, such as determining the admissibility of tendency evidence or of coincidence evidence, it came to be established that the assessment of probative value was required to proceed on the assumption that the truth of the evidence would be accepted [Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 at 323 [63]; [2006] HCA 4 (explaining Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 485; [1995] HCA 7)]. For other purposes, such as considering the discretion to exclude prosecution evidence, the probative value of which was outweighed by the risk of unfair prejudice to the accused, it has been acknowledged that considerations indicating evidence to be unreliable might on occasions be sufficient to deprive the evidence of probative value [eg Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 433; [1981] HCA 17].

Part 3 — Admissibility of Evidence

IMM v The Queen cont. [96] Together with Nettle and Gordon JJ, I consider the view of McHugh J – that an assessment of probative value necessarily involves considerations of reliability – to be a view that is compelled by the language, structure and evident design of the Evidence Act. To think of evidence that is relevant as evidence that has some probative value and to go on to think of probative value as a measure of the degree to which evidence is relevant is intuitively appealing. It is elegant; it has the attraction of symmetry. For many purposes, it may not be inaccurate. But it is not an exact fit for the conceptual framework which the statutory language erects. The statutory description of relevance requires making an assumption that evidence is reliable; the statutory definition of probative value does not provide for making that assumption. The conceptual framework which the statutory language erects therefore admits of the possibility that relevant evidence will lack probative value because it is not reliable.

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[98] The statutory language cannot be explained away as lacking in precision. The detailed reports of the Australian Law Reform Commission which laid out the Evidence Act’s basic design recommended drawing a conceptual distinction between relevance and probative value. Those reports make clear that the statutory language chosen to explain those distinct concepts of relevance and probative value was chosen to implement a deliberate legislative design. The legislative design was that probative value would involve an assessment of reliability [Australian Law Reform Commission, Evidence, Report No 38 (1987) at 80-81 [146]] and that relevance would not [Australian Law Reform Commission, Evidence, Report No 26 (1985), vol 1 at 350-351 [641], vol 2 at 131-132 [58]; Australian Law Reform Commission, Evidence, Report No 38 (1987) at 70 [122], 71 [125]]. [98] The foundation for the view of Gaudron J was the practical observation that evidence can rationally affect the probability of a fact in issue only if it is accepted. Although not universally correct (eg false denials can have probative value), the observation is generally correct. But it does not follow from the general correctness of the observation that the assumption that evidence will be accepted must be read into the dictionary definition of probative value. What the observation confirms is that an assessment of whether the evidence could be accepted must be treated as forming part of an assessment of the extent to which the jury could rationally infer from the evidence that a fact in issue was more or less probable. The true import of the observation is to reinforce the view of McHugh J. [99] Conscious that the statement I am about to make involves repetition, a judge assessing the probative value of testimony in a jury trial is always required to ask: how much is that testimony rationally capable of contributing to the jury’s assessment that the existence of a fact in issue is more or less probable? Performance of that assessment necessitates identification of the fact in issue and of the steps by which it would be open to the jury to reason from the testimony to a conclusion that the existence of that fact is more or less probable. The result of the construction I prefer is that, where credibility of the testimony is raised as an issue going to the probative value of the testimony, the judge will have to ask as part of that assessment: would it be open to the jury, as a step in reasoning from the testimony to the conclusion that the existence of the fact in issue is more or less probable, rationally to find that the testimony is credible? If the answer to that question is that the jury could not rationally find that the testimony is credible, the testimony has no probative value. If the answer is that the jury could rationally find that the testimony is credible, the probative value of the testimony (like the probative value of testimony about which there is no issue of credibility) falls to be measured by reference to the highest use to which the jury could rationally put the testimony having found it to be credible. [100] It follows from my conclusion on the main issue of principle in the appeal that the trial judge and the Northern Territory Court of Criminal Appeal adopted the wrong approach to the assessment of probative value. It is necessary now to consider whether the application of the correct test could have resulted in the trial judge properly concluding that the tendency evidence and complaint evidence in the present case were inadmissible. [101] My resolution of that subsidiary issue differs from its resolution by Nettle and Gordon JJ, and leads me to agree with French CJ, Kiefel, Bell and Keane JJ that the tendency evidence was improperly admitted and that the complaint evidence was properly admitted.

Discretions to Exclude or Limit Use of Evidence

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IMM v The Queen cont. [102] Whether or not the tendency evidence was inadmissible turns on whether the condition of admissibility set out in s 97(1)(b) of the Evidence Act could be met. Adopting the correct approach to the assessment of probative value, was it open to the trial judge to think “that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value”? [103] To warrant the description of having “significant probative value”, the capacity of the evidence to contribute to the proof or disproof of the existence of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable. To the extent that similes can help elucidate the statutory measure of “significant”, the capacity of the evidence to contribute to the proof or disproof of the existence of the fact in issue does not need to be “substantial” but does need to be “important” or “of consequence” [Lockyer (1996) 89 A Crim R 457 at 459; DSJ v The Queen [2012] NSWCCA 9; (2012) 84 NSWLR 758 at 771-772 [57]- [60]]. The significance of the probative value of the evidence falls to be gauged having regard to the issues which would arise for the consideration of the jury in reasoning that the evidence made a fact in issue more or less probable and having regard to other evidence bearing on the existence of that fact adduced or to be adduced by the party seeking to adduce the evidence.

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… [107] The difficulty of concluding that the complainant’s testimony about the massage incident was capable of having significant probative value was not just that the testimony was uncorroborated. Her testimony about the massage incident was uncorroborated within a context in which the credibility of the whole of her testimony was in issue. There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offences charged. There was no rational basis for the jury to accept one part of the complainant’s testimony but to reject the other. The increased probability of the appellant having committed the offences which would follow from the jury accepting that part of the complainant’s testimony which constituted tendency evidence could in those circumstances add nothing of consequence to the jury’s assessment of that probability based on its consideration of that part of the complainant’s testimony which constituted direct testimony about what the appellant in fact did on the occasions of the offences. The probative value of the tendency evidence could not be regarded as significant. [108] For that reason, in my view, the tendency evidence was improperly admitted in the present case, and application of the correct test of probative value could not have resulted in the tendency evidence having been properly admitted. [109] Whether or not the complaint evidence was properly admitted turns on the correctness of the result of the trial judge’s application of the general rule in s 137 that “[i]n 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 rule requires the judge in a jury trial to ask: (1) How much does this evidence contribute to the prosecution case that the existence of a fact in issue is more or less probable? (2) How much does the same evidence give rise to a danger of unfair prejudice to the accused? (3) Does (1) outweigh (2)? Unless application of s 137 is to be a zero-sum game, the danger to the accused measured in (2) must lie in something other than the contribution to the prosecution case measured in (1) [see Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182 at 253-255 [260]-[266]; R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 at 377 [49] per Basten JA]. [110] The conclusion that the application of the correct test of probative value could have resulted in the complaint evidence in the present case not being admitted, in my view, faces two insurmountable difficulties. The first is that the trial judge’s exclusion of considerations of credibility could only have made a difference to the trial judge’s evaluation of probative value in the extreme case of the trial judge concluding that the complaint evidence was so incredible that it could not be accepted by the jury. The appellant made no submission that this was such a case.

Part 3 — Admissibility of Evidence

IMM v The Queen cont. [111] The second is that the assessment of both probative value and unfair prejudice was necessarily performed by the trial judge at the time the evidence was sought to be adduced by the prosecution on the basis of the material then available to the judge and having regard to the submissions then made to the judge. There was simply nothing before the trial judge to indicate that the complaint evidence gave rise to a danger of unfair prejudice. The trial judge found that there was none. Any error of the trial judge in her evaluation of the probative value of the evidence could therefore have made no difference to the correctness of her decision not to exclude the evidence. [112] I agree with the orders proposed by French CJ, Kiefel, Bell and Keane JJ. NETTLE AND GORDON JJ.

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… [164] In this case, counsel for the appellant did not seek to gainsay that interpretation of the Christie discretion. He contended, however, that, whatever the position at common law, ultimately the position under ss 97 and 137 must be determined according to the terms of the provisions [see also Papakosmas [1999] HCA 37; (1999) 196 CLR 297 at 302 [10] per Gleeson CJ and Hayne J]. He submitted that, upon their proper construction, each plainly contemplates that the judge should have regard to the credibility of evidence (just as much as to its reliability) in determining the weight it would be open to the jury rationally to give to the evidence, and thus that the judge should have regard to the credibility of evidence (just as much as to its reliability) in determining whether the probative value of it is sufficiently exceeded by unfair prejudicial effect as to warrant exclusion. In counsel’s submission, once it is accepted, as he contended it should be, that ss 97 and 137 contemplate that the reliability of evidence is a relevant consideration in the sense already described, there is no logical or other legitimate reason to suppose that each provision does not equally contemplate credibility as a relevant consideration in the sense already described. In short, credibility is just as capable as reliability of bearing on the probative value of evidence and it would impose an artificial, undesirable and ultimately unjust restriction on the exercise of the powers afforded by ss 97 and 137 to read down those provisions so as to exclude the consideration of credibility. [165] That submission should be accepted. As will be explained, both ss 97 and 137 should be construed such that both credibility and reliability are relevant considerations in determining whether evidence is of such probative value as not to be outweighed by the danger of unfair prejudice to the defendant. It is convenient to begin with s 97. [166] At common law, the criterion of admissibility of similar fact coincidence or tendency evidence was that its probative force clearly transcended its prejudicial effect. It was considered that evidence of that kind had probative value only if it bore no rational explanation other than the happening of the events in issue [Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 563, 564 per Dawson J; [1984] HCA 5; Hoch [1988] HCA 50; (1988) 165 CLR 292 at 296 per Mason CJ, Wilson and Gaudron JJ; Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 602 per Dawson J; [1989] HCA 50; Pfennig [1995] HCA 7; (1995) 182 CLR 461 at 485 per Mason CJ, Deane and Dawson JJ]. Accordingly, its admissibility depended not only on similarity but also on the non-existence of “a cause common to the witnesses” [Director of Public Prosecutions v Boardman [1975] AC 421 at 444 per Lord Wilberforce]. It followed that, if there were a real danger that witnesses had combined to concoct the evidence, the probative value of it was regarded as so much depreciated that the jury would be tempted to give it a weight which it did not deserve. Consequently, the possibility of a conspiracy to concoct such evidence was something which a trial judge needed to consider when the admissibility of the evidence fell for determination. The judge was required to make an initial assessment of matters which the jury might ultimately have to decide. It was only when and if the evidence were then admitted that its probative value became a matter for the jury. … [173] Given that construction of s 97, it is apparent that the trial judge in this case erred by proceeding upon the assumption that the tendency evidence would be accepted and thus upon the

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IMM v The Queen cont. assumption that she should not have regard to the credibility and reliability of the evidence in determining its admissibility under s 97. [174] Significantly, however, the appellant’s complaint about the judge’s approach to s 97 is not that the tendency evidence was so lacking in credibility (in the sense of the witness not telling what she honestly believed to be the truth) or reliability (in the sense which includes the witness’s ability to see and hear the matters the subject of the evidence) that it was not open for the jury to regard it as rationally affecting the probability of the commission of the charged offences. Rather, it is that the tendency evidence lacked probative value because it derived solely from the complainant.

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[175] Counsel for the appellant invoked the observation of Howie J in Qualtieri v The Queen [[2006] NSWCCA 95; (2006) 171 A Crim R 463 at 494 [118] (Latham J agreeing at 495 [124])] that, in order to meet the test of admissibility under s 97, evidence of sexual interest in the complainant will “usually be found outside of the complainant’s evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally”. In counsel’s submission, reliance on the complainant’s own evidence of uncharged sexual acts to establish a sexual interest in the complainant which supposedly added to the probability of the truth of the complainant’s testimony regarding the charged acts involved “bootstrap reasoning” and so the evidence should have been excluded. [176] That submission should be rejected. As Heydon J demonstrated in HML v The Queen [[2008] HCA 16; (2008) 235 CLR 334 at 427 [280]; [2008] HCA 16] with respect to the analogous though not identical considerations which govern the admissibility of evidence of uncharged acts under common law, the combination of such evidence with evidence of charged sexual acts may serve to establish the existence of a sexual attraction and willingness to act upon it which eliminates doubts that might have attended evidence of the charged acts standing alone. What must be considered is the contribution which the evidence of the uncharged sexual acts might make, if accepted, to whether the sexual acts to be proved are rendered more likely to have occurred [JLS v The Queen (2010) 28 VR 328 at 336-337 [24]-[26] per Redlich JA (Mandie JA agreeing at 340 [37], Bongiorno JA agreeing at 340 [38])167]. … [179] Granted that the massage incident was alleged to have occurred after the last of the charged offences, it was not too remote in time as to be incapable of supporting the hypothesis that the appellant had a continuing sexual attraction to the complainant which he sought to gratify by a variety of sexual acts on different occasions in circumstances where he might have been interrupted or detected by others close by. It was capable of being regarded as having significant probative value [R v Hopper [2005] VSCA 214 at [79]-[88]; JLS (2010) 28 VR 328 at 337-338 [29]]. … [182] The admission of the complaint evidence involves different considerations because it was contended that the complaint evidence should have been excluded under s 137. In light of what has been said about the proper construction of s 137, it follows that the judge erred in the application of s 137 by assuming that the complaint evidence would be accepted and, therefore, by failing to have regard to the credibility and reliability of the evidence in determining whether it was of such probative value as not to be outweighed by the danger of unfair prejudice to the appellant. [183] It is also at least possible that, if the judge had taken the credibility and reliability of the evidence into account in determining whether the probative value of it was outweighed by the danger of unfair prejudice to the appellant, her Honour would have come to a different view. Indeed she acknowledged that “there is ample material available to challenge the weight to be attached to the [complaint evidence]” [IMM (No 2) (2013) 234 A Crim R 225 at 230 [21]]. [184] Among the considerations which would have been relevant to that assessment were that the initial complaint was not made until after the appellant had separated from the complainant’s grandmother in late 2010, the first complaint to SW was made when the complainant was in trouble, and at least some of that complaint was in response to leading questions. On one view of SS’s account, the

Part 3 — Admissibility of Evidence

IMM v The Queen cont. complaint was made after the complainant had complained to her aunt, grandmother and mother in August 2011. Although there was objective evidence which supported the conclusion that the complaint to SS was made before any complaint to family members, SS said that, when the complainant complained to her, the complainant’s grandmother and the appellant had already broken up and the complainant told her that she had already told her mother. Evidently, that was contrary to the complainant’s version of events, which was that the first complaint she made was to SS, that SS recommended that the complainant tell her mother, and that it was only after that that she first told her aunt and grandmother. [185] Further, the charged offences were alleged to have occurred between 2002 and 2009, and yet the first complaint was said not to have been made until October or November 2010. While it might be that some of the alleged course of sexual offending was still fresh in the mind of the complainant in October or November 2010, it is at least questionable that the specific offences which were alleged to have been committed between 2002 and 2005 were still fresh in the mind of the complainant by that time. The same applies, but possibly with added strength, in relation to the complaints to SW, SC and KW, which were said not to have been made until August 2011. [186] At all events, it cannot be said that the judge’s failure to take the credibility and reliability of the complaint evidence into account in assessing its probative value did not result in the appellant thereby being deprived of a chance of acquittal, or thus in a miscarriage of justice [Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 at 131-132 [67] per Hayne J; [2001] HCA 4]. … (Appeal allowed and set aside orders of Court of Criminal Appeal of the Northern Territory and order a new trial)

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R v Dickman [6.50] R v Dickman [2017] HCA 24, (2017) 91 ALJR 686 Facts [An 18-year-old German tourist Faisal Aakbari was holidaying in Melbourne. On 27 September 2009, he went into the city and tried to gain entry into nightclubs which included the Dallas Showgirls nightclub. A number of mean associated with the Hells Angels Motorcycle Club were outside the Dallas Showgirls nightclub. Aakbari falsely claimed that he was a Hells Angels from Germany. Aakbari was allowed into the club but he was taken upstairs by a group of men. Aakbari was then told the group was going to visit another club. He left with three men – one who had a bullring in his nose, one called Daly and a man called Chaouk. There was also an “old man” who had a long beard and looked like a “biker” and another man who looked “Italian”. Aakbari was taken to the Hells Angels’ Thomastown clubroom. The “old man” showed Aakbari photographs of members of the German chapter and asked him if he knew any of them. Aakbari said that he did not. The “old man” came back with a baseball bat and he beat Aakbari about his head and body. The “old man” then put a ninja knife to Aakbari’s neck and told him “don’t go to the police or I will kill you and your family”. Aakbari was then driven to an unknown location and left there. On 28 September 2009, while Aakbari was in hospital, he spoke with police. Police took a statement from him over several days. On 29 September, Aakbari was shown photographs on a photoboard and he identified Chaouk. On 30 September, Aakbari complied a “FACEview” of the old man. On 30 September, Aakbari wrongly selected photographs of persons who might be Daly and Bullring. On 2 October 2009, Aakbari was shown CCTV of the Dallas club recorded on the morning of his visit, he identified Chaouk, the “old man”, Daly and the Italian (on the prosecution’s case this man was Michael Gerrie).

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R v Dickman cont. A police officer thought he recognised the “old man” as Michael Cooper. Aakbari was shown a photoboard with Cooper’s picture (it did not include Dickman’s photo). Aakbari identified Cooper as the “old man”. However, Cooper was not the “old man” as he had an alibi and so charges were withdrawn against Cooper. Aakbari returned to Germany. In August 2011, Aakbari returned to Melbourne to give evidence at Chaouk’s trial. During his stay, he participated in another photoboard identification where he identified Dickman’s photograph as the “old man”. In addition, on the same day he wrongly identified the Italian (Gerrie), Daly and Bullring. However, Gerrie/Italian gave evidence in the trial for the prosecution. Gerry gave evidence that he was in the Dallas club with Dickman (known as Boris) on 27 September. Gerrie was shown the relevant CCTV and he identified the person with the long beard as Boris; he also identified himself and Chaouk.

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Records of text communications between Gerrie and Dickman were consistent with Gerrie’s account. In addition, mobile phone records showed that Dickman and Gerrie’s phone contacted Bernard Salstufor who would seem to know about the German chapter of the Hells Angels. An intercepted call was recorded at the time of the assault and in the background Aakbari can be heard screaming “oh my God, what’s happening?” and another voice can be heard saying “lying cunt” and “I mean, are you a Hells Angels?” The jury was invited to compare the Dickman’s voice on a recording made during the execution of a search warrant at his home with the voice speaking during the assault and conclude that the latter was the respondent. The sole issue at the trial was proof that Dickman was the “old man”. At trial, the prosecutor submitted that the probative value of the August 2011 identification was in the “moderate to low” range as it had taken place two years after the assault and after Aakbari’s misidentification of Cooper. However, the prosecution submitted that the evidence was relevant and there was no unfair prejudice. The trial judge allowed the evidence and noted that the limitations of the evidence would be the subject of jury directions as to the special need for caution before the jury accepted the evidence. The August 2011 identification and Aakbari’s misidentification of Cooper, and all the other identifications/misidentifications were adduced in the Crown case. Dickman was convicted of intentionally causing serious injury and making a threat to kill. However, the Court of Appeal allowed an appeal on the basis that the trial judge had erred by failing to exclude identification evidence made on 23 August 2011 under s 137. The Court of Appeal gave five reasons for this conclusion. First, Aakbari’s reliability was “significantly compromised” in that he had wrongly identified Cooper as the “old man”, wrongly identified persons as Daly, Bullring and the Italian, and failed to identify Gerrie. Secondly, the delay of almost two years between the assault and the August 2011 identification exacerbated doubts about his reliability. Thirdly, his memory may have been contaminated by his earlier identification of Cooper and the possible “displacement effect” of viewing the CCTV footage. Fourthly, he had been told that his earlier identification was mistaken and he had been given to understand that a photo of his assailant would be included in the photoboard. Fifthly, he would have been striving to find the photograph that best resembled his memory of the attacker. The prosecution contended that the Court of Appeal erred by assessing this evidence by reference to the view that Aakbari was an unreliable witness of identification. The prosecution was granted special leave to appeal to the High Court.] Judgment KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ. … The probative value of the August 2011 identification [41] The majority and minority analyses in the Court of Appeal proceeded upon acceptance of the prosecutor’s stance at the trial, which was that evidence of Aakbari’s initial identification of Cooper would only be adduced in the prosecution case if the August 2011 identification was also admitted. In the event the latter identification was rejected, the prosecutor flagged the likelihood that

Part 3 — Admissibility of Evidence

R v Dickman cont. cross-examination would make it admissible “in rebuttal”. In this Court, the respondent contests this analysis, submitting that the prosecutor was obliged to lead evidence of Aakbari’s identification of Cooper. In circumstances in which Aakbari had not resiled from the Cooper identification, he submits that its admission did not require that the August 2011 identification, made subsequently, also be received.

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[42] In this Court, the appellant accepts that discharge of its duty of fairness required that it adduce evidence that within days of the assault Aakbari identified Cooper as his assailant, and that the admission of this evidence did not necessitate that the August 2011 identification also be admitted. While cross-examination of Aakbari may have enabled the prosecution to adduce the August 2011 identification, the appellant’s concession should be accepted. The determination of whether s 137 required the exclusion of the August 2011 identification, as the trial judge appreciated, did not turn on whether Aakbari’s identification of Cooper was, or was likely, to be received in evidence. [43] In written submissions, the appellant complains that the Court of Appeal majority wrongly took into account their Honours’ assessment that Aakbari was an unreliable witness of identification. As the appellant acknowledged on the hearing of the appeal, the complaint is not to the point in circumstances in which there is no dispute that the probative value of the evidence was rightly assessed by the trial judge as low. This was an estimate that did not depend upon his Honour’s assessment of Aakbari’s truthfulness or reliability as a witness [The Dictionary to the Evidence Act 2008 (Vic) defines “credibility of a witness” to mean the credibility of any part or all of the evidence of the witness, and to include the witness’s ability to observe and remember facts and events about which the witness has given, is giving or is to give evidence.]. Assuming that the jury would accept the August 2011 identification at its highest, it was identification with limited capacity to rationally affect the assessment of the probability that the respondent was the “old man”. This is to recognise not only the limitations of photographic identification, but also that the August 2011 identification was evidence of Aakbari’s opinion that of the 11 men whose photographs were included in the array, the respondent’s photograph bore the closest resemblance to his recollection of the appearance of the man who had assaulted him two years earlier [The Dictionary to the Evidence Act 2008 (Vic) defines “identification evidence” to include evidence of an assertion that the accused resembles a person who was present at the place where the offence was committed.]. [44] Aakbari’s opinion that the photograph of the respondent resembled his assailant was nonetheless a relevant circumstance. The fact that standing alone its probative value was low did not require its exclusion unless that value was outweighed by the danger of unfair prejudice [Festa v The Queen (2001) 208 CLR 593 at 598-599 [10]-[11], [13]-[14] per Gleeson CJ, 614-615 [66]-[67] per McHugh J, 644 [171] per Kirby J (dissenting, but agreeing as to the admissibility of the Hill identification evidence), 658 [216] per Hayne J; [2001] HCA 72]. Yet each of the reasons that the Court of Appeal majority gave for the conclusion that the evidence required exclusion was concerned with its low probative value. The only unfair prejudice to which the Court of Appeal majority referred was the “seductive quality” of identification evidence, which, their Honours said with reference to a passage in the joint reasons in Domican v The Queen, is difficult to ameliorate by directions [Dickman v The Queen [2015] VSCA 311 at [111] citing (1992) 173 CLR 555 at 561-562 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1992] HCA 13]. [45] Recognition of the seductive effect of identification evidence led their Honours in Domican to state a requirement of the common law of evidence that where evidence of identification represents a significant part of the prosecution case, the judge must warn the jury of the dangers of convicting on it in a case in which its reliability is disputed [Domican v The Queen (1992) 173 CLR 555 at 561 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ]. Their Honours did not suggest that the seductive effect of identification evidence cannot be addressed by judicial direction. The point made in Domican was the need for cogent and effective directions tailored to the circumstances of the case [Domican v The Queen (1992) 173 CLR 555 at 561-562 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ].

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R v Dickman cont. [46] Section 116 of the Evidence Act, as at the date of trial, reflected the concerns voiced in Domican respecting identification evidence [Section 116 of the Evidence Act 2008 (Vic) has since been repealed: (Vic), s 73(1). Division 4 of Pt 4 of the Jury Directions Act contains provisions relating to identification evidence in criminal trials.]. It required the judge to warn the jury of the special need for caution before accepting identification evidence and of the reasons for that need for caution both generally and in the circumstances of the case. [47] Aakbari’s evidence of the August 2011 identification was unlikely to have the seductive effect of an identifying witness who is adamant that the accused is the offender [cf Festa v The Queen (2001) 208 CLR 593 at 614 [64] per McHugh J]. The Court of Appeal majority did not explain the error in the trial judge’s conclusion that directions drawing attention to the readily apparent limitations of the August 2011 identification would minimise any risk that the jury might give the evidence disproportionate weight.

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[48] Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence [Festa v The Queen (2001) 208 CLR 593 at 602-603 [22] per Gleeson CJ]. The “rogues’ gallery” effect of picture identification evidence creates a risk of the latter kind because the appearance of some photographs kept by the police may invite the jury to infer that the accused has a criminal record [see Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 409-414 per Stephen J; [1981] HCA 17]. On the appeal in this Court, the respondent’s argument concentrates on the danger of unfair prejudice of this latter kind, which is said to arise from unsatisfactory features of the August 2011 identification. [49] The respondent points out that Aakbari did not volunteer that he had any doubts concerning his identification of Cooper. The police told Aakbari that he was mistaken and that they had identified the persons who were in fact responsible for the assault on him. This was the context in which Aakbari was told that arrangements would be made for him to look at further photographs. This background made it necessary for defence counsel to cross-examine Aakbari to elicit his agreement that he understood at the time of the August 2011 identification that the array would contain a photograph of the man whom the police suspected of being the “old man”. The cross-examination was necessary in order to expose a weakness in the identification but it inevitably served to highlight that the police suspected the respondent of being the offender. [50] Before addressing this aspect of the prejudice on which the respondent’s argument relies, the question of the propriety of the police advising Aakbari that his identification of Cooper was mistaken should be addressed. It would have been wrong to tell Aakbari that his identification was a mistake if the police did not have cogent evidence that Cooper was not the “old man”. [51] On the hearing of the appeal in this Court, it was not clear that the respondent accepted that the police had correctly excluded the possibility that Cooper was the “old man”. Senior counsel for the respondent submitted: [T]here was a circumstantial case against Mr Cooper. That circumstantial case included that he was from Melbourne, he was in fact at the club rooms on the Monday when the police came, that he looked like Mr – the person – or he was identified by Mr Aakbari as the offender. Those matters were put to raise a reasonable doubt about the reliability of the CCTV and of course the [August 2011 identification], which the defence were endeavouring to meet. [52] Contrary to the tenor of the submission, the trial was not conducted on the basis that the prosecution had failed to exclude the reasonable possibility that Cooper was the offender. That question first arose in the course of the voir dire. The prosecutor asked Detective Sergeant Condon a question about the inquiries that had been made concerning Cooper’s alibi. Defence counsel interrupted, submitting that she could “short-circuit” this aspect of the hearing. In the exchange that followed, the prosecutor indicated that she wished to clarify whether it was to be suggested that Cooper should

Part 3 — Admissibility of Evidence

R v Dickman cont. still have been a suspect. The trial judge inquired whether that was the suggestion, to which defence counsel replied “no, your Honour, obviously not”. The prosecutor did not press questions on the topic of Cooper’s alibi. [53] In a later exchange during the trial, the prosecutor again raised the question of whether the defence proposed to suggest that Cooper was, or could have been, the offender. The prosecutor stated that if that suggestion were to be made she was in a position to lead evidence to rebut it. Defence counsel stated, somewhat enigmatically, “Your Honour, I’ve made my position plain all the way along. I agreed to my learned friend she could open in that general way”. This led the trial judge to ask “correct me if I’m wrong, but I’ve never understood the defence to be suggesting that it could have been Cooper … Unless I’m missing something … that’s how I’m interpreting [defence counsel’s] comments. I haven’t got it wrong, have I, [defence counsel]?” To the last query, defence counsel replied “No. I’ve been saying to my learned friend – I said in my opening my client wasn’t there”. In the absence of a clear indication that the defence was not proposing to suggest that Cooper may have been the “old man”, it would perhaps have been prudent to lead evidence of the Cooper alibi. In the event it would seem that the issue was dealt with by evidence being led from Detective Sergeant Condon that following receipt and investigation of further information the charges against Cooper had been withdrawn. Consistently with the way the case had been conducted, before closing addresses defence counsel stated “I won’t be putting to the jury it is Mr Cooper. I’ll be submitting that it’s a person who clearly Mr Aakbari believes is Mr Cooper and therefore looks like Mr Cooper”.

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[54] There was nothing to prevent the respondent from exploring the strength of Cooper’s alibi. A forensic decision was made not to do so. The admissibility of the August 2011 identification is to be determined upon acceptance that the police were in possession of evidence that excluded Cooper as the offender. In these circumstances it was not improper for the police to tell Aakbari that he appeared to have been mistaken and to ask him to participate in a further attempt to identify his assailant. [55] It was wrong, however, to convey to Aakbari that the suspect’s photograph would be included in the photoboard presentation. It appears that the photoboards that were shown to Aakbari in August 2011 contained a printed “preamble”, stating that the viewer should not assume that the presentation included a photograph of any person suspected of being the offender. The value of this instruction was effectively undermined by Detective Sergeant Condon’s earlier advice to Aakbari that the police had spoken to the men whom the police believed to be responsible for the assault and that they would arrange for him to be shown further photographs. Nonetheless, criticism of the police for the conduct of the identification should not have resulted in the exclusion of relevant evidence unless such probative value as it possessed was outweighed by the danger of unfair prejudice [Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 430 per Mason J]. [56] The unfair prejudice occasioned by the disclosure of Detective Sergeant Condon’s suspicion that the respondent was the offender was the risk that the jury would infer that his suspicion was based on matters about the respondent known to Detective Sergeant Condon which were not in evidence. That risk, however, does not appear to have been a real one in the context of this trial. The evidence shows that police attended the Thomastown clubroom at about 6.40am on Sunday 27 September 2009 and took details of the registration numbers of four cars parked outside it. One of these was a car bearing a South Australian plate which was associated with Gerrie. The text message transmitted from the respondent’s mobile telephone to Gerrie’s mobile telephone on the morning of 26 September 2009 linked the respondent to Gerrie. Telephone records placed the respondent in the vicinity of the Thomastown clubroom around the time of the assault. The reasons that the investigation came to focus on the respondent were explained in the evidence. Whether the evidence proved the respondent’s guilt was the issue for the jury but there is no reason to conclude that the suspicion that the police entertained as to his guilt was based on information apart from the material that was before the jury. [57] The appellant is right to contend that the jury was not required to grapple with “abstract notions as to the dangers of identification evidence”, as the limitations of the August 2011 identification were

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R v Dickman cont. apparent. The trial judge’s conclusion that the danger of unfair prejudice was minimal and could be adequately addressed by direction was justified. It follows that the admission of the August 2011 identification did not involve error. … (Appeal allowed and set aside orders of Court of Appeal and in their place order that the appeal against conviction be dismissed.)

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R v Sood [6.60] R v Sood [2007] NSWCCA 214 Facts

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[Sood, a medical practitioner, was being prosecuted for 96 counts of dishonestly obtaining a financial benefit by deception from the Health Insurance Commission. The prosecution case was that Sood was obtaining direct payments from patients plus payments from Medicare (which she was not entitled to receive). At the trial, after a voir dire, the trial judge excluded evidence from a Health Insurance Commission investigator that during a lawful search of Dr Sood’s clinic he found a number of cash receipt books and cash receipts in two waste bins in the applicant’s clinic. The prosecution sought to rely on this evidence for the purpose of inferring an admission by the applicant that she had placed the documents in the bins and then inferring that she did so because she was conscious of her guilt of Medicare fraud. The trial judge, in applying s 137, found that the evidence was not strongly probative of the offences charged because “the overwhelming inference is that she did so because she was afraid of being prosecuted for tax evasion”. The DPP successfully appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The CCA reversed the trial judge’s assessment of probative value and unfair prejudice. The decision considered the following questions: (i) Can a trial judge take into account competing inferences in assessing the “probative value” of evidence? (ii) Can a trial judge take into account reliability in assessing probative value of evidence? Latham J held that “it was no part of the trial judge’s function in assessing probative value under s 137 to have regard to competing explanations for the respondent’s conduct, other than that upon which the Crown relied” (at [40]). Latham J held that an assessment of probative value is “probative value in the Crown case” (at [27]). Latham J held that the weight of the evidence sought to be adduced is not a legitimate factor in assessing its probative value. Her Honour held that the evidence is taken at its highest when assessing its probative value (at [38]). Latham J also held that the reliability of the evidence cannot be taken into account in assessing its “probative value” (at [36]).] Judgment LATHAM J (Ipp JA and Fullerton J agreeing): ... Section 137 of the Evidence Act 1995 [23] Whilst this provision appears in Pt 3.11 of the Act, headed “Discretions to Exclude Evidence”, it has been held that the mandatory terms of the section are more consistent with an evaluative

Part 3 — Admissibility of Evidence

R v Sood cont. judgment, dependent upon “a connected series of findings of law and of fact”, rather than the exercise of a judicial discretion: GK [2001] NSWCCA 413; (2001) 125 A Crim R 315 at 333; [2001] NSWCCA 413 at [74]; see also R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61; R v Rima [2003] NSWCCA 405; R v SJRC [2007] NSWCCA 142. [24] The questions giving rise to that “connected series of findings of law and of fact” were articulated by Sully J in GK as follows: 2.1 Is the tendered evidence relevant at all in the sense required by s 55(1) of the Act? If not, then the evidence is in any event inadmissible. 2.2 If the tendered evidence is relevant in that sense, then what is its probative value, as that expression is defined in the Dictionary that forms part of the Act? 2.3 Is there a danger that the tendered evidence, if admitted, will give rise to the danger of unfair prejudice to the defendant: that is, to the real risk that the evidence, if admitted, will be misused by the jury in some way that is unfair to the defendant? 2.4 If so, then where does the preponderant weight lie as between, on the one hand that probative value; and on the other hand that danger of unfair prejudice to the defendant? If the preponderant weight favours the factor of probative value, then s 137 does not require the exclusion of the evidence; and the evidence ought to be admitted unless there is some other proper basis for its exclusion.

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[25] It has not been suggested, nor could it have been, that the evidence of the circumstances surrounding the finding of the documents is not relevant to proof of the charges against the respondent. The focus of this appeal is on the answers to questions 2.2 and 2.3. The assessment of probative value in the Crown case [26] As noted earlier at [17], the proposition advanced by the respondent in this appeal (the defendant at trial) was that the assessment of the probative value of the evidence, supporting the inference of dishonesty, necessarily takes into account competing inferences that might arise for the jury’s consideration. The argument therefore assumes that the trial judge is entitled to consider interpretations of the evidence other than that advanced by the Crown, and that questions relating to the weight of the evidence sought to be adduced are legitimate factors in assessing probative value. In my opinion, the argument must be rejected for the following reasons. [27] The probative value of evidence is “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. That bare definition in the Dictionary to the Act must, however, be considered in the context of the provision in which it appears. Section 137 requires the assessment of the probative value of evidence to be adduced by the prosecution, that is, the probative value of that evidence in the Crown case, unqualified by competing constructions or inadequacies that might be advanced by the defendant or contrary evidence that might be led in the defendant’s case. [28] In R v Linard Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112, the assessment of the probative value of identification evidence was considered by Spigelman CJ for the purposes of determining whether the test posed by s 5F(3A) of the Criminal Appeal Act was satisfied, and for the purposes of the exercise required by s 137. Counsel for the respondent in Shamouil submitted that s 5F(3A) was not satisfied because the absence of weak identification evidence could not be said to substantially weaken the Crown case. Whilst senior counsel for the respondent in this appeal conceded that the trial judge’s ruling in this case eliminated or substantially weakened the prosecution case for the purposes of s 5F(3A), it is pertinent to refer to this aspect of the Chief Justice’s judgment (with which Simpson J and Adams J agreed). In rejecting the submission, the Chief Justice said at [39]:

Discretions to Exclude or Limit Use of Evidence

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R v Sood cont. The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s 137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to “the prosecution’s case”, to be considered as a “case”. This section is not concerned with the weight of the Crown’s evidence. Probative value and considerations of weight, reliability and credibility [29] When dealing with probative value in the context of s 137, the Chief Justice noted that, before the introduction of the Evidence Act, the equivalent common law discretion to the exercise required by s 137 (the Christie discretion) did not engage considerations of the reliability of the evidence sought to be excluded. Reference was made to R v Carusi (1997) 92 A Crim R 52 at 65-66, wherein Hunt CJ at CL (with whom Newman J and Ireland J agreed) said:

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The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied – on the whole of the evidence – that the jury ought nevertheless have had a reasonable doubt. (original not in bold) [30] Furthermore, the Court in R v Singh-Bal (1997) 92 A Crim R 397 and in R v Yates [2002] NSWCCA 520 adopted this formulation of the discretion following the enactment of s 137. Whereas Carusi was an identification case, Singh-Bal and Yates were not. The former concerned the exclusion of an alleged admission by the accused, while the latter concerned the exclusion of the evidence of a witness who had given three different accounts to police, only one of which was incriminatory of the accused. [31] Spigelman CJ went on to deal with a division of opinion on this issue between Gaudron J on the one hand in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57, and McHugh J on the other hand in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37. In Adam, Gaudron J said at [59-60]: The dictionary to the Act defines “probative value” to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. That definition echoes the substance of s 55(1) of the Act which provides that “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. It is to be noted that the dictionary definition differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted. The omission from the dictionary definition of “probative value” of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition. [32] McHugh J in Papakosmas was of the view that the omission of “if it were accepted” from the Dictionary definition of “probative value” was of significance: The distinction which the Act makes between relevance and probative value also supports the view that relevance is not concerned with reliability. Probative value is defined in the Dictionary of the Act as being “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. That assessment, of course,

Part 3 — Admissibility of Evidence

R v Sood cont. would necessarily involve considerations of reliability. “Probative value” is an important consideration in the exercise of the powers conferred by ss 135 and 137. An assessment of probative value, however, must always depend on the circumstances of the particular case at hand. (at [86]) [33] In resolving this tension in favour of the approach taken by Gaudron J, and having regard to a number of decisions in this Court, the Chief Justice said in Shamouil at [60-65] [Paragraphs [60]-[65] extracted.] [34] The reference to the “preponderant body of authority” appears to be an acknowledgment of Simpson J’s judgment in R v Cook [2004] NSWCCA 52, in so far as it was interpreted in Shamouil as support for the proposition that there may be limited circumstances in which credibility and reliability will be taken into account when determining probative value. The Chief Justice’s concession in that regard does not however warrant a departure from an unbroken line of authority on this issue in this State. Given the reliance placed upon Cook by the respondent’s counsel on the hearing of this appeal, it is appropriate to examine that decision more closely.

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[35] In Cook, Simpson J (with whom Ipp JA and Adams J agreed) dealt with a ground of appeal that challenged the admission of evidence of flight in the Crown case, as demonstrating a consciousness of guilt. The accused’s counsel at trial had sought the exclusion of the evidence pursuant to s 137, on the basis that its admission would require the accused to provide other explanations for flight, inconsistent with a consciousness of guilt of the offence at trial (a sexual assault), but revealing to the jury a contravention of an AVO and an assault upon a female for which he received a term of imprisonment. [36] The trial judge in Cook was found to have fallen into error in his approach to s 137. The critical passages of Simpson J’s judgment, set out below in bold type, confirm that her Honour determined that findings of fact, including questions of credibility and reliability (and therefore weight), from the evidence on the voir dire play no part in the assessment of the probative value of evidence sought to be admitted in the Crown case. The credibility and reliability of any explanation proffered by the accused, in order to explain flight or other conduct suggestive of a consciousness of guilt, may however play a role in the balancing exercise, that is, in determining whether unfair prejudice arises out of the nature of the explanation. [37] Her Honour said (at [36]-[37] and [43]): The probative value of the evidence can be assessed merely by examination of the evidence itself. In this case, that examination inevitably gives rise to a conclusion that the probative value to the Crown case was very high indeed. Within five days of the assault on the complainant, the appellant twice fled when police approached. The inferences available to a jury are obvious. The balancing exercise required by s 137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. That was the purpose of the evidence given by the appellant in the voir dire. The effect of his evidence there was to put before the judge evidence of the response that the appellant would make, if the Crown evidence were admitted. This meant that the evidence of flight could be seen in its complete context. What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant’s case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting – disclosing his history of violence and breach of the law. … The prejudicial effect of the explanation was what s 137 required to be balanced against the probative value the Crown evidence would otherwise have had. That exercise was not explicitly undertaken by the trial judge. The s 137 exercise also called for consideration of

Discretions to Exclude or Limit Use of Evidence

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R v Sood cont.

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directions that could be given to the jury in order to ameliorate the impact of the knowledge of the appellant’s prior conduct. … I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury. The role of the judge in NSW, at least post-1995, is merely to determine the relative probative value against the danger of unfair prejudice that might result. In saying this, I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s 137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused’s response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice. [38] In short, the rationale in Cook is consistent with the established line of authority since Carusi, which holds that the probative value of the evidence sought to be excluded under s 137 is to be assessed by taking the evidence at its highest. I am mindful of the fact that Simpson J was a member of the bench in Shamouil, but a careful reading of her Honour’s judgment in Cook does not, in my opinion, admit of any other interpretation. In circumstances where the evidence is relied upon to found an inference that the accused acted out of a consciousness of guilt, the court must approach the assessment of the probative value of that evidence on the basis that such an inference is capable of acceptance by a jury. Of course, the inference must be one that is clearly available, whether or not the jury ultimately draw that inference. [39] The trial judge expressly found that the probative value of the evidence of the finding of the cash receipt books in the bins was not strongly probative because “if she did hide the receipt books, the overwhelming inference is that she did so because she was afraid of being prosecuted for tax evasion”. (Voir Dire judgment at 15) (It was conceded before the trial judge and before this Court that the jury would in all likelihood conclude that the respondent had placed the receipt books in the bin, despite her denial.) Not only did he make this finding in the absence of any evidence from the respondent that she held such fears, but more importantly, he failed to assess the probative value of that evidence in the prosecution case by having regard, purely and simply, to the inference that the evidence was capable of supporting, namely that the respondent hid the receipt books because she was aware of the unlawful nature of her charging practices. As Simpson J observed in Cook, the probative value of that evidence was to be assessed merely by an examination of the evidence itself. [40] Contrary to the submissions of counsel for the respondent, it was no part of the trial judge’s function in assessing probative value under s 137 to have regard to competing explanations for the respondent’s conduct, other than that upon which the Crown relied, even assuming that an alternative explanation was given by the respondent on the voir dire. The trial judge exceeded the reach of his function and entered into the jury’s domain: R v SJRC [2007] NSWCCA 142 at [36]-[40]. Far from assisting the respondent, Cook exposes the flaw in the argument advanced on this appeal. [41] I would also note that the concession made by senior counsel for the respondent, that the trial judge’s ruling eliminated or substantially weakened the prosecution case, is difficult to reconcile with the submission that the excluded evidence had low probative value, for the reasons set out at par 28 above.

Part 3 — Admissibility of Evidence

R v Sood cont. [42] The trial judge erred in his approach to the assessment of probative value under s 137. I would uphold grounds 1 and 2 of the appeal. (The Court also held that the trial judge erred in finding that there was unfair prejudice – see extract at [6.120].)

 “Unfair prejudice” [6.70] The term “unfair prejudice” is not defined in the Evidence Act 1995. In the Interim Evidence Report No 26 of the Australian Law Reform Commission, the Commission stated at [957]: It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.

The Commission also stated in the same report at [644]: By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

McHugh J stated in Papakosmas v The Queen at [91]: Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD (1997) 94 A Crim R 131 at 139 Hunt CJ at CL pointed out: The prejudice to which each of the sections [ss  135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.

Unfair prejudice may arise in a variety of ways. Unfair prejudice could result from the following: • Evidence may lead a jury to adopt an illegitimate form of reasoning (eg evidence that the defendant in a criminal trial had engaged in criminal activity other than that charged may provoke an instinct to punish or lead the jury to be satisfied with a lower degree of probability of commission of the offence(s) charged than is required by the law). • Evidence that is admitted for one purpose yet has another unfair use. For example, gruesome photos of the deceased in a murder trial which are admitted to prove the extent of the deceased’s injuries but have the capacity to shock the jury and incite an emotional response. • Another example of “unfair prejudice” is where there is reason to believe a jury will give the evidence undue “weight” (significance). • It is possible that unfair prejudice might arise not from particular evidence but from evidence which would need to be adduced to challenge it. • Unfair prejudice may arise from procedural considerations. Thus, an opposing party may be significantly prejudiced by evidence if prevented from properly challenging its reliability

Discretions to Exclude or Limit Use of Evidence

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(eg hearsay evidence if the opposing party is unable to cross-examine the maker of the representation on an important issue in the litigation). Breach of the rule in Browne v Dunn (1893) 6 R 67 might justify exclusion of evidence adduced in contradiction of a witness who was not properly cross-examined.

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Whatever the source of the unfair prejudice, the court must consider the extent to which the dangers associated with admitting the evidence may be reduced by some other action, such as editing the evidence, adjourning the proceedings or, in a jury trial, by directions to the jury. As to procedural unfairness, McHugh J has commented that procedural disadvantages are not necessarily grounds for “unfair prejudice”. In Papakosmas v The Queen, McHugh J stated at [93]: Some recent decisions suggest that the term “unfair prejudice” may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act. In Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike [No 1] (unreported; Federal Court of Australia; 1  September 1995), Beaumont  J used his discretion under s  135(a) to exclude the transcript of a bankrupt, which would otherwise have been admitted as an exception to the hearsay rule pursuant to s  63, on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation on a crucial issue in the litigation substantially outweighed the probative value of the evidence. In The Commonwealth v McLean, the New South Wales Court of Appeal also used s  135(a) to exclude hearsay evidence otherwise admitted via the exception contained in s 64 on the basis that the defendants were prevented by other evidentiary rulings from effectively challenging the evidence. It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of “prejudice” in a context of rejecting evidence for discretionary reasons … I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of “prejudice” in a context of rejecting evidence for discretionary reasons. (Footnote omitted.)

McHugh  J defines unfair prejudice in terms of the misuse of evidence by the trier of fact. This approach was applied in Ainsworth v Burden [2005] NSWCA 174 at [99]. The inability to cross-examine in Ordukaya v Hicks [2000] NSWCA 180 was considered not capable of itself causing unfair prejudice. This decision was cited with approval in R v Suteski (2002) 56 NSWLR 182 where Wood  CJ at CL held that each decision would depend on its particular facts. Even where a witness is available for cross-examination, an objection could be raised to the admissibility of evidence because Counsel is prejudiced by not being able to effectively cross-examine a witness due to a lack of information. In La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd, the Federal Court considered whether there was prejudice caused by “cross examining in the dark”. This was due to the non-disclosure of the factual basis for a witness’s evidence. The Federal Court held that in this case, this was not a basis for excluding the evidence under s 135. In considering unfair prejudice, the court can also consider the extent to which the dangers associated with admitting the evidence may be reduced by some other remedy or action, such as by directing the jury, editing the evidence, or adjourning the proceedings.

Part 3 — Admissibility of Evidence

Ordukaya v Hicks [6.80] Ordukaya v Hicks [2000] NSWCA 180 Facts [The plaintiff unsuccessfully sued a 92-year-old defendant for negligence in respect of a paving step. The defendant was insured. The trial judge, Cooper DCJ, found that the defendant was unable to attend to give evidence (it was not reasonably practicable) and a statutory declaration made by the defendant was admitted into evidence under s 64 of the Act. The defendant’s declaration stated that she was unaware of any instability in the paving step. The plaintiff was unsuccessful in excluding the evidence under s 135 on the basis that the plaintiff was denied the opportunity to cross-examine the 92-year-old woman. Cooper DCJ did not exclude the declaration under s 135.] Judgment SHELLER JA (with whom Meagher JA agreed; Mason P agreed with additional comments on s 135): [32] His Honour recorded a submission by the plaintiff that the statement was unfairly prejudicial because the plaintiff was denied the opportunity to cross-examine the defendant. His Honour said: To my mind that is not what is meant by unfairly prejudicial in the context of s 135 of the Act. What is meant in the context of the Act is unfairness in the obtaining of the evidence, that is, in the circumstances under which the evidence was procured.

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The plaintiff submitted that this passage revealed error going to the exercise of his Honour’s discretion under s 135. [33] Any understanding of the way in which s 135 works, where evidence is admissible under s 64, must start by accepting that, conformably with s 64, the hearsay rule does not apply to the statement. The admission of a document of probative value against a party involves prejudice to that party. However it is not prejudice, but unfair prejudice, which must be weighed against the probative value of the representation. The weighing exercise required is not dissimilar from that which came to be known in the criminal law as the rule in R v Christie [1914] AC 545 at 564-565. In R v Swaffield (1998) 192 CLR 159 at 183 Brennan CJ referred to that as a category of exclusion of evidence including voluntary confessional statements and said: That category consists of evidence the probative value of which is small but the undue prejudice which it is likely to produce is substantial. [34] In Driscoll v The Queen (1977) 137 CLR 517 at 541 Gibbs J, as his Honour then was, spoke about the discretion of a judge presiding at a criminal trial to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. “The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.” In this context the obtaining of evidence such as a confession in a way unfair to the accused would be a matter of unfair prejudice to be taken into account in exercising the discretion under s 135. [Sheller JA referred to Papakosmas v The Queen (1999) 196 CLR 297 at [93] per McHugh J and the Interim Report No 26 of the Australian Law Reform Commission at par 644.] … [41] … [T]he statutory declaration was, in my opinion, rightly admitted into evidence. Of course, in determining what weight should be given to its contents, the trial Judge had to bear in mind, as he did, that the defendant had not been cross-examined. Some of the matters raised related to inconsistencies or unreliability. None of these things required the Judge to exclude the statutory declaration nor would exclude its admission in the proper exercise of discretion. This ground of appeal fails.

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Discretions to Exclude or Limit Use of Evidence

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Ainsworth v Burden [6.90] Ainsworth v Burden [2005] NSWCA 174 Facts (from the headnote) [In an action for defamation based on that letter, the defendant filed defences of, inter alia, truth and qualified privilege. The plaintiff filed a reply alleging malice in answer to the defence of qualified privilege. As the publication had taken place before the provisions of s 7A of the Defamation Act 1974 (by which the functions of judge and jury were radically altered) came into operation, the whole of the action was being heard with a jury. At the trial, the plaintiff sought to tender in support of his reply five judgments of the Licensing Court accepting that the plaintiff was a fit and proper person and granting the gaming licences sought, together with the report of the investigation by the senior detective into the allegations made by the defendant in his letter to the Police Minister. All rejected the allegations made by the defendant. The inference was available that the defendant was aware of the contents of those documents. The plaintiff’s case was that they demonstrated malice on the part of the defendant by his persistence in asserting the truth of his allegations in the face of their constant rejection, after investigation, by the Licensing Court and in the subsequent investigation. The trial judge rejected the contents of the documents on the basis that they were unfairly prejudicial to the defendant within the meaning of s 135 of the Evidence Act 1995, in that the strength of the findings in favour of the plaintiff made in those documents was such that the jurors would not be able to put them out of their minds when considering the defence of truth. (The appeal was based on the trial judge’s error in rejecting the tender of the documents.)]

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Judgment ... HUNT AJA (Handley JA and McColl JA agreeing): [99] The judge has wrongly interpreted what is comprehended by the expression “unfairly prejudicial” in s 135. It is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent’s case. The phrase “unfairly prejudicial” or the cognate phrase “unfair prejudice” is used not only in s 135 but also in s 136 and s 137, and the meaning to be given to each of those phrases must be the same – whether or not a weighing exercise is contemplated: R v BD (1997) 94 A Crim R 131 at 139. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the case of the party tendering it; it means prejudice which is unfair to the other party because there is a real risk that the evidence will be misused by the jury in some unfair way: DPP v Boardman [1975] AC 421 at 456; The Queen v Duke (1979) 22 SASR 46 at 47-48; Scott v The Queen [1989] AC 1242 at 1258-1259; R v Masters (1992) 26 NSWLR 450 at 479; Pfennig v The Queen (1995) 182 CLR 461 at 487-488, 528; R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]. See also ALRC 26, vol 1, pars 644, 957. [100] In the present case, the plaintiff relies on the very facts (1) that the Licensing Court on four occasions, in the face of detailed contests, rejected the same allegations made by the plaintiff in his letter to the Police Minister and found that the plaintiff was a fit and proper person, and on another occasion because, after a thorough inquiry, the police had raised no objection to the grant of a licence; and (2) that Detective Chief Inspector Mellis reached firm conclusions, in a forceful report, rejecting the allegations made by the plaintiff in his letter. It is the strength of the findings in each case, and the forceful way in which Chief Inspector Mellis couched those findings, that the plaintiff says should have demonstrated to any honest-minded person that the defendant’s allegations were untrue. It was of vital importance to the plaintiff’s case on malice and aggravated damages to prove the defendant’s perverse persistence in the truth of his allegations in the face of constant rejection of those allegations,

Part 3 — Admissibility of Evidence

Ainsworth v Burden cont. after investigation, by the Licensing Court and in the Mellis Report. The material was strongly probative of the plaintiff’s case on malice and damages. [101] In those circumstances, the evidence could be excluded only if its probative value to the plaintiff’s case was “substantially outweighed” by the danger that the evidence might be unfairly prejudicial to the defendant. Even if there was a danger that the strength of the evidence supporting the plaintiff’s case could have some effect on the jury’s view of the defendant’s claim that the allegations were true, that does not mean that its probative value and importance to the plaintiff’s case are substantially outweighed by that danger. It is only by erroneously interpreting the expression “unfairly prejudicial” in the way the judge did that such evidence could have been rejected in the balancing exercise required.

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[102] At the stage when there was a defence of truth still being put forward by the defendant, the judge appears to have concluded that, because he thought that the jurors would find it “practically impossible” to put the documents out of their minds when considering the defence of truth, the perceived prejudice could not have been cured or reduced pursuant to s 136 of the Evidence Act by limiting the use to which the documents could be put to that for which they were tendered. In a sense, the judge’s conclusion only demonstrates the strength of the plaintiff’s case that these documents would have persuaded any honest-minded person that the allegations were false, and thus their importance to the plaintiff’s case. [103] When the defence of truth was withdrawn, and the issue of truth or falsity was of less importance to the defendant’s case because it was relevant only to damages (see pars [90]-[91]), the consideration of a direction pursuant to s 136 became all the more important. Such an order could not have prejudiced the plaintiff, who was in any event prevented by the Evidence Act from using the Licensing Court judgments in order to prove the falsity of the allegations (see par [109]). He did not seek to use the judgments or the Mellis Report for that purpose. A strong direction to the jury would of course have been needed, both at the time of the tender and in the summing-up, as to the limited use to which the documents could be put. At that stage, however, the judge said that, notwithstanding the withdrawal of the defence of truth, should the truth or falsity remain an issue in the trial in any way, he would again reject the evidence on the basis of prejudice to the defendant’s case. The only way in which truth or falsity remained relevant (as it always had been relevant) was to the issue of damages. [104] It was submitted by the plaintiff that this ruling by the judge after the defence of truth had been withdrawn was so unreasonable as to be unsupportable, and that sufficient basis for interfering with his decision in accordance with House v The King. I accept that there is considerable force in that submission, as the part which falsity could play in relation to damages is very much less than it would have played in relation to a defence of truth. It is, however, sufficient to say that the decision could only be justified by the judge’s erroneous interpretation of s 135, that evidence which proved or supported the plaintiff’s case was unfairly prejudicial to the defendant within the meaning of that section. That was the fundamental error which the judge made. [105] Nor was there any real scope for the application of s 135 on the basis that the defendant would be procedurally disadvantaged by the admission of this evidence, assuming that such a disadvantage falls within s 135, an issue on which there is conflicting authority and which need not be resolved in the present case: compare Commonwealth v McLean (1996) 41 NSWLR 389 at 400-402; Papakosmas v The Queen at [93]; Ordukaya v Hicks [2000] NSWCA 180 at [6], [35]-[40]; R v Clark (2001) 123 A Crim R 506 at [164]; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55]; R v Suteski (2002) 56 NSWLR 182 at [126]-[127]. According to the plaintiff’s case, the defendant had been involved in each of the Licensing Court proceedings either as the former Commander of the Licensing Investigative Unit within the Police Service or the person who was responsible for the preparation of the Licensing Court hearings, so he had previously had an opportunity to test (or to have tested) the material which the Licensing Court had accepted. Similarly, he was involved in the inquiry by Chief Inspector Mellis, and had had assisted that inquiry with avenues of investigation. [106] The rejection of the documents pursuant to s 135 was therefore erroneous.



Discretions to Exclude or Limit Use of Evidence

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La Trobe Capital & Mortgage Corp v Hay Property Consultants [6.100] La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; 273 ALR 774; [2011] FCAFC 4 Facts [La Trobe Capital (a secured lender) sued Hay Property Consultants (property valuer) for a property valuation in respect of a $2.4 million loan to Jet Constructions. La Trobe claimed that Hay negligently valued land for purposes of the loan and, if properly advised, La Trobe would have sought to make an alternative loan. La Trobe called evidence from Mr Gidman. Mr Gidman gave evidence about what he said La Trobe would have done had it not lent $2.4 million to Jet. The primary judge had ruled that the evidence was relevant and not inadmissible due to s 135. Hay appealed.] Judgment FINKELSTEIN J: [1] This appeal concerns the quantum of damages which a secured lender may recover where it lends money in reliance on a negligent valuation of a security. The principal issues raised are whether the lender can recover its opportunity cost and, if so, what it must prove to obtain recovery.

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[2] The facts are largely uncontroversial. The appellant, La Trobe Capital & Mortgage Corp Ltd (La Trobe), is the responsible entity of the La Trobe Australian Mortgage Fund (the Fund). The Fund is a managed investment scheme regulated by the Corporations Act 2001 (Cth). The principal activity of the Fund is to invest members’ funds in interest-bearing investments. [3] In 2004, La Trobe received an application for a loan of $2.4 million from Jet Constructions Pty Ltd (Jet). Jet proffered real property as security. La Trobe engaged the respondent, Hay Property Consultants Pty Ltd (Hay), to value the property. Hay valued the property at $4 million (exclusive of GST), which was a substantial over-valuation. Hay accepts that, in making the valuation, it: (1) breached the terms of its retainer; (2) acted negligently; and (3) contravened s 52 of the Trade Practices Act 1974 (Cth) (TPA). [4] La Trobe lent the amount to Jet relying on Hay’s valuation. The loan was secured by a first mortgage over the property. The term of the loan was one year, commencing on 17 August 2004. Interest was payable at 9.5% per annum (variable). [5] It was accepted at trial that if the property had been valued at less than $4 million, La Trobe would not have made the loan. It has not been suggested that, if it had been given a proper valuation, La Trobe would still have proceeded with the loan, but for a lesser amount. … [35] At trial, La Trobe tendered a witness statement by one of its senior managers, Mr Gidman. In his witness statement, Mr Gidman explained the process typically followed when dealing with a new loan application, which was broadly as follows: (a)

The application would be referred from a broker to a loan underwriter. The loan underwriter would then either reject the application or refer the application to Mr Gidman or one of his colleagues. (Mr Gidman sat near the team of underwriters and would regularly liaise with them.)

(b)

On referral, Mr Gidman (or a colleague) would make a preliminary assessment of whether the Fund might be interested in making the loan. This involved assessing the likely level of interest from select investors, and whether the loan would be suitable for investment from pooled mortgage or CMA funds. If there was a risk that the loan might not be sufficiently subscribed by select mortgage members and if the loan was unsuitable for investment by pooled mortgage or CMA funds, Mr Gidman would advise the loan underwriter that there was “insufficient investor interest”. Otherwise, Mr Gidman would advise the loan underwriter that the Fund was interested in funding the loan.

(c)

If the Fund was interested, the borrower would submit a formal loan application. La Trobe would then undertake credit checks and other checks and obtain a formal valuation of the

Part 3 — Admissibility of Evidence

La Trobe Capital & Mortgage Corp v Hay Property Consultants cont. securities. Upon the necessary conditions being satisfied, Mr Gidman would provide final funding approval and a formal offer would be made and accepted. The loan would then be made. (d)

Having made the loan, the Fund would then effectively “offer” the loan internally to investors. The loan might be offered to select mortgage members, advertised on the “shopping list”, and/or become part of the pooled mortgage or CMA assets.

[36] Mr Gidman also gave evidence regarding the Jet loan. He said that the loan had been made following the usual process. After the loan had been made, La Trobe “offered” the loan to select mortgage investors and the pooled mortgage class. Around half of the funds lent were allocated to select mortgage and pooled mortgage investors. Although there seems to have been some debate at trial about the legal consequences of this internal allocation process, this was not agitated on appeal. [37] The controversial aspect of Mr Gidman’s evidence concerns what he said La Trobe would have done had it not lent $2.4 million to Jet. In his witness statement, Mr Gidman gave the following evidence (adopting the numbering of his witness statement):

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77. In August 2004 [the time the Jet loan was made], the demand by potential borrowers for loans was greater than the money available in the Fund. I recall that, in the period 2002 to 2005, the number of loans rejected at the initial enquiry stage, due to insufficient interest of members, was between 1 and 5 per day. [redacted] based on my knowledge and experience of the type and number of applications for loans that the Fund was receiving, one or more loan applications totalling $2.4 million was rejected by La Trobe after the loan to Jet Constructions was made. 78. Had the loan to Jet Constructions not been made, the Fund would have had available to it the funds which were advanced to Jet Constructions (i.e. $2.4 million) to invest in a loan to another commercial property developer, which loan would have been secured by a mortgage over real property having a loan to value ratio of not more than 60% (i.e. valued at $4 million or more). 79. The $2.4 million lent to Jet Constructions would have been lent to another borrower or borrowers if it had not been lent to Jet Constructions. The demand for commercial loans of the type made to Jet Constructions as at July/August 2004 exceeded the funds held by the Fund available for such loans. 80. Since the inception of the Fund in 1999 there have been consistently more applications or inquiries for finance than there have been funds available. La Trobe does not keep statistics or details on rejected loan inquiries. I know this because I have been working at [the Fund manager] since 1992 and have been involved in all aspects of the management and investment of the Fund. 81. Loan inquiries and/or applications can be rejected for many reasons, including the nature of the borrowing, location or security type, but also because there are insufficient funds available to make the type of loan being sought. 82 ... Was the evidence irrelevant? [59] In my view, Mr Gidman’s evidence was plainly relevant to La Trobe’s claim for lost income, relating as it does to the opportunities that existed for making alternative loans and the lack of funds otherwise available to make those loans. It may be accepted that some of the evidence can be described as incomplete. For example, the final sentence in par 77 states that La Trobe rejected loan application(s) totalling $2.4 million after lending to Jet. Mr Gidman did not go on to say why the loans were rejected. This does not make the sentence irrelevant. That La Trobe rejected loans is relevant. The reason for rejecting the loans is also relevant, and may or may not be found elsewhere in Mr Gidman’s evidence.

Discretions to Exclude or Limit Use of Evidence

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La Trobe Capital & Mortgage Corp v Hay Property Consultants cont. [60] A more fundamental challenge to the evidence is that the evidence is too abstract in nature (ie lacking particularity) to be relevant. I simply do not accept the allegation. The evidence is not at all “abstract”. Almost all of it is factual, even if it is not fully particularised. Should the evidence have been excluded under s 135? [61] Section 135 relevantly provides that a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. At trial Mr Riordan [Counsel for Hay] said that because Mr Gidman’s evidence was unsubstantiated, (1) the evidence was of limited probative value and (2) Hay was prejudiced because Mr Riordan was unable to effectively cross-examine Mr Gidman, not knowing the factual bases for his evidence. It would be unfair, Mr Riordan argued, to be forced to “blindly” cross-examine Mr Gidman, at the risk of prompting Mr Gidman to elaborate on his evidence and make out La Trobe’s case. [62] The judge rejected this submission, holding that none of Mr Gidman’s evidence would prejudice Hay. An appeal court may only interfere with a judge’s discretionary decision consistently with the principles in House v The King (1936) 55 CLR 499; see also Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21, [49]. In my view, there has not been any error demonstrated in the judge’s exercise of his discretion that would justify overturning his decision. To the contrary, if I were to consider the matter afresh, I would admit the evidence. Too much, in my view, is nowadays made of the need to have at hand every piece of information imaginable to enable effective cross-examination to take place. Perhaps there are a handful of cases where the discretion to refuse evidence should be exercised. But that can hardly be so here where the evidence is straightforward and could easily be challenged if untrue.

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[63] It must also be remembered that to exclude evidence under s 135, there must be compelling circumstances for the exclusion. The discretion should only be exercised where the prejudice substantially outweighs the probative value of the evidence, for only then will the admission of the evidence cause “unfair prejudice”. [64] It is true that the meaning of the term “unfair prejudice” has been somewhat contentious. The ALRC explained the risk of unfair prejudice as being the danger that the evidence might be used in an improper, perhaps emotional, way: ALRC, Evidence (Interim) Report, Report no 26 (1985), vol 1 [644]. Clearly, a risk of that kind is much greater in the context of jury trials. However, there are also numerous authorities that suggest that an unfair prejudice may arise from procedural considerations: see Odgers, Uniform Evidence Law (9th ed, 2010) [1.3.14560]. [65] Mr Riordan refers to two authorities in support of his submission. The first is the Guide Dogs Case. The applicant, a guide dog organisation, argued that the terms “seeing eye dog” and “guide dog” were particularly associated with the applicant. It claimed that the respondent, another guide dog association, had committed the tort of passing off and had contravened s 52 of the TPA by using the term “seeing eye dog” in relation to its services. The Chief Executive Officer of the defendant gave evidence the following evidence: 19. Since I became chief executive officer of the Association, I have had extensive dealings with members of the public and the media in New South Wales and the ACT in relation to guide dogs. I have travelled to all States of Australia except Western Australia and the Northern Territory to represent the Association on [sic], and have had dealings with members of organisations interested in providing assistance to blind and vision impaired persons. All persons with whom I have so dealt have used the terms “seeing eye dog” and “guide dog” interchangeably and have not used such terms to distinguish between any particular organisation or its method of training guide dogs. 20. Often acquaintances of mine, who know that I am the chief executive officer of the Association, will, in general conversation, ask me a question in words to the effect: “How are the seeing eye dogs?” or “How are the guide dogs?” or “How are the blind dogs?”. The term “guide dogs”, “seeing eye dogs” and “blind dogs” are used about equally by persons speaking to me in these conversations. Recently, in a discussion with friends at

Part 3 — Admissibility of Evidence

La Trobe Capital & Mortgage Corp v Hay Property Consultants cont. my golf club, one of my friends was complaining about his family dog and another said words to the effect: “You should give it to Joe, he will turn it into a seeing eye dog.” Objection was made to the final sentence of par 19 and all of par 20. [66] Sackville J determined (at 532) that the final sentence of par 19 should be excluded under s 135, but that par 20 should not be excluded. In respect of the final sentence of par 19, Sackville J said (at 531-2) that the evidence was of limited weight, the witness having made no attempt to recount the nature and context of the conversations. Without having that context, the plaintiff did not have a full and fair opportunity to test the opinion in cross-examination, particularly given that the opinion went to the most critical issue to be resolved. On the other hand, he said (at 532-3) that the evidence in par 20 gave sufficient substance of particular conversations (even though some were not precisely identified) and did not purport to characterise their effect in terms of the issues in the case.

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[67] A number of observations can be made about the Guide Dogs decision. The first is that the decision to exclude the last sentence of par 19 was based on Sackville J concluding that it concerned opinions about the effect of conversations. The requirements for giving evidence about the effect of conversations are more stringent than for most other forms of evidence. Professor Wigmore explained that when a witness testifies about an ordinary act or occurrence, there is no requirement, for admissibility purposes, that the whole of the deed or occurrence be offered or taken together. On the other hand, where the evidence reproduces a conversation, it is necessary for at least the substance of the conversation to be reproduced so as to allow it to be properly interpreted in context: 7 Wigmore on Evidence (Chadbourn rev 1978) Ch 73. The second observation is that Sackville J admitted the evidence in par 20, notwithstanding that full particulars were not provided about most of the conversations. So long as the substance of the conversations was apparent, there was no unfair prejudice to the applicant in not knowing the precise particulars of the conversations, such as where and when they took place. [68] The second case upon which Mr Riordan relied was another decision of Sackville J, Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317. An employee of the applicant, Seven Network, gave contentious evidence about his assessment that Seven had a number of strategic advantages in adapting to developments in the emerging pay TV market. The employee’s opinions about those advantages were high level and abstract in nature. The respondents accepted that the evidence was admissible to the extent that it showed that the witness held the expressed opinions. However, the respondents argued that the evidence should be excluded if used to prove the truth of the belief or the facts relied upon in forming that belief. This was because the evidence was effectively expert evidence tendered without complying with the requirements governing the admissibility of expert evidence, as to which see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Sackville J accepted the respondents’ argument. He noted (at [22]-[24]) that the witness’s opinions concerned highly complex and contentious issues, without divulging any basis for those opinions. Given the very large volume of documents in the case, he said it would be difficult to test in cross-examination any further evidence ascertained about the basis of the opinions. [69] In my view, the cases upon which Mr Riordan relied are far removed from the present case. It is important that Mr Gidman’s evidence be read as a whole and in context. He testified as to various matters regarding the opportunities for La Trobe to invest in alternative mortgage-backed loans at the time it lent money to Jet, the terms on which such loans might have been made, and the fact that opportunities were foregone as a result of lending to Jet. The evidence has clear limitations, which both Mr Gidman and counsel for La Trobe frankly conceded. Some of the evidence could not be substantiated through documents, particularly in relation to loan rejections. Some of the evidence was not as specific as it might have been, such as when Mr Gidman could not recall particular instances of loans that were rejected. [70] But there is nothing particularly unusual about Mr Gidman’s evidence. It is no different to any other evidence commonly given in the absence of documentary evidence and without perfect recollection. Counsel for Hay could have responded in a variety of ways. For example, he might have

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

La Trobe Capital & Mortgage Corp v Hay Property Consultants cont. challenged the credibility of Mr Gidman in cross-examination, if such a course were warranted. He might have asked questions of Mr Gidman about ambiguities in his evidence or about any inconsistencies between his evidence and other available evidence. Alternatively counsel could have chosen not to cross-examine Mr Gidman at all, and submit that La Trobe had not discharged its onus of proof. Indeed, this is, in effect, what happened at trial, with only limited questions being asked to confirm that Mr Gidman could not recall specific loan applications that had been rejected. [71] Where a litigant faces evidence from his/her opponent that is in some respects ambiguous or unsubstantiated, counsel has a strategic choice to make about how to deal with the shortcomings. Counsel may choose to explore and seek to expose those shortcomings in cross-examination, at the risk of allowing the witness to remedy the position through further evidence. Alternatively, counsel may choose to leave the evidence as is. To be faced with a strategic decision is not to be burdened with a forensic disadvantage. The possibility of helping an opponent make out his/her case is one of the risks of cross-examination.

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[72] I appreciate there may be some cases where the witness, having given the barest of evidencein-chief, has the potential to “ambush” an opponent with new, unanticipated evidence under crossexamination and for which there is no reasonable opportunity to test. In Seven Network (No 8), for example, given the volume of documents and the complexity of the issues involved, there was clearly a risk of ambush. Similarly, in Guide Dogs there was such a risk where the witness made a bald statement regarding the effect of numerous conversations without providing any context to those conversations (although it is noteworthy that further evidence was allowed where relatively limited substance was given about the conversations). [73] This case did not present the risk of ambush. Mr Gidman gave detailed evidence supported, where possible, by lengthy documentation attached to his witness statement. It was clear that, in some respects, Mr Gidman simply could not give more specific evidence and, to that extent, there was nothing unexpected that was likely to arise in cross-examination. The issues about which Mr Gidman gave evidence were well understood and, where further clarification might have been given, it would hardly have come as a surprise to counsel. For example, it is true, as Mr Riordan pointed out, that Mr Gidman did not directly explain how, on the one hand, La Trobe had foregone loan opportunities due to lending money to Jet while, on the other, La Trobe’s financial statements recorded substantial cash at hand. One possibility, which is clearly averted to by Mr Gidman in his witness statement, is that the cash was required to be held for liquidity purposes. This, perhaps, was not spelt out by Mr Gidman as well as it could have been, but that is not to suggest that counsel suffered a forensic disadvantage. Similarly, it is true that Mr Gidman did not directly state that, after lending to Jet, La Trobe rejected loan applications due to lack of funding. Mr Gidman did say, however, that (1) loans had been rejected and (2) loan applications can be rejected due to insufficient funds. Again, if counsel had cross-examined about this, it would hardly have come as a surprise if Mr Gidman had clarified his position unfavourably for Hay’s case. [Finkelstein J (with Jacobson and Besanko JJ agreeing) held that the primary judge did not err in admitting Mr Gidman’s evidence. The appeal was allowed on other grounds.]



PROSECUTION EVIDENCE IN CRIMINAL PROCEEDINGS [6.110] Section 137 of the Evidence Act 1995 provides that a court must exclude prosecution

evidence in criminal proceedings if “its probative value is outweighed by the danger of unfair prejudice to the defendant”: see the following case materials, which provide examples of the application of s 137. R v Dann concerned the issue of whether medical evidence should have been excluded in a child sexual assault case due to unfair prejudice. Aytugrul v The Queen

Part 3 — Admissibility of Evidence

examines whether the “probative value” of a DNA expert’s statistical evidence given in the form of an exclusion percentage (that 99.9% of people would not be expected to have a DNA match) was outweighed by the danger of unfair prejudice. The provision is a mandatory rule rather than a discretion to exclude. The mandatory nature of the section was recognised in the Court of Criminal Appeal in R v Blick (2000) 111 A Crim R 326 where Sheller JA (James and Dowd JJ agreeing) stated at [19]-[20]: When an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion … Even so … there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected.

A trial judge is not obliged by s 137 to reject evidence on his or her own motion in the absence of an objection based on s 137: FDP v The Queen (2008) 74 NSWLR 645; [2008] NSWCCA 317 at [28]. If the danger of unfair prejudice is manifest, then an obligation to exclude the evidence under s 137 may arise in accordance with the trial judge’s overriding obligation to ensure a fair trial according to law: Poniris v The Queen [2014] NSWCCA 100 at [49].

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[6.120] R v Sood [2007] NSWCCA 214 Facts See at [6.60]. Judgment LATHAM J (Ipp JA and Fullerton J agreeing): … The unfair prejudice issue [70] The Appellant submits that his Honour failed to identify any unfair prejudice and, accordingly, that the process by which he made the judgment under s 137 miscarried. [71] Like other sections of the Evidence Act, s 137 calls upon a judge to compare essentially incommensurable considerations: probative value on the one hand and unfair prejudice on the other. As Justice Scalia once put it, this is like asking “whether a particular line is longer than a particular rock is heavy” (Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988) at 897). Nevertheless, this is a task that judges are often called upon to perform. [72] There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give. (See eg R v BD (1997) 94 A Crim R 131 at 151.) (I do not need to refer to the reasoning in some cases that procedural prejudice may be sufficient.) [73] To use the test of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51]: It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

R v Sood cont. prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task. (See also R v Lisoff [1999] NSWCCA 364 and R v Yates [2002] NSWCCA 520 at [252].) [74] In his reasons for judgment that I have extracted earlier, his Honour made reference to the possibility of a displacement effect, by reason of the evidence that the victim may have seen the assailant at Fairfield on one or two occasions. His Honour said that “juries can be seduced by unreliable identification evidence”. It was this which his Honour identified as constituting the “real danger of unfair prejudice”. In this analysis his Honour makes no reference to the warning about unreliable evidence under s 165. Such a warning must be taken into account before drawing the conclusion that such prejudice as may arise would be “unfair”. [75] His Honour gave no consideration to the directions and the warning which would prevent the evidence being misused by the jury in an unfair way. Indeed, his Honour’s general references to identification evidence were such that the application of s 137 would be virtually automatic to such evidence on the basis that it is virtually presumptively “unfair” in its prejudicial effect. The provisions of the Evidence Act, which give careful attention in s 115 and s 116 to such evidence, reinforced by s 165, would hardly be necessary. It is not the case that identification evidence must be regarded as creating an unfair prejudice.

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[76] His Honour does not identify any particular respect in which the identification evidence in the present case could be seen to be unfair. [77] Counsel for the Respondent submitted that in effect, albeit not in terms, his Honour should be taken to have found that the danger of unfair prejudice arose because the jury would give the identification evidence undue weight, given its limited probative value. There is no reason to suppose that that would be so in view of the warnings that would be given under s 165. This would include reference to the possibility of the occurrence of a displacement effect, of the character to which his Honour made reference. [78] Counsel for the Respondent also suggested that there was a risk of unfair prejudice by reason of the jury speculating about the motive for Dawood retracting his identification. It was submitted that the jury would assume that he acted from fear of reprisal. That is not necessarily the case. The alternative motive to which I have referred earlier is the recognition by the victim, without any threats capable of constituting an admission on the part of the Respondent, of the fact that they are both members of the same small Assyrian community. Plainly, the Crown will need to convince the jury that the retraction of evidence was false. That does not necessarily point to conduct on the part of the Respondent capable of constituting an admission or otherwise constituting unfair prejudice. [79] For this alternative reason the appeal should be allowed. The danger of unfair prejudice [43] The danger of unfair prejudice requires more than the spectre that the evidence will tend towards proof of the Crown case. In Papakosmas, McHugh J said at [91, 92]: Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out: The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way (footnote omitted). In its Interim Report, the Australian Law Reform Commission explained: By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected

Part 3 — Admissibility of Evidence

R v Sood cont. with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required. See also Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, per Gleeson CJ at 599. [44] The unfair prejudice found by the trial judge to be implicit in the introduction of the evidence of the finding of the cash receipt books was said to be of the same character as that discussed in Cook, namely that the respondent would be compelled “to adduce evidence regarding complaints of tax evasion made against her prior to the search and evidence of the $160,000 found in her home”. As to “what directions, if any, [that] could ameliorate the impact of the revelation to the jury of the very real fear she had in relation to charges of tax evasion and the fact that $160,000 in cash was found in her home”, his Honour was of the view that “whatever confidence one may have in the desire of individual jurors to follow directions …, it is unrealistic to think that any such directions could in any meaningful way restore the balance”. (VD judgment at 15)

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[45] At the outset, there is a very pertinent distinction to be drawn between Cook and the circumstances of this case. It was never disputed in Cook that the accused fled from police when they attempted to approach him to question him about alleged sexual assaults. The accused in Cook gave evidence on the voir dire that he did so because he was wanted for breach of an AVO that related to a previous offence of violence against a woman, the very type of offence for which he was standing trial. Whilst this explanation was not entirely consistent with what the accused said to police in his interview, it was nonetheless an objectively available interpretation of his behaviour that was not necessarily consistent with his guilt of the offence at trial. It clearly raised the prospect of arousing in the jury a sense of horror or provoking an instinct to punish. [46] The respondent, on the other hand, gave evidence on the voir dire that she did not put the receipt books in the bins, nor did she direct anyone else to do so. On the evidence before the trial judge, there was no dilemma confronting the respondent such as confronted the accused in Cook. The jury did not have to be informed of the fact that the respondent was the subject of unsubstantiated complaints, unrelated to the charges at trial, in order to place the evidence at trial in its complete context. [47] The trial judge was required to evaluate the existence of unfair prejudice on the basis of the evidence on the voir dire. To permit otherwise is to place a trial judge in the wholly unrealistic position of anticipating how an accused’s case might be conducted at trial. The exercise under s 137 is not concerned with the identification of hypothetical forms of unfair prejudice that may or may not materialise during the trial. It is not an advisory ruling. As noted by Sully J in GK, the notion of danger of unfair prejudice imports a real risk, not a speculative one. [48] There was no evidence before his Honour that the respondent expected to be prosecuted for tax evasion, or that she held any fears in that regard. The respondent expressly disavowed any reason for disposing of the cash receipt books. The height of the evidence in relation to purported taxation offences was a letter of complaint by the respondent’s former partner, Dr Singh, to the NSW Medical Board in July 2001. That letter claimed that the respondent was not declaring income for taxation purposes at a period of time before June 1999 at her former clinic, not the premises the subject of the search warrant. The letter was referred to the HCCC, which in turn sought the respondent’s comments in September 2001. An awareness that allegations had been made against her does not equate to a fear of prosecution. No prosecution had been instituted against the respondent for taxation offences. [49] Returning then to the danger of unfair prejudice on the basis of the evidence on the voir dire, no question of alternative explanations for conduct, otherwise indicating a consciousness of guilt, arose,

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R v Sood cont. until and unless the jury rejected the respondent’s account that she was not responsible for placing the cash receipt books in the bins. The trial judge would, in the circumstances of this case, be obliged to direct the jury that, if they rejected the respondent’s evidence and found as a fact that she was responsible, the inference of consciousness of guilt could not be drawn unless it was the only available inference in all the circumstances. [50] In any event, it is not correct to say that the respondent would be compelled to introduce evidence of Dr Singh’s letter, the HCCC letter to the respondent and the $160,000 in cash at the respondent’s home, thus giving rise to unfair prejudice. It could not be unfair, albeit it might occasion prejudice to the respondent, because it would amount to no more than a forensic decision by counsel for the respondent, in the circumstances of the trial as it unfolded. Trial counsel are routinely confronted by such forensic decisions, that is, whether to undercut the main plank of the defence case by reliance upon an alternative, but inconsistent case theory.

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[51] Assuming for present purposes that the respondent admitted that she placed the receipt books in the bins, and that she gave evidence of a fear of prosecution for taxation offences, or that an inference could be drawn to that effect, the credibility of such a claim stood to be assessed on the basis that the search warrant related to offences against the Health Insurance Act 1973 in the period between January 1999 and October 2001. None of the cash receipt books recovered from the bins related to the period pre-June 1999. In short, there was little or no contemporaneity between the timing of the alleged taxation offences and the alleged offences at trial. In those circumstances, had the probative value of the Crown’s evidence been weighed against the risk of unfair prejudice to the respondent, the balance would clearly favour the former. This is precisely the type of outcome foreshadowed by Simpson J in Cook at [43]; any prejudice occasioned to the respondent by an explanation lacking credibility is less likely to qualify as unfair prejudice. [52] One further point should be made regarding the evidence that $160,000 in cash was found at the respondent’s home by HIC investigators on 30 October 2001. The Crown did not propose to lead that evidence at the respondent’s trial, having accepted that the benign explanation for the cash offered by the respondent at an earlier trial could not be disproved. To the extent that the respondent relied upon that evidence, it could only be relevant to the risk of unfair prejudice if the respondent disavowed the benign explanation previously advanced. [53] It is difficult to understand his Honour’s view of the inability of a jury to comply with a direction, that warned them against the use of evidence of the respondent’s fear of tax evasion charges (assuming evidence or suggestion of such a fear), adverse to the respondent: see Quinlan v The Queen [2006] NSWCCA 284. Fear of tax investigation and prosecution would be one of the few experiences capable of being appreciated by a large number of the community from which juries are drawn. Far from operating adversely to the respondent, a jury would readily comprehend the distinction between proof of the charges at trial and conduct by the respondent potentially consistent with the commission of taxation offences. As already noted, directions to this effect would only come into play if the jury found the respondent responsible for putting the receipt books in the bins. [54] The trial judge committed a number of fundamental errors in determining the danger of unfair prejudice. Findings of fact were made that were unsupported by the evidence and, in some instances, against the weight of the evidence. The prejudice identified by his Honour did not arise on the respondent’s case and, to the extent that it might, it was not unfair prejudice. [Latham J also rejected a submission that a trial judge may “consider the plausibility of innocent explanations that arise on the evidence” (at [58]).] (Appeal allowed and trial judge’s judgment set aside.)

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Part 3 — Admissibility of Evidence

R v Dann [6.130] R v Dann (2000) 123 A Crim R 506 Facts [Dann was convicted of having sexual intercourse with his seven-year-old stepson in the family home. Dann was not charged in relation to three other incidents of sexual assault, but the stepson gave evidence about them, over objection. The first ground of appeal was that a Dr Packer’s evidence should have been rejected under s 137. Dr Packer’s evidence was that the stepson had dilation of the anus which could be consistent with either constipation or sexual abuse. The defence objected on the ground that the evidence was ambivalent.] Judgment HEYDON JA (with whom Spigelman CJ and James J agreed): ...

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[8] Counsel for the accused submitted on the appeal that the evidence [of Dr Packer] should not have been admitted because its probative value was outweighed by the danger of unfair prejudice to the accused: Evidence Act 1995 (NSW) s 137. He said: The probative value of Dr Packer’s evidence was minimal. The dilation of the anus, in the absence of any other abnormality, did not allow the conclusion that sexual abuse had occurred. This is particularly so, given that the dilated anus could have been caused by constipation. The complainant had suffered from a condition which could well have been caused by constipation. The risk of unfair prejudice to the accused was substantial. In circumstances where there was an insufficient basis for hypothesising that there was medical evidence consistent with sexual abuse, the jury could well have speculated improperly that the dilated anus was caused by sexual abuse. He submitted that the evidence should have been rejected after the argument which took place at the start of the trial. Alternatively, once it had been given, it should have been rejected and the jury discharged. [9] The foundation on which the evidence was admitted – namely that it would show that the dilation was caused by one of two possible causes and one could be excluded – did not come to be established. Constipation as a possible cause was not supported by Dr Packer, and there was no evidence of the irritation which would support sexual abuse as a cause. [10] At the time of the argument early in the trial, the evidence was unquestionably relevant, because it could rationally affect the assessment of the probability of the existence of a fact in issue. There was no prejudice attaching to the evidence beyond its probative force in the Crown case. Hence s 137 could not operate to exclude it at that stage. [11] Once the evidence had been given, its probative force as part of the Crown case fell very sharply but it took on some mild probative force in support of the defence case. Perhaps for that reason, there was no application to have it withdrawn from the jury or to have the jury discharged. Counsel for the accused submitted on the appeal that the consequence of admitting Dr Packer’s evidence-in-chief was to compel cross-examination of Dr Packer and of the stepson’s mother about aspects of his medical history which must have been distracting to the jury and prejudicial to the accused. He said that a large portion of the evidence was about a hole in the boy’s anus, and in a jury trial in a country town it was prejudicial to the accused to compel discussion of the rectal history. [12] In my judgment there was no prejudice. Counsel for the accused on the appeal explicitly disavowed any criticism of the trial judge’s summing up in relation to Dr Packer. After hearing that summing-up, the jury would have noticed the following clear features of the evidence even if they had not noticed them before: that Dr Packer’s evidence was detached, non-partisan and uncoloured; that

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R v Dann cont. dilation was only a relaxation of the anus, not a “hole” in it; that there was no evidence of irritation and hence no medical evidence of sexual abuse; and that Dr Packer several times acknowledged this. In short, Dr Packer’s evidence by the end of the trial was capable of being used by the defence in support of a submission negating abuse. The unattractive nature of the subject-matter of the evidence related to Dr Packer was not of itself prejudicial. (Appeal dismissed.)



Aytugrul v The Queen [6.140] Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15

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Facts [The appellant was convicted of murder. The appellant and the deceased had been in a relationship but the relationship had ended more than two years before the deceased was stabbed to death. The appeal concerned the admissibility of evidence led at trial about a DNA analysis. A hair found on the deceased’s thumbnail had been subjected to DNA mitochondrial DNA testing. The results of that testing showed two things: first, that the appellant could have been the donor of the hair and, second, how common the DNA profile found in the hair was in the community. This second aspect of the results was expressed in evidence both as a frequency ratio and as an exclusion percentage. The expert who did the DNA testing (Gina Pineda) gave evidence to the effect that 1 in 1,600 people in the general population (which is to say the whole world) would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that 99.9 percent of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage). The appellant alleged that the trial judge had erred “in admitting statistical evidence expressed in exclusion percentage terms” and that the evidence should have been excluded under s 137 or s 135.] Judgment FRENCH CJ, HAYNE, CRENNAN AND BELL JJ: ... [22] No proof was attempted, whether at trial or on appeal, of the facts and opinions which were put forward (by reference to the published articles) as underpinning the adoption of some general rule that expressing the results of DNA analysis as an exclusion percentage will always (or usually) convey more to a hearer than the evidence allows regardless of what other evidence is given about frequency ratios or the derivation of exclusion percentages. Yet that was the basis on which it was asserted that a general rule should be established to the effect that evidence of exclusion percentages is always inadmissible. And absent the proof of such facts and opinions (with the provision of a sufficient opportunity for the opposite party to attempt to controvert, both by evidence and by argument, the propositions being advanced) a court cannot adopt such a general rule based only on the court’s own researches suggesting the existence of a body of skilled opinion that would support it. [23] The question that was presented for consideration in this matter must be identified with greater specificity than is permitted by general reference to how the human mind can or commonly will deal with statistical information. In this case, the question was whether Ms Pineda’s evidence of an exclusion percentage accompanied by both reference to the relevant frequency ratio and an explanation of how the exclusion percentage was derived from the frequency ratio was evidence whose probative value was outweighed by the danger of unfair prejudice (s 137) or was evidence whose probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the defendant or, perhaps, be misleading or confusing (s 135).

Part 3 — Admissibility of Evidence

Aytugrul v The Queen cont. [24] No reason is shown for answering either form of those more particular questions in favour of the appellant. The evidence given was clear. It was evidence adverse to the appellant but it was in no sense unfairly prejudicial, or misleading or confusing. The exclusion percentage given was high – 99.9 percent – but relevant content was given to that figure by the frequency ratios that were stated in evidence. As the trial judge pointed out to the jury, the evidence that was given did not, and was not said to, establish that the mitochondrial DNA profile found in the hair definitely came from the appellant. There was no risk of rounding the figure of 99.9 percent to the certainty of 100 percent. [25] The appellant also placed emphasis on evidence of the frequency ratios for a different reason. The appellant submitted that, if evidence was given in the form of frequency ratios, the exclusion percentage was evidence that “could not add anything of substance to” the frequency ratio or “could not, in any significant way, rationally add anything to the jury’s assessment of the probability of the appellant’s guilt”. That is, so the submission ran, the “incremental probative value” of the exclusion percentage was “minimal”. It was said that the proper application of ss 135 and 137 “would require exclusion if there was any risk of the jury giving more weight to the [exclusion] percentage evidence than it deserved” (emphasis in original). [26] These submissions, too, should be rejected.

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[27] This aspect of the appellant’s submissions proceeded from an understanding of the term “evidence” that sought to apply both s 137 and s 135 on the footing that “evidence” about frequency ratios would be different and distinct from “evidence” about exclusion percentages [cf (2010) 205 A Crim R 157 at 188 [173]-[175] per Simpson J]. Given the mathematical equivalence of the two statements, there may be some doubt about the validity of approaching the application of the two sections on the basis that there were two distinct pieces of evidence in issue. There is no need, however, to resolve this question. [28] The appellant accepted that the evidence about exclusion percentages was relevant – that is, that it was evidence that could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue [Evidence Act, s 55(1)]. The appellant’s submissions thus accepted that evidence expressed in the form of an exclusion percentage had, of itself, some probative value. And given that the exclusion percentage and the frequency ratio were no more than different ways of expressing the one statistical statement, the probative value of the exclusion percentage was necessarily the same as that of the frequency ratio. [29] The appellant’s submission amounted in substance to an assertion that regard should be had to other evidence (the frequency ratio) in assessing the probative weight of the exclusion percentage but that regard could not be had to that other evidence when assessing the danger of unfair prejudice. There is no reason to approach the inquiry in this unbalanced way. [30] The unfair prejudice said to arise in this case was alleged to flow from the use of a percentage figure, which carried a “residual risk of unfairness deriving from the subliminal impact of the raw percentage figures” [R v GK (2001) 53 NSWLR 317 at 341 [100] per Sully J] by way of rounding up the percentage figure to 100. If the exclusion percentage were to be examined in isolation, the appellant’s arguments appear to take on some force. But to carry out the relevant inquiry in that way would be erroneous. In this case, both the frequency ratio and the manner in which the exclusion percentage had been derived from the frequency ratio were to be explained in evidence to the jury. The risk of unfair prejudice – described by the appellant as the jury giving the exclusion percentage “more weight … than it deserved” – was all but eliminated by the explanation. It is not right, as the submissions of the appellant implicitly urged, and as appears to have been the approach taken in R v GK (2001) 53 NSWLR 317 at 331 [59]-[60] per Mason P (Dowd J agreeing at 342 [103]), 341 [98]-[100] per Sully J. See also JCG (2001) 127 A Crim R 493 at 507 [72]-[73] per Spigelman CJ (Sully and Adams JJ agreeing), to assess the danger of unfair prejudice by reference only to the exclusion percentage, ignoring all other evidence. In assessing the danger of unfair prejudice to a defendant, regard must be had to the whole of the evidence that is to be given, particularly by the witness to whose evidence objection is taken. When that is done in this case, recognising, in particular, the evidence that it was

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Aytugrul v The Queen cont. proposed to lead from the witness about the derivation of the exclusion percentage, there was no danger of unfair prejudice that required rejection of the exclusion percentage. [31] At one point in oral argument, counsel for the appellant did suggest that there was a danger that the evidence of the exclusion percentage might “be misleading or confusing” [Evidence Act, s 135(b)]. Given the context of evidence of the frequency ratio and how the exclusion percentage was calculated, there was no danger that the evidence of the exclusion percentage might be misleading or confusing. The appellant did not demonstrate that the proper exercise of the discretion given by s 135(b) required rejection of the evidence of exclusion percentage.

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[32] There may be cases where evidence given of exclusion percentages may warrant close consideration of the application of s 135 or s 137 (or, where applicable, equivalent common law doctrines or statutory provisions). These reasons are not to be read as suggesting to the contrary. Evidence given about the results of DNA analysis is evidence about comparisons between identified samples and one or more databases. The results of those comparisons can be expressed qualitatively or quantitatively. If expressed quantitatively there are assumptions and approximations made which often (perhaps always) require elucidation and explanation to make plain what are the limits to the opinion that is being expressed as a number or range of numbers. Just as evidence of an opinion given by an expert must, in order to satisfy the requirements of admissibility in s 79(1) of the Evidence Act, be “presented in a form which makes it possible to answer” the question posed by that provision [HG v The Queen (1999) 197 CLR 414 at 427 [39] per Gleeson CJ; [1999] HCA 2; Dasreef Pty Ltd v Hawchar (2011) 85 ALJR 694 at 705 [36]; 277 ALR 611 at 621; [2011] HCA 21], it will usually be important, even necessary, that the evidence provides the jury with so much of the expert’s “specialised knowledge” as the jury requires properly to understand the opinion expressed – and what it can and cannot demonstrate – and that this specialised knowledge be related to the facts of the case [cf Alford v Magee (1952) 85 CLR 437 at 466; [1952] HCA 3]. [33] It may very well be right to observe that a frequency ratio of 1 in 1,000 can, even may often, convey a different message to the hearer than does an exclusion percentage of 99.9 percent, because the denominator of the frequency ratio directs the hearer’s attention to the population that must be considered when seeking to apply the ratio. (Of course, a percentage, too, is a ratio but may direct less attention to the denominator.) Not only that, it is important to recognise that evidence of DNA analysis tendered by the prosecution is tendered in proof of a case that the accused is guilty of the offence charged. It is not usually tendered only to exclude the possibility that there may be others who committed the offence (unless the possible class of offenders is limited). It is usually tendered to show that there is at most a small pool of persons, including the accused, who could have left a trace at the scene of the crime. But demonstrating that there are many persons in Australia who did not commit the crime charged against the accused may be thought, if that information is considered in isolation, to tend to distract attention from whether the accused is the one out of the remaining number of possible perpetrators who did commit the crime. [34] In this case, where both the frequency ratio and the exclusion percentage were given, and the relationship of one to the other was explained, there was neither a wrong decision of any question of law nor on any other ground a miscarriage of justice. … HEYDON J: … [75] There was no unfair prejudice for the following reasons. No doubt both the “frequency estimate” and the “exclusion percentage” evidence, like many other aspects of the expert evidence, were difficult for the jury to deal with. The field is arcane. But any criminal jury of 12 is likely to contain at least one juror capable of realising, and demonstrating to the other jurors, that the frequency estimate was the same as the exclusion percentage. Further, detailed evidence was given about how the “exclusion percentage” evidence was derived from the concededly admissible “frequency estimate” evidence,

Part 3 — Admissibility of Evidence

Aytugrul v The Queen cont. and how their significance was identical. The case is entirely distinguishable from cases like R v GK, where a higher exclusion percentage was used in a quite different fashion. Those cases are authorities for what they decide. They do not establish absolute rules [see R v JCG (2001) 127 A Crim R 493 at 504 [50]]. The trial judge made it plain while argument was proceeding about the reception of the “exclusion percentage” that no one participating in the trial would express that percentage as being “somewhat like the ‘prosecutor’s fallacy’, that is it’s 99 percent sure that it is the accused”. No one did. In addition the reception of evidence which might sometimes create unfair prejudice can be lawful if the conduct of the trial, including the possibility of a curative influence from other evidence, from counsel’s handling of the impugned evidence and from the trial judge’s directions, is likely to nullify or water down the prejudice. Whether this was foreseeable or not at the time of tender, counsel here treated the exclusion percentage as a minor aspect of the case. It was mentioned only rarely. After its initial reception, it was mentioned once by Gina Pineda, once by a defence witness and not at all by counsel in address. The trial judge’s summing-up pointed out that the exclusion percentage was “another way” or “the reverse way” of putting the frequency estimate. The trial judge warned against treating the mitochondrial haplotype evidence as “definitely” or “necessarily” establishing that the hair came from the appellant. There was no request from the appellant for the trial judge to withdraw any part of his summing-up, or to give a curative direction or warning. There is no ground of appeal in this Court that the summing-up was wrong. Even if not all these post-tender events were foreseeable, they amounted, as Wigmore might have said, to a restrospectant demonstration that there was no unfairness. [76] Once it was accepted that the “frequency estimate” evidence was admissible, the reception of the “exclusion percentage” evidence did not create a danger of unfair prejudice within the meaning of s 137.

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… (Appeal dismissed.)



GENERAL DISCRETION TO LIMIT USE OF EVIDENCE [6.150] Section  136 confers a discretion on a court to limit the use that may be made of

admitted evidence. The operation of this discretion becomes relevant when an item of evidence has multiple relevance, for instance, in the case of prior consistent or inconsistent statements which may be relevant for a credit or hearsay purpose. You may also want to look at this section in conjunction with the material dealing with s 60, exception to hearsay. The discretion to limit evidence pursuant to s 136 may arise where a medical history is the basis for a medical opinion contained in an expert medical report. The history is admissible for the purpose of proving the basis of the expert report; once the history is admitted for that purpose it can prove the facts contained in the history (see Chapter 7). Section 136 can limit the operation of s 60. Papakosmas v The Queen (1999) 196 CLR 297 concerned the use of complaint evidence in a rape trial. The complaint evidence was relevant in two ways. It was relevant to proving the facts asserted by the complainant and it was relevant to supporting the credibility of the complainant. The trial judge directed the jury to use the complaint evidence to prove the truth of the facts asserted in the complainant’s previous representations. The appellant appealed to the High Court on the basis that the use of the complaint evidence should be limited by s 136 to only support the credit of the complainant, in the way recognised by

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the common law. In support of this submission, the appellant argued that the Act should be read in light of the common law. This submission was rejected. The High Court firmly stated that the “language of the statute”, which is given its “natural and ordinary” meaning, determines the manner in which complaint evidence is admitted. The court unanimously decided that it is incorrect to interpret the Act in light of, and in a manner consistent with, the common law. The appellant, Papakosmas v The Queen, submitted that as a general rule, even if complaint evidence is admissible under s 66, trial judges should exercise their s 136 discretion to direct juries with the standard common law direction in relation to the use of complaint evidence, that is, it could only be used to support the credit of the complainant to prove consistency of conduct. Gleeson CJ and Hayne J rejected this argument at [39]: They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.

However, Gleeson CJ and Hayne J added at [40]:

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There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation.

McHugh J observed that once the scheme of the Act and the legislative intent to admit complaint evidence for a hearsay purpose were taken into account, there would be very few, if any, cases where a jury would be directed to limit the use of complaint evidence solely to a credit purpose. McHugh J stated at [94] that it is “artificial and wrong” to admit evidence under s 66 and then limit its purpose to a credit purpose. His Honour stated that a warning under s 165 should cure any perceived dangers due to its hearsay nature. He concluded that if a warning does not cure any danger then s 136 should be used.

DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE [6.160] Section 138 confers a discretion on a court to exclude improperly or illegally obtained

evidence. This is the public policy discretion which exists in the common law to exclude evidence: see Bunning v Cross (1978) 141 CLR 54. Section 138 provides that a court is required to exclude the evidence unless the considerations supporting admission of the evidence outweigh those supporting its exclusion, in the particular circumstances of the case. The balancing exercise is similar to that under the common law, weighing “the desirable goal of bringing to conviction the wrongdoer” on the one hand and, on the other, the avoidance of “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”. A number of considerations listed in s 138(3) must be taken into account in applying the discretion. Sections 138(2) and 139 provide for certain circumstances in which evidence of an admission is taken to have been obtained improperly. In R v Dalley (2002) 132 A Crim R 169 at [3], the majority of the NSW Court of Criminal Appeal held that the more serious the offence, the more likely it is that the public interest requires the admission of the evidence. In a dissenting judgment, Simpson J held at [97]:

Part 3 — Admissibility of Evidence

In my opinion it would be wrong to accept as a general proposition that, because the offence charged is a serious one, breaches of the law will be more readily condoned. In my judgment there may be cases in which the fact that the charge is a serious one will result in a more rigorous insistence on compliance with statutory provisions concerning the obtaining of evidence. That a person is under suspicion for a serious offence does not confer a licence to contravene laws designed to ensure fairness.

The essential differences between s 138 and the common law are: • s 138 requires the party seeking exclusion to establish that the evidence was improperly or illegally obtained. Once this is done, the onus is on the party seeking admission to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained; • s 138 applies to derivative evidence and evidence of an admission; • s 138 is guided by a non-exhaustive list of the factors which must be taken into account in the exercise of the discretion; and • s 138 applies to both civil and criminal proceedings. Some examples of “impropriety” include:

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• breach of applicable internal police guidelines and instructions:  R v Em [2003] NSWCCA 374. • “entrapment”: Ridgeway v The Queen (1995) 184 CLR 19 at 36-37 per Mason CJ, Deane and Dawson JJ. Relevant factors that would bear on whether the entrapment meant that the evidence was obtained improperly are considered in Robinson v Woolworths Ltd [2005] NSWCCA 426 at [46]-[48] per Basten JA (with whom Barr J agreed) and at [104]-[106] per Hall J. • misstatement of fact in an affidavit in support of a warrant: R v Cornwell [2003] NSWSC 97 (although Howie J held at [24] that, in the particular circumstances, the misstatement did not constitute an “impropriety”). • use of powers of arrest for a minor offence when there is no reason to believe that a summons will not be effective: DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 at [35]; DPP v CAD [2003] NSWSC 196; DPP v AM [2006] NSWSC 348. • an omission to provide adequate medical treatment to a person held in police custody: DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 at [58]-[62]. • an inducement offered to a witness that he or she would not have to give evidence: Ho v DPP (1998) 102 A Crim R 37 at 42-43 per Ireland J. • failure to obtain independent verification of (subsequently disputed) evidence: R v Jiminez (2001) 119 A Crim R 299; [2000] NSWCCA 390. • an identification procedure adopted without due regard to principles of fairness to the defendant. • deliberately choosing not to take a definite suspect into custody in order to utilise picture identification rather than an identification parade. In DPP v Marijancevic; DPP v Preece; DPP v Preece (2011) 33 VR 440; [2011] VSCA 355, the primary judge found that affidavits in support of the search warrants were signed but not

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sworn or affirmed. Therefore, the primary judge found that the search warrants were invalid and the evidence obtained under the warrants was illegally obtained. The primary judge ruled that the evidence was inadmissible. The DPP’s appeal was unsuccessful.

Robinson v Woolworths [6.170] Robinson v Woolworths (2005) 153 A Crim R 546; [2005] NSWCCA 426 Facts [The Department of Health procured minors to purchase cigarettes as part of its investigation into the compliance of retailers to the prohibition of the supply of cigarettes to minors. The trial judge found that the evidence of the minors was “improper” for the purpose of s 138. The Court of Criminal Appeal determined whether the trial judge had erred in law in finding impropriety in circumstances where there was no unlawfulness on the part of any law enforcement officer.] BASTEN JA (Barr and Hall JJ agreeing): ...

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[21] Section 138 has a broad scope. For example, it applies not merely to evidence obtained unlawfully, but also evidence obtained “improperly”. It applies not only in criminal proceedings, but also in civil proceedings. It applies to all kinds of evidence, including admissions which, for the purposes of criminal proceedings, may also need to be considered under ss 84, 85 and 90. Finally, and significantly for the present case, the section covers, not merely impropriety or unlawful conduct in the acquisition of evidence following an offence, but also conduct which constitutes the offence … [23] It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced. [24] On the other hand, the clear intention of s 138 is to replace the general law discretion to exclude such evidence; the two cannot sensibly coexist together: compare, for example, Papakosmas v The Queen (1999) 196 CLR 297 at [10] (Gleeson CJ and Hayne J). On the other hand it is clearly arguable that, consistently with s 11(2), there is no exclusion or variation of the power to stay proceedings as an abuse of process. [25] The concept of inducement was also addressed by this Court in R v Sloane (1990) 49 A Crim R 270 in the context of an application for a permanent stay of proceedings with respect to supply of cocaine, on the basis that the accused had been induced by police to commit the offence and that there had, therefore, been “entrapment”. In Ridgeway, Gaudron J noted that such claims, prior to Ridgeway itself, had generally proceeded on the basis that the idea of “entrapment” engaged the principles with respect to the discretion to exclude illegally or improperly obtained evidence: 184 CLR at 70, an approach preferred by McHugh J, at 86-88. In that context, her Honour referred to the following reasoning of Gleeson CJ in Sloane at 272-3: The authorities relied upon in support of the application for a stay of proceedings … established that, whatever its precise legal effect may be, the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed, or would have been unlikely to commit. [26] Gleeson CJ went on to refer to an ongoing course of criminal activity such as dealing in drugs, before noting (at 273):

Part 3 — Admissibility of Evidence

Robinson v Woolworths cont. A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment. [27] In Ridgeway, Gaudron J adopted a similar distinction between the mere provision of an opportunity to commit a crime and inducement to commit a crime. Thus her Honour noted (at 77): In cases of “mere opportunity”, the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it. Her Honour then distinguished a different category of case. But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real sense, are responsible for its commission, not the accused. In such circumstances the accused and society in generally may well view prosecution as a serious injustice.

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[28] As will be noted further, the District Court concluded, without extensive justification, that the present case fell within the latter category identified by Gaudron J and did not involve a mere provision of an opportunity to commit an offence. However, before turning to the correctness or otherwise of that conclusion, it is convenient to note that these questions are by no means novel in relation to regulatory offences and have been the subject of consideration in various common law jurisdictions. … [32] The operation of s 138, with respect to improper conduct, has been considered on a number of occasions, but usually in circumstances far removed from the present: see, for example, Director of Public Prosecutions v Carr (2001) 127 A Crim R 151 (Smart AJ) and R v Mehajer and Jacobs [2003] NSWSC 318 (Studdert J). It was also addressed by this Court in R v Ladocki [2004] NSWCCA 336. The decision in that case ultimately turned on the exercise of the discretion, but on the basis of a series of assumptions as to the nature of the improper or illegal conduct and its causal relationship to the obtaining of the evidence: see [44]-[60] (Mason P). See also R v Coulstock (1998) 99 A Crim R 143 at 147 (Hunt CJ at CL) and R v Dalley (2002) 132 A Crim R 169, the latter being a case dealing primarily with the exercise of the discretion, but noting the importance of attention to the causal relationship between any impropriety or unlawful behaviour and the obtaining of the challenged evidence (at [86] per Simpson J). [33] In the course of oral submissions, counsel for the Respondent said he did not accept that an onus lay on the party resisting admission of the evidence to establish impropriety. However, Coulstock is authority for that proposition. Prior to the Evidence Act, a defendant bore the onus of establishing illegality or impropriety as a basis for invoking the general law discretion to exclude evidence: see R v C (1997) 97 A Crim R 81 at 95 (Hunt CJ at CL). As his Honour remarked in a footnote, the Law Reform Commission report adopted the same approach in relation to its recommendation, being the pre-cursor to s 138: ALRC 26, Vol 1, par 964. Although R v C (1997) 97 A Crim R 81 was concerned with the general law discretion, the onus of proof under s 138 was expressly addressed by this Court in Coulstock by Hunt CJ at CL, Ireland and Levine JJ agreeing, in the following terms at 147: It is clear that the onus still lies on the accused to establish the impropriety or illegality before any onus is placed upon the Crown to persuade the trial judge that the evidence should nevertheless be admitted. The discretion is therefore to admit the evidence notwithstanding the impropriety or illegality. Consistently with this line of authority, Howie J (Giles JA and Carruthers AJ agreeing) stated in R v Moussa (2001) 125 A Crim R 505 at [16]: There are two things that can be said about the determination made by his Honour on the question of the admissibility of the evidence of the search and the finding of the tablets: first,

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Robinson v Woolworths cont. the appellant bore the onus of proving on the balance of probabilities that the search was unlawful or improper within the terms of s 138 of the Evidence Act; second, the findings made by his Honour were matters of fact. There is no reason to depart from these conclusions in relation to the onus of proof, as they are clearly correct. … [36] These principles should inform the determination of a court as to what constitutes “improperly” obtained evidence or “impropriety” for the purposes of s 138. In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.

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[37] Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”: Ridgeway at 36. Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court’s view of the “entrapment” of Mr Ridgeway: see, for example, the comments of McHugh J at 85. The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to “community standards” will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts. [38] No doubt the circumstances of the particular case, including the nature of the offence, and, in the context of regulatory offences, the purpose underlying the prohibition, may give rise to different answers in different circumstances. For example, in the present case, the judge noted at [25]: One can think of many analogies. I doubt that the community would accept the prosecution of taxi drivers who stop in no-stopping zones when hailed by undercover police officers. This analogy helpfully demonstrates the dangers of seeking support in such reasoning. To describe a police officer as “undercover” in these circumstances tends to involve an emotive and misleading element. To compare the enforcement of “no-stopping zones”, an element of a traffic law, with the protection of public health is also inapt. The conclusion suggested is, it may be noted, inconsistent with the approach of Queen’s Bench Division in Amin. Accordingly, it is desirable to turn directly to the particular circumstances of the case and the reasoning adopted in the District Court in reaching the conclusion that the conduct of the law enforcement officer of the Department of Health was relevantly “improper”. Application of principles [39] It was clearly of central importance to the decision reached by the District Court, at [24], that the officer brought about the commission of the offence “in circumstances where no suspicion previously attached to either the appellant or the cashier” … [41] The conduct of the law enforcement officer in the present case involved the procurement of a member of the public (and a friend) to enter a shop and seek to purchase an item which was legally and openly available for sale. That conduct on the part of the officer resulted in the commission of an offence by the Respondent, through its employee. The gist of the complaint made by the Respondent, accepted by his Honour at [24], was that the officer had “brought about the commission of the offence which it now prosecutes”. There was no separate conduct involved in the obtaining of evidence and there is some artificiality in saying that the evidence, as such, was obtained “improperly”. A more direct challenge might have been, as in Sloane, to seek a permanent stay of the prosecution: see R v Hsing

Part 3 — Admissibility of Evidence

Robinson v Woolworths cont. (1991-1992) 25 NSWLR 685, 696F (Samuels JA, Gleeson CJ and Hunt J agreeing). Nevertheless, both Rice and Ridgeway support the view that a similar result may be obtained by seeking to exclude the relevant evidence. In terms of s 138(1), it may be more apt to describe the complaint as being that the evidence was obtained “in consequence of an impropriety” within the terms of par (b) of that subsection: see Ladocki at [47] (Mason P). However, nothing turns on this point as it was not suggested before this Court that there would be any different result from applying par (b), rather than par (a) …

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[46] In my view the conduct complained of was not capable, as a matter of law, of constituting impropriety for the purposes of s 138 of the Evidence Act. The factors which support that conclusion have been discussed previously, but may be summarised as follows. (a)

The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation.

(b)

The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no harassment.

(c)

The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes.

(d)

In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance.

(e)

Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints.

(f)

A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law.

[47] In noting at (a) that there was an absence of pressure or persuasion in the present case, it is not intended to suggest that the presence of pressure or persuasion would necessarily lead to a different result. These are matters of degree, and may need to be tested in accordance with the factor noted at (c), namely the likely behaviour of members of the public. If young people who are anxious to obtain tobacco products may be expected to apply some level of pressure or persuasion and seek to importune retailers, then the law will require retailers to resist such importuning and their willingness and ability to do so may also reasonably be tested. [48] The list of considerations does not contain explicit reference to fact that the purpose of the law is to promote public health. That was a factor emphasised by the Crown Advocate, who appeared for the prosecutor in the present case, and is referred to in Rice v Tricouris. It is no doubt a correct and pithy encapsulation of the purpose of the law in question, but it does not distinguish this law from many similar regulatory provisions, nor from the underlying purpose of outlawing some criminal activity, such as the prohibition on the importation and supply of certain drugs. The legislative purpose, and indeed the nature of the offence created, are undoubtedly relevant to the kinds of law enforcement conduct which would be seen as reasonable and appropriate with respect to that law. However, even where that test may be satisfied, other factors, such as the intrusive nature of compliance testing in particular circumstances, may suggest that statutory permission is required, as with random breath testing of drivers: see, for example, the Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 13. Albeit in a context in which law enforcement authorities were involved in unlawful (and not merely improper) conduct, Brennan J noted in Ridgeway (at 53-54): As a technique of law enforcement, the so-called “controlled” importation of prohibited imports may be an acceptable technique for the detection and breaking up of drug rings but, if that be so, the law enforcement agencies must address their concerns to the Parliament …

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Robinson v Woolworths cont. If law enforcement agencies apply for an amendment of the laws to permit the employment of detection methods such as those used in this case, it will be for the Parliament to consider whether controls should be legislatively prescribed. Legislative provision in relation to “controlled operations” now exists in several jurisdictions: see P Hall, Investigating Corruption and Misconduct in Public Office (2004) at [10.65]. Accordingly, the purpose of the legislation, broadly stated and taken in isolation, is unlikely to be a critical factor in this analysis. [49] Where a compliance program does not involve unlawful conduct on the part of the law enforcement agency and does not involve any intrusion on the human rights and freedoms of the person being tested, there is less likely to be concern as to the propriety of compliance testing procedures, so long as they satisfy the elements identified in par [46]. The purpose of the particular law to be enforced will have been assessed by the Parliament: caution should be applied in seeking to confer greater moral rectitude on some statutory purposes, as compared with others. Conclusions [50] For the reasons set out earlier, I would answer the first question: (1)

The conduct of the informant was not capable of constituting “an impropriety” for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained, for the purposes of s 138(1)(a) of the Evidence Act 1995 (NSW).



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DPP v Marijancevic; DPP v Preece; DPP v Preece [6.180] DPP v Marijancevic; DPP v Preece; DPP v Preece (2011) 33 VR 440; [2011] VSCA 355 WARREN CJ, BUCHANAN and REDLICH JJA [1] The respondents are charged with various offences related to drug manufacture and trafficking. Much of the evidence comprising the prosecution case was obtained by the execution of warrants issued under the Drugs Poisons and Controlled Substances Act 1981 (the Act). [2] During pre-trial argument it emerged that the deponent to certain affidavits in support of the warrants had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authorised to take affidavits. The trial judge, in a ruling that is not in issue, found that the affidavits relied on to obtain the warrants had not been sworn, in breach of s 81 of the Act, and that the magistrate who granted the warrant was not aware of the deficiencies. The trial judge accordingly found the search warrants were invalid and that the entries, purportedly pursuant to the warrants, were unlawful and constituted a trespass. [3] The respondents objected to the admissibility of the evidence derived from the warrants. The prosecutor applied to have the evidence admitted pursuant to s 138 of the Evidence Act 2008 (the Evidence Act). The trial judge refused that application on 18 October 2011, ruling all of the evidence gathered pursuant to the warrants inadmissible. Further evidence gathered pursuant to other warrants was ruled inadmissible under a second ruling by his Honour made on 25 October 2011. The reasons for excluding the evidence under each ruling were essentially the same. Although the ruling of 25 October was also the subject of appeal, it received little discrete attention in either the written or oral argument on appeal. The appeal was conducted on the basis that the arguments advanced by each party applied to all of the evidence gathered under all of the warrants the subjects of both rulings. Accordingly we have not dealt separately in our reasons with the individual warrants. [4] The Director of Public Prosecutions now seeks leave to appeal against both rulings by way of an interlocutory appeal, the trial judge having granted a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009.

Part 3 — Admissibility of Evidence

DPP v Marijancevic; DPP v Preece; DPP v Preece cont. [5] The question raised in this interlocutory appeal is whether the decision to exclude the evidence on the ground that public policy relating to the administration of criminal justice outweighed the public interest of bringing conviction to the wrongdoer was one that was reasonably open. … [12] In his statement of contentions the Director provided particulars of specific errors that it was submitted resulted in the trial judge erring in refusing to admit the evidence pursuant to s 138 of the Evidence Act. The specific errors identified were: (a)

that the gravity of the impropriety or contravention was of the highest order.

(b)

that the conduct of the police officers who signed the affidavit was deliberate.

(c)

that the police officers’ conduct was at the very least reckless behaviour of the highest order.

[13] In DPP v MD an interlocutory appeal, in which the Crown sought leave to appeal a pre-trial ruling that evidence be excluded under s 138(1) of the Evidence Act 2008, Maxwell P, Nettle and Harper JJA, concluded that the exclusion of an admission pursuant to s 138 of the Evidence Act 2008 involves an exercise of discretion which, on appeal, attracts the operation of the principles in House v The King (1936) 55 CLR 499. It was accepted by all parties on the present interlocutory appeal that we should proceed on that basis.

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[14] The Director sought to justify appellate intervention on the sole ground that an error in the exercise of the discretion could be inferred because the decision to exclude the evidence was plainly unjust or unreasonable. The circumstances in which we may intervene on an appeal against such a discretionary decision are limited. To infer such error the Director must demonstrate that the exclusion of the evidence was not reasonably open to the trial judge in a sound exercise of the trial judge’s discretion. [15] The asserted specific error (b) challenges a finding of fact as to the state of mind of the relevant police officers at the time that the affidavits in support of the search warrants were signed by each of them. The asserted error (a) challenges a value judgment made by the trial judge as to the seriousness of the impropriety. Error (c) involves both a challenge as to a finding of fact as to the officers’ state of mind and a value judgment as to the seriousness of the impropriety. [16] As to the alleged error as to a finding of fact, we would only be entitled to substitute our own findings of fact for those of the trial judge if he “mistakes the facts” [504-5]. That will only be demonstrated if there is no evidence to support such a finding [R v O’Donoghue (1988) 34 A Crim R 397, 401] or if the finding was not reasonably open on the evidence [Hopley v R [2008] NSWCCA 105, [28]; R v Merritt (2004) 59 NSWLR 557, 573 [61]]. As to the attack upon the value judgment made by his Honour, we would not be justified in substituting our view if his Honour’s view as to the seriousness of the impropriety was reasonably open. Moreover, as the applicant’s reliance on specific errors must be considered in the context of its sole ground of appeal that the discretion was wrongly exercised, the applicant must therefore show that had such error as has been made out, not been made, it would not have been reasonably open to the trial judge to exercise the discretion as he did. [17] Little was said on the appeal concerning the principles which are attracted by s 138 although they were fully ventilated before the trial judge. Both at trial and in this Court the parties proceeded on the basis that the discretionary decision required by s 138 did not essentially differ from that at common law save that s 138 places the onus upon the prosecution to establish that the evidence should be admitted notwithstanding the impropriety or contravention. The qualified proscription in s 138(1) that “the evidence is not to be admitted unless” indicates the importance of according appropriate weight to the effect of any impropriety or unlawfulness [Parker v Comptroller-General of Customs (2007) 243 ALR 574, [57]-[58]]. The exercise of the discretion calls for the balancing exercise to be undertaken that is discussed in cases such as Bunning v Cross (1978) 141 CLR 54 and Ridgeway v The Queen (1995) 184 CLR 19.

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DPP v Marijancevic; DPP v Preece; DPP v Preece cont. [18] The discretionary judgment called for does not involve a simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice [Bunning v Cross (1978) 141 CLR 54]. The trial judge was right to emphasise as a relevant consideration the undesirable effect of curial approval being given to the unlawful conduct of those whose duty it is to enforce the law. In doing so he was drawing upon the implied power of the courts to protect the integrity of the judicial process. … Consideration of His Honour’s reasons for decision of 18 October 2011

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[52] The substance of the trial judge’s reasons for excluding the evidence is to be found in the conclusions to his reasons of 18 October. He considered that to admit the evidence derived from the warrants would be “to ensure that the conviction of the accused is bought at too high a price by reasons of curial approval of the practice”. His Honour continued: [Transcript 1260-1261] The issuing magistrate was deceived and the integrity of the court was undermined. To approve the bypassing of that requirement by sanctioning the witness of a signature as an equal replacement to an oath would devalue the meaning of an oath. To take an oath binds the conscience. Our whole court system relies on oath taking, whether in the witness box or by affidavit. To admit the evidence here, in the face of a systemic practice of avoiding the taking of an oath when making affidavits, would strike at the very heart of the system of taking evidence. So I have said it has not been satisfactorily explained to me why this practice had developed. Cutting corners or culture were mentioned. Either involves a state of mind that, in my view, devalues the significance of the oath. The swearing of an oath would take, at the most, 15 seconds. Was it embarrassing for the crime squad police to raise the bible or make an affirmation in front of other members? Was it considered that to require an oath cast doubt upon the veracity of the member? Was it an inconvenience to be disposed of? Whatever the reason it reflect poorly upon the police members involved. Police, and for that matter, lawyers should not sanction a culture that pays lip service to such a fundamental requirement as the swearing of an oath. The court, by a wink or a nod, should not undermine the protection given to a citizen by s 81(1) of the Drugs Poisons and Controlled Substances Act and should not condone the integrity of the oath. To condone the practice of Senior Sergeant McIntyre and others, would be an acknowledgment that the taking of the oath is an inconvenient charade. The practice of not requiring the affidavits in support of warrants to be sworn on oath or affirmed. [53] We should say something as to the endemic practice employed within certain sections of Victoria Police of not requiring the accuracy and truthfulness of the contents of affidavits in support of warrants to be sworn to on oath or by affirmation. [54] The importance of making an affidavit in order to obtain a search warrant can hardly be gainsaid. Trials in courts in Victoria and in all other states and territories proceed upon the basis that the evidence that founds the findings of fact, which determine the guilt or innocence of those accused of crimes, is given on oath or by affirmation. Similarly, the reasonable grounds of which a magistrate must be satisfied before he issues a warrant authorising a member of the police force to enter and search land, premises or a vehicle and seize any thing or document and carry it before the Court, can only be established by evidence on oath or by affidavit. [55] An affidavit is the written form of sworn oral testimony. It is an ancient method of providing evidence in court [Bolands and Sayers, Oaths and Affirmations (2nd ed, Stevens) 1961, Chapter 4; Allen v Taylor (1870) 10 Eq 52; Eddows v Argentine Loan and Agency Co (1890) 59 LJ Ch 392; R v Howitt; Ex

Part 3 — Admissibility of Evidence

DPP v Marijancevic; DPP v Preece; DPP v Preece cont. parte Walker (1884) 10 VLR 320]. Until 1989, whenever police needed to obtain a warrant they were required to physically attend court and give sworn oral evidence before a magistrate as to the facts relied on to support the granting of a warrant. This was a clear and longstanding indicator of the significance and gravity of obtaining a warrant. The 1989 Act amended the provision to enable evidence to be given orally on oath or on sworn affidavit [Magistrates Court (Consequential Amendments) Act 1989 Sch cl 42.56]. The new alternative methods from 1989 onwards did not justify or contemplate a derogation of standards – the evidence was still required to be sworn. [56] The fundamental role which oaths and affirmations play in our system of criminal law is readily apparent. The requirements of s 81 of the Act are not a mere technical ancillary to obtaining a search warrant. Just as courts proceed upon the basis of testimony sworn or affirmed, so do magistrates issue search warrants on the basis of testimony sworn or affirmed. [57] A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights. As the Court said in George v Rockett: The enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to [property] interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. [(1990) 170 CLR 104, [5]]

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Similarly, Lockhart J in Crowly v Murphy said: Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right of common law to enter a person’s home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. [(1981) 52 FLR 123, 142. See also R v Burrell [2001] NSWSC 120, [25]] [58] To proffer to a magistrate material which is not sworn or affirmed in order to obtain a search warrant has a tendency to subvert a fundamental principle of our law. [59] On appeal the parties adopted and amplified the submissions made before the trial judge. It is convenient to address the submissions in the course of our further examination of his Honour’ reasons for excluding the evidence. [60] Section 138(3)(a) required the trial judge to take into account the probative value of the evidence. His Honour accepted the prosecution’s submission that the evidence in issue had significant probative value. That finding was not contested on the appeal. [61] Next, sub-s (3)(b) required his Honour to consider the importance of the evidence in the proceedings. The trial judge accepted the prosecution’s contention that the exclusion of such evidence significantly weakened the case against the first respondent. Although it had less importance in the proceedings against the second and third respondents, the trial judge found that the exclusion of the evidence would significantly weaken the prosecution case. Implicit in his Honour’s reasons is the conclusion that this consideration advanced the public interest in admitting the evidence. His Honour’s findings in this regard were not in issue on the appeal. [62] Sub-section (3)(c) required his Honour to take account of the nature of the relevant offences which the respondents faced. Counsel for the first respondent had conceded that the offences which

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DPP v Marijancevic; DPP v Preece; DPP v Preece cont. the first respondent faced were serious. In accepting that these were serious charges, his Honour quoted a passage from the reasons for judgment in R v Dalley at which it was said: [(2002) 132 A Crim R 169; [2002] NSWCCA 284, [95]] As a general proposition, the more serious the charge, the greater the community interest in the conviction and punishment of the guilty. On the other hand, it may equally be said that the more serious the charge faced, the more rigorous should be the insistence on adherence to statutory provisions enacted to protect the rights of individuals. [63] His Honour said nothing as to the seriousness of the charges faced by the second and third respondents. [64] His Honour considered s 138(3)(h), which required him to take into account the difficulty of obtaining the evidence without impropriety. The trial judge found that there would have been no difficulty in properly swearing the affidavits. Differing arguments were briefly advanced on appeal as to how this sub-section should be construed. We do not consider it necessary to address this question, which should await an occasion when more substantial consideration can be given to the issue.

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The finding that the gravity of the impropriety was of the highest order [65] We turn then to the requirement in s 138(3)(d) that the Court take into account “the gravity of the impropriety or contravention”. His Honour found that “the gravity of the impropriety or contravention is of the highest order”. The trial judge referred to the following factors relied upon by the prosecution. First, that there was no deliberate misstatement as to the facts asserted in the affidavit. Second, that the officers who attended at the relevant premises were of the positive belief that they were authorised to enter and that there was no evidence of impropriety on their part. Third, that steps had been taken by the hierarchy of Victoria Police to ensure that this improper practice did not recur. The prosecution had submitted that the contravention was only a technical one brought about by oversight or error and that it should be regarded as a minor and not serious or grave contravention. His Honour rejected this submission. The trial judge considered that the procedures here adopted devalued the significance of the oath which is taken as an objective sign of binding to the maker’s conscience. He accepted the defence submission that the swearing of evidence under oath is fundamental to the administration of justice and that the deception “whether intentional or reckless undermined the whole process”. It appears that in oral argument senior counsel for the applicant conceded that the conduct was serious and grave. In reaching his conclusion he took into account that the practice was endemic within the crime squads of Victoria Police and that the fact that the practice had now been revealed and steps taken to correct it did not lessen the seriousness of what had occurred. His Honour was right to take into account the fact that the improper conduct was widespread or entrenched as bearing upon the gravity of the impropriety. [66] The conclusion expressed by his Honour appears to draw upon the language employed by the first respondent in his written submission that the impropriety was “of such a high order” that the evidence should not be admitted. If that is all his Honour intended, his Honour’s conclusion could not be successfully impugned. [67] At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct. Cases such as Ridgeway exemplify this category of impropriety. There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread.

Part 3 — Admissibility of Evidence

DPP v Marijancevic; DPP v Preece; DPP v Preece cont. [68] If the conduct was deliberate as the trial judge has found, and we assume for present purposes that his Honour meant thereby that it was knowingly illegal, it was not conduct that fell at the most serious end of the range. It was not engaged in for the purpose of obtaining an advantage that could not by proper conduct have been obtained. We are not, however, persuaded that his Honour intended by the use of the phrase “impropriety of the highest order” to convey more than was submitted by the respondents, that the impropriety was “of such a high order” as to justify the exclusion of the evidence. This specific error is therefore not made out. State of mind of officers [69] Section 138(3)(e) required his Honour to take into account whether the impropriety or contravention was deliberate or reckless. His Honour found as follows:

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On the evidence before me, I do not accept this was not a deliberate practice by these two officers. I find that it reflected the general behaviour of members of the crime squads of the Victoria Police at the relevant time. In the alternate at the very least it is reckless behaviour of the highest order. The officers made a conscious decision to follow the practice that has been outlined. This did not include the swearing of an oath. The requirements of s 81(1) of the Drugs Poisons and Controlled Substances Act and their experience as police officers should have indicated to them that the practice they were adopting was totally incorrect. A mere reading of the words of the affidavit would similarly suggest that to any junior police officer, let alone officers of such ranks and experience. The practice illustrate at the very least a “don’t care” attitude or conduct of such carelessness that the reception of the evidence could be seen to compromise the integrity of our legal processes. [70] The applicant contends that his Honour erred in his finding of fact that the officers’ conduct was deliberate. These findings also give rise to the complaint that his Honour erred in finding the officers’ conduct to be reckless. The applicant also contended that his Honour did not apply the correct test to determine whether the conduct was reckless and that his value judgment that it was “reckless behaviour of the highest order” could not be supported by the evidence. … [83] Allowing for the view that the probabilities of the case are strongly against his Honour’s finding and the other concerns we have expressed as to the reasoning employed by his Honour, it cannot be said that the finding was glaringly improbable or was not one reasonably open. This error has not been established. … [90] We turn finally to the contention that the discretion was wrongly exercised. As the court in MD stated, s 138(1) requires the trial judge to apply a very general standard, that is, to decide whether “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. Moreover, the section calls for “an overall assessment” in the light of the factors mentioned in s 138(3). Because the assessment called for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion with which we are not entitled to interfere unless persuaded that it was an opinion that was not reasonably open. This is not an appeal where the Court may “decide for itself” whether the desirability of admitting the evidence outweighs its undesirability [see eg R v Zhang (2005) 158 A Crim R 504]. [91] Once it is accepted that it was open to his Honour to find that the officer’s conduct was deliberate in the sense that it was knowingly illegal, it follows that the applicant is unable to discharge the burden of establishing that it was not open to the trial judge to conclude that the desirability of excluding the evidence outweighed the desirability of admitting it. The decision was reasonably open because of the finding that the conduct was deliberate, meaning knowingly illegal, and that the gravity of the impropriety was of a high order.

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

DPP v Marijancevic; DPP v Preece; DPP v Preece cont. (Appeal dismissed. But note that as a result of this decision the Victorian Parliament quickly passed legislation that provides that a warrant is not invalid by reason of the fact that the affidavit in support of the warrant was not duly sworn or affirmed: Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 that amends the Evidence (Miscellaneous Provisions) Act 1958 by inserting s 165.)



Questions

[6.190]

1.

Fill in the table given, providing the effect of the discretion, the requirements for the exercise of the discretion and whether the discretion applies to a civil or criminal case.

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Section

Effect

Requirements

Criminal/Civil

135

 

 

 

136

 

 

 

137

 

 

 

138

 

 

 

139

 

 

 

2.

Consider the discretions and answer the following questions: • What are the types of “unfairness” giving rise to a discretion to exclude evidence? • As “unfairness” is not defined in the Act, what sort of meaning should it be given in the discretions to exclude evidence? • What does “unfair prejudice” mean in s 137? • How is s 137 different from s 135? • What are some examples of material that might be excluded under s 137?

3.

Read the following and advise the DPP. Sam Brown is to be tried for murder. The prosecution will suggest that Brown abducted and murdered a 12-year-old boy named Jamie Green. Jamie was last seen on the morning of 1 July 2016 when he left home to go fishing. The Crown case is that Brown stopped Jamie as he was riding his bike and forced him into his van. There are witnesses who saw Brown talking to Jamie. It is alleged that Brown then drove Jamie to the park and murdered him about four hours later. You are working for the DPP and you must advise on the issues that arise out of the following facts: • The body of Jamie Green was found in the Blue Mountains National Park. The photos were taken by Dr Wells from the Coroner’s office. The photos show that Green had been mutilated. The defence have indicated that they agree that the deceased died in the way the prosecution allege. However, the defence have indicated they are strongly opposed to the photos being admitted in trial. A murder weapon has not been found. • After Brown was arrested the police searched his house without obtaining a search warrant. They found a helmet with the word “Jamie” on it.

Part 3 — Admissibility of Evidence

• When the police arrested Brown he was watching an X-rated video. 4.

Read the following and comment on the issues of relevance and admissibility that arise. Sam and Toby Ingraham are on trial charged with assault causing grievous bodily harm to Jack Vangs and the murder of Jack’s wife and three children. These charges arose out of a home invasion perpetrated on the evening of 30 March 2017. Jack Vangs testifies that he and his family were at home watching TV when a man holding a black torch opened the door, hit him, held a gun at his head and produced a pair of handcuffs which he forced Jack to put on. Toby allegedly then demanded that the Vangs hand over all the money they had in the house. Although Jack Vangs quickly complied with the demand the assailants used the black torch to search the crawl space under the house and the area under the roof. It appears that they had inside knowledge because that was where the Vangs hid certain art objects which they had recently inherited from Jack’s father. The assailants then shot everybody in the house before fleeing. Although badly wounded, Jack Vangs survived. The prosecution call Constable Woods who produces a black torch which he testifies was found in the Ingraham house. The defence objects to the introduction of this evidence on the basis that there is nothing to connect this black torch with that used by the assailants but the judge allows the testimony to stand and accepts the torch in evidence. Constable Woods also introduces 10 photographs showing the naked bodies of the murder victims as they appeared just before post-mortem examination. The defence objects.

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The prosecution also intends to call six witnesses who will testify to the fact that a week after the assault Toby Ingraham travelled from Perth to Sydney using a fake identity. 5.

Andre was convicted of supplying a prohibited substance, namely ecstasy, at a rave party on 1 January 2015. Should the prosecution have been allowed to tender a photo of the bag of ecstasy tablets? The photo was taken in the kitchen of the share house in which Andre lives. In the photo the kitchen is very messy, and rubbish and cockroaches can be seen. There are also posters on the wall that depict naked women and vulgar comments.

6.

Consider the case file of Strom v Council of the Shire of Cremorne in Chapter 20. Suppose the defendant wanted to bring in 20 witnesses who will say that the plaintiff was drunk on the night in question. Could the plaintiff object? If so, on what grounds?

7.

Refer to R v Eagle in Chapter 20, and consider whether the following exhibits would be excluded pursuant to the trial judge’s discretion: • autopsy photo depicting the syringe mark on the deceased’s right arm and four other photos of the deceased’s face; • pre-nuptial agreement which states that “in the event of a divorce, Robert Eagle does not receive any money”; • financial report prepared by Star’s accountant that states that Star’s wealth is $150 million; • autopsy report which states that the cause of death was intravenous injection of insulin. The accused does not dispute the cause of Abby Star’s death; • the red bag containing the needles and the vial of insulin;

Discretions to Exclude or Limit Use of Evidence

CHAPTER 6

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• expert certificate that the vial found in the bag contains insulin; • hospital records showing that the accused was admitted to hospital in 2006, 2008 and 2009 for drug overdose caused by intravenous use of heroin; • a fingerprint of the accused obtained from the accused’s car; • a fingerprint that matches the accused and was found on all of the five hypodermic needles found in the red bag. Note that the prints were obtained without a warrant. The police officer with carriage of this case instructs the DPP that this was due to a fear that the accused would destroy the evidence.

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CHAPTER 7

Hearsay [7.10]

OVERVIEW ................................................................................................................ 251

[7.20]

THE HEARSAY RULE ................................................................................................... 253 [7.30] Subramaniam v Public Prosecutor ................................................ 254 [7.40] Kamleh v The Queen ................................................................. 255

[7.50]

EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE .............................................. 259 [7.60] Lee v The Queen ...................................................................... 259 [7.70] Quick v Stoland Pty Ltd ............................................................. 264 [7.80] Jango v Northern Territory (No 4) ................................................ 265

[7.90]

FIRSTHAND HEARSAY EXCEPTIONS TO THE HEARSAY RULE ...................................... 266 [7.100] Caterpillar Inc v John Deere Ltd (No 2).......................................... 266 [7.110] The Council of the New South Wales Bar Association v Franklin .......... 268

[7.120]

HEARSAY EXCEPTIONS IN CRIMINAL CASES ............................................................. 271 [7.130] Williams v The Queen................................................................ 271 [7.140] Harris v The Queen ................................................................... 276 [7.150] Munro v The Queen .................................................................. 278 [7.160] Sio v The Queen....................................................................... 282

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[7.170]

[7.230]

Exception to hearsay in criminal cases where the maker of the representation is available ....................................................................... 288 [7.180] Graham v The Queen................................................................ 289 [7.190] R v XY ................................................................................... 290 [7.200] LMD v The Queen .................................................................... 298 [7.210] ISJ v The Queen ....................................................................... 300 [7.220] Pate v The Queen ..................................................................... 302

OTHER EXCEPTIONS TO THE HEARSAY RULE ............................................................ 305 [7.240] Lancaster v The Queen .............................................................. 305 [7.250] Thomas v New South Wales ....................................................... 314 [7.260] Lithgow City Council v Jackson .................................................... 319 [7.270] [7.280]

[7.300]

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1)................................................................... 321 Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja ......................................................... 322

PROOF BY AFFIDAVIT OR WRITTEN STATEMENT ....................................................... 331

OVERVIEW [7.10] Part  3.2 deals with hearsay evidence. Section  59 creates the “hearsay rule”, which

excludes evidence of a “previous representation” (an out-of-court statement, express or implied from words or conduct) in certain circumstances, subject to exceptions created in the rest of the Part. A previous representation made by a person will be caught by the hearsay rule if:

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Part 3 — Admissibility of Evidence

(a)

the evidence is adduced to prove the existence of a fact asserted by the representation (ie this use is sought to be made of the evidence by the party adducing the evidence); and

(b)

“it can reasonably be supposed that” the person who made the representation intended to assert by the representation the existence of that fact (thus potentially excluding from the operation of the hearsay rule “implied” assertions, words or conduct tendered to prove the existence of any fact impliedly, rather than expressly, asserted by that statement or conduct).

As to (a), examples of previous representations not caught by the hearsay rule on this basis would be evidence of oral discussions and representations adduced to prove the terms of an alleged agreement; evidence of threats made to a person adduced to prove that he or she was acting under duress; evidence of a previous statement by a witness adduced to prove consistency or inconsistency with the witness’s in-court testimony (and thereby bear on the credibility of the witness); and evidence of the medical history given by a patient to a doctor adduced to prove the basis of an expert opinion given by the doctor. It should be noted that, pursuant to s  60, if evidence of a previous representation is relevant and admitted for such a nonhearsay use, the hearsay rule no longer applies to the evidence (unless the evidence is remote hearsay of an admission, tendered in criminal proceedings). Subject to the discretion in s 136, the evidence may then be used to prove the existence of a fact asserted by the representation. As to (b), it will be for the party arguing for admission of the evidence to satisfy the court on the balance of probabilities (s  142) that it cannot “reasonably be supposed that” the representation was “intended” to assert the existence of a fact which it impliedly asserts or assumes to exist (the existence of which the evidence is adduced to prove). For example, if A is called to testify that he heard B say in a telephone conversation “Hello John” and the evidence is adduced to prove that the person at the other end of the phone line was a person named John, the party arguing that it is not caught by the hearsay rule will have to satisfy the court that B did not intend to assert as a fact that the person to whom he or she was speaking was named “John”. If a consideration of all the circumstances in which the representation was made could lead a hypothetical reasonable person to infer that B did intend to assert that fact, then the hearsay rule applies to the evidence. Division 2 of Pt 3.2 creates exceptions for firsthand hearsay, with different rules in civil and criminal proceedings and depending on whether the maker of the representation is available to testify. The goal of these exceptions is that the “best evidence available” to a party should be received, a concept involving two elements – the quality of the evidence and the availability of the person who made the representation. For example, a hearsay exception is created in criminal proceedings for firsthand hearsay where the person who made the representation is available to testify and the events referred to in the representation were “fresh in the memory” of that person. Differences between the formulation of hearsay exceptions between civil and criminal proceedings reflect a policy concern to minimise wrongful convictions. Other exceptions are created in other Parts of the Act (eg Pt 3.4 Admissions). Division  3 creates exceptions for more remote hearsay (that is, hearsay that is not firsthand). For example, s 69 creates an exception for business records, relying on the assumption that, if statements were intended to be used by a business, this provided a strong incentive for accuracy and reliability. However, the exception does not apply where the representation is made in contemplation of legal proceedings or in the course of the investigation of a criminal offence – because of the potential existence of a motive to manufacture an unreliable record.

Hearsay CHAPTER 7

Section 75 provides that the hearsay rule does not apply to evidence in an interlocutory proceeding (so long as the party adducing the evidence also adduces evidence of its source), thereby facilitating the conduct of interlocutory proceedings in circumstances where it is often difficult, at short notice, to adduce evidence in direct and admissible form and the proceedings are, by definition, not final. Division 2 of Pt 4.6 (ss 170-173) permits evidence of a fact that is required to be proved in relation to a document or thing for the purposes of ss 63, 64, 65, 69, 70 and 71 to be given by affidavit (or written statement in the case of a public document) by a person permitted under s 171 to give such evidence.

THE HEARSAY RULE

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[7.20] Section  59 creates the “hearsay rule” which excludes evidence of a “previous rep-

resentation” adduced “to prove the existence of a fact that it can reasonably be supposed that the person [who made the representation] intended to assert by the representation”. When considering the cases that are extracted in this chapter, it should be borne in mind that the words “that it can reasonably be supposed” were only added to the definition of hearsay in the Commonwealth and New South Wales Acts by the amendments to the Acts which commenced in 2009. Subramaniam v Public Prosecutor [1956] 1 WLR 965 is the “classic” case concerning the definition of hearsay evidence. The substance of this common law definition survives in the Evidence Act 1995. Lee v The Queen (1998) 195 CLR 594 shows that it is important to identify the intended asserted fact in the “previous representation” and whether the previous representation is being admitted to prove that asserted fact: see Lee v The Queen at [22] and Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60 at [51] and [53]. To determine whether a previous representation is being admitted for a hearsay purpose it is necessary to: • identify the previous representation (see Dictionary to the Act); • determine the intended asserted fact in the representation; and • determine whether the previous representation is being tendered to prove the asserted fact

in the previous representation. If it is, then s 59 applies and the evidence is excluded subject to an exception applying (see ss 63-66A, 69-75, 81, 87, 92, 110 and 111). Kamleh v The Queen (2005) 213 ALR 97; 79 ALJR 541; [2005] HCA 2 provides examples of previous representations that were not caught by the hearsay rule as they were relevant for a non-hearsay purpose. Appreciation of the hearsay rule also requires an understanding of the maker’s “intended assertion” in the previous representation. A good example of an unintended assertion is provided by the common law case of Walton v The Queen (1989) 166 CLR 283. Walton was convicted of murdering his wife. The High Court considered the admissibility of evidence from a witness that the night before the murder the phone rang and the victim and the victim’s child spoke on the telephone. The witness gave evidence that the child said “Hello daddy” when on the telephone. Mason  CJ characterised the evidence as an implied assertion which was admissible hearsay evidence due to its reliability. The child intended to assert a greeting to his father, which unintentionally identified the caller to the witness, who was with the child. The other members of the High Court would have excluded the evidence of the child’s previous

Part 3 — Admissibility of Evidence

representation. However, under the UEL the child’s statement is an unintended assertion which would not be excluded by s 59. Walton also held that statements made by the deceased that she intended to meet Walton at a certain time and place were admissible as out-of-court statements of intention which did not infringe the hearsay rule (see, under the UEL, s 66A).

Subramaniam v Public Prosecutor [7.30] Subramaniam v Public Prosecutor [1956] 1 WLR 965 Facts [The appellant alleged he was captured by security forces operating against terrorists in Johore, Malaya. He was found wearing a belt containing 20 rounds of ammunition. He was tried on a charge of unlawful possession of ammunition. His defence of duress was that he had been captured and forced to carry the ammunition by terrorists and that at the time of his “capture” by the security forces he had formed the intention to surrender and was on his way to do so. The appellant gave evidence at his trial. He was convicted and sentenced to death. His appeal to the Privy Council was on the basis that the trial judge erred in refusing to allow the appellant to give evidence of the oral threats made by his captors (the terrorists) on the basis that they were hearsay.] Judgment

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MR DA SILVA and LORDS RADCLIFFE and TUCKER (at 970): In ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. In the rest of the evidence given by the appellant statements made to him by the terrorists appear now and again to have been permitted, probably inadvertently, to go in. But, a complete, or substantially complete, version according to the appellant of what was said to him by the terrorists and by him to them has been shut out. This version, if believed, could and might have afforded cogent evidence of duress brought to bear upon the appellant. Its admission would also have meant that the complete story of the appellant would have been before the trial judge and assessors and enabled them more effectively to have come to a correct conclusion as to the truth or otherwise of the appellant’s story. In the course of his evidence the appellant stated that he was given the ammunition belt to wear but no weapon, the object, according to him, being that others could use the ammunition. The evidence of the appellant, such as it was, suggested generally that he was in fear, that he planned unsuccessfully to escape, and that he had no alternative but to do as the terrorists asked him to do. He said, amongst other things, “I could not refuse [at 971] wearing the belt; if I had refused they would have done anything to me”. Those words, in the context in which they occur, may well have been used by the appellant to indicate, as best he could, that owing to what the terrorists said and did he was in reasonable fear of instant death if he refused to do what the terrorists demanded of him … … For the reasons which have been given their Lordships have humbly advised Her Majesty that the appeal be allowed.



Hearsay CHAPTER 7

Kamleh v The Queen [7.40] Kamleh v The Queen (2005) 213 ALR 97; 79 ALJR 541; [2005] HCA 2 Facts [The appellant was convicted of two counts of murder before a judge sitting without a jury. A cooffender, Natale Zappia, was tried separately, and convicted of two offences of manslaughter. Neither the appellant nor Zappia gave evidence at the trial of the appellant. The issue in the appeal to the High Court concerned the admissibility at that trial of evidence of certain statements made out of court by Zappia. The appeal was from the Supreme Court of South Australia.] Judgment GLEESON CJ AND McHUGH J: ... The case against the appellant

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[2] The victims were Faraz Rasti and Rhiannon Ellul. Ms Ellul was a prostitute, aged 16. Mr Rasti, aged 22, organised customers, provided security and a driver, and received the proceeds of her prostitution. At the time of their deaths they occupied unit 22 of the Grand Apartments in Melbourne Street, North Adelaide. Their bodies were discovered by cleaners in unit 22 at about 2pm on 3 April 2000. Mr Rasti died as a result of two gunshots, one to the left eye and one to the throat. Ms Ellul died as a result of a single gunshot to the forehead. Forensic evidence, combined with records of telephone conversations to which Mr Rasti was a party, established that the deaths of both victims occurred at some time between 1.16am and 4am on 3 April 2000. [3] The appellant and Mr Rasti were well known to each other. There was evidence that Mr Rasti was a man of volatile personality, and that, on occasion, he behaved offensively and violently towards the appellant, taunting him about being overweight, and sometimes abusing him physically. The appellant and Zappia were close friends and frequent companions. The appellant was aged 23, and Zappia was aged 22. [4] In view of the limited issues the subject of the present appeal, it is unnecessary to set out in full detail the evidence against the appellant. It is sufficient to refer to so much of it as provides the context in which the admissibility of the out-of-court statements by Zappia is to be considered. [5] There was a substantial body of evidence to show that, over the days leading up to 3 April 2000, the appellant and Zappia spent much of their time in each other’s company, and that, together, they visited unit 22. Fingerprints of the appellant and Zappia were found on various items in unit 22. Zappia’s fingerprints were found on a drinking glass which was on a coffee table. DNA samples on the drinking glass also matched Zappia’s DNA profile. In addition, there were other samples on the glass which had the same DNA profile as the appellant. In a record of interview with police, the appellant told police that he had lent a mobile telephone to Mr Rasti. The trial judge found that Mr Rasti was using that telephone (and another telephone) on 1 and 2 April 2000. [6] At about 1am on 2 April 2000, two men, consistent in appearance with the appellant and Zappia, were seen by witnesses to enter the Grand Apartments. At about 1am on 3 April 2000, one of those witnesses saw what appeared to be the same two men again walking into the Grand Apartments. The witness was not sure about the shorter man, but such description as he was able to give of the man’s appearance was consistent with that of the appellant. Another witness, Ms Stewart, received a telephone call from Mr Rasti at about 1am on 3 April 2000. The call lasted for about 10-15 minutes. In the course of the conversation, Mr Rasti passed the telephone to another man. Although the evidence of Ms Stewart was vague, the trial judge was entitled to infer, and inferred, that the other man was described, or described himself, as “Jamie”, a name by which the appellant was known. The trial judge summarised the effect of the identification evidence by saying that it “had a tendency to prove that the [appellant] was in the vicinity of the Grand Apartments at 1.00 pm on Saturday 1 April 2000

Part 3 — Admissibility of Evidence

Kamleh v The Queen cont. and at the Grand Apartments at or about 1.00 am on the morning of Sunday 2 April 2000, at or about 6.00 pm on Sunday 2 April 2000 and then at about 1.00 am on Monday 3 April 2000”. [7] The defence case, although unsupported by any sworn testimony of the appellant, relied upon an alibi. Both the appellant and Zappia were interviewed by police in April 2000, and they gave substantially similar accounts of their movements on the night in question. Both said they went together to a nightclub called the Q Club at about 11pm on 2 April 2000 and remained there until about 4am on 3 April 2000. Much of the trial was taken up with an investigation into that alibi. There was evidence from a number of young people who were at the Q Club. The reasons of the trial judge contain a detailed evaluation of that evidence and its reliability. There was no doubt that the appellant and Zappia were together at the Q Club between about 2.30am and 4am on 3 April 2000. There was some evidence, which the trial judge accepted, that they arrived at the club in the early hours of the morning of 3 April 2000, and that a relative of the appellant, in the hearing of the appellant and Zappia, asked other people to vouch for the presence of the appellant and Zappia at the club from an earlier time. The trial judge, relying particularly on the evidence of Ms Mouroufas, concluded that the appellant and Zappia arrived together at the Q Club at some time between 2.30am and 3am on 3 April 2000. He found that, in collaboration, they had concocted a false account of the time of their arrival at the club with a view to providing each other with an alibi. This, he held, reflected a consciousness of guilt on the part of the appellant. … The grounds of appeal

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[9] There are three grounds of appeal in this Court. They are as follows: 1.

The Court of Criminal Appeal erred in admitting the evidence of Mr Simoniuk of conversations with Mr Zappia on 3 April 2000.

2.

The Court of Criminal Appeal erred in holding that evidence of statements made by Mr Zappia in the absence of the appellant after the police investigation had commenced was admissible.

3.

The Court of Criminal Appeal erred in holding that evidence of statements made by Mr Zappia in the absence of the appellant was admissible to prove Mr Zappia’s intention.

[10] Ground 2 was originally expressed by reference to statements made by Zappia to Mr Simoniuk, but at the commencement of argument counsel for the appellant said that the ground was directed to statements made by Zappia to the police in his record of interview. [11] The third ground of appeal relates to statements made by Zappia to Mr Simoniuk, some days before the killings, at a McDonald’s restaurant. [12] All of the evidence the subject of the grounds of appeal was of statements made out of court by Zappia. It is submitted on behalf of the appellant that the reception of that evidence by the trial judge, and the use he made of it, contravened the rule against hearsay. Whether evidence of a statement made out of court by a person who is not called as a witness at a trial is hearsay depends upon the use that is sought to be made of that evidence [Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970; Ratten v The Queen [1972] AC 378 at 387; Walton v The Queen (1989) 166 CLR 283 at 301]. If what is relevant is the fact that the statement was made, rather than the truth of what was said, so that the statement is not relied upon to prove the facts narrated in the statement, then what is involved is not hearsay. As Ferguson J put it in a note in the first volume of the Australian Law Journal [Ferguson, “Hearsay Evidence” (1927) 1 Australian Law Journal 195 at 196. Ferguson J, who had lectured in evidence for many years at the Sydney University Law School, went on to apologise for the need to write the note.]: The hearsay rule does not forbid the proof of what somebody said out of Court. What it does forbid is the proof of a fact by telling what somebody said about that fact out of Court, a very different matter. Whether the evidence in any particular instance is admissible or not depends upon the question what fact it tends to prove.

Hearsay CHAPTER 7

Kamleh v The Queen cont.

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Both the trial judge and the Court of Criminal Appeal held that the evidence presently in question was relevant and admissible, not for a hearsay purpose, but for other purposes. It was not received, or considered, as evidence of the facts stated by Zappia. It was the fact that he made the statements that were relevant, not their truth. Indeed, in the case of one of the statements, the prosecution alleged that what Zappia said was substantially untrue. [13] A fact in issue at the trial was whether the appellant was present in unit 22 between 1.16am and 4am on 3 April 2000. A fact relevant to that fact in issue was whether Zappia was present in unit 22 between those times. The evidence in question was tendered in support of that second fact. The reason why Zappia’s presence in the unit was probative of the appellant’s presence was that there was a substantial body of evidence, including statements made by the appellant in his record of interview with the police, which tended to show that the appellant and Zappia were together during the early hours of the morning of 3 April 2000, and had been together for most of the preceding day. The trial judge disbelieved the assertion that the appellant and Zappia were together at the Q Club from 11pm on 2 April 2000 until 4am on 3 April 2000, but he did not doubt that they were together. The point of disbelief related to the time at which they arrived together at the Q Club. When the trial judge found that the appellant and Zappia were together when they arrived at the Q Club, and thereafter, he did not mean (as an argument for the appellant appeared to suggest) that they were not out of each other’s company even for a moment. He meant that they were substantially in company over the whole time. Apart from the appellant’s assertions about his movements, and those of Zappia, there was other evidence which showed that they were together. Although the eye witness identification evidence was not conclusive, it supported an inference that the appellant and Zappia were seen arriving at the Grand Apartments at about 1am on 3 April. The evidence of Ms Stewart was capable of supporting an inference that she spoke to the appellant over the telephone, shortly after 1am, at a time when he was in unit 22. There was evidence, and it was common ground, that the appellant and Zappia arrived together at the Q Club. In those circumstances, if the prosecution could establish, as part of its case against the appellant, that Zappia was present in unit 22 at the time of the shootings, then that fact was inculpatory of the appellant. [14] The conversation between Zappia and the witness Simoniuk the subject of the first ground of appeal took place on 3 April 2000, at some time in the evening. The evidence of the conversation was adduced in a curious form. Defence counsel did not object to counsel for the prosecution leading the witness, or to the witness giving evidence in a rather vague manner. There might have been a tactical reason for that. It is not the point of the ground of appeal. Mr Simoniuk said that Zappia looked nervous and tired. He said that, after having read his statement and refreshed his memory, he believed that Zappia had told him about the shootings. He said that Zappia had told him he had turned up the television set while in the room. That was a significant matter. When the cleaners at the Grand Apartments found the bodies of the victims on 3 April 2000, the television set in unit 22 was turned on at full volume. An available inference was that the television set had been turned up in order to mask the sound of gunshots. However that may be, the fact that the television set had been turned up to full volume was not something that had been made known to the public at the time of the conversation between Zappia and Mr Simoniuk on 3 April 2000. It was referred to by the trial judge as “esoteric knowledge”, that is to say, information that was not in the public domain, and that was likely to be available only to somebody who had been present at the shootings. [15] The prosecution tendered the evidence of the conversation for the purpose of showing that, on the evening of 3 April 2000, Zappia knew that the television had been turned up to full volume. In the circumstances, such knowledge was likely to have been available only to somebody who was present in unit 22 at the time the victims met their death. There was no plausible explanation of how Zappia could have come by that knowledge innocently. The fact that he knew something about what went on in unit 22 in the early hours of the morning of 3 April 2000, in the circumstances, was as incriminating as the fact that he was seen entering the Grand Apartments, or the fact that his fingerprints and his DNA were found on objects in the unit. It tended to prove that he was there. That, in turn, tended to prove that the appellant also was there.

Part 3 — Admissibility of Evidence

Kamleh v The Queen cont.

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[16] Such evidence did not offend against the hearsay rule. The evidence was not tendered or used to prove the truth of what Zappia said to Mr Simoniuk. It was not tendered to prove that the television set had been turned up. Rather, the fact that Zappia said what he did about the television set was relevant because it disclosed a state of knowledge on his part which had a tendency to prove that he was in unit 22 at the time of the killings. Thus, it had a tendency to prove a fact relevant to a fact in issue, because of other evidence which showed that he was in the presence of the appellant at all relevant times. [17] As to the second ground of appeal, the appellant was interviewed by police on 6 April 2000. Although there was some argument in the Court of Criminal Appeal and in this Court about the matter, both the trial judge and the Court of Criminal Appeal correctly found that what the appellant said was unambiguous, and that he claimed to have been at the Q Club, with Zappia, from about 11pm on 2 April to about 4am on 3 April. As has been noted above, he did not specifically claim that the two were never separated, but the tenor of what he said was that they arrived, remained at, and left the Q Club in each other’s company. The interview with the appellant ended at 1.50pm on 6 April. Telephone records showed that four telephone calls were made from the appellant’s landline telephone to the telephone at Zappia’s residence at 2.53pm, 5.07pm, 6.42pm and 7.15pm on that day. A mobile phone associated with the appellant was used to ring the Zappia landline at 7.22pm and 7.52pm. There was continuing telephone contact between the two men over the next few days. The police intercepted two telephone calls between the appellant and Zappia on 13 April 2000. On 14 April, the police interviewed Zappia. He made no admissions. He gave an account of his movements on 2 and 3 April 2000 which was almost identical to that given by the appellant. The prosecution tendered the record of interview, not to establish the truth of what Zappia said (on the prosecution case much of what he said was false), but for the purpose of showing that he and the appellant had concocted an alibi that was shown by other evidence, and in particular by the evidence of witnesses who had been at the Q Club, to be false. According to the prosecution argument, accepted by the trial judge, this was done by the appellant out of a consciousness of guilt. [18] This, again, was a use of evidence of statements made by Zappia out of court, not to prove that what he said was true, but to prove that, acting in concert with the appellant, he said something that could be shown to be false. The evidence was not led or used for a hearsay purpose. [19] The third ground of appeal is directed specifically to what was called “the McDonald’s conversation”, although, as a matter of principle, the point raised by it applied equally to another conversation between the same parties (referred to as “the Hectorville conversation”). [20] Mr Simoniuk gave evidence that, on or about 24 March 2000, he spoke to Zappia in a car outside a McDonald’s restaurant while the appellant was in the restaurant. The conversation, therefore, was not in the presence of the appellant. Mr Simoniuk said that Zappia told him that he and the appellant were planning to catch up with Mr Rasti because “[h]e owed them something or they had something to settle with him”. [21] The relevance of this evidence, again, is related to the evidence which showed that the appellant was in Zappia’s company late on 2 April and in the early hours of 3 April. The Court of Criminal Appeal held that what Zappia said to Mr Simoniuk was evidence of Zappia’s intention to “catch up with” Mr Rasti, and was available to be considered together with a larger body of evidence (including identification evidence) which supported the conclusion that Zappia visited Mr Rasti early on 3 April. [22] In Walton v The Queen (1989) 166 CLR 283 at 288-289, Mason CJ said: Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence ... Wigmore on Evidence, Chadbourn rev (1976), §1715, suggests that such statements are an exception to the hearsay rule on the ground that a statement about a person’s intentions is direct and testimonial, whereas conduct indicative of such intentions is indirect and circumstantial. But the better view is that evidence of such statements is not merely hearsay. Even when the

Hearsay CHAPTER 7

Kamleh v The Queen cont. testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’s testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule. [23] It was not argued that Walton was wrongly decided, or that, as an example of the acceptance of evidence of an out-of-court statement of intention, it could be distinguished. In Walton, the evidence in question was that of witnesses who said that the deceased person had told them she intended to meet the accused at a certain time and place. That intention was held to be relevant, and the deceased’s statements were held to be probative of that intention. The majority held that the evidence was admissible. The approach of Mason CJ is set out above. Wilson, Dawson and Toohey JJ, on the other hand, acknowledged that “an element of hearsay [could] be said to be present” [(1989) 166 CLR 283 at 302], but considered that this “need not necessarily preclude evidence of [the] kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted”. There being no challenge to Walton, it is unnecessary to pursue the significance, if any, of the difference in the majority reasoning. It may be noted that, in those Australian jurisdictions where the Uniform Evidence Act applies, it is now provided by statute that the hearsay rule does not apply to evidence of a representation made by a person being a contemporaneous representation about the person’s intention [eg Evidence Act 1995 (Cth), s 72 [now s 66A]]. That legislation, however, is not in force in South Australia. [24] The decision of the Court of Criminal Appeal on the point was correct. (Appeal dismissed.)

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EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE [7.50] Section  60 provides that the hearsay rule does not apply to evidence of a previous

representation which has been admitted for another use. In 1998, prior to the amendments to the Act following on ALRC 102 which added subss (2) and (3), the High Court held in Lee v The Queen (1998) 195 CLR 594 that the provision did not apply to second-hand or more remote hearsay. The effect of s 60(2) is to ensure that, in general, this provision does apply to second-hand or more remote hearsay, while s 60(3) creates an exception for this proposition in criminal proceedings in relation to evidence of an admission. Thus, the actual outcome of the decision of the High Court in Lee v The Queen is maintained. The extended operation of s 60 highlights the importance of the discretions and mandatory exclusions in Pt 3.11, particularly s 136.

Lee v The Queen [7.60] Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 Facts [Lee was convicted of assaulting Patricia Jones with intent to rob her. Calin was arrested in the company of Lee a short time later and he told police that he had been asking Lee for $80 he owed him and Lee had said “I did a job”. Calin repeated that in a written statement prepared for him by police and he signed it. Calin’s statement to police contained:

Part 3 — Admissibility of Evidence

Lee v The Queen cont. (i) an account of what Calin had done, that is, he was walking on the street; (ii) an account of what Calin had seen, that is, he saw the appellant “walking fast” and was “sweaty”; and (iii) an account of a conversation Calin had with the appellant about a debt. During this conversation the appellant said “Leave me alone, cause I’m running because I fired two shots … I did a job and the other guy was with me bailed out”. When he was called as a witness at the trial, Calin testified to asking Lee for money but could not recall anything else that was said. The prosecution cross-examined Calin (pursuant to ss 38 and 43) about his previous statement to the police, and Calin denied those statements were his. The police officer who prepared the statement gave evidence of the taking of the statement. The police statement that Calin had signed was tendered in evidence as a prior inconsistent statement (ie it was relevant to discredit Calin). Lee’s counsel sought to have evidence of what Calin had told police and his statement excluded as inadmissible or excluded in the judge’s exercise of his discretion. The judge let the evidence in and instructed the jury that if they accepted that Calin had told police that Lee had admitted “doing a job”, that was evidence of the fact that Lee said those words and in effect was a confession by Lee. The High Court found that this direction would have been understood by the jury as an instruction to use Calin’s previous representation as a confession by Lee. The High Court considered the effect of s 60 and the application of hearsay principles.] Judgment (footnotes omitted)

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GLEESON CJ, GUMMOW, KIRBY, HAYNE and CALLINAN JJ: [1] At the appellant’s trial, evidence was admitted of out-of-court statements made by a witness which included a report of a confession made by the appellant to that witness. The evidence of these outof-court statements was given because the witness gave evidence at the trial denying (or at least not admitting) that he had heard the appellant make these confessional statements. The evidence that the witness had made earlier statements in which he had said that he had heard the appellant confess was treated at the trial as evidence of the truth of the alleged confession. [2] At common law, evidence of prior inconsistent statements could not have been used in this way. It was held at the appellant’s trial, and on appeal to the Court of Criminal Appeal, that s 60 of the Evidence Act 1995 (NSW) (the Act) permitted the tribunal of fact to treat the evidence of the prior statements of the witness as evidence of the truth of the confession reported in those statements. Section 60 provides that: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. The question in this appeal is whether s 60 permitted an out-of-court statement that is itself a report of what someone else said to be used as proof of the truth of what was reportedly said. … [12] The trial judge instructed the jury that if they accepted that Mr Calin had told police what the accused had said to him (“leave me alone, because I’m running, because I fired two shots … I did a job, and the other guy was with me bailed out”) that was evidence of the fact that the appellant did say those words to Mr Calin. Taken as a whole, however, the charge to the jury would have been understood as an instruction that if the jury were satisfied that the appellant said these words to Mr Calin, they were a confession by the appellant to the crime with which he was charged. … [17] The statements made by Mr Calin had several elements. Those elements can be most easily identified from his written statement but a similar analysis could be made of what he told police orally. First, in his written statement, Mr Calin gave an account of what he had done: “I was just walking

Hearsay CHAPTER 7

Lee v The Queen cont. up the street, near the Hyatt.” The statement gave an account of what he saw: “I saw this bloke … [h]e walked past me and I saw he was sweaty and that.” It recorded matters that appear to have been intended to explain events: “I lent him the eighty dollars to help him out with rent and that.” It recorded the conversation he had had with the appellant, part of which the prosecution contended amounted to an admission: “… leave me alone, cause I’m running because I fired two shots … I did a job and the other guy was with me bailed out.” The hearsay rule [18] Examination of the relevant provisions of the Act must begin from consideration of the general exclusionary rule created by s 59(1) (which is referred to in the Act as “the hearsay rule”). Section 60 is an exception to the general rule of exclusion created by s 59. The hearsay rule does not apply to certain previous representations. But the exception operates upon the rule and it is to the rule that attention must be directed first. … [20] A “previous representation” is defined in the Dictionary to the Act as “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”. A “representation” is defined to include, among other things, “an express or implied representation (whether oral or in writing)”, while a representation contained in a document is taken to have been made by a person if the representation “was recognised by the person as his or her representation by signing, initialling or otherwise marking the document”.

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[21] “Representation” is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them. It may, therefore, seem to be an unusual word to use in this context. But it is clear from the Interim Report of the Law Reform Commission on evidence that, in the proposals that were later formulated in the Act, the term “representation” was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer. It is also clear that the proposal was intended to resolve the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule. In its Interim Report, the Commission went on to state why it excluded unintended implied assertions from the operation of a hearsay rule and its exceptions. Chief among those reasons was the conclusion that it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended. [22] Section 59 must be understood in this light. The rule’s operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that “previous representation” is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it. [23] The previous representations made by Mr Calin that it was sought to adduce in evidence could be seen as being of two kinds: statements of what he had done or seen, and statements of what he had said or heard. Again it is convenient to treat the matter by reference to the written statement signed by Mr Calin. There can be little doubt that Mr Calin intended to assert that he had done the things recorded in the statement, that he had seen the things that were recorded in it and that he had said and heard the words set out in it. But there is no basis for concluding that Mr Calin intended to assert as a fact that the appellant had “fired two shots”, had just done “a job” or that the “other guy” had “bailed out”. Mr Calin had no way of knowing these facts. All Mr Calin intended to assert was that the appellant had told him these things and (perhaps, on one view of the matter) that Mr Calin believed (or at least did not disbelieve) what he had been told.

Part 3 — Admissibility of Evidence

Lee v The Queen cont. [24] Mr Calin’s belief (or lack of disbelief) in what he was told was of no relevance to the issues that arose at the trial. Accepting that Mr Calin believed what the appellant had told him would not, directly or indirectly, rationally affect the assessment of the probability of the existence of the facts in issue in the proceeding. Knowing that Mr Calin had said out of court that the appellant had confessed to the crime was relevant only to the question whether he, Mr Calin, should be believed. No doubt, an assertion by the appellant that he had fired two shots, had done “a job” and that the “other guy” had “bailed out” would be relevant to the issues at the trial. But Mr Calin’s statement contained no such assertion; it contained only an assertion that the appellant had said these things. [25] Even if the trial judge was right to conclude, as he did, that Mr Calin could be cross-examined about his prior inconsistent statements and was right to conclude that evidence could be given of those prior statements, it was necessary to identify how those prior statements might properly be used by the jury. There are several steps in that process of identification. They can be described in these terms. [26] Evidence that Mr Calin had seen what was recorded in his statements was relevant to the issues in the case. Mr Calin’s representation out of court that he had seen these things was hearsay. Because his representation out of court (that he had seen these things) was relevant for the purpose of showing that he had made a prior statement that was inconsistent with his evidence in court, the hearsay rule did not apply and the representation was admissible to prove the existence of the fact that Mr Calin intended to assert by his earlier representation.

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[27] By contrast, Mr Calin did not, in his out-of-court statements, intend to assert any fact about his conversation with the appellant other than that he had said certain words and that he had heard the appellant say the words he attributed to him. [28] The nature of what Mr Calin said in his statements to the police was such that evidence of those statements was evidence both of representations made by Mr Calin to the police (about what Mr Calin had seen and heard) and of representations made to Mr Calin by the appellant (about what the appellant had done). By virtue of s 59, the evidence was not admissible to prove the existence either of the facts which Mr Calin intended to assert to the police or of the facts which the appellant intended to assert to Mr Calin. Section 60 operated only upon the former representations; it had nothing to say to the representations made by the appellant to Mr Calin. It was only the representations made by Mr Calin to the police that were relevant for a purpose referred to in s 60: the purpose being to prove that Mr Calin had made a prior inconsistent statement and that his credibility was thus affected. The hearsay rule was rendered inapplicable to Mr Calin’s representations, but not to the representations allegedly made by the appellant. And, of course, the representations allegedly made by the appellant were not admissible under the confession exceptions to the hearsay rule created by s 81 because the evidence of these confessional statements was not firsthand. [29] To put the matter another way, s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert. And yet that is what was done here. Evidence by a police officer that Mr Calin had said, out of court, that the appellant had said that he had done a job was treated as evidence that the appellant in fact had done a job – a fact which Mr Calin had never intended to assert. (Of course, it would be different if Mr Calin had said in evidence in court that the appellant had said he had done a job. Then the representation made out of court would be the appellant’s, not Mr Calin’s.) [30] It follows that evidence that Mr Calin had earlier reported that the appellant had confessed was not evidence of the truth of that confession. It should not have been received at the trial of the appellant, as it was, as evidence establishing that the appellant had committed the offence. [31] The conclusion that the evidence of the reported confession by the appellant was inadmissible as evidence of the truth of the alleged confession is consistent with basic principle and with the scheme of the Act as a whole; it is not to be seen as some retreat to outdated and outworn technical distinctions.

Hearsay CHAPTER 7

Lee v The Queen cont. [32] The common law of evidence has long focused upon the quality of the evidence that is given at trial and has required that the evidence that is given at trial is given orally, not least so that it might be subject to cross-examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered – by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the “best evidence rule” and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination are of central significance to the common law adversarial system of trial. [33] Over the years various inroads have been made on the rule that evidence at trial is essentially oral evidence of firsthand observation. Business record provisions of evidence legislation provide an obvious example.

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[34] It is not surprising, then, that Divs 2 and 3 of Pt 3.2 of the Act provide certain exceptions to the hearsay rule. But the exceptions are of a limited kind. First, Div 2, which concerns the tender of certain hearsay statements at both civil and criminal trial, is confined to “first-hand” hearsay: previous representations made by persons who had personal knowledge of the asserted fact. Division 3 makes other exceptions but they relate to business and like records. [35] The provisions for these exceptions are to be understood in light of the view expressed by the Law Reform Commission that “second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility”. As the Commission went on to point out, where A gives evidence of what B said that C had said, the honesty and accuracy of recollection of B is a necessary link in the chain upon which the probative value of C’s statement depends. Estimating the weight to be attached to what C said depends on assessing B’s evidence about it. … [38] … Nothing in the reports of the Law Reform Commission that preceded the passing of the Act suggests that it was intended by s 60 to provide for the tendering in evidence of reports of the kind contained in Mr Calin’s out-of-court statements. [39] At common law, a previous inconsistent statement put to a witness was evidence only of the fact that the witness had made an inconsistent statement; it was not evidence of the truth of the contents of that earlier statement. It was evidence that went only to credit. The Law Reform Commission was very critical of this rule which, it said, imposed a “schizophrenic task” on the tribunal and its recommendations for change of the law must be understood in the light of its trenchant criticism of this aspect of the common law. Similarly, its recommendations must be understood in the light of its criticism of the result that follows from the application of the common law rule against hearsay to the evidence of experts. At common law, an expert (such as a medical practitioner) may give evidence about the factual basis for the opinion expressed (such as the history given by the patient) only as evidence showing the foundation for that opinion, not as evidence of the truth of the facts recounted. [40] It is then clear that s 60 was intended to work a considerable change to the common law. But there is no basis, whether in the considerations which we have mentioned as having influenced the Commission or otherwise, for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote. As has been indicated earlier in these reasons, that that was not intended is made plain by the terms of s 59 to which s 60 is an exception. [41] Evidence of Mr Calin’s prior statements of what the appellant had said should not have been admitted as evidence of the truth of the confession allegedly made by him to Mr Calin. Because those prior statements of what the appellant had said went only to Mr Calin’s credit, the trial judge could either have rejected those parts of the statements [s 137 footnoted] or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put. In the circumstances of this case, the former course was to be preferred. …

Part 3 — Admissibility of Evidence

Lee v The Queen cont. [45] … The appeal should be allowed, the order of the Court of Criminal Appeal dismissing the appeal to that Court against conviction should be set aside and in lieu it be ordered that the appeal be allowed, the conviction quashed and a new trial be had.

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Quick v Stoland Pty Ltd [7.70] Quick v Stoland Pty Ltd (1998) 87 FCR 371 Facts [An issue before the Full Court of the Federal Court was whether the trial judge erred in allowing into evidence a financial report into a company by Martin Madden, a qualified accountant and registered auditor. In his opinion, the company was insolvent. Mr Madden summarised in his report the contents of certain financial records of the company, including financial records not received in evidence before the trial judge.] Judgment (footnotes omitted) BRANSON J:

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... [377] The report of Mr Madden, to the extent that it does not amount to evidence of his opinions based wholly or substantially on his specialised knowledge of accounting and insolvency matters was, in my view, admissible before the primary judge on the basis that it was relevant for a purpose other than proof of the facts thereby asserted. That purpose was the purpose of establishing the factual basis upon which Mr Madden held the expert opinions expressed in his report. The weight to be accorded to the opinions expressed by Mr Madden depended to a significant degree upon the factual basis for such opinions. Evidence of the factual basis for his opinions was thus relevant in the proceeding as evidence which, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely the duration of the insolvency of the company. It is not necessary in the context of this case to give detailed consideration to the circumstances in which, and the extent to which, evidence of the factual [378] basis of an expert opinion will amount to evidence of the truth of that factual basis. (cf Eastman v The Queen (1997) 79 FCR 9 at 78-79). It may be that a different result will follow depending upon the form in which the expert gives evidence of the factual basis of his or her opinion; that is, whether such evidence is given in the form of a representation or, alternatively, in the form of an identification of a hypothetical assumption. If s 60 of the Act does operate to give mere form significance in this way, the result cannot be regarded as entirely satisfactory. In cases in which there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 of the Act by exercising the power vested in it by s 136 of the Act. … FINKELSTEIN J: [382] At trial the respondent relied upon the evidence of Mr Madden, a chartered accountant, to establish that the company was unable to pay its debts when due. The nature of his evidence is described in the judgments of the other members of the Court. The appellant had unsuccessfully objected to the tender of this evidence on the basis that the facts upon which Mr Madden had based his opinion had not been proved. … However, as Branson J has pointed out, assuming Mr Madden’s evidence to be admissible, to the extent that he relied upon hearsay as a basis for his opinion s 60 of the Evidence Act 1995 (Cth) operates to make that hearsay admissible as proof of the facts: see also Welsh v The Queen (1996) 90 A Crim R 364.

Hearsay CHAPTER 7

Quick v Stoland Pty Ltd cont. In many cases the extraordinary effect of s 60 would be unfair to the party against whom the evidence is tendered. For example, where the hearsay involves “facts” that are in conflict or “facts” that are unreliable it is quite unsatisfactory for those “facts” to be proved by the operation of s 60. One way in which this problem can be overcome is by an order under s 136 limiting the use to be made of that evidence. In the case of evidence given by an expert, he or she can be required to express his opinion in answer to a hypothetical question leaving it to the party calling the expert to prove the facts upon which the opinion is based.

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Jango v Northern Territory (No 4) [7.80] Jango v Northern Territory (No 4) (2004) 214 ALR 608; [2004] FCA 1539 Facts [Objection was taken to an expert report prepared by an anthropologist, Professor Sutton, for an Aboriginal land title claim. It was argued that there was a disconformity between the report and the evidence given by indigenous witnesses and was therefore irrelevant. Further, the Northern Territory was concerned about the effect of s 60 in respect of the previous representations contained in the report as s 60.] Judgment (footnotes omitted)

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SACKVILLE J: [8] The specific objections to the Report reflected, in part, the concerns of both the Territory and the Commonwealth that a vast amount of material is referred to in the footnotes and in the appendices to the Report. If that material is admitted into evidence on the basis that it explains Professor Sutton’s reasoning process, the effect of s 60 of the Evidence Act may be to prevent the hearsay rule applying. (Section 60 provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.) Consequently, that material, if admitted into evidence without qualification, could be taken as evidence of the truth of any facts asserted therein: Neowarra v Western Australia [2003] FCA 1399; (2003) 205 ALR 145, at 159 [38], per Sundberg J; Harrington-Smith v Western Australia (No 2) (Wongatha (No 7)) [2003] FCA 893; (2003) 130 FCR 424. [9] My initial impression was that the respondents’ concerns about the effect of s 60 of the Evidence Act on hearsay material included in the Report were well founded. Mr Parsons SC, who appeared on behalf of the applicants, stated in response to an inquiry from me that the applicants would not resist an order pursuant to s 136 of the Evidence Act limiting the use of that material by reason of the danger that otherwise the respondents would suffer unfair prejudice by the admission of that material. Accordingly, I indicated that I would make such an order, thereby alleviating some of the respondents’ concerns about the Report. [10] The parties subsequently agreed that a direction should be made in the following terms: Pursuant to s 136 of the Evidence Act, those parts of the Sutton Report admitted into evidence which contain or refer to a previous representation made by a person are not admissible to prove the existence of a fact that the person intended to assert by the representation and the use to be made of such parts of the Sutton Report is limited to disclosing the basis for opinions expressed by the author of the said Report.

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Part 3 — Admissibility of Evidence

FIRSTHAND HEARSAY EXCEPTIONS TO THE HEARSAY RULE [7.90] Division  2 of Pt  3.2 creates a number of exceptions to the hearsay rule in respect

of firsthand hearsay (s 62). These exceptions are subject to competence requirements (s 61). Notice obligations are imposed by s 67. In addition, discretionary exclusion is possible. Jury warnings may be required under s 165. Section 63 creates an exception in civil proceedings if the maker of the previous representation is not available to testify. Section 64 creates exceptions in civil proceedings if the maker of the previous representation is available to testify; see also s 68. In Caterpillar Inc v John Deere Ltd (No 2) the evidence did not fall within an exception to the hearsay rule. Another illustration of evidence admitted under s 64 is the case of Ordukaya v Hicks [2000] NSWCA 180 where a statutory declaration from a 92-year-old defendant was admitted under s 64(2) (see Chapter 6). The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329 looks at the requirements of notice and s 64(2)(b).

Caterpillar Inc v John Deere Ltd (No 2) [7.100] Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903

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Facts [Caterpillar claimed John Deere was infringing an Australian patent relating to tractors. Deere denied infringement and cross-claimed seeking revocation of the Caterpillar patent on various grounds of invalidity. Deere gave notice under s 67 of an intention to adduce hearsay evidence under the exceptions provided in s 63(2) or s 64(2). The evidence was depositions taken in an American case concerning an American expert, Grawey, an inventor of the Caterpillar patent. Deere claimed Grawey was unavailable, as they had written to him inviting him to come to Australia to give evidence in the case. The expert did not respond.] Judgment HEEREY J: ... Section 63(2) – Is the person “not available”? [17] … It appears from the evidence that Mr Grawey worked for 40 years for Caterpillar, reaching a senior position in the company, and then retired to carry on a consultancy practice for which a very substantial part of his custom comes from Caterpillar. He is being asked in the letter of 26 July 2000 to come to Australia, presumably at his own expense, for the purpose of being cross-examined by a company hostile to Caterpillar in a case in which that company is attacking the validity of a patent for an invention of which Mr Grawey is an inventor. It is hardly surprising that Mr Grawey did not respond to this unappealing invitation. (Also, were he to take legal advice it would be pointed out to him that Australian law does not permit a party to insert a witness into the opposing party’s case and then cross-examine the witness.) [18] It is not to the point, as senior counsel for Deere argued, that Mr Grawey could have raised with Deere the question of his expenses. It was not for Mr Grawey to enter into negotiations. The onus was on Deere to show they have taken all reasonable steps to secure his attendance. At the very least one would expect Deere (one of the respondents is the US company itself) to establish personal contact with Mr Grawey. [19] The reasonableness of the steps taken by Deere in the present case can be assessed by comparison with a hypothetical example. Let it be assumed that Deere wished to secure the attendance of some other important American witness, but without any pre-conceptions as to whether or not the witness might be co-operative. It could be expected that Deere would write to the witness asking if he or she would be prepared to come to Australia to give evidence and offering to meet all expenses and compensate for the

Hearsay CHAPTER 7

Caterpillar Inc v John Deere Ltd (No 2) cont. interruption of his or her business, including payment of professional fees if appropriate. If no response were received, especially where the address was three years old, it might also be expected that Deere US would try to make personal contact with the witness, ascertain whether the witness had changed address or whether there were any impediments such as health or previous commitments, and, if so, try to work out mutually satisfactory arrangements. None of this was done in the present case. [20] Nor has Deere taken all reasonable steps to compel Mr Grawey’s attendance within the meaning of cl 4(1)(f). No attempt has been made to take advantage of s 7 of the Foreign Evidence Act 1974 (Cth). Deere’s argument on the cl 4(1)(f) issue merely asserted that because Mr Grawey was a US resident he was beyond the process of the Federal Court and could not be compelled to give evidence in the present proceeding: Re Sherlock (1991) 102 ALR 156 at 158-9. However cl 4(1)(f) necessarily assumes that steps can be taken to compel the person’s attendance; if such steps have been taken but without success then unavailability within the meaning of cl 4(1) is made out. If the person in question is in a country in respect of which Foreign Evidence Act procedures cannot be used, it would be a strange application of cl 4(1) if a party who had not taken all reasonable steps for the purposes of cl 4(1)(e) could then argue that (f) applied because no compulsive procedures were available at all.

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[21] Moreover, and as a separate ground for holding s 63 inapplicable, the relevant representations were not, for the purposes of s 63(2)(b), contained in a document within the meaning of cl 6 of Pt 2 of the Dictionary. The depositions were not written, made or otherwise produced by Mr Grawey. They were made by the court reporter: R v Walker (1993) 61 SASR 260 at 263 per Cox J and 266 per Duggan J; Australian Competition and Consumer Commission v Rural Press Ltd (1999) 169 ALR 201 at pars 15-16. The depositions were not signed, initialled or otherwise marked by Mr Grawey. [22] Compliance with cl 6 is mandatory, notwithstanding that cl 6, in contrast to cl 5, says “if” and not “if, and only if”. Clause 6 is concerned with the connection between a person, the maker of a representation, and a document. If it were not necessary for the person to have written or made or signed or initialled the document, cl 6 would seem to be pointless. … Section 64(2) – Expense, delay or practicability [24] Deere having failed to show Mr Grawey is not available, he is taken to be available: Dictionary Pt 2, cl 4(2). To bring itself within s 64(2) Deere has to show that calling Mr Grawey would cause undue expense (undue delay was not relied on) or that it would not be reasonably practicable to call him. [25] In assessing whether expense is “undue”, relevant matters would include (i) the actual cost of securing the attendance of the witness; (ii) a comparison of that cost with the value of what is at stake in the litigation; and (iii) an assessment of the importance of the evidence the witness might give. [26] In the present case, Deere did not provide any details as to (i) or (ii). However, major patent litigation in Australia more often than not involves witnesses from the Northern Hemisphere, especially where, as in the present case, there has been parallel litigation in other jurisdictions. The commitment of the parties in the present case, as evidenced by the level of representation and the resources devoted to interlocutory contests, suggests that the intellectual property rights being contested in this litigation have very substantial value. I think that if either side considered an overseas witness might be helpful, cost would not stand in the way. As to Mr Grawey himself, the fact that his evidence in the US proceedings is relied on in the particulars in the cross-claim suggests that his evidence is by no means formal or peripheral. His evidence seems important. The expense of bringing him from the United States would not be disproportionate in the context of the present case. It would not be “undue expense”. No other reason was advanced why it would not be “reasonably practicable” to call him. Conclusion [27] I am not satisfied therefore that Deere has not brought itself within either s 63 or 64.



Part 3 — Admissibility of Evidence

The Council of the New South Wales Bar Association v Franklin [7.110] The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329 Facts

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[By summons, the Council sought declarations that the respondent, who practised as a barrister at the New South Wales Bar, was not a fit and proper person to remain on the roll of local lawyers maintained by the Court pursuant to s 32 of the Legal Profession Act 2004 (NSW). The respondent was admitted to the NSW Bar in 2005. He commenced a relationship with TM in 2003. In Easter 2007 the respondent and TM went on a weekend trip, during the weekend, the respondent committed four criminal acts on TM. On 10 July 2008 the respondent pleaded guilty to assault causing actual bodily harm. In February 2009, following a trial the respondent was convicted of common assault (count 1), taking and detaining the complainant without her consent and with the intent of obtaining an advantage, namely sexual gratification (count 2), and sexual intercourse without consent in circumstances of aggravation, namely the occasioning of actual bodily harm immediately before the commission of the offence (count 3). He was sentenced to imprisonment. The Council sought a ruling, in advance of the hearing of the summons (under s 192A of the Evidence Act 1995), as to the admissibility of some parts of the transcript of evidence in criminal proceedings brought against the respondent. In support of its application that the respondent’s name be removed from the roll of lawyers, the Council did not merely rely upon the fact of the convictions and sentences, but it sought to rely also on the underlying facts that it was essential to establish to make out those convictions. The Council wanted to prove the conduct underlying the convictions and the admissions by the respondent to “TM” that he slapped and punched “TM” up to 15 times occasioning actual bodily harm. The Council also sought to prove that the respondent lacked candour by failing to acknowledge the full extent of his offending conduct and gave false evidence on oath in his trial proceedings denying the conduct underlying the convictions on counts 1-3, intending to procure his acquittal on those counts; or alternatively, intending to pervert the course of justice; in addition he lacked candour by failing to acknowledge the full extent of his offending conduct and the respondent giving knowingly false evidence on oath in his sentencing proceedings by continuing to deny the conduct underlying the convictions on counts 1-3. The Council also relied on the humiliating and demeaning verbal abuse and conduct accompanying the conduct underlying the conviction[s].] Judgment MEAGHER JA (Beazley P and Leeming JA agreeing): [7] On 15 January 2014 the Council filed its motion seeking a ruling in advance of the hearing that would enable it to adduce in evidence, without leading oral evidence, extracts from the transcripts of evidence given at the respondent’s trial. That evidence was of the following witnesses: (a)

TM;

(b)

Carmel Joan Shaw – as to immediate complaint by TM;

(c)

Dr Patricia Saccasan Whelan – evidence in relation to the injuries to TM she observed and the history given to her by TM;

(d)

Detective Senior Constable Ian Franca, a forensic investigator – as to his examination of TM’s car and photographs that he took, including of injuries to TM and the respondent;

(e)

Senior Constable William Gray – as to his observations of the injuries to TM and complaint by her;

(f)

Dr David Bruce, a senior forensic biologist – as to DNA analysis he conducted;

(g)

Detective Senior Constable Dean Roberts – as to his observations of TM subsequent to the offences, the ERISP (Electronically Recorded Interview of a Suspected Person) of the respondent, observations of injuries to the knuckles of the respondent and the respondent’s admissions in relation to those injuries.

Hearsay CHAPTER 7

The Council of the New South Wales Bar Association v Franklin cont. [8] Each of those witnesses was available for cross-examination by the respondent’s counsel at the trial. There was no cross-examination of Ms Shaw and some cross-examination of each of the others. In the case of Dr Whelan, that cross-examination consisted of two questions only. [9] Part 3.2 of the Evidence Act contains the hearsay rule (s 59) and exceptions to that rule. The Council seeks an order pursuant to s 190(3) that the provisions of that Part not apply in relation to the admissibility of the relevant transcript. That sub-section provides that the Court may make such an order if: (a) the matter to which the evidence relates is not genuinely in dispute, or (b) the application of those provisions would cause or involve unnecessary expense or delay. [10] The Council also seeks a direction that any objection made by the respondent to the tender of that evidence be determined before the hearing of its summons. Such a direction may be made under s 68(3) which permits the Court to determine an objection to the tender of hearsay evidence which has been the subject of a notice given under s 67 “at or before the hearing”. [11] If a party wishes to rely upon the exception to the hearsay rule in s 64(2) it must give a notice of its intention to do so under s 67. Sub-section 64(2) (which is set out below) does not apply to the evidence sought to be adduced unless such a notice is given. Section 68 provides for the making of objections to the tender of hearsay evidence that is the subject of a s 67 notice.

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[12] On 15 January 2014 the Council also prepared two notices under s 67 of the Evidence Act. The purpose of each was to give the respondent notice in writing of the Council’s intention to adduce the hearsay evidence of these witnesses, relying on the exception to the hearsay rule in s 64 which provides: [section extracted]. [13] One notice (the first notice) was given in relation to extracts of the transcript of evidence of TM. The other (the second notice) was given in relation to extracts of the transcript of evidence of the six other witnesses. In each case, in the language of s 64, the transcript is a document containing previous representations of the relevant witnesses about various asserted facts and those witnesses are available to give evidence about those facts. The first and second notices were served on the respondent on 17 January 2014. Each had attached to it a copy of the transcript sought to be tendered. [14] It is logical to deal first with the question whether, by reason of s 64(2), the hearsay rule does not apply to the transcript evidence. If it does not apply there is no basis for dispensing with the application of the provisions of Pt 3.2 because, in the circumstances, their application would not cause or involve unnecessary expense or delay. The present is an appropriate case for the Court under s 192A to give a ruling in advance of the hearing as to the application of the hearsay rule to that evidence. If the transcript is subject to the hearsay rule, and accordingly inadmissible, it will be necessary for the Council to make arrangements to call the witnesses concerned or otherwise to adduce evidence as to the matters to which the transcript evidence is directed. [15] The Council submits that it would not be reasonably practicable to call TM to give evidence given her mental condition. That condition is described in the confidential reports of her treating consultant psychiatrist, that are in evidence. In relation to the remaining witnesses, it submits that it would cause undue expense and delay if they are called to give evidence, which was given at trial and tested or able to be tested on behalf of the respondent. There is also before this Court evidence as to the likely expense and additional hearing time required if these witnesses are required to attend and give oral evidence. [16] To be effective, a notice given under s 67 in relation to reliance on s 64(2) must refer to that sub-section and specify the grounds relied on. Each notice complies with those provisions. The notice must also satisfy the requirements of the Evidence Regulation 2010. Clause 4 of that regulation provides: [regulation extracted]. [17] Each of the first and second notices complied with the requirements of cl 4(2)(a), (b) and (c) and had attached to it a copy of the transcript containing the relevant evidence, and thus complied

Part 3 — Admissibility of Evidence

The Council of the New South Wales Bar Association v Franklin cont. with cl 4(5). Each also included particulars of the facts relied upon to establish the grounds specified in s 64(2), as required by cl 4(4). In the case of TM, those particulars relevantly include the effect on her “mental state of giving evidence or being further questioned concerning the respondent”. In the case of the remaining six witnesses, those particulars are that each gave evidence at the trial in the presence of the respondent’s counsel and was available to be cross-examined. Although they might have been supplemented by reference to the specific expense and delay likely to be involved in calling each of the witnesses, the particulars provided and the attached transcript sufficiently expose the basis upon which the Council says that undue expense and delay would be occasioned if those witnesses were required to give that evidence orally. I am satisfied that the notices given were in accordance with cl 4. It follows that 64(2) applies to the evidence which the Council seeks to adduce.

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[18] Although s 68(1) provides that the party on whom a notice under s 67 is served “may” object to the tender of the evidence, the immediate context and other provisions of s 68 make clear that “may” is used in the sense “may only” so that s 68(1) defines the period of time in which the party receiving the notice is permitted to object to the tender of the relevant hearsay evidence. Unless sub-s (1) is understood in that way it would not fix any time for the notification of objections or ensure that, as is provided by s 68(3), such objections might be determined before the hearing. That construction gives effect to the evident purpose of the provision, which is to enable costs to be saved in civil trials in not having to call witnesses. It does so by permitting parties to adopt a procedure which enables those questions to be addressed in advance of the trial. This is confirmed by reference to the Evidence (Interim) Report (ALRC 26), Vol 1 (1985) at par 695 where it is said of the proposal on which this provision is based (cl 61 of the draft Bill which was Appendix A to the report): • Maker Available – Civil Trials. Costs can be saved in civil trials in not having to call witnesses. The proposal extends the existing law by enabling a party to avoid having to call witnesses who are available by serving notice on the other parties containing the above details and, should objection be received, obtaining the court’s leave – before or at trial – to not call the witness. If there is no objection the representation may be received in evidence without proof. In this context the notice provision not only protects the parties but also gives the court the means to regulate the admission of firsthand hearsay in civil trials … The procedure introduces a discretionary element and therefore uncertainty in preparation for trial. It addresses that problem, however, by enabling the issues to be resolved before the trial commences should a party wish to do so. [19] The evidence established that the respondent has made no written objection to the tender of the transcript. That being the position, this Court could deal with the issue as to its admissibility on the basis that there is no objection to it as hearsay. That would still leave for consideration at the hearing the question as to the weight to be given to the evidence: Walker v Walker [1937] HCA 44; 57 CLR 630; Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 212; Harrington-Smith v Western Australia (No 7) [2003] FCA 893; 130 FCR 424 at [13]. However, in view of the significance of the evidence sought to be adduced, and the need for certainty in relation to the question of its admissibility as hearsay, it is appropriate that the Court rule on the question whether the exception to the hearsay rule in s 64(2) applies. [20] In relation to the giving of evidence by TM, the opinion of her treating psychiatrist is that if she has to give evidence about the relevant events again it would “seriously affect her psychiatric stability” and “lead to an exacerbation of her condition with worsening of anxiety and PTSD”. That evidence justifies the conclusion that it is not reasonably practicable to call her: both because of her infirmity and because, it might be inferred, she would be unwilling to give evidence: see De Rose v South Australia (No 4) [2001] FCA 1616 at [15]; Fischer v Howe [2013] NSWSC 462; 85 NSWLR 67 at [58]. [21] In relation to the remaining six witnesses, the evidence of Mr Blanch (affidavit sworn 5 February 2014) establishes that each, with the exception of the forensic expert, Dr Bruce, lives outside Sydney and that expenses would be incurred in his or her travelling to Sydney to give evidence. With one exception those witnesses would have to be accommodated overnight. The hearsay evidence was given under oath. Each witness was then available for cross-examination by the respondent’s counsel.

Hearsay CHAPTER 7

The Council of the New South Wales Bar Association v Franklin cont. The evidence given in cross-examination is part of the tender. The material before the Court does not identify any respects in which the respondent challenges the veracity or the reliability of the proposed evidence to the extent that it is directed to facts that were not essential to the four convictions. In these circumstances it would cause unwarranted expense and delay to call each of the six witnesses to give his or her evidence orally. It follows that s 64(2) is satisfied and that the hearsay rule does not apply to the transcript. [22] Accordingly, I propose that a ruling be made pursuant to s 192A of the Evidence Act that by reason of the application of s 64(2)(b), the hearsay rule does not apply to the documents being the transcripts referred to in the Schedule below. I also propose that the costs of the applicant’s motion filed on 15 January 2014 be costs in the cause.



HEARSAY EXCEPTIONS IN CRIMINAL CASES

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[7.120] Section 65 creates exceptions in criminal proceedings if the maker of the previous

representation is not available to testify. As illustration of the use of s 65(2)(c) is in Webb v The Queen (2012) 225 A Crim R 550; [2012] NSWCCA 216 where a complainant of sexual assault gave an interview in 1991 in respect of a sexual assault that occurred when she was 70 years old in 1991. The crime remained unsolved until 2011 when there was a DNA match to Webb from a swab of a stain found at the crime scene. The complainant provided another statement in 2011 when she was aged 90. Before the trial, the complainant died. The hearsay evidence of the complainant’s previous representations were admissible under s 65. The refusal of a stay due to the inability to cross-examine was upheld on appeal. In Williams v The Queen, Harris v The Queen and Munro v The Queen the maker of the previous representation sought to be admitted was dead and the courts consider the meaning of s 65(2)(b) and (c). In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 the High Court considered s 65(2)(d).

Williams v The Queen [7.130] Williams v The Queen (2000) 119 A Crim R 490 Facts [Williams was convicted of robbing a bank with a sawn-off rifle on 21 November 1996 and attempting to pervert the course of justice. The Crown case was that Williams buried the rifle in the backyard of his acquaintance, Mr Stewart. Mr Stewart had participated in a taped interview with police on 26 November 1996. Before the trial, Mr Stewart died. There was a question of whether Mr Stewart’s interview with police was admissible.] Judgment THE FULL FEDERAL COURT: ... Admission into evidence of statements of deceased Crown witness [40] On 26 November 1996, Mr Stewart had participated in a taped record of interview with the police, but on 31 October 1997, before the trial of the appellant, he died. In some respects the interview was merely consistent with the appellant’s case. However, Mr Stewart also stated in the interview that he had been gardening on the Wednesday before the armed robbery, that he had been unaware

Part 3 — Admissibility of Evidence

Williams v The Queen cont. of the sawn-off rifle buried in his yard until it was found by the police, and that on the morning of the robbery the appellant had told him that he “had done a rort” and asked him whether he had an incinerator. [41] The Crown sought to tender a transcript of the record of interview, as an exception to the hearsay rule pursuant to s 65 of the Evidence Act, which was opposed by counsel for the appellant. The trial judge admitted the transcript into evidence, stating in the course of argument: when you look at all that Mr Stewart [says], it is highly probable that what he says is reliable, having regard to the other evidence, the nexus in time and in place and the … disposing of the bag. It all hangs together. His Honour concluded: “I find it highly probable that [the representations made in the transcript] are reliable”. … [42] … It is not clear whether his Honour admitted the transcript under subs (2)(b) or (2)(c). However, the appellant argued that the interview was not admissible as an exception to the hearsay rule under either of these sections. … “shortly after” [43] The appellant submitted that the interview was not admissible under s 65(2)(b) of the Evidence Act because, having been recorded five days after the armed robbery, it could not be said to have been made “shortly after” the events described in the interview.

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[44] In Conway the Full Court considered both limbs of s 65(2)(b). With regard to the phrase “shortly after”, the Court said at pars [123]-[135]: The word “when” in s 65(2)(b) of the Act encompasses [the] notion of strict contemporaneity. The introduction of the expression “shortly after” is, however, a significant departure from traditional doctrine. … The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made “when” or “shortly after” the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression “shortly after” makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae. In R v Mankotia [1998] NSWSC 295, Sperling J had occasion to deal with the meaning of the expression “shortly after” in s 65(2)(b) of the Evidence Act 1995 (NSW). His Honour said: The phrase “shortly after” is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to taken into account but – as in the case of normative judgments generally – it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase “shortly after” must be the actual time that has elapsed and whether that fits the ordinary usage of the expression “shortly after” in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind. These observations were later cited with approval by Levine J in R v Polkinghorne (1999) 108 A Crim R 189. We consider that both Sperling and Levine JJ were correct in their analysis of the meaning of the expression “shortly after” in the context in which it appears.

Hearsay CHAPTER 7

Williams v The Queen cont. At pars [137]-[140] their Honours said: The second condition which must be met before evidence may be led pursuant to s 65(2) (b) is that the representation must have been made in circumstances that “make it unlikely that it is a fabrication”. … In Polkinghorne Levine J drew attention to the similarities between the language employed by the legislature in the second condition prescribed by s 65(2)(b), and what Lord Wilberforce had said in Ratten v The Queen at 388-390. It is worth repeating what Lord Wilberforce had there said:

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… As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it. And the same must in principle be true of statements made before the event. The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received. The expression “res gestae” may conveniently sum up these criteria, but the reality of them must always be kept in mind: it is this that lies behind the best reasoned of the judges’ rulings. In Polkinghorne Levine J observed that these passages from Lord Wilberforce’s speech had been cited, and with apparent approval, by Barwick CJ in Vocisano. Levine J also observed that the rigidities of Bedingfield might now be regarded as obsolete. A spontaneous exclamation made within a short time of an incident to which it relates would ordinarily be “unlikely to be a fabrication”. That is a proposition with which we would not disagree. [45] One must not “attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded”: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 310, per Gleeson CJ and Hayne J. In the same case, McHugh J said (at 324) that: “The Act has made substantial changes to the law of evidence. Notwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful.” Nevertheless, it is apparent that s 65(2)(b) draws directly upon the case law preceding the passage of the Act. In such circumstances, it is appropriate to turn to the common law “to provide guidance on the issue” (see Papakosmas at 313, per Gaudron and Kirby JJ). [46] It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as R v Bedingfield (1879) 14 CoxCC 341 would be avoided. The terms of s 65(2)(b) indicate that the “approximate … contemporaneity” approach pre-figured in Ratten v The Queen [1972] AC 378 is to be preferred to the exact contemporaneity apparently required by Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267, thus disposing of any ambiguity that may exist at common law. The Australian Law Reform Commission (ALRC) proposal, which led to the provision, took the case law as a starting point for its considerations: The proposal includes an exception for representations made “[when] or shortly after” the events referred to in it. A formula is used which takes up the suggestions of the Privy Council in Ratten’s case. It directs attention to the question of the likelihood of fabrication. [47] Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase “shortly after”. As noted by Sperling J in R v Mankotia [1998] NSWSC 295 at 10, s 65(2)(b) ought not be regarded as simply importing a test of:

Part 3 — Admissibility of Evidence

Williams v The Queen cont. reliability at large. It is a narrower test … [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial. [48] For these reasons, it would be a mistake, in determining whether a statement has been made “shortly after”, to over-emphasise such matters as whether the events in question were “fresh” in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (“when”) or under the proximate pressure of (“shortly after”) the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking “terrible”, that she had been drugged and had been “off her face for about three or four hours”. The comments of the Court in Conway regarding the meaning of “shortly after” should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case. [49] In this case, the statements were not made during the events in question, and, we think, could not be said to have been made “shortly after”. Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made “soon after” it.

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“in circumstances that make it unlikely that it is a fabrication” [50] The appellant also submitted that the trial judge misconceived the appropriate test to be applied pursuant to both s 65(2)(b) and s 65(2)(c) because, rather than looking to the surrounding “circumstances” in which the interview was recorded, the trial judge looked to what he considered to be the apparent accuracy of the representations contained therein. The short sections of transcript set out above indicate that his Honour appeared to pay regard to the internal consistency of the representations made in the interview and their consistency with the other available evidence in concluding that they were reliable. … [51] In R v Polkinghorne [1999] NSWSC 704 Levine J said at par [33] that “one must look at the circumstances of the event being narrated rather than the narration itself”, and in Mankotia Sperling J said at 10 that: …it is not unlikelihood at large which is in question, but unlikelihood arising from the circumstances. I would construe “circumstances” to mean the circumstances in which the representation was made, its factual setting at the time it was made. That construction has the effect of excluding from consideration, for the purposes of s 65(2)(b), events subsequent to the representation being made and other representations made by the same person on other occasions, notwithstanding that such considerations might logically fortify the unlikelihood of concoction or (in the case of inconsistent representations) have the opposite effect. The same point arises in relation to s 65(2)(c). [52] This approach was not entirely followed in this Court in Conway. At par [145] the Full Court stated: We think that it is legitimate for a trial judge to have regard to evidence of what the maker of the previous representation has said on other occasions, when determining whether or not it is highly probable that a particular statement was reliable.

Hearsay CHAPTER 7

Williams v The Queen cont. [53] It was said by Odgers in Uniform Evidence Law (4th ed, 2000) at 142 that: It is suggested that the better view is that, while the question for the court is whether the circumstances in which the representation was made make it unlikely that the representation was a fabrication, the court should be permitted to consider any other events which are relevant to that issue. [54] The statutory test is not whether, in all the circumstances, there is a probability (s 65(2)(b)) or a high probability (s 65(2)(c)) of reliability, but whether the circumstances in which the representation “was … made” determine that there is such a probability. Following the Conway approach, the trial judge was entitled to consider other available relevant evidence as to all the circumstances in which the statement was made. Nevertheless, whilst it was open to his Honour to consider the consistency of what was said with other material in the Crown case, this is only part of the inquiry as to whether those circumstances make it probable or highly probable that the representation was reliable. His Honour appears not to have adequately addressed the concerns raised at the trial by counsel for the appellant that, at the time of the interview, Mr Stewart had been cautioned that he was suspected of having aided and abetted the appellant, and that a sawn-off rifle had been found in his backyard. In response to the submission that these factors made the circumstances such that the interview was far from reliable, his Honour said in the course of argument:

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Putting aside the denial of any involvement … what is contained in the record of interview that affects the accused, is wholly reliable, is it not? … I would understand the aiding and abetting as being some suggestion that Mr Stewart gave refuge or provided a hiding place or provided the means of getting rid of the implements that were used. That would be aiding and abetting or an accessory after the fact. But so far as what the accused did, is concerned, and limiting what Mr Stewart said about what the accused did, what is unreliable about it? [55] It appears from these comments and otherwise that his Honour addressed only the question of whether the evidence contained within the transcript of interview was reliable, rather than, as Conway would have it, all the circumstances as to the making of the statement. This was an erroneous approach to s 65(2)(c) or a mistaken application of the principle to admit the interview under that section. This is particularly so in light of the onerous requirements imposed by s 65(2)(c). In Conway the Court said at pars [146]-[147]: The requirement in s 65(2)(c) of the Act that it be “highly probable” that a representation be “reliable” in order to be admissible is an onerous one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person. This particular exception to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission. Treating “reliability” alone as the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule. It is true that in Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon “reliability”. However, the High Court eschewed that approach in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1, and there are plainly dangers associated with it. [56] Mr Stewart made the statements in the course of an interrogation of him by police. In Mr Stewart’s home, the police had found, buried in the garden, a sawn-off shotgun. Mr Stewart had within the previous few days tended his garden. To possess such a weapon is a serious offence (s 5(1) of the Prohibited Weapons Act 1996 (ACT)). Mr Stewart was, on his own account, a man who would assist a friend who had “done a rort” by making equipment available for the destruction of evidence. He was apparently a drug addict living a fringe existence. He had a variety of reasons to tell the police what he perceived that they wanted to hear. It is very likely that he perceived that they wanted to hear matters that would implicate the appellant.

Part 3 — Admissibility of Evidence

Williams v The Queen cont. [57] Further, Mr Stewart was a suspected accomplice of the appellant. Had he given evidence against the appellant (and been liable to cross-examination by the appellant’s counsel) the trial judge would have been required to direct the jury that his evidence, if uncorroborated, should not be accepted unless scrutinised with particular care. That is because accomplices notoriously seek to lessen their own blameworthiness by enlarging that of their alleged co-offenders: see, for example, Webb per Toohey J at 92-93. [58] Although the resolution of this question of fact does not turn on any impression of any person’s demeanour, real respect should be paid to the view of the learned trial judge. Nevertheless, we are unable to feel that his Honour’s view was the correct one. There was not, in our view, any unlikelihood that Mr Stewart’s statements were fabrications, still less any high probability that his representations were reliable. In our view, his Honour erred in admitting evidence of the statements. (Appeal allowed and retrial ordered.)



Harris v The Queen [7.140] Harris v The Queen (2005) 158 A Crim R 454; [2005] NSWCCA 432

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Facts [Harris was convicted of the manslaughter of Wright. Wright was leaving Hurstville RSL when Harris asked for a cigarette. Harris became aggressive and punched Wright in the head. Wright was taken to hospital but not admitted. The next day he attended a police station and made a statement. Approximately, one week later he died from traumatic brain injury. The deceased’s statement was admitted in the trial under s 65(2)(b) and (c). The basis of Harris’s appeal was that Wright’s statement ought not to have been admitted as it was not made “shortly after” the events described, and the circumstances in which it was made were such as did not render it unlikely that what was said was a fabrication.] Judgment STUDDERT J (Grove and Whealy JJ agreeing): ... [38] Mr Dhanji [The appellant’s counsel] submitted that it was not open to the judge in the present case to determine that the statement of the deceased, made as it was some 24 hours after the event, was made “shortly after” the event the deceased described. I am not persuaded by that submission. [39] Mr Dhanji did not seek to argue that “shortly after” meant “immediately after”. No attempt has been made in the decided cases to prescribe the words “shortly after” by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example, as Mr Dhanji properly acknowledged in the course of his able argument, a statement made by a person recovering consciousness five days after an event may well be considered to have been made “shortly after” that event. [40] I have come to the conclusion that it was open to the judge in the circumstances of the present case to determine that what the deceased told the police was conveyed “shortly after” the incident he described. [41] In R v Ambrosoli (2002) 55 NSWLR 603 it was determined that the circumstances upon which s 65(2)(b) and (c) focused were the circumstances of the making of the previous representation. Mason P, with whom Hulme and Simpson JJ agreed, said this at [34]-[35]:

Hearsay CHAPTER 7

Harris v The Queen cont. It would therefore appear that R v Mankotia, Conway and R v Williams are at one in: • focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and • excluding evidence tending only to prove the asserted fact. In my view this is a correct approach to s 65(2) … [42] In this case, of course, there were no prior or later statements made by the deceased that might have had any bearing upon the reliability of the circumstances of the making of the statement admitted into evidence. [43] It was submitted that it could not be said that the statement was made in circumstances that made it unlikely that the representations contained in it amounted to a fabrication. In particular, these matters were adverted to: (i) that the deceased had been drinking and may have had as many as seven schooners; (ii) that the deceased’s version was inherently unlikely in that he asserted he was going back “to diffuse [sic] the incident”, although the incident was for all practical purposes over by the time the deceased first left the club; (iii) the deceased had an interest in seeing that the appellant was charged at the time he made the statement; (iv) that he wanted to present himself as the victim and not the aggressor.

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[44] The Crown urged the contrary considerations: (i) the level of intoxication was mild according to the ambulance officer, Christopher Roach, who attended upon the deceased at the club immediately after the attack. Ambulance Officer Roach’s assessment was that the deceased was “still quite aware of his faculties”; (ii) the deceased’s version was not inherently unlikely; (iii) the statement given to the police officer was a formal statement which commenced in the usual way: This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. (iv) in making his statement, the deceased would have appreciated that there were witnesses in the club that the police would interview concerning what had occurred; (v) the statement was made after the deceased had had some treatment at the hospital but before the CAT scan and hence before he was in a position to appreciate the nature and extent of his injuries. [45] In my opinion, there is substance in the submissions advanced by the Crown and summarised above concerning those circumstances which made it unlikely that the representations in the statement were fabricated. [46] In my opinion, having regard to those circumstances and the reasons expressed by the judge, no error has been shown in the decision to admit the statement into evidence pursuant to s 65(2)(b). [47] As his Honour’s reasons illustrate, his Honour did have regard to s 135 and s 137 of the Act. It was not sought at trial, nor in this Court, to submit that the evidence ought to have been excluded

Part 3 — Admissibility of Evidence

Harris v The Queen cont. under either of those sections, as his Honour found the representations in the statement were relevant and probative. Plainly they were, having regard to the issues and the evidence I have earlier reviewed. [48] Having concluded that the statement was admissible under s 65(2)(b), it becomes unnecessary to consider whether it was also admissible under s 65(2)(c). As Mr Dhanji acknowledged in the course of argument, if the judge was correct in admitting the statement under s 65(2)(b), there is no need to consider s 65(2)(c), and the latter subparagraph was not addressed in oral argument on this appeal. (Appeal dismissed. Note that special leave to appeal to the High Court was refused.)



Munro v The Queen [7.150] Munro v The Queen [2014] ACTCA 11 Facts

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[Munro was convicted of an armed robbery and inflicting grievous bodily harm. Both offences were alleged to have happened on 10 May 2004. There was evidence that two offenders waited for a Chubb bus van at a bus shelter. DNA was found on cigarette butts located at the bus shelter that correlated with the DNA of Munro. In 2004, Lawrence Grace was a cleaner who cleaned the relevant area from 2000 to 2005. In February 2010, Mr Grace provided a statement to police. The statement detailed that he did not remember specifically 10 May 2004, but he regularly cleaned the area in a routine system. To clean the pavement, gutters and common areas, he used a blower vacuum which would clean the pavement and street gutters. The blower vac moved all paper, cigarette butts and leaves. At the time that he provided his statement Mr Grace was 74 years old, and had retired. Subsequent to making the statement, but prior to the Munro’s trial, Mr Grace died. His statement was admitted into evidence at the appellant’s trial pursuant to s 65. The evidence of Mr Grace was important to the Crown case because it could establish that the cigarette butts found to contain the DNA were deposited in the vicinity of the bus shelter on the day of the robbery.] Judgment REFSHAUGE ACJ, PENFOLD J: Admission of Mr Grace’s statement on grounds of reliability [4] The trial judge found that Mr Grace’s statement was, in the words of s 65(2)(c) of the Evidence Act 2011 (ACT), “made in circumstances that make it highly probable that the [statement] is reliable”, and so found on the basis that the statement was made to a police officer. [5] We consider that there is a real question whether the making of a statement to a police officer, even in circumstances in which the maker of the statement acknowledges an obligation to tell the truth to the best of his or her knowledge and belief and a risk of prosecution if he or she does not do so, is sufficient to satisfy the test in s 65(2)(c). [6] First, it is clear that imposing a legal obligation on a person to tell the truth does not always work. Trial courts, criminal and civil, regularly hear starkly conflicting testimony from different witnesses all of whom are giving sworn evidence and thereby exposing themselves to perjury charges if they do not tell the truth. This suggests either or both that a legal obligation to tell the truth does not always work to produce truthful evidence or does not always work to produce evidence that is otherwise reliable; that is, if two witnesses give irreconcilable sworn evidence, then at least one of them must be giving evidence that is either untrue or otherwise unreliable.

Hearsay CHAPTER 7

Munro v The Queen cont. [7] Secondly, reliability seems to relate not only to whether a person is trying to tell the truth but also to whether they ever had the knowledge that is sought to be extracted, and whether they are capable of recalling it, and reporting it accurately, at the relevant later time. [8] Section 165(1) of the Evidence Act refers to “evidence of a kind that may be unreliable”, which includes: [s 165(1) extracted]. [9] Some of these kinds of evidence apparently acquire their unreliability from the risk that the witness concerned may not be inclined to tell the truth (for instance the evidence referred to in s 165(1) (d)) but others, particularly those described in ss 165(1)(b) and (c), are kinds of evidence that of their nature are recognised as potentially unreliable even assuming that the witness is genuinely doing his or her best to tell the truth. Evidence that of its nature is recognised as unreliable does not become more reliable because it is given to a police officer by a person who acknowledges an obligation to tell the truth on pain of prosecution. [10] Where the reliability of evidence depends on a person’s inclination to tell the truth (rather than their capacity to give an accurate account of the relevant circumstances), then the fact that a person gives evidence on pain of prosecution if it is false, or even on oath in a courtroom, may make the person more likely to give reliable evidence, but generally only if there are no countervailing incentives to try to hide the truth. [11] That is, acknowledging an obligation to tell the truth, as is done in making a police statement, does not necessarily make a person’s representation reliable.

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[12] Furthermore, if the legislative intention were that a representation made in a police statement was to be treated as, of itself, necessarily or even presumptively “highly probable” to be reliable, this intention could very easily have been made explicit in s 65(2). [13] Finally, we note the remarks of the Full Court of the Federal Court in Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, quoted by Burns J at [76], to the effect that s 65(2)(c), for good reason, imposes an onerous burden on a party seeking the admission of evidence that cannot be tested in cross-examination. [14] For all those reasons, we remain unconvinced that s 65(2)(c) applies to a statement simply because it was made to a police officer or because it was made in the context of an understanding that a false statement would expose the maker to prosecution. [15] However, that does not mean that we consider the trial judge’s decision to admit Mr Grace’s statement to have been wrong. [16] We consider that it was open to the trial judge to find that the circumstances in which Mr Grace made his statement made it highly probable that the representations made in the statement were reliable, by reference to the following facts: (a)

that Mr Grace was describing a system of work that was likely to be well-remembered, not only because of regular repetition over some five years, but also because as a system it was, by comparison with a one-off event on a specific day, likely to be organised and structured, and therefore easier to recall;

(b)

that Mr Grace apparently had no personal interest in the subject-matter of, the participants in, or the outcome of the trial in which his evidence was relevant;

(c)

that if Mr Grace had any wish to maintain or enhance his reputation as a cleaner by exaggerating his conscientiousness in his approach to cleaning the relevant parts of the area near the Mawson Club (despite having retired from that role several years earlier), it would have been outweighed by an inclination to avoid a criminal prosecution for giving false information about a matter that to some extent at least could have been checked with his former employer.

Part 3 — Admissibility of Evidence

Munro v The Queen cont. [17] We note first that taking account of an obligation to tell the truth, in assessing the likelihood that a natural wish to make himself look better might have led Mr Grace to exaggerate the quality of his cleaning work in any significant way, is not inconsistent with our view that police statements are not necessarily reliable for the purposes of s 65(2)(c). As earlier discussed, the obligation to tell the truth may be a minor incentive to a person who has a significant personal interest in telling a lie. This does not mean that it is not a relevant factor to a person with only a minor interest in gilding the lily. [18] Secondly, the possibility that Mr Grace had been exaggerating the quality of his work to a minor and uncheckable degree was a matter that was well within the understanding of the jury in the application of those qualities that jurors are exhorted to bring to their deliberations, in particular their common sense and experience of “people and human affairs”. Having regard also to the trial judge’s reminders that Mr Grace had not been able to be cross-examined and that his evidence therefore needed to be considered carefully, we do not consider that the jury would have placed inappropriate reliance on Mr Grace’s statement. [19] For those reasons, we agree with Burns J that the admission of Mr Grace’s statement was not an error by the trial judge, even if the trial judge’s expressed reason for admitting the statement was in our view inadequate. Probative and prejudicial value of Mr Grace’s statement [20] It was also argued on behalf of the appellant that Mr Grace’s statement should have been excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant. [21] Section 65(2)(c) permits the admission of evidence that, by definition:

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(a) has been found highly probable to be reliable, and therefore presumably of significant probative value to the extent of its relevance; but (b) is not able to be tested in cross-examination. [22] This suggests that, despite the comments of the Federal Court in Conway v The Queen quoted at [76] that “Section 65(2)(c) has the potential to operate unfairly against an accused person”, the unavailability of cross-examination is not necessarily and of itself a source of unfair prejudice, and is certainly not a complete answer to a tender of evidence that is not subject to cross-examination. [23] In this case, the appellant’s argument as to unfair prejudice was that there was a danger that the jury might assign undue weight to the evidence because of the inability to cross-examine Mr Grace. [24] First, as Burns J has noted, the evidence was evidence of a system rather than of what happened on a particular day. [25] Secondly, the evidence was consistent with other evidence, including the photographs of the bus shelter after the robbery, showing it to be relatively clean, and evidence that only seven cigarette butts were collected from the shelter by police. [26] Finally, the kind of undermining of Mr Grace’s evidence that would have been likely in crossexamination (for instance, by an admission that what Mr Grace described had not happened exactly as he described it on every single day during his employment) would have been well within the imagination of the jury, could properly have been raised by counsel in addressing the jury, and would no doubt have been taken into account by the jury in assessing the weight of the evidence. [27] We note in this context that trial counsel’s request, made during a break in the trial judge’s summing-up (quoted by Burns J at [93]), for a direction under s 165(1)(a) of the Evidence Act in a specific form, was met by the trial judge with a specific reference to the defence’s inability to crossexamine Mr Grace and a direction that his statement should therefore be considered carefully; as well, his Honour had already made this point when the statement was admitted into evidence. [28] We agree with Burns J that the risk of misuse by the jury was minimal and that the trial judge’s directions to the jury on this matter were adequate to deal with that risk …

Hearsay CHAPTER 7

Munro v The Queen cont. BURNS J:

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[79] In my opinion, the trial judge was correct to admit Mr Grace’s statement into evidence. The following are the circumstances that make it highly probable that the representations made by Mr Grace in the statement were reliable: a.

the representations were made to a police officer in a formal statement. They were not casual comments or representations made socially or informally;

b.

in making the representations, by signing the statement, Mr Grace acknowledged that the statement “is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything I know to be false or do not believe to be true”. In R v AB [2011] ACTSC 204, Penfold J (at [35]) found it unnecessary, in the circumstances of that case, to determine whether such an acknowledgement was relevant to determining the admissibility of a representation pursuant to s 65(2)(c). In my view, the fact that a person makes a representation, such as a statement to police, in circumstances where they are aware, or believe, they may be prosecuted for making a false representation is a circumstance relevant to determining the probability that the representation is reliable;

c.

the representations in the statement were representations as to a system of work undertaken by Mr Grace in his duties as a cleaner at the Mawson shopping centre. In Youkhana v The Queen [2013] NSWCCA 85, the NSW Court of Criminal Appeal (per Bellew J with Hoeben CJ at CL and Slattery J agreeing) accepted (at [51]) that the circumstances relevant to determining the admissibility of a representation under s 65(2) (c) include “events outside the time and place of the making of the representations”. I can see no reason why, in an appropriate case, the nature of the facts or activities the subject of the representation should not be a circumstance bearing upon the probability that the representation is reliable. If Mr Grace had purported to have a recollection of performing his cleaning duties on 10 May 2004 at the time he made his statement to police on 15 February 2010, the reliability of any representation about what he did on that day would be doubtful, but evidence of his system of work was highly likely to be reliable;

d.

there was evidence that Mr Grace was well-respected by his supervisors for his high standard of cleaning, his professionalism and his honesty. The fact that the representations were made by a person with a reputation for honesty and attention to detail is a relevant circumstance for the purposes of s 65(2)(c); and

e.

to the extent that Mr Grace spoke of his pride in doing a good job, he must have been aware that the police could check his work performance with his supervisors, which they in fact did.

[80] Minds may differ whether any of those circumstances, in isolation, would be sufficient to satisfy the test imposed by s 65(2)(c). I am, however, left in no doubt that in combination they satisfy the test, and the statement of Mr Grace was admissible under s 65(2)(c). [81] The appellant also argued that, even if the statement of Mr Grace was admissible under s 65(2) (c), the trial judge should nevertheless have excluded it pursuant to s 137 of the Evidence Act [section extracted]. [82] Before the trial judge, the appellant referred to the passage from the decision of the Full Federal Court in Conway quoted at [76], in support of the proposition that s 65(2)(c) has the potential to operate unfairly against an accused because the accused cannot cross-examine the maker of the representation. The appellant also submitted that as the evidence was important to the Crown case, the potential prejudice to him in not being able to cross-examine Mr Grace became more acute. [83] The term “probative value” is defined in the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of a fact in

Part 3 — Admissibility of Evidence

Munro v The Queen cont. issue”. In this case, the Crown sought to lead the evidence of Mr Grace to prove that it was probable that the area around the bus shelter had been professionally cleaned on the morning of the robbery, thus making it probable that the cigarette butts located at the scene after the robbery had been deposited there sometime after Mr Grace had cleaned the bus shelter and its surrounds, and before the robbery. The evidence of Mr Grace could rationally affect the assessment of the probability of the existence of these facts, and to a high degree. [84] The danger of unfair prejudice identified by the appellant was the danger that the jury may assign the evidence undue weight, due to the inability of the appellant to cross-examine Mr Grace. The appellant submitted that there was a danger that the jury would uncritically accept the representations contained in Mr Grace’s statement, as no meaningful criticism of him could be made, and that the jury may simply assume that on the day of the robbery he had discharged his duties with perfection. [85] The danger that the jury would misuse the evidence of Mr Grace in the ways suggested by the appellant was minimal. The limitations of the evidence, as evidence of a system of work only, were obvious. The trial judge directed the jury when the statement was tendered that “as you can appreciate, a statement cannot be cross-examined”, directing the attention of the jury to the fact that the appellant did not have an opportunity to cross-examine Mr Grace. In his final directions to the jury, the trial judge said: Members of the jury, because Mr Grace is deceased and, therefore, what he says in his statement is not subject to cross-examination, you should consider it carefully.

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[86] In R v Yates [2002] NSWCCA 520, Wood CJ at CL, Hulme and Buddin JJ said (at [252]): Prejudice argues for the exclusion only if there is a real risk of danger of it being unfair … This may arise in a variety of ways, a typical example being where it may lead a jury to adopt on illegitimate form of reasoning, or to give the evidence undue weight. In deciding whether there is a danger that evidence may lead to a jury adopting an illegitimate form of reasoning, or to give the evidence undue weight, it is permissible to consider whether appropriate judicial directions may ameliorate the danger: see Aytugrul v The Queen [2012] HCA 15; (2012) 247 CLR 170 at [75] per Heydon J. [87] What s 137 requires is a balancing process. The fact that evidence has the potential to be prejudicial, even unfairly so, is not sufficient to justify its exclusion under the section. The court must balance the probative value of the evidence against the danger of unfair prejudice to the accused, and it is only where that danger outweighs the probative value of the evidence that the section mandates exclusion. The probative value of Mr Grace’s statement was considerable, and the danger of unfair prejudice, in the circumstances, was low. I am satisfied that the evidence was rightly admitted. (Appeal dismissed.)



Sio v The Queen [7.160] Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 Facts [On 24 October 2012, Daniel Sio drove a man called Filihia to a brothel, there was also a woman in the car as well (Coffison). Filihia entered the brothel alone, armed with a knife, intending to commit a robbery. During an altercation, Filihia fatally stabbed Mr Gaudry, who worked in the brothel. Filihia stole cash from Mr Gaudry. Filihia left the brothel and was collected by the car driven by Sio.

Hearsay CHAPTER 7

Sio v The Queen cont. The robbery was captured on CCTV which was distributed to police stations in the area. Police identified Filihia and when he reported for bail at a police station (on the same day as the murder) on an unrelated charge he was electronically interviewed by police. Filihia said that only he and a man called “Jacob” were in the car (it emerged that this was untrue as Coffison was also in the car). Importantly, he said that “[Sio] already had [the knife] in his car” in answer to a question as to where he got the knife. Later, he said that, after the robbery, he threw the knife onto the front passenger’s seat of the car. On 25 October 2012, Filihia participated in an identification parade from a photo array in which he identified Mr Sio as the man, Dan or Danny, who was the driver of the car. This procedure was also conducted as an ERISP. On the same day, Filihia prepared two supplementary statements in which he corrected his earlier statement. He said that the real name of the man he referred to as “Jacob” was “Danny or Dan”. More importantly, he reiterated: [I]t was Danny who put me up to robbing the brothel. He gave me the knife and drove me there.

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Sio was charged with murder as a constructive murder by way of joint criminal enterprise to commit armed robbery with the foresight on Sio’s part of the possibility of wounding by the use of the knife by Filihia. Sio was also charged with armed robbery with wounding on the basis of joint criminal enterprise to commit armed robbery with foresight on Sio’s part of the possibility of the use of the knife At the trial of Sio, Filihia was called to give evidence and he refused to answer any questions. The trial judge ruled that Filihia’s ERISPs and statements were admissible under s 65(2)(d). The trial judge held that Filihia was “not available to give evidence” because all reasonable steps had been taken by the Crown to compel him to give evidence, but without success. The trial judge held that the representations in the ERISPs and statements sought to be tendered were made against Filihia’s interests, noting that the Crown had the benefit of the deeming provision in s 65(7). In assessing whether a representation was made in circumstances that made it likely that the representation was reliable within the meaning of s 65(2)(d)(ii), the trial judge noted that she was not assessing the credibility of Filihia’s evidence, as this was the province of the jury. Notwithstanding that disclaimer, the trial judge went on to say: The representations were made on the same day of the incident at a time when Mr Filihia was not necessarily expecting to be apprehended and interviewed, although he must have appreciated that there was a substantial risk of apprehension. His answers were, in the main, forthcoming. I did not detect any indication that he had rehearsed, or thought out, how best to present the facts in order to advance his interests by minimising his involvement. His recollection can be taken to be fresh by reason of the short time between the events and the interview. The trial judge held that Filihia’s answers showed that he had “decided to be as forthcoming as possible in order to assist him on sentence”. The trial judge said: His preparedness to answer questions thoughtfully and apparently without regard to self-incrimination is evident from the ERISP. He was quietly spoken and courteous throughout and appeared to answer willingly. Although he gave a false name, Jacob, for Mr Sio, his dissembling was neither clever nor, apparently, pre-meditated, since he gave Mr Sio’s mobile phone number, which he had memorised. He described the colour and make of the car Mr Sio was driving. The NSWCCA (Leeming JA, Johnson and Schmidt agreeing) dismissed Sio’s appeal and held that the statements were correctly admitted under s 65(2)(d). Judgment (some footnotes omitted) FRENCH CJ, BELL, GAGELER, KEANE AND GORDON JJ. …

Part 3 — Admissibility of Evidence

Sio v The Queen cont. The hearsay evidence [31] Leeming JA held that the following circumstances pointed towards the likely reliability of Mr Filihia’s statements: Mr Filihia did not appreciate that Mr Gaudry had died until well into the interview; Mr Filihia’s answers appeared “unrehearsed and sincere and forthcoming”; and the interview was conducted within 24 hours of the events in question. The circumstance that Mr Filihia tried initially to conceal the presence of Ms Coffison or the repeated references to “Jacob” did not bear materially on the question posed by the statute. His Honour explained [Sio v The Queen [2015] NSWCCA at [33]]: The question posed by statute is not whether the actual statements made are themselves accurate or likely reliable, but whether the circumstances in which they were made are such that they are likely to be reliable. [32] Leeming JA held that it was not relevant to distinguish between representations made by Mr Filihia which were exclusively against his own interest and representations relevant to Mr Sio [Sio v The Queen [2015] NSWCCA at[34]]. His Honour held that while it is possible that Mr Filihia was motivated by animosity towards Mr Sio, the possibility did not preclude the conclusion that the circumstances made it likely that the evidence was reliable [Sio v The Queen [2015] NSWCCA at [35]]. … Section 65(2)(d) of the Evidence Act

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… [48] In support of the application for special leave to appeal, Mr Sio submitted that the trial judge and the Court of Criminal Appeal erred in failing to exclude from the evidence Mr Filihia’s representation that Mr Sio gave him the knife used to stab Mr Gaudry. [49] Mr Sio submitted that the Court of Criminal Appeal misapplied s 65(2)(d)(ii) of the Evidence Act by viewing all the statements made by Mr Filihia together, and concluding from his demeanour and the freshness of his recollection that these were circumstances which made it likely that Mr Filihia’s representations were reliable [Sio v The Queen [2015] NSWCCA at [12]]. [50] The Crown submitted that the Court of Criminal Appeal was correct to regard Mr Filihia’s account as a whole. The Crown submitted that the lies told by Mr Filihia in an otherwise correct account were no basis to exclude Mr Filihia’s representation about the source of the knife. The Crown reiterated the circumstances identified by the trial judge and the Court of Criminal Appeal that were said to make it likely that Mr Filihia’s account was reliable. [51] The Crown submitted that there was no difference in the circumstances in which all of Mr Filihia’s statements were made, aside from the fact that the statements were made successively within a 24hour period. But to say this is to take a compendious approach to the admissibility of those statements without focusing upon the representation of the particular fact sought to be proved. That approach is not permitted by s 65(2)(d). A compendious approach to s 65(2)(d) [52] The Court of Criminal Appeal did not focus upon the particular representation by Mr Filihia which was material to the issue as to Mr Sio’s foresight of the possibility of the use of the knife by Mr Filihia. Rather, as noted earlier, Leeming JA considered the question of likely reliability by reference to the overall impression to be gained from a consideration of the totality of Mr Filihia’s statements. [53] As noted earlier, s 65 creates an exception to the exclusion of hearsay evidence as a means of proving a fact in issue. Section 59(1) of the Evidence Act provides that: Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Hearsay CHAPTER 7

Sio v The Queen cont. [54] For the purposes of s 65, s 62(1) provides that a reference “to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact”. [55] Section 65(1) provides that the section applies “in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact”. It is evident that ss 62 and 65(1) are concerned to relax the exclusionary effect of the hearsay rule in relation to an assertion of a fact by a person who had personal knowledge of that fact. These provisions proceed on the assumption that the asserted fact is relevant to the case of the party seeking to adduce evidence of the representation asserting the fact. Together with the provisions of s 65(2) other than par (d), they direct attention to the particular representation which asserts the relevant fact. Thus, s 65(2)(a) is concerned with whether the representation “was made under a duty to make that representation or to make representations of that kind”. Section 65(2)(b) is concerned with whether the representation “was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication”. Section 65(2)(c) is concerned with whether the representation “was made in circumstances that make it highly probable that the representation is reliable”.

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[56] It may also be noted here that s 65(2)(b) makes it clear that when the provisions with which it is collocated speak of “a representation”, they are speaking of the particular representation that asserts a relevant fact sought to be proved. That this is so is confirmed by s 65(2)(d)(i), which requires that the representation tendered against the other party is able to be seen to be against the interest of the maker of the statement. [57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65. [58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act. [59] The Court of Criminal Appeal [Sio v The Queen [2015] NSWCCA at [20], [27], [34]] seems to have regarded earlier authority, including the observations in R v Suteski [(2002) 56 NSWLR 182 at 196 [93]-[94]] by Wood CJ at CL, with whom Sully and Howie JJ agreed, as allowing or requiring a compendious inquiry as to the overall reliability of the hearsay statements made by Mr Filihia over the course of 24 and 25 October 2012. In Suteski, Wood CJ at CL considered, rightly, that representations relied upon should be considered in context so as to determine whether, when read together, they “constitute an admission or answer against interest”. But these observations do not support a compendious approach to the reliability of the whole of a hearsay statement inculpatory of the accused, nor do the other authorities [R v Ambrosoli (2002) 55 NSWLR 603 at 615 [28], 616 [34]-[35]; R v Roberston [2015] QCA 11 at [58]-[64]] referred to by the Court of Criminal Appeal in this context [Sio v The Queen [2015] NSWCCA at [35]]. [60] It is no light thing to admit a hearsay statement inculpating an accused. Where s 65 is successfully invoked by the prosecution, the accused will have no opportunity to cross-examine the maker of the statement with a view to undermining the inculpatory assertion. Further in this regard, the present case is a case in which, had Mr Filihia pleaded not guilty, and he and Mr Sio been tried together, Mr Filihia’s hearsay statements would not have been admissible in that trial against Mr Sio. That is because s 83 of the Evidence Act preserves the exclusionary operation of the hearsay rule in respect of evidence of an admission by a co-accused.

Part 3 — Admissibility of Evidence

Sio v The Queen cont. [61] The serious consequences of the successful invocation of s 65(2)(d) emphasise the need for compliance with the conditions of admissibility prescribed by the section. The focus demanded by the language of s 65 is inconsistent with the impressionistic evaluation involved in the compendious approach adopted by the Court of Criminal Appeal. The language of the statute assumes the identification of each material fact to be proved by a hearsay statement tendered in reliance on s 65 and the application of the section to that statement, whereas the compendious approach applied by the trial judge and the Court of Criminal Appeal is not focused in this way. In addition, the approach which is focused upon the particular representation tendered to prove a particular fact in issue has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials. Circumstances that make reliability likely [62] The compendious approach taken by the Court of Criminal Appeal contributed to a further error. When one focuses squarely upon each of Mr Filihia’s assertions that it was Mr Sio who gave him the knife, one brings greater clarity to the identification of the circumstances which bear upon the likely reliability of those particular assertions. The evaluation of the likely reliability of each of those assertions must be made having regard to the circumstance that Mr Filihia’s representations were those of an accomplice in the commission of the crimes in question.

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[63] Section 65 gives effect to the view that the circumstances of the making of an out-of-court statement conveying an assertion of a relevant fact may be such as to indicate that the representation is likely to be reliable – and the asserted fact likely to be true – notwithstanding the hearsay character of the evidence. The section operates on the footing that the circumstances in which the representation was made may be seen to be such that “the dangers which the rule seeks to prevent are not present or are negligible in the circumstances” [Walton v The Queen (1989) 166 CLR 283 at 293]. In such a case, “there is no basis for a strict application of the rule” [Walton v The Queen (1989) 166 CLR 283 at 293]. [64] Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence [3rd ed (1940), vol 5, §1422. See also Ratten v The Queen [1971] UKPC 23; [1972] AC 378 at 389, 391; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 294-295, 304] as those circumstances that “are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed”; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie. [65] Evidence by an accomplice against his or her co-offender has long been recognised as less than inherently reliable precisely because of the perceived risk of falsification [Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 635, 670-673; [1911] HCA 66; Tumahole Bereng v The King [1949] AC 253 at 265; Davies v Director of Public Prosecutions [1954] AC 378 at 391, 399; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 93; [1994] HCA 30]. Statements by an accomplice afford a classic example of a case where a “plan of falsification” may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice, especially where the circumstances also include the opportunity to seek to curry favour with the authorities. That the evidence of accomplices is evidence apt to be unreliable by reason of a motive to shift blame to the co-offender is recognised by s 165(1)(d) of the Evidence Act, which expressly treats, as “evidence of a kind that may be unreliable”, evidence: given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. [66] One must look to the circumstances in which Mr Filihia asserted that Mr Sio “gave [him] the knife” and “put [him] up to robbing the brothel” for reasons to reach the positive state of satisfaction as to the likely reliability of the assertion. In this regard, the best that can be said is that near

Hearsay CHAPTER 7

Sio v The Queen cont. contemporaneity of the statement with the commission of the crimes in question meant that the risk of an honestly mistaken recollection was slight. But the question mark over the reliability of the assertion by reason of the fact that it was made by an accomplice is not answered by pointing to the unlikelihood that Mr Filihia’s memory of events had faded. As Lord MacDermott said in Tumahole Bereng v The King [[1949] AC 253 at 265]: [F]alse evidence given by an accomplice is commonly regarded as more likely to take the form of incriminating the wrong person than of imagining the crime charged. [67] In the Court of Criminal Appeal, Leeming JA identified [Sio v The Queen [2015] NSWCCA 42 at [28]] two circumstances which he said “enhance reliability” of Mr Filihia’s statements. These were “contemporaneity (or near contemporaneity) and against interest”. While the circumstances which satisfy the condition in s 65(2)(d)(i) may in some circumstances also tend to satisfy the requirement of likely reliability in s 65(2)(d)(ii), that will not necessarily be so. So much is readily apparent from the statutory requirement that both conditions in s 65(2)(d) be satisfied. More importantly for present purposes, the requirement that a representation be against interest in order to satisfy s 65(2)(d)(i) directs attention squarely to the particular representation upon which the party tendering the representation seeks to rely to prove the asserted fact.

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[68] While it is true to say that, generally speaking, the totality of Mr Filihia’s statements were against his own interest, his statement that Mr Sio gave him the knife and put him up to the robbery was, given the circumstances in which that statement was made, plainly apt to minimise his culpability by maximising that of Mr Sio. While it may be accepted that s 65(2)(d)(i) was satisfied in respect of that statement, it did not follow that the circumstances in which it was made were such that the statement was likely to be reliable as evidence against Mr Sio. [69] In R v Ambrosoli [[2002] NSWCCA 386; (2002) 55 NSWLR 603 at 615 [28]-[29]. See also R v Robertson [2015] QCA 11 at [60]], Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that: evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby. [70] That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted [Williams [2000] FCA 1868; (2000) 119 A Crim R 490 at 503-505 [50]-[58]]. [71] When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2) (d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.

Part 3 — Admissibility of Evidence

Sio v The Queen cont. [72] Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v The Queen [2016] HCA 14; (2016) 90 ALJR 529 at 539 [54], see also at 541-542 [72]; [2016] HCA 14; 330 ALR 382 at 393, 396; [2016] HCA 14, s 65(2)(c) and (d) and s 85 provide “[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence”. It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial. [73] It is sufficient for present purposes to say that a question mark necessarily arose over Mr Filihia’s assertion that Mr Sio gave him the knife and put him up to the robbery, by reason of the circumstance that Mr Filihia was Mr Sio’s accomplice. Nothing else in the objective circumstances in which the statement was made was apt to shift the balance in favour of a positive finding of likely reliability in respect of this asserted fact. It was not open to the trial judge to be satisfied positively of the likely reliability of Mr Filihia’s assertion that Mr Sio gave him the knife by reference to the circumstances in which that assertion was made; and the Court of Criminal Appeal erred in failing to conclude that the trial judge had erred in this respect. The evidence should not have been admitted.

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[74] In light of the conclusion on the admissibility of Mr Filihia’s evidence, this Court cannot be satisfied that the jury must have convicted Mr Sio of armed robbery. Accordingly, it is not open to this Court to substitute a verdict of guilty of armed robbery in this case. … (Appeal allowed and the conviction for armed robbery with wounding quashed. New trial ordered for the offence of armed robbery.)

 Exception to hearsay in criminal cases where the maker of the representation is available [7.170] Section 66 creates an exception in criminal proceedings if the maker of the previous representation is available to testify. Graham v The Queen provides a High Court decision on the operation of s 66 and its interaction with ss 108 and 60. In particular the court looks at the meaning of the requirement that the representation was made when it was “fresh in the memory” of the person. In Papakosmas v The Queen (1999) 196 CLR 297, evidence of immediate complaint was admissible under s 66 (see Chapter 11), whereas in Graham v The Queen the court found that six years did not satisfy the freshness requirement. However, in accordance with recommendations made in ALRC 102, s 66 has since been amended to include s 66(2A). The ALRC proposed the amendment to “make sufficiently clear the ALRC’s intention in the previous Evidence inquiry that the quality of ‘freshness’ will not be confined to the time which elapses between the occurrence of the relevant event and the making of a representation about the event” (par  8.122). ALRC 102 referred to more recent psychological research bearing on the proper approach to determining whether a memory was “fresh” and courts will be required to take that research into account. The proper approach to the construction of the amended s 66(2) has been considered in a number of NSW and Victorian decisions.

Hearsay CHAPTER 7

Graham v The Queen [7.180] Graham v The Queen (1998) 195 CLR 606 Facts (from the headnote) [Graham was convicted of multiple counts of sexual assault of his daughter when she was aged nine and 10, between June 1987 and July 1988. The charges were laid after the complainant told a girlfriend in August 1994 that she had been sexually abused by her father when she was a child. At the trial evidence of the complainant’s complaint to her girlfriend was admitted over objection. Twigg J directed the jury that the evidence of prior complaint could be considered in assessing the complainant’s credibility. The admissibility of the evidence was argued and determined by reference to the common law although the Evidence Act 1995 had come into force the previous year. An appeal was dismissed. The accused appealed to the High Court, who allowed the appeal and ordered a new trial.] Judgment (footnotes omitted) GAUDRON, GUMMOW and HAYNE JJ (agreeing with Gleeson CJ and Callinan J):

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... [3] The evidence of complaint by the appellant’s daughter, K, to her friend, N, was not admissible under s 66 of the Evidence Act 1995 (NSW). The complaint was made six years after the last of the acts alleged against the appellant. When K made the complaint to N the occurrence of the asserted facts could not be said to have been “fresh in the memory of the person who made the representation” (the complainant, K). Too long had elapsed between the events and the complaint. [4] The word “fresh”, in its context in s 66, means “recent” or “immediate”. It may also carry with it a connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) but the core of the meaning intended is to describe the temporal relationship between “the occurrence of the asserted fact” and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years. [5] There are several reasons for adopting this construction. First, the section applies only where the person who made the representation has been, or is to be, called to give evidence. To permit leading of evidence of out-of-court statements made by that person based upon some assessment of the vividness or quality of the recollection (as opposed to its being made very soon after the events) would be to distract attention from the quality of the evidence that the witness gives in court. Secondly, whatever a person may believe, and no matter how earnestly that person may try to be accurate, experience demonstrates that the memory of events does change as time passes. Thirdly, the exception created by s 66 should be limited in its application to those cases where the tender of the earlier statement is likely to add to the useful material before the court. If a witness claims to have a vivid recollection of events when called to give evidence, permitting the tender of some earlier statement made well after the events (but while they were, in the view of the witness or the court, still vivid) adds little useful to the material before the court. By contrast, to permit the tender of a statement made at the time of (or very soon after) events in question may well be useful. Such a statement may give the best available account of what the witness knows of the events. [6] Because the evidence of complaint was not admissible under s 66, it was admissible only if s 108 applied: in this case if “it [was] … suggested (either expressly or by implication) that evidence given by the witness ha[d] been fabricated or reconstructed (whether deliberately or otherwise) or [was] the result of a suggestion” (s 108(3)(b)) and if the court gave leave to adduce it. [7] The appellant’s denial of the charges and the course of cross-examination of the complainant may well have amounted to a suggestion that the evidence of the complainant had been “fabricated”. (It was not suggested in this case that the complainant had reconstructed her evidence or had been affected by suggestion.) But it was by no means inevitable that leave should have been given to adduce evidence of the prior consistent statement of the complainant.

Part 3 — Admissibility of Evidence

Graham v The Queen cont. [8] In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the “credibility rule” – the rule that evidence that is relevant only to a witness’s credibility is not admissible (s 102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness’s credibility: here, the suggestion of fabrication. [9] How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important (cf s 192(2)(c)) and would do nothing except add to the length of the hearing (cf s 192(2)(a)). And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was “making it all up” the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story.

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[10] Because the trial was conducted without reference to the Evidence Act by those who then appeared for the prosecution and the defence and was conducted as if the common law applied, unaffected by the passing of the statute, evidence of the complaint by K to N was admitted without consideration of the issues just mentioned as affecting the discretion to admit it. Because its admission was not inevitable, we cannot say that the appellant did not lose a significant chance of acquittal and it follows that the appeal should be allowed. It is not necessary to consider the other issues that it was sought to agitate. [11] We add one further comment. The use that may be made of the complaint, if admitted, may depend upon the effect of s 60 of the Act. The appeal was conducted on the assumption, also to be found in the judgment of the Court of Criminal Appeal, that, if the evidence of the complainant’s conversation with her friend, N, satisfied the requirements of s 66, it was admissible to prove the facts related in that conversation, not merely her complaint as to those matters. [12] The relevance, at common law, of evidence of recent complaint in cases involving sexual offences was recently explained in Suresh v The Queen. As there explained, the evidence is not evidence of the offence charged, but is admissible because of the general assumption that the victim of sexual offences will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false. Clearly, s 66 alters the common law position in so far as it requires that a representation be “fresh in the memory”. The question whether the combined operation of ss 60 and 66 of the Act otherwise alters the common law position and, if so, in what way may require consideration in an appropriate case. It is not a question that arises in this case. (Note that s 66 was amended to insert sub-s (2A) as a response to this decision.)



R v XY [7.190] R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181 Facts [At the outset of the trial, the Crown sought a ruling that evidence of a complaint made by the complainant AB to a friend, CD, and to his parents was admissible pursuant to s 66(2). After a voir dire hearing, the trial judge ruled that the complaint evidence was inadmissible. The DPP appealed.]

Hearsay CHAPTER 7

R v XY cont. Judgment ... WHEALY J (with Campbell JA and Simpson J agreeing): [3] The Director of Public Prosecutions has appealed under s 5F(3A) of the Criminal Appeal Act 1912 in respect of a ruling by his Honour Acting Judge Woods in the District Court on 3 May 2010. The ruling effectively excluded evidence of the complainant in a child sexual assault case. It did so on the basis that the evidence related to a series of representations that were not “fresh in the memory” of the complainant. The ruling was made at the commencement of the trial following a voir dire application. The trial has been adjourned pending resolution of the point at issue. [4] It is an important point because it involves determining the proper approach to be taken by a trial judge when such an issue arises. It involves the correct interpretation of s 66(2) and (2A) of the Evidence Act 1995. The section was significantly amended on 1 January 2009. It appears that this is the first occasion the new section has directly arisen for consideration by this Court. …

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[11] The complainant was born on 13 December 1995 and is now aged 14. The accused was born on 15 December 1988 and is now aged 22. He is the stepbrother of the complainant. The complainant’s mother had entered a de facto relationship with the accused’s father in 2001. From the middle of that year, the complainant lived with his mother and stepfather at an address in Dubbo. [12] Between June 2001 and August 2003, the only contact between the complainant and the accused was on fortnightly access visits when the latter would visit his father at the Dubbo residence. In August 2003, however, the accused moved in on a full-time basis with the family at the Dubbo address. From that date on he was living there with his father, the complainant and the complainant’s mother. For the first six months of this period, the accused had shared a room with the complainant. On 1 April 2004 the accused moved into a separate bedroom, external to the house, in a converted garage. [13] On 26 June 2009, the complainant gave a recorded interview to police in which he told the interviewing officers that on about eight occasions the accused had made him perform fellatio and on one occasion the accused had performed fellatio on him. The complainant gave details of four particular occasions. These became the subject of the charges on the indictment. … [14] During the police interview the complainant told police that he had told a friend, CD, about the assaults when they were both in Year 6. The complaint was made when the two boys had travelled from Dubbo on a school excursion to the Sydney Aquatic Centre. The complainant had also told his parents, about the assaults, considerably later, on 15 and 16 June 2009. … The hearing before the trial judge [48] The admissibility question was examined fairly extensively before the trial judge. His Honour had the benefit of the various records of interview and the statements to which I have referred. He was also provided with an updated commentary from Odgers’ Uniform Evidence Law. This apparently referred to the amendments to s 66 that had arisen following the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. Finally, the trial judge had been given a copy of an article published in a medico-legal journal addressing the issue of “the hearsay rule and delayed complaints of child sexual abuse”. (It had been published in Psychiatry, Psychology and Law Vol 9 No 2 2002.) The author of this detailed article was Dr Anne Cossins, a senior lecturer in law at the University of New South Wales. [49] It is clear from a reading of the transcript of the hearing that quite detailed submissions were made before the trial judge. His Honour’s reasons, however, were quite brief and it is thus convenient to set out the bulk of the reasons in full. His Honour first identified the issue he had to determine, and identified also the dates when the complaints had been made, namely 2007, and then later in 2009. His Honour continued:

Part 3 — Admissibility of Evidence

R v XY cont. Under s 66(2A), a recent amendment to the Evidence Act, in determining whether the occurrence of the asserted facts was fresh in the memory of the person, the court may take into account all matters that are considered relevant to the question, including the nature of the event concerned, the age and health of the person, and the period of time between the occurrence of the asserted fact and the making of the representation. This amendment was enacted recently to ensure that the meaning of “fresh” in the section is not confined to temporal criteria. The quality of freshness in other words, should not be restricted to the time which elapses between the occurrence of an event and the making of the representation about it. In this matter before me now the complaints were made by the complainant to the police in 2009 and they referred to incidents happening in 2001 and 2002. It is already noted as above the complainant saying certain things to a school friend in 2007 and then to his parents in 2009. Following an analysis apparently of where the boys lived, the complainant and the accused are stepbrothers, their school details and other extraneous family circumstances, the time frame for the incidents and therefore for the offences in the indictment have been referred to as occurring between 2003 and 2005.

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I am fully aware of how courts have over many years assessed the reliability of the memory of young children in criminal matters and in particular where sexual assaults are alleged to have occurred. There is psychological research such as that by a Ms Cossins which has considered children’s reactions to sexual abuse and this research was considered by the Australian Law Reform Commission and this led to the new subsection 2A being introduced. I have already noted various discrepancies or questions for consideration in the complaints of these incidents as they were given to the police by the complainant and as related to the school friend. These include the years when the incidents were said to have occurred and the time lapse, over an 8-month period, or over a few months. Whilst I can understand that there may be occasions when there are complaints some years after an alleged offence has occurred which should be admitted under s 66, I find that on the material before me now in this case there are still some difficulties with the details of the complaints here, to find that in considering the period of time between the occurrence of the asserted facts and the making of the representation there is sufficient inexactness in the complaints such that a court must have reservations about admitting the evidence of complaint here under s 66. I therefore have to rule that the evidence of complaint made to (name) and to the complainant’s parents are not admissible under s 66 of the Evidence Act. A brief analysis of the development of “recent complaint” [50] Before determining whether the trial judge fell into error in his construction of s 66 of the Evidence Act, it may be of assistance to say something briefly about the origins of the “recent complaint” concept at common law and, by way of contrast, to chart its evolution into the contemporary notions reflected in the 2009 amendment. This brief analysis will demonstrate that significant and far-reaching changes have taken place. [51] Historically, the common law allowed a court to receive evidence of recent complaint in cases involving alleged sexual offences. Evidence of this kind, however, infringed the rule against hearsay and it was never admitted for hearsay purposes. That is to say, it could not be admitted to prove the truth of what was asserted in the statement. If a woman (or for that matter a man) complained that she had been raped, in certain circumstances the evidence would be allowed. But it would be allowed only as an exception to the rule relating to the admissibility of evidence of prior inconsistent statements (Papakosmas v The Queen (1999) 196 CLR 297 at 303).

Hearsay CHAPTER 7

R v XY cont. [52] The law relating to evidence of recent complaint appears to have derived from an ancient notion that a woman’s failure to immediately raise the “hue and cry” after being raped was a defence to an allegation of rape. For this reason, evidence of a “speedy” complaint became admissible not to prove the truth of the assertion in the representation, but to boost the complainant’s credit by way of demonstrating some degree of consistency between her conduct at the earlier time and the evidence given at trial. [53] In the case of adult complainants, the issue at trial often devolved into a question as to whether or not the complainant had consented to the sexual assault. In Kilby v The Queen (1973) 129 CLR 460, the High Court considered and rejected the submission that a trial judge should direct a jury that failure of a prosecutrix to complain is evidence of her consent to the intercourse. Barwick CJ said (at 469-470) that there was some ambiguity about the proposition stated in R v Lillyman [1896] 2 QB 167 at 171, when evidence of a proximate complaint may be used to negative consent. His Honour was prepared to accept that, if that simply meant that a complaint “tends to buttress the evidence of the prosecutrix that what occurred did occur without her consent”, it may be acceptable, but it could not be taken to mean that evidence of complaint was “direct evidence negativing consent”. In Papakosmas v The Queen, in the joint judgment of Gleeson CJ and Hayne J, their Honours stated (at 305):

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If, by “direct evidence”, the Chief Justice was referring to the fact that evidence of this kind could not be used at common law for a hearsay purpose, then there can be no question about it. At common law, the rule against hearsay did not yield to evidence of complaint, and judicial comments as to the use of such evidence need to be understood in that light. [54] So, as matters stood before the introduction of the Evidence Act in 1995, the rule against hearsay produced the consequence that evidence of complaint could not be used in proof of the truth of the facts asserted in the complaint. It could be received however, as evidence which had a bearing upon the complainant’s credibility, and in particular, upon the consistency of her behaviour in the light of her allegations given in the trial process. … [64] It was against the background of s 66 of the Evidence Act as it originally stood that the High Court came to its decision in Graham v The Queen. In that case, the High Court was required to consider the scope of s 66(2) in circumstances where, instead of evidence of “recent complaint”, evidence had been admitted of what the complainant had told her girlfriend some six years after the event which lead to the complainant’s father being convicted of various counts of child sexual assault. The complainant had been aged between nine and 10 years at the time of the assaults. Unfortunately, the trial had been conducted without any reference by anybody to the Evidence Act. Those who appeared for the prosecution and the defence, and indeed the trial judge, appeared to assume that the common law applied to the proceedings, unaffected by the recent passage of the statute. In any event, the High Court held that the evidence of complaint was not admissible under s 66(2) on the grounds that, because the complaint was made six years after the alleged sexual abuse, the complainant had not complained to her girlfriend when the events were “fresh in her memory”. In the joint judgment of Gaudron, Gummow and Hayne JJ (at 608) the following appears: The word “fresh” in its context in s 66, means “recent” or “immediate”. It may also carry with it the connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) but the core of the meaning intended, is to describe the temporal relationship between “the occurrence of the asserted fact” and the time of making the representation. Although questions of fact and degree may arise the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years. [65] Callinan J (with whom Gleeson CJ agreed) said at 614: Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise, will almost always be the most important consideration in any assessment of its

Part 3 — Admissibility of Evidence

R v XY cont. freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the “quality” of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature. [66] In the course of his reasoning, Callinan J referred to the Australian Law Reform Commission Report, Evidence No 26 (1985) which discussed the phrase “fresh in the memory”. This had stated: The importance of the concept lies in the fact that it recognises the findings of psychological research which reveals the extent to which and rate at which memory loss occurs, and the decrease in the accuracy of statements that result from unconscious reconstruction and interference. [67] In any event, the High Court overturned the decision of the New South Wales Court of Criminal Appeal which had supported the conviction of the complainant’s father. In that decision, Levine J (with whom Newman and Barr JJ agreed) referred to s 66 of the Evidence Act and said: Shortly stated, common sense would seem to indicate that the notion of “freshness” particularly in this area of the law is not anchored to nor determined by simply notions of the “lapse of time”. It is concerned with, in my opinion, the “quality” of the memory. A person might never forget the details of an event many years previously because it took place in circumstances which impressed it into the witness’ memory.

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[68] Perhaps not unexpectedly, there followed a degree of adverse academic comment on the High Court’s views as expressed in Graham. For example, Dr Cossins, in her publication, said: Unfortunately, Graham’s case illustrates the unstated assumption that evidence of complaint made months or years after the alleged offence is to be treated with the same suspicion that common law judges historically brought to the issue…although, traditionally, hearsay evidence is considered to be unreliable because the maker of the statement cannot be crossexamined about its veracity, the hearsay exception under s 66(2) overcomes the strictness of this approach because it applies when the maker of the statement is available to give evidence and is thus available for cross-examination…the High Court failed to recognise the documented differences between traumatic and non-traumatic memories and how the retention rates and qualities of such memories differ. [69] The author expressed the opinion that, in her view, the criminal justice system remained “stuck in a time warp” that denied “the documented responses of children to sexual abuse, as well as the developmental and emotional barriers that prevent children acting as an empowered adult might act”. [70] In 2004 the Australian Law Reform Commission (ALRC) was commissioned to enquire into the operation of the Evidence Act, 10 years after its introduction. One of the matters to be addressed, as notified in the Issues Papers, was s 66 as requiring particular attention “due to advances in psychological research into memory”. [71] In its final report, ALRC Report 102, the Commission noted that the “firm statement” of Gaudron, Gummow and Hayne JJ in Graham had continued to deter lower courts from distinguishing that case. It observed that the previous “fresh in the memory” test as stated in Graham posed special difficulties for sexual offence cases. In this regard, there was a reference to extensive psychological research into memory and the change this had made to the state of knowledge on the subject since s 66 had first been introduced. There were four specific matters referred to by the ALRC in relation to psychological research into memory that was thought to have challenged the assumptions informing the drafting of the original section. These, briefly stated, were: (a)

the assumption that emotionally arousing or stressful incidents result in “unreliable memories”. The Commission found that recent research had established that emotion – eliciting events are remembered very well, particularly the central actions as opposed to the peripheral

Hearsay CHAPTER 7

R v XY cont. detail. In other words, the presence of an emotional reaction in the witness would increase witness reliability rather than decrease it. (b)

the assumption that rates of forgetting are the same for all types of memories. Recent research had shown that the rate of retention of memory is greater for remarkable and emotional events than for unremarkable events.

(c)

the assumption that misinformation received by a witness after an event can lead the witness to respond in accordance with the misinformation rather than the event. Research considered by the Commission showed that young children are vulnerable to the “misinformation effect”. However, where children were direct participants in the event, they had increased resistance to post event suggestion.

(d)

Traumatic memory is different to other types of memory. Traumatic memory can lead to extremes of either retention or forgetting. Most individuals always remember the trauma (which is generally accompanied by intrusive re-experiencing symptoms), but some remain amnesic for the trauma for some or all of their lives. Accordingly, general statements that guide the assessment of whether memories are “fresh” are not easily made in relation to traumatic memories.

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[72] The ALRC concluded that “understanding of memory processes has progressed significantly from that which formed the basis of the current law and the law should reflect that knowledge” (Report 102 [8.112]). [73] The Commission found that there was strong support to amend s 66 to clarify that “freshness” should be determined by a wide range of factors and should not be confined to time. The Commission noted that while focusing primarily on the lapse of time between an event and disclosure of a memory about that event might be justified in relation to memories of unremarkable events, “the distinct and complex nature of emotionally arousing crime means that the nature of the event concerned should be considered in deciding whether memory is fresh at the relevant time”. [74] The Commission concluded its enquiry into s 66 by stating: The nature of the events concerned and the age and health of the witness are only examples of a wide variety of considerations which may be relevant to the assessment of what is “fresh in the memory”. The examples given are not intended to constrain that assessment. On the other hand, it is thought that the proposed amendments makes it sufficiently clear the ALRC’s intention in the previous Evidence Inquiry that the quality of “freshness” will not be confined to the time which elapses between the occurrence of an event and the making of a representation about the event. [8.122] … [77] First, it will be seen that s 66(2) makes admissible evidence of the representation that would otherwise have been caught by the hearsay rule. It does so in the circumstances dealt with by the sub-section, that is, relevantly for the present matter, if the occurrence of the asserted fact was fresh in the memory of the person who made the representation. [78] Secondly, s 66(2A) is an interpretative section. It tells the reader how the section is to be interpreted. It makes clear that, in determining whether the occurrence of the asserted fact was “fresh in the memory” of the person, the court may take into account “all matters that it considers are relevant to the question”. Thus it will be seen that the three matters mentioned in (a), (b) and (c), although clearly very important, are not the only matters that may be considered. [79] For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase “fresh in the memory” no longer is to be taken as an indication that it means “recent” or “immediate”. The expression “fresh in the memory” is now to be interpreted more widely than did the High Court in Graham’s case. No longer is the “core meaning” of the phrase to be interpreted as “essentially confined to an examination of the temporal relationship between

Part 3 — Admissibility of Evidence

R v XY cont. the occurrence of the asserted fact, and the time of making of the representation”. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account “the nature of the event concerned”. In Graham’s case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered. Did the trial judge fall into error? [80] In examining the trial judge’s reasons, it is necessary to read them fairly, making proper allowance for the fact that the reasons, expressed briefly and cryptically as they were, followed immediately upon an extensive amount of debate and discussion. In each of those regards, as the reasons make clear, the trial judge appears to have understood the nature of the new amendment, and the fact that, in its application, determination of the issue was not to be confined to temporal criteria. Indeed, his Honour said as much.

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[81] On what basis, then, did the trial judge decline to admit the evidence? His reasons do not expressly state whether or not his finding was that the representations were, in his view, not “fresh in the complainant’s memory”. Assuming, however, that was the purport of his finding, the basis for such a conclusion appears to be expressed in the following brief remarks: I have already noted various discrepancies or questions for consideration in the complaints of these incidents as they were given to the police by the complainant and as related to the school friend. These include the years where the incidents were said to have occurred and the time lapse, over an eight-month period, or over a few months. Whilst I can understand that there may be occasions when there are complaints some years after an alleged offence has occurred which should be admitted under s 66, I find that on the material before me now in this case there are still some difficulties with the details of the complaints here, to find that in considering the period of time between the occurrence of the asserted facts and the making of the representation there is sufficient inexactness in the complaints such that a court must have reservations about admitting the evidence of complaint here under s 66. [82] What his Honour appears to be saying is this: because of the “inexactness” of the plaintiff’s statements in the interview in two respects, there is a doubt or uncertainty about when the incidents occurred. In that situation it is difficult to know what was the period of time between the “occurrence of the asserted fact” and the making of the representation. Accordingly, the court cannot be sure the occurrence of the incidents was “fresh in the plaintiff’s memory”. [83] There are a number of problems with this reasoning. First, and importantly, the “inexactness” is said to derive from the fact that the complainant told the police in 2009 that the first incident had occurred in 2001 and that the spate of incidents then took place over about an eight-month period. There was undoubtedly a difference between the date of the first incident mentioned in the complainant’s interview and the dates specified in the indictment. But his Honour’s conclusion failed adequately to take into account the critical piece of evidence, namely, the police statement made by CD. That was the evidence that contained the representation made by the complainant. It contained, moreover, the full details of the representation. It was that evidence that had to be first examined so that the court could ascertain when the representation was made, and what information it gave at that time to the person who heard the representation concerning the nature of the occurrence giving rise to the conversation. In my opinion, it was quite erroneous and, indeed, a distraction for the trial judge to scrutinise, as he did, the complainant’s 2009 interview with the police and then to argue “backwards” to a position that “cast doubts” on the quite specific and detailed complaints made by the complainant to CD in 2007. [84] What was disclosed in the complaint/representation made to CD? First, it had been made at the Aquatic Centre in Sydney in 2007 when both boys were in Year 6. Secondly, it identified the most unusual feature that XY made the complainant fellate him when he “put jam and honey and that on it”. Thirdly, the complainant had told CD that it happened “a few times since about Year 2 or 3… when he was…little”. Fourthly, the representation was made in circumstances where the complainant was clearly embarrassed, troubled and not at all like his normal self. Fifthly, CD had been told that the

Hearsay CHAPTER 7

R v XY cont. respondent kept begging the complainant “please, please I’ll put stuff on it” and made him feel bad “to try and get him to do it”. Sixthly, the complainant made CD promise not tell any one about it, and suggested that this was because he felt embarrassed and bad about the events he had described. [85] All these aspects of the representation, especially the nature of the event described, suggested forcibly and persuasively that the occurrence of the sexual incidents was indeed “fresh in the memory” of the complainant at the time it was made in 2007. Importantly, the complainant had placed the events as occurring when he had been in Years 2 and 3 at school. He had, in fact, been in Year 2 in 2003 and Year 3 in 2004. There was no inexactness or contradiction about the period of time mentioned to CD when the representation was made in 2007. Moreover, as I have said, the very nature of the events described, and their unusual features, had been recounted to CD in a manner that suggested those events were well and truly implanted in the complainant’s memory. Despite, the vivid picture painted, the trial judge appears to have paid no attention to, nor taken into account, this very telling feature.

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[86] The second point that deserves comment regarding the trial judge’s approach to the issue was that, in any event, he appears to have overlooked a number of the very significant ways in which there was considerable consistency between the details represented to CD and the statements made by the complainant in his interview. These included the fact that both boys confirmed that the representation had been made while they were on an excursion to the Sydney Aquatic Centre in 2007. Both referred to XY putting “jam and honey” on his penis. Both referred to it happening a number of times when the complainant was in Years 2 and 3. Both referred to XY “pressuring” the complainant. Indeed, as these features show, the 2007 “complaint” was surprisingly consistent with the 2009 statement. [87] The only significant “inconsistency” or “inexactness”, upon examination, appeared to arise from the complainant’s statement to police that the offence had occurred in 2001. As I have shown much earlier in these reasons, it would have been plainly open to a jury to conclude that the complainant was simply mistaken about his selection of the year 2001 in his police interview. He had made it clear to the police why it was he had selected that year – the Harry Potter play station event, and the manner in which he had gone about checking that detail. Resolution of any conflict or discrepancy was really a jury question, not a matter for the trial judge. All the independent evidence, however, pointed quite forcefully to the correctness of the timeframe stated in the indictment. [88] The second, “discrepancy” mentioned by the trial judge was said to be a reference to the incidents occurring over an eight-month period, as opposed to “over a few months”. In fact, the latter phrase appears in the father’s statement, and there is no inconsistency between the complainant’s statements to the police and the representations he made to CD in that regard. A timeframe was not mentioned to CD, apart from the reference to the incidents having occurred in Years 2 and 3 at school. The matter mentioned by his Honour could not conceivably have been a reason for finding that the complaint to CD was not fresh in the complainant’s memory. It may have been used to suggest that details of the duration of the period were less clear in his memory when he spoke to his father, although, reading the whole of the father’s statement, there was more likely to have been a degree of reticence caused by his embarrassment and shame in having to tell his father what had happened. The description contained in the father’s statement reflects that the complainant was indeed experiencing a good deal of shame and inhibition at the time he spoke to his father in 2009. In any event, the difference between a time frame of about eight months and “over a few months” scarcely revealed a major difference or discrepancy. Once again, however, to the extent that there was a difference, that would have been a matter for the jury to take into account and resolve. It was not, in the context of ss 66(2) and (2A), a matter for the trial judge at all. [89] These observations bring me to a third comment that must be made concerning the trial judge’s reasons. The decision to reject the evidence suggests, in its terms, that it may have been made by reference to its possible unreliability. The absence of reliability appears to have emerged from “reservations” the trial judge had, based on the inexactness or lack of consistency of the complainant’s statements to the police.

Part 3 — Admissibility of Evidence

R v XY cont. [90] Ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate evidence and the weight to be given to evidence R v EM [2003] NSWCCA 374; R v Sing-Bal (1997) 92 A Crim R 397; R v Louizos (2009) 194 A Crim R 223; R v SJRC [2007] NSWCCA at 142; 14 Crim LN 664 (2214). In the present matter, it was plainly the task of the jury to evaluate the complainant’s evidence, including any matter of alleged inconsistency between his statement to the police and the terms of the representation made to CD. It was certainly not a matter for the trial judge in determining the question of admissibility under s 66(2) of the Evidence Act. It was extraneous to a proper determination as to whether the representation to CD was fresh in the memory of the complainant at the time it was made. …

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[104] In my opinion, for the reasons advanced in this decision, the complaint made to CD in 2007 was fresh in the complainant’s memory at the time the representation was made. Accordingly, I would find that the 2007 complaint evidence is admissible pursuant to s 66(2) of the Evidence Act. [105] Ms Dowling for the Crown conceded that the complaints to the parents occurred later and that, therefore, they need to be scrutinised with care before making a ruling under s 66(2) in favour of the prosecution. I agree with counsel’s assessment of the need for caution. A period of approximately four years may have elapsed between the time of the last incident – the “outside room” incident – and the complaints to the parents. Yet, as I have said earlier, the marked similarity between the sexual incidents (with the exception of the swimming pool incident) would have been a reinforcing factor on the complainant’s retention of the incidents in his memory. Consequently, the time lag between the first and last incidents would not have been particularly memory dissipating, if at all. Similarly, the complaint to CD in late 2007 would have further reinforced the presence of the incidents in his mind, even though they had occurred much earlier in the period between 2003 and April 2005. Essentially, however, it is the striking nature of the incidents themselves that have persuaded me that it is likely the occurrence of the matters described to the parents would have been fresh in the memory of the complainant when the complaints were made. There is no need for me to repeat the matters, detailed earlier, that reinforce this conclusion. (Appeal allowed. Each of the complaints made by the complainant in 2007 and 2009 is admissible as evidence of the facts contained in the respective representations. Matter remitted to District Court for trial.)



LMD v The Queen [7.200] LMD v The Queen [2012] VSCA 164 Facts [A woman, born in 1983, alleged that she was sexually abused by her uncle in 1991 and 1993 (when aged 7 and 9). She told her best friend when she was 15 (in 1999) and her boyfriend when she was 18 (in 2000). The matter was reported to police in 2003. The appellant was convicted in 2012 and appealed his convictions on a number of grounds, one ground was that the complaints of sexual abuse should not have been admitted under s 66.] Judgment HARPER JA (Davies AJA and Bongiorno JA agreeing): [2] Unwanted sexual act behaviour is, unfortunately, an everyday occurrence. It ranges from the minor to the gross. Its effect on its victims is equally variable. Some might be thought by others to overreact to a non-threatening incident which, at worst, and according to one’s view of these things,

Hearsay CHAPTER 7

LMD v The Queen cont. might by classified in poor taste. It is also true that the effect of unwanted, physical sexual contact not involving penetration is unpredictable, save that some victims of it will suffer very severely indeed. And in general it is not they, but the perpetrator who must shoulder the blame for the infliction of that suffering. [3] Another truth, of course, is that not all those who are accused have done anything wrong. Some accusations are false; some deliberately so, while others involve mistakes − such as mistakes of identity − which have innocently been made. And all accused are entitled to the presumption of innocence. [4] The difficulty of distinguishing fact or falsity is the sometimes very difficult task of the magistrate or the jury. The difficulty is often compounded when complaints about sexual misconduct are made years after the alleged offence by an infant who claims to be a victim, or by an adult who claims that he or she was a victim when a child. [5] The present appeal is one to which most of the considerations set out above have some relevance. The alleged victim is now an adult. The misconduct of which she complains happened, if it happened at all, very many years before she lodged a formal complaint to the police, many years before any informal complaint to the authorities was made, and years before the incidents upon which the prosecution now relies were first revealed to anyone at all. Moreover, there is no complaint of sexual penetration, and the number of alleged sexual assaults was restricted to six − with one of those not being proved to the satisfaction of the jury, and another withdrawn from it. Nevertheless, the effect of that offending upon the victim was, she says, considerable. It may be also lasting, as these things sometimes are.

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[6] The complainant was born in November 1983. At the relevant time, the applicant was married to the sister of the complainant’s mother. He was therefore the complainant’s uncle. She claims that on four occasions she was sexually molested by him. Two of these occasions allegedly involved two acts of molestation. Hence the six charges. … [16] The applicant now seeks leave to appeal on four proposed grounds. The first is that the trial judge wrongly allowed to go to the jury evidence of separate complaints made by the complainant to two of her friends. [17] Each of the complainant and the two friends gave evidence. Both of the friends said that the complainant had told them, albeit at different times, that she had been “molested” by the applicant. There were differences in the accounts of how much additional detail was given about the incidents in which the molestation occurred, and how many such conversations were had. [18] The evidence before the jury was that the first complaint was made when the complainant was about 15. She told her best friend, a girl of the same age, about the alleged misbehaviour of the applicant, although on this first occasion she confined herself to the comment that she had been molested. [19] The second significant complaint was made to the man who later became the complainant’s husband. She was having difficulty in having sexual intercourse with him because, as she told the jury, her mind then turned to what had happened years before with her uncle, and she tended to “freeze”. It was in this context, she said, that she told her boyfriend about her uncle’s earlier misconduct. [20] The trial judge allowed this evidence to go before the jury. In my opinion he was correct to do so. The applicable provision of the Evidence Act 2008 is s 66. It applies in criminal proceedings where the person who made a previous representation about an asserted fact (in this case, the complainant) is or will be called to give evidence about that fact. In those circumstances, and provided that a necessary precondition is met, the hearsay rule does not apply to the evidence of the representation that is given by a person to whom the representation was made. [21] The precondition is important. It is that, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. It follows that, under s 66, evidence of the representation cannot in this case be admitted for the purpose of proving

Part 3 — Admissibility of Evidence

LMD v The Queen cont. the truth of its contents unless, when the representation was made, the asserted fact was fresh in the complainant’s memory. [22] On any view of the timelines applicable in this proceeding, the first complaint was made years after any incident of molestation as alleged by the complainant. She was seven or eight when the first alleged assault took place. She was about 15 when she spoke to her school friend, and 18 when she told her boyfriend about being molested. [23] The period of time between the occurrence of the asserted fact and the making of the representation is one of the factors which the court may, by s 66(2A), take into account in determining whether that occurrence was fresh in the memory. The relevance of the passage of time is obvious. But other considerations may also be relevant, perhaps decisively so. The Act itself refers to the nature of the event concerned and the age and health of the representor. It also refers to “all matters that [the court] considers are relevant to the question”.

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[24] The events to which the complainant referred when she said that she had been “molested” were inherently likely to remain firmly in her mind, if not as to detail, then as to the general nature of the behaviour to which she says she was subjected. Had she never raised the topic with anyone before going to the police in 2003, she would certainly have been attacked on the basis that, had there been any substance in her allegations, she would have told someone about them. Her complaint was, therefore, evidence necessary to be called in the Crown case, at least from her; but once the conditions of s 66 were satisfied, then also from the persons to whom the representations were made, as evidence not only of consistency of conduct by the complainant but also as to the truth of the content of the representations. [25] The conditions of s 66 were in my opinion clearly satisfied. That the events were fresh in the complainant’s memory was demonstrated by her reaction to the approaches made by her boyfriend when sexual intercourse between them was contemplated. If the events were fresh in her memory then, so too were they likely to have been when the complainant spoke to her school friend some four years earlier. [26] It is no answer to this proposition that the complainant did not descend into detail, or that the girlfriend gave no evidence about the complainant’s demeanour when referring to the molestation, or that the applicant was not identified by name. [27] In the applicant’s written outline of submissions, it is put that the trial judge ignored the passage of time. As his Honour’s ruling demonstrates, that submission is wrong. His Honour did take that circumstance into account. [28] The first proposed ground is, for these reasons, not made out. … (Appeal dismissed.)

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ISJ v The Queen [7.210] ISJ v The Queen (2012) 38 VR 23; 226 A Crim R 484; [2012] VSCA 321 Facts In this case the court reserved for future consideration the question of whether the interpretation of s 66(2) in XY provides sufficient emphasis to the temporal factor within the concept of “fresh in the memory”.

Hearsay CHAPTER 7

ISJ v The Queen cont. Judgment NETTLE JA, REDLICH JA, OSBORN JA: [40] During the trial, the prosecution led evidence as set out above of the representations made by the complainant to the two witnesses, BM and SY, with regard to her sexual relationship with the appellant. [41] BM gave evidence that the conversation between herself and the complainant took place in either 2004 or 2005. They were made approximately 18 months after the acts constituting Charges 11 and 13 and between two and two and a half years after the acts constituting Charges 1, 2, 4, 5, 7 and 9. [42] SY gave evidence that she received the text message from the complainant in 2007. SY no longer had this text message on her phone and could provide no detail as to what the complainant actually told her. The representations made by the complainant to SY were made approximately three and a half years after Charges 11 and 13 and between four and four and a half years after Charges 1, 2, 4, 5, 7 and 9. [43] The prosecution sought to lead this evidence as evidence of its truth under s 66 of the Evidence Act 2008 by way of an exception to the hearsay rule in s 59. Section 66 relevantly provides [se 66 extracted] …

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[44] The appellant objected to the introduction of this evidence at the trial, submitting that the representations were inadmissible as they were inexact, unreliable and were not “fresh in the memory” of the complainant at the time she made them. [45] At the conclusion of a voir dire the trial judge ruled that evidence of the representations made by the complainant to BM and SY were admissible pursuant to s 66. His Honour drew upon the remarks of Whealy J in R v XY [R v XY [2010] NSWCCA 181, [79]] that the temporal relationship between the occurrence of the asserted facts and the making of the representation was a relevant, but not determinative consideration as to whether a representation was made when the asserted fact was “fresh in the memory”. The trial judge resolved that the question of admissibility should be approached in accordance with the interpretation of s 66 in R v XY. His Honour said: As to the nature of the event, that is, the incest charges, I find, that such an event, that is, having intercourse with your step-father, at the age of fifteen, would be a significant event … I also find, whether one is sexually naïve or not, of which it appears [the complainant] was and is not, those two factors would have been significant events. I consider that, prima facie, each of the representations are admissible pursuant to s 66. [46] In R v XY, the Director of Public Prosecutions appealed against an interlocutory order made by the trial judge, who ruled that representations made by the complainant to a friend two to three years after the event and to his mother and father four years after the alleged offences occurred were inadmissible on the basis that they were not “fresh in the memory” of the complainant. Whealy J with whom Campbell JA and Simpson J agreed observed [pars [77]-[79] extracted in the judgment]. [47] Whealy J found that the trial judge had erred in ruling the evidence inadmissible. His Honour considered that the unusual features and precise detail recalled by the complainant suggested strongly that these events remained “fresh in the memory” at the time of the representation. [48] The lapse of time remains a relevant consideration though “fresh in the mind” is not to be construed as imposing a determinative temporal limitation. LMD v The Queen [2012] VSCA 164, a recent decision of this Court, illustrates the point. Two complaints were admitted, one being 6-8 years after the sexual offences and the other 9-11 years after the sexual offences. Harper JA (with whom Bongiorno JA and Davies AJA agreed) dismissed an appeal against the trial judge’s finding that the evidence was admissible under s 66(2A). In doing so Harper JA observed that the period of time between the occurrence of the asserted fact and the making of the representation is one of the factors which

Part 3 — Admissibility of Evidence

ISJ v The Queen cont. the Court may take into account in determining whether that occurrence was fresh in the memory. His Honour adverted to the fact that the Act contemplates that other considerations may be relevant, including “the nature of the event concerned and the age and health of the representor”. It also refers to “all matters that [the court] considers are relevant to the question”. [49] The appellant submitted in his written case on appeal that the complaints could not satisfy the criteria of being “fresh in the mind” under s 66, nor, in contrast to R v XY were there any “unusual features” to the acts alleged. It was also submitted that there were significant inconsistencies between the substance of the complaints and the evidence of the complainant. The appellant did not however challenge the decision of the trial judge to adopt the approach formulated in XY. We would reserve for consideration on an appropriate occasion whether XY gives sufficient emphasis to the temporal factor that remains within the concept of “fresh in the mind”. As the argument that the complaints were not fresh in the mind of the complainant was abandoned in oral argument we need not further consider whether the period that had elapsed prior to the making of the complaints, the nature of the offences, the age of the complainant at the time and the content of the complaints took the complaints beyond the reach of s 66(2A).

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Pate v The Queen [7.220] Pate v The Queen [2015] VSCA 110

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Facts [Pate was convicted of two counts of sexually penetrating a child under 16. Pate was the complainant’s uncle. The offences were committed in 1998 when the complainant was aged 10 years (she was born in 1988). The offending took place when the appellant was teaching the complainant to dance. The subject of the appeal was the admissibility was previous representations made by the complainant to her boyfriend about the allegations in late 2009 or early 2010 (12 years after the alleged offending). The appellant argued that the boyfriend’s evidence should not have been admitted pursuant to s 66.] Judgment (Some footnotes omitted) Weinberg JA (Priest JA and Dixon AJA agreeing with Weinberg JA’s rejection of this ground of appeal but allowed the appeal on a different ground) … [52] In Graham v The Queen, the High Court held that a complaint made six years after an alleged sexual assault was not “fresh in the memory” of the complainant within the meaning of s 66 of the Evidence Act. In a joint judgment, Gaudron, Gummow and Hayne JJ said: The word “fresh”, in its context in s 66, means “recent” or “immediate”. It may also carry with it a connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) but the core of the meaning intended, is to describe the temporal relationship between “the occurrence of the asserted fact” and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years. [53] Callinan J, with whom Gleeson CJ concurred, observed that while the quality or vividness of a recollection could be relevant in an assessment of its “freshness”, contemporaneity was considered the more important factor. [54] Graham was, of course, subsequently followed on a number of occasions. These included cases where complaints made within months of the events in question were excluded as not being “fresh in the memory” of those having made them.

Hearsay CHAPTER 7

Pate v The Queen cont. [55] Even then, there were some cases which took a more flexible view of the meaning of this expression. For example, in R v Adam, the New South Wales Court of Criminal Appeal commented upon Graham and then quoted with approval the observations of Wood CJ at CL who had been the trial judge in Adam. His Honour concluded that a statement made seven weeks after an event should not be regarded as being outside the period of fresh memory, bearing in mind that the question was always one of fact and degree. [56] In R v Vinh Le, it was noted that the “constant refreshing effect” of repeated sexual abuse might warrant a departure from the narrowest and most literal construction of the expression “fresh in the memory” as seemingly endorsed in Graham. Otherwise, the position would be absurd, since the section could never apply to any complaint of a pattern of behaviour when that pattern had begun years before, but continued up to or near to the time at which the complaint was made. [57] When the Australian Law Reform Commission (ALRC) came to review the operation of the Evidence Act, in 2004, it noted that the psychological literature on child abuse, in particular, demonstrated that delay in disclosure was a typical feature of cases of that type. It recognised that there were many compelling and valid reasons why victims of sexual assault did not immediately report such conduct. At the same time, however, it noted psychological studies which emphasised the subjective nature of memory, and the suggestibility of people, especially those who were psychologically damaged, to the idea that they must have been sexually abused.

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[58] It was in response to material of this kind that s 66 was amended to make it clear, ostensibly, that the question whether a particular memory is “fresh” is to be determined not just by the passage of time, but also by the quality of the memory in question. This invites attention to matters such as the effect of trauma upon memory, as well as what is known as the “misinformation effect”. [59] The ALRC observed that psychological research into memory was a field in which experimental results varied, and upon which experts differed. The one matter on which there was general agreement, however, was that memory processes are complex and subject to a number of different factors. No single factor could ensure accuracy. [60] It was in the light of the ALRC’s further research into this problem that it recommended that the Evidence Act be amended to make clear that, for the purposes of s 66(2), whether a memory is “fresh is to be determined by reference to factors in addition to the time that had lapsed between the occurrence of the asserted fact and the making of the representation. [61] As s 66(2A) makes clear, these factors include the nature of the event concerned and the age and health of the person, as well as the period of time between the occurrence of the asserted fact and the making of the representation. [62] Cases such as XY and LMD demonstrate that, in any given circumstances, complaints made even years after the events in question can be viewed as “fresh in the memory”. In XY, that was because of the “vivid picture painted” of the alleged offending, rendering it likely that those events were “well and truly implanted” in the complainant’s memory, the ALRC’s research having shown that “emotionally arousing or stressful incidents” could be well remembered, even though peripheral details surrounding them might not be. In LMD, it was because, notwithstanding the lapse of 10 years, there had been a continuous revival of the events in question. That was because the complainant in that case was continually experiencing difficulty having sexual intercourse with her boyfriend as a result of constant flashbacks as to her uncle’s offending. [63] In Clay v The Queen [2014] VSCA 269, the period in question, in the case of at least two of three complainants, exceeded 20 years. This Court observed: While it is true that the “nature of the event” concerned is a relevant factor in determining whether to permit evidence of previous complaint to be led, so too, in terms, is “the period of time between the occurrence of the asserted fact and the making of the representation”. Wherever the line is to be drawn, a period that, in the case of at least two of the complainants,

Part 3 — Admissibility of Evidence

Pate v The Queen cont. exceeded 20 years seems to us to have been so far beyond what the legislature could ever have contemplated when it enacted s 66(2A) as to make it impossible to say that the requirements of the section were met. In this case, absent any evidence to suggest that these matters were relevantly “fresh in the memory” of the individual complainant concerned, the hearsay rule was applicable. Evidence of each of the complaints should, accordingly, have been excluded. [64] In the present case, the alleged offending occurred in 1998, and the complaint which forms the basis of ground 1A was made in late 2009 or early 2010. In other words, the period of time between the occurrence of the asserted fact and the making of the complaint was of the order of 12 years. [65] It does not follow that a delay of that order is, in and of itself, too great to qualify for admissibility under s 66(2A). There is no single bright-line figure beyond which a representation made long after an event cannot be “fresh in the memory”. Plainly, however, the greater the period that has passed, the greater the need for there to be some reason why the event would be “fresh” in the memory. LMD provides a useful example of the kind of evidence that might be sufficient to overcome the time barrier in the notion of something being fresh. There was no evidence of that kind in Clay, and in my view, there was equally no evidence of that kind in the present case.

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[66] For that reason, I would reject the Crown’s submission that the trial judge was correct in ruling that the relevant representations were admissible under s 66. [67] Of course, that is not dispositive of this appeal. There is good reason to view trial counsel’s conduct as amounting to a complete waiver of any objection to the representation made by the complainant to her boyfriend being admitted into evidence. As the Crown submitted, there were perfectly sensible forensic reasons for doing so, and little downside, in the particular circumstances of this case, to having that evidence placed before the jury. This was not a case in which the fact that a complaint was made shortly after the event adds probative force to the complainant’s credibility. Far from it. The jury were always going to be aware of the fact that many years had passed from the time of the alleged offending until the matter was first drawn to anyone else’s attention. A complaint first made in 2009 or 2010, regarding 1998 offending, would scarcely enhance the complainant’s credibility, and might be put to considerable forensic advantage. That was precisely what, in my view, trial counsel sought to do in this case. [68] I also accept the Crown’s submission that, had objection to the complaint been vigorously pressed, as it clearly ought to have been had trial counsel genuinely taken the view that it would be damaging to the appellant to have this evidence admitted, the question whether there was some particular reason why the memory of the event had continually resurfaced during the dozen years or so that had passed could have been explored. The fact remains that no such point was properly taken, and the complainant gave her account with no such exploration having been undertaken. (Evidence admissible under s 66 however appeal allowed on a different ground of appeal) It should be noted that, in IMM v The Queen (2016) 257 CLR 300, in a dissenting judgment, two members of the High Court, Nettle J and Gordon J, made the following observations at [185] with respect to complaint evidence considered in that case: [T]he charged offences were alleged to have occurred between 2002 and 2009, and yet the first complaint was said not to have been made until October or November 2010. While it might be that some of the alleged course of sexual offending was still fresh in the mind of the complainant in October or November 2010, it is at least questionable that the specific offences which were alleged to have been committed between 2002 and 2005 were still fresh in the mind of the complainant by that time. The same applies, but possibly with added strength, in relation to the complaints to SW, SC and KW, which were said not to have been made until August 2011. The other members of the High Court did not address this issue.

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Hearsay CHAPTER 7

OTHER EXCEPTIONS TO THE HEARSAY RULE [7.230] Division 3 of Pt 3.2 creates a number of exceptions to the hearsay rule which are not

limited to firsthand hearsay. The first is in relation to business records (s 69). Lancaster v The Queen [2014] VSCA 333 provides an example of how s 69 is applied to a factual situation. Thomas v New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 deals with the issue of hearsay representations made “in connection with” a proceeding. In Lithgow City Council v Jackson (2011) 244 CLR 352; 281 ALR 223; 85 ALJR 1130; [2011] HCA 36, the particular document that was the focus of the appeal in the High Court was inadmissible for a number of reasons, in particular it did not satisfy the requirements of s 69.

Lancaster v The Queen [7.240] Lancaster v The Queen [2014] VSCA 333 Facts

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[Lancaster was convicted for sexual offences against two children under 16 years (CA and CB). Each of the complainants had files maintained by the Department of Human Services (DHS). The files were produced on subpoena at the request of the defence and the defence commissioned a consultant neuropsychologist (Dr Gibbs) to read the documents produced by DHS to opine on the mental state of each complainant and the effect of the mental state of the reliability of the complainant’s testimony. The defence sought to cross-examine both complainants on the documents produced by DHS; however, the trial judge upheld the prosecution’s objection that the documents were hearsay and inadmissible as business records under s 69. The trial judge also ruled that Dr Gibb’s opinion was inadmissible as it was based on the DHS records that were inadmissible. Lancaster appealed on a number of grounds, in particular on the exclusion of the DHS records and Dr Gibb’s opinion.] Judgment (some footnotes omitted) NETTLE AND REDLICH JJA AND ALMOND AJA: … [13] Under cover of proposed grounds 1-6 of the appeal against conviction in relation to CA and grounds 1-3 of the appeal against conviction in relation to CB, the applicant submits that the judge was wrong in concluding that the DHS records on which Dr Gibbs based his opinions were not business records within the meaning of s 69 of the Evidence Act. [14] We agree. Clause 1 of Pt 2 of the Dictionary in the Evidence Act provides that, for the purposes of the Act, “business” includes, among other things: (a)

a profession, calling, occupation, trade or undertaking; and

(b)

an activity engaged in or carried on by the Crown in any of its capacities.

Thus, it includes the activities engaged in or carried on by the DHS, other analogous social welfare agencies, hospitals, medical practices and kindred healthcare providers. [15] The activities engaged in or carried on by the DHS included the care of each complainant. The entries in the DHS files on which Dr Gibbs based his opinions were, apparently, entries made by departmental officers, in the course of and as part of their duties of caring for each of the complainants. Those entries included notes of information received and considered by departmental officers in connexion with each complainant, opinions formed and actions taken or not taken by departmental officers in relation to the care of each complainant, and the reasons or justifications for taking or not taking action in relation to each complainant as the case might be. The entries were, therefore, parts of the records belonging to or kept by the DHS as records, and so for the purposes of the Department’s activities in caring for each of the complainants.

Part 3 — Admissibility of Evidence

Lancaster v The Queen cont. [16] Other things being equal, it follows that the entries in the subpoenaed documents on which Dr Gibbs based his opinions were business records within the meaning of the Evidence Act. [17] As has been noted, the judge reasoned that, because the “entries were observations and conclusions about a particular case ... so [that] the various officers could properly perform the statutory duties of child protection in a cautious and prudent way” they were not “records that went to any business purpose or aspect of the department”. [18] With respect, however, that overlooked that, for the purposes of the Evidence Act, “business” includes a profession, calling, occupation, undertaking or activity engaged in or carried on by the Crown in any of its capacities, and thus includes the activities of rendering social welfare services which the DHS exists to provide. As so defined, the records maintained by the DHS of the facts, opinions and activities involved in rendering those services to the complainants were business records. [19] It is the same with the records of the hospitals and other agencies which were involved. Prima facie, individual patient records maintained by a hospital, doctor or other healthcare provider are business records of the activities carried on by the healthcare provider and, therefore, are business records, even though, as the judge put it, they concern the individual patients as opposed to the running of the hospital or healthcare provider’s practice. Hearsay, innuendo, speculation or rumour?

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[20] As noted, the judge reasoned that even if the subpoenaed documents were business records within the meaning of the Evidence Act, “the provenance of the representations and assertions remains unclear” and that it may be that “some or all of the material is based on hearsay, or innuendo, speculation or rumour”. [21] Potentially, there is more substance in that concern. Even so, however, it is not sufficient basis to exclude business records on the generalised basis that one or more of the entries in the record may be hearsay. It is necessary to consider each of the relevant entries individually and form a view as to whether the representation comprised in that entry satisfies the requirement of admissibility imposed by s 69(2) of the Evidence Act that the representation has been made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. This the judge failed to do. [22] Counsel for the respondent contended that, in order for a representation in a document to come within the description in s 69(2) of the Evidence Act, of having been made on the basis of information directly or indirectly supplied by a person who had or it might reasonably be supposed had personal knowledge of the asserted fact, it was necessary that the maker of the document have received the information directly from a person who had or it might reasonably be supposed to have had personal knowledge of the asserted fact (firsthand hearsay) or directly from a person who received the information directly from a person who had or it might reasonably be supposed had personal knowledge of the asserted fact (second-hand hearsay). [23] Counsel accepted that the natural and ordinary meaning of “directly or indirectly” embraces any number of degrees of remoteness but argued that the overriding policy of the firsthand hearsay exception prescribed by s 62 of the Evidence Act, coupled with certain observations of the Australian Law Reform Commission on which the statutory hearsay exceptions were said to be based, dictated that “indirect” be read as extending no further than the second degree of separation. [24] We do not accept the argument. First, as a matter of ordinary statutory construction principle, if Parliament had intended to confine the business records exception to first- and second-hand hearsay, it is to be expected that the provision would have been drafted in those precise terms rather than in terms which, according to their natural and ordinary meaning, include more remote hearsay.

Hearsay CHAPTER 7

Lancaster v The Queen cont. [25] Secondly, the term “directly or indirectly” has been construed as one of ordinarily wide import in taxing statutes, as well as in other context so as to include much more remote degrees of connection than the second degree of separation. It has been treated as isomorphic to “proximate or contributory”. [26] Thirdly, so far from suggesting that the business records exception be confined to first- and second-hand hearsay, the Australian Law Reform Commission Report appears to us to recommend that the exception should extend to all degrees of hearsay leaving exclusion on the basis of unreliability to the judge’s powers to exclude otherwise admissible evidence under ss 135-137. As is explained in par 682 of the Commission’s report, the Commission’s approach was to affirm and continue the hearsay rule but to provide for two categories of exception: “first hand hearsay”, which is now provided for in Div 2 of Pt 3.2 of the Evidence Act; and “second hand and more remote hearsay” which is provided for in Div 3 of Pt 3.2 of the Act. The Commission went on to explain in relation to the “second hand and more remote hearsay” exception, that: Secondhand and more remote hearsay would be inadmissible unless it comes within a category of evidence chosen on the basis of reliability or necessity or both. And, later in the analysis, the Commission listed the categories of evidence chosen on the basis of reliability or necessity or both as including:

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Public and Commercial Records. Records relied upon by commercial and government undertaking should be admissible as evidence referred to in them in whatever form they are kept – paper, disk, tape or microfilm. Such exceptions are recognised in differing ways in all jurisdictions. [27] Fourthly, while there does not appear to be any direct authority on the meaning of “directly or indirectly” in the context of s 69(2), the are cases which plainly assumed that “directly or indirectly” embraces degrees of remoteness beyond second-hand hearsay [Australian Securities Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320, 365-6 [196]-[204] (Austin J); Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, 361 [17]] and no case which we have been able to find in which the contrary has been suggested. It is enough to render the document admissible that it may be concluded that the representation was made by or on the basis of information supplied by someone who had personal knowledge of the fact within one of the alternative descriptions in s 69(2) [Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352; Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303, [20]-[22]; Australian Securities Investments Commission v Rich, 365-6 [196]-[204] (Austin J)]. So long as the nature and context of the recorded representation permits that inference to be drawn, the supplier of the information need not be identified. The representations on which Dr Gibbs based his opinion in relation to CA [28] At the request of this Court, counsel for the applicant undertook a detailed written exercise in advance of the final hearing of these applications of identifying each of the statements of fact relied on by Dr Gibbs in forming such parts of his opinions as were sought to be tendered; sourcing those statements to the subpoenaed documents; and explaining how it was put that those aspects of the subpoenaed documents could be admitted into evidence under s 69 of the Evidence Act. The Crown in turn was asked to provide a written response signifying where it took issue with the applicant’s analysis. As a result of that process, the range of matters in issue has been considerably reduced. [29] In Dr Gibbs’ first report of 3 July 2012 concerning CA, he stated inter alia as follows: 3.0 Complainant [CA] — Concerns regarding mental state impacting memory. There are matters relevant to memory and mental state here. [CA] complainant refers: To “blocking things out” Night mares

Part 3 — Admissibility of Evidence

Lancaster v The Queen cont. Being a witch Being taught to levitate things Having a spell cast on her where this related to a language spell Self harm by wrist cutting from about age 10 years. 13.10.2005 — Asked to draw a Mandala about the time she was 8 (this is relevant as there is claim this looks at “unconscious” including memories). Had spoken in depth prior to this. Having an eating disorder and believing she had this due to what the accused is alleged to have done (where there is also reference in counsellor’s notes dated 24.3.2005 to “not eating — history of sexual abuse/assault? Can’t sleep happened at 8 years”. This in context of speaking to [HI] school welfare counsellor after it appears another student said she was raped. Hearing voices (said in 2008). DHS Notifications: CA I note that there is a counsellor’s note 24.3.2005 that refers to a “Dale” or “Daniel” — and that: There is a DHS reference to “Daniel” on their interview dated 9.6.1998 that states a “Daniel” is the 12 year old son of [CA’s] father — where Daniel lives in Melbourne but visits, and there is reference to the touching of private parts. Daniel is a sibling (half) of CA. CA has not seen her father since she was one.

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On 1.12.1998 to 2.12.1998 [sic] (a period which coincides with the period 11.11.1998 to 11.11.1999 relating to the charges of CA), there is reference to a DHS notification where CA is said to be placing her hand up a young man’s pants and fondling his penis. There is further interview on 1.2.2000 with no disclosure, and concern about mother being in a relationship with convicted paedophile for previous year. There is report of speaking with [HI] School Counsellor in 2005 (see section above) where she is said to have been assaulted by a “friend of a friend” and then “Shaun” is referred to and later the defendant named. However, the mother was present with her and it is her mother who was said to state the name. There was a DHS notification here. There appears factors relating to mental state that are likely to impact on the statements being made at various times, with indications of likely psychotic phenomena or personality disorder. I caution that I have not seen the complainant. First disputed representation [30] The first representation in dispute is Dr Gibbs’ statement that: On 1.12.1998 to 2.12.1998 [sic] (a period which coincides with the period 11.11.1998 to 11.11.1999 relating to the charges of [CA]), there is reference to a DHS notification where [CA] is said to be placing her hand up a young man’s pants and fondling his penis. [31] The applicant submits that the representation is adequately based on subpoenaed documents 1 (20/6/2008), 4 (4/2/2000) and 24 (1/12/1998). The Crown contends that none of those documents contains a representation within the meaning of s 69(2) of the Evidence Act to the effect that “in 1998, CA placed her hands down a young man’s pants and fondled his penis”. [32] In our view, the representation is adequately based on admissible sections of the stipulated documents. Document 1, which is a DHS Intake Record dated 20 June 2008 created by Georgina Rea, incorporates a history “copied and complied from previous case notes” which includes the following: 1.12.1998 – 2.12.1998 [sic] Notification: The concerns were in relation to Likelihood of Significant harm due to sexual abuse. [CA] was displaying sexualized behaviour as she was

Hearsay CHAPTER 7

Lancaster v The Queen cont. placing her hand up a young man’s pants and was allegedly fondling his penis. The case was closed at the intake stage with the school making a referral to CASA for counselling and due to the fact that [CA] was interviewed a few months earlier in relation to abuse however, no disclosure was made. [33] Document 4, which is a DHS General Case Note dated 4 February 2000 entered by Carmela Montuuri, includes the following: Previous notification has been made on 1.12.1998 – 2.12.1998 [sic]. The concerns were in relation to Likelihood of Significant harm due to sexual abuse. [Redacted] she stated that [CA] was displaying sexualized behaviour as she was placing her hand up a young man’s pants and was allegedly fondling his penis. The case was closed at the intake stage [Redacted] making a referral to CASIS [sic] for counselling and due to the fact that [CA] was interviewed a few months earlier in relation to abuse however, no disclosure was made. Previous notification was ... made on 28.5.1998 – 19.6.1998. The concerns were in relation to Likelihood of Significant harm due to sexual abuse, and Substantial emotional Trauma. [Redacted] state that [CA] displays sexualized behaviour and language. The concerns were investigated and [CA] was interviewed. There was no disclosure and the concerns were not substantiated. The case was closed with the school monitoring the situation. [34] Document 24, which is a LEAP – Victoria Police CPS Case Record Summary Report, includes the following: 03/12/98

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Received faxed notification for information only in regards to a female displaying sexualized behaviour. This is the second notification received at this office, the first being on 03/06/98. CPS and DHS investigated on the previous occasion and the allegations were unsubstantiated. Precis of Notification • In class on 30/11/98, the subject was observed to have her hand up a boys pants and was playing with his penis. • When spoken to about this by teacher, [CA] denied it. • School is aware of the first notification about the sexualized behaviour has continued and they are still concerned. [35] In our view, in so far as each of the three documents identified refers to the 1.12.1998 – 2.12.1998 [sic] Notification (or second notification as it is sometimes described) it is a representation of fact made in a business record on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (namely, as we infer, CA’s teacher) that, on or about 30 November 1998, the teacher observed CA in class with her hand up a boy’s pants playing with the boy’s penis. Consequently, we consider those representations to be admissible. Second disputed representation [36] The second disputed representation was Dr Gibbs’ statement that: There is further interview on 1.2.2000 with no disclosure, and concern about mother being in a relationship with convicted paedophile for previous year. [37] The applicant contends that the statement is adequately based on subpoenaed documents 2, 3, 4, 5 and 23; and, despite initial objection, the Crown ultimately conceded that documents 5 and 23 do contain notes which fall within s 69(2) of the Evidence Act to the effect that CA was interviewed on 1 February 2000 and made no disclosure about having been touched in a “bad way”, and that there

Part 3 — Admissibility of Evidence

Lancaster v The Queen cont. was concern about CA’s mother being in a relationship with the convicted paedophile, F, and that she and her children would visit him and stay in his house. [38] Those concessions were properly made. Document 23 is a LEAP – Victoria Police CPS Case Record Summary Report, which includes the following: 25.01.00 — S/C Bagley — 1330 hours Contacted by Erin Styles of Hume Intake. Notification re [CA’s mother]. Notifier contacted DHS re the mother is having a relationship with a known paedophile, [F]. [CA] has not made any discourses … … Notifier advised DHS that she is currently working with [DJ]. [DJ] was referred to CASA after she disclosed that [CA] had “took her pants down and said lets [sic] have sex with our fanny’s”. [DJ] originally disclosed this to her father who asked what happened then. [DJ] continued to say that [CA] lay on her naked and demonstrated the notion of having sex. No date known for when incident occurred however [DJ] was referred to CASA on 22. 12. 99. The notifier stated that the last time she spoke with [DJ’s] mother [TJ], [TJ] told her that [CA’s mother] is having a relationship with [F] who is a convicted sex offender. The notifier did not know if [F] was living with the Family or how long [CA’s mother] has been having a relationship with him. DHS have had involvement with [F] re sexual assaults against a family member. [F] was convicted and jailed for these offences. Further information in DHS Notification. … Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1007 hours — A/Sgt Lewis Phone call from Sue I’Anson. Stated they had interview both [CA] and [TJ] at the school. Nil disclosures made by either child. Workers both had concerns re [CA] as she appeared to be evasive during the interview … [39] Document 5, which is a DHS “First Visit Case Note” dated 1 December 2000, entered by Carmela Montuuri, contains a record of Ms Montuuri’s interview of CA at 1.15pm that day. [40] Documents 2 and 4 are also relevant and in our view contain admissible representations. Document 2 contains the following: 25/01/2000 — 03/03/2000 Notification: Likelihood of significant harm due to sexual abuse, Substantial emotional trauma. Concerns: that [CA’s] mother is in a relationship with [F] who is a convicted sex offender. Rational[e] for further action: — Whilst the sexualized behaviours described past and person, are concerning [CA] has not disclosed abuse or alleged a perpetrator. The case has been investigated in the past and there was no concerns substantiated nor was a disclosure made. — Further information is needed in relation to how much contact [F] is having with the children, if he is in a relationship with [CA’s mother] and if she is acting protectively. Rational[e] for closure: Initial investigation completed no disclosures made by the children. Mother and boyfriend have a current safety plan for the children as they spend the weekend at [F’s] home with their mother. Outcome: Initial Investigation: Case closed: No further Protective Service Program action. [41] Document 4, to which we have referred, contains the following: The initial allegations within this notification were in concern of [CA’s mother] having a relationship with [F] who had been convicted for sexually abusing his step daughter. The initial investigation shows that [CA’s mother] was aware that [F] was a convicted paedophile. [F]

Hearsay CHAPTER 7

Lancaster v The Queen cont. and [CA’s mother] are utilising a safety plan for the children when the children are with their mother sleeping over at [F’s] home. Workers interviewed both children in relation to allegations concerning the likelihood of sexual abuse no disclosures were made by either child. [CA’s mother] explained to the worker that last year [CA] was found playing with her cousin (aged 9) whom she revealed has touched her inappropriately. [42] Ultimately, we did not understand it to be disputed that each of those representations is admissible under s 69(2) of the Evidence Act. Third disputed representation [43] The third disputed representation is Dr Gibbs’ statement that: There is a DHS reference to “Daniel” on their interview dated 9.6.1998 that states a “Daniel” is the 12 year old son of [CA’s] father — where Daniel lives in Melbourne but visits, and there is reference to the touching of private parts. Daniel is a sibling (half) of [CA]. [CA] has not seen her father since she was one. [44] The applicant contends that representation is adequately based on the statement in Document 4 that: [CA’s mother] explained to the worker that last year [CA] was found playing with her cousin (aged 9) whom she revealed has touched her inappropriately.

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[45] The Crown contends that the statement is not admissible as evidence of the truth of the facts asserted because, although the statement ascribes the report to CA’s mother, it does not provide information from which it may reasonably be inferred that the mother had personal knowledge of the fondling or touching. [46] In our view, given the nature of the disclosure and the absence of any contrary indication, it may reasonably be supposed that it was CA’s mother who found CA playing with her cousin and to whom CA revealed that her cousin had touched her inappropriately; or, even if that were not so, that CA’s mother derived the information from someone who did find the children playing and to whom CA revealed the inappropriate touching, and thus who had personal knowledge of the asserted facts. Either way, the representation is admissible under s 69(2). … The representations on which Dr Gibb based his opinion in relation to CB [55] In Dr Gibbs’ first report of 3 July 2012 he stated in relation to CB that: 1.0 Complainant – CB: Borderline Personality Disorder is relevant … Complainant CB has been diagnosed with a Borderline Personality Disorder by a Psychiatrist. Borderline Personality Disorder is characterised by: • Fears of abandonment – where it is considered that there are issues of disordered attachment (ie. parental). This can be induced by seemingly minor separations from caregivers. • Chaotic relationships and intense emotions. • “Splitting” – where the individual might state one thing to one person and completely the opposite to another – thereby making their statements of potentially questionable validity. • “Acting out” – where the behaviour can be outwardly destructive to others; (eg; bullying; blackmail; accusations/conflict; impulsive and reckless acts; sexual & drug use). • Self-harm/suicidal behaviours related to expression of pain, self-regulation of emotion or punishment.

Part 3 — Admissibility of Evidence

Lancaster v The Queen cont. • Is considered with caution in very young persons undergoing adolescence though can be diagnosed under 18 if there is a consistent pattern. As such, there is concern in relation to complainant CB given the diagnosis of Borderline Personality Disorder, where the reliability and validity of their statements can be impacted by this pathology. … 2.0 Complainant CB’s Mother: Reference to Multiple personality appears relevant Complainant CB’s mother refers to “Multiple Personality” — where this is relevant — as this disorder is associated with the phenomenon of “repressed memory”. [That] is, persons have hidden memories of which they are not previously aware, where these “surface” many years later, and in this instance each personality is held to have a “dissociated” or repressed memory of trauma. This is an highly[sic] controversial phenomenon, is without scientific support with respect to the nature of memory, and where there are risks with respect to the reliability and validity of claims made with respect to memory. The concern here is that her daughters chaotic behaviour comes to be explained by such factors.

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Crown’s contentions [56] The Crown contends that, since defence counsel was not shut out from relying on CB’s behaviour, including self-harm, a possible suicide attempt, running away, impulsivity, emotional instability, and skipping school; from making the point that CB was very psychologically unsettled; or from putting to CB that she had made a new friend who was going through the court process, there was no need to rely on Dr Gibbs’ reports to establish those facts and hence that the only issue for present purposes was the admissibility of Dr Gibbs’ opinions as to the effects on CB’s reliability of Borderline Personality Disorder and “Multiple Personality”. First disputed representation [57] The first disputed representation is Dr Gibbs’ statement that: Complainant CB has been diagnosed with a Borderline Personality Disorder by a Psychiatrist. The applicant relies on documents 55, 39, 40 and 59 in order to establish that fact. [58] In the Crown’s submission, none of those documents is admissible evidence of the fact that a Psychiatrist had diagnosed CB as suffering from Borderline Personality Disorder. [59] We disagree. Document 55 is a Goulburn Valley Health Progress/ Continuation record for CB pertaining to her presentation on 20 May 2010 after consuming 100 millilitres of “grape wine” and superficially cutting her forearm with a broken beer bottle 25 times. It includes a note: Insight: Aware of Borderline Personality Disorders as handed down by psychiatrist & role of treatment. And later in the document: Emotional dysregulation & treatment strategies for same discussed. Disadvantages of substance misuse & overdose reiterated. ASSESSMENT Borderline Personality Disorder as handed down by Consultant Psychiatrist. [60] The Crown conceded that it may reasonably be inferred the author of the document was informed of the diagnosis directly or indirectly by the consultant psychiatrist who made the diagnosis.

Hearsay CHAPTER 7

Lancaster v The Queen cont. [61] Document 39 is a Case Details Report dated 21 October 2010 of the Goulburn Valley Family Services. It contains the entry: 22/10/2010 Fri 10:01 AM – Clare Rich Kids removed by CPU May 2010, [CB] has been into CAMHS [scil. Child and Adult Mental Health Service] in Melbourne on 2 separate occasions, she has been diagnosed with Borderline Personality Disorder and has been placed on medication but is not compliant because when she is not at home, she does not have her medications. [CB’s mother] is feeling drained from [CB’s] behaviour. The Crown contends that the entry does not amount to a representation that the diagnosis was made by a psychiatrist, and thus is inadmissible. [62] In our view, it is readily apparent that the diagnosis referred to in document 39 is the same diagnosis as is referred to in document 55 and hence it may reasonably be supposed that the author of the document was informed of the diagnosis directly or indirectly by a person, most probably CB’s mother, who had or might reasonably be supposed to have had personal knowledge of the diagnosis. [63] Document 40 is a Goulburn Valley Family Services Case Details Report dated 14 December 2010 that: CB has been diagnosed with Borderline personality disorder by Box Hill CAMHS.

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The Crown contends that the entry is not a representation made by a psychiatrist. [64] In our view, it is readily apparent that the diagnosis referred to in document 40 is the same diagnosis as is mentioned in document 55, and thus that the entry in document 40 is a representation that the diagnosis was made by the Box Hill CAMHS consultant psychiatrist. For the same reason, it may reasonably be supposed that the author of the document was informed of the diagnosis directly or indirectly by a person, most probably CB’s mother, who had or might reasonably be supposed to have had personal knowledge of the diagnosis. Second disputed representation [65] The second disputed representation is Dr Gibbs’ statement in his report dated 3 July 2012, that: Complainant CB’s mother refers to “Multiple Personality — where this is relevant — as this disorder is associated with the phenomenon of ‘repressed memory’ ”. [66] The applicant relies on document 61 as establishing that CB was suffering from “Multiple Personality”. Document 61 comprises Eastern Health Progress Notes for 4 April 2010 and relevantly included the following entry: [CB’s mother’ feels she [CB] has a kind of “multiple personality disorder” — described difficulty controlling emotions, anxiety and panic attacks, takes XANAX or Valium prescribed by GP. [67] The Crown contends that, because CB’s mother is not an expert in psychiatric disorders, she was not qualified to express an opinion as to whether CB was suffering from multiple personality disorder and therefore that the representation of her opinion composed of the disputed entry is not admissible under s 69(2) of the Evidence Act. [68] We agree. A representation of opinion is not admissible under s 69(2) unless it complies with the requirements for admission of opinion evidence prescribed by ss 76-79. A lay opinion as to whether CB was suffering from “Multiple Personality” would not be admissible under any of ss 76, 77 or 79. [69] The opinion might be admissible under s 78 if it were properly to be regarded as based on what CB’s mother saw, heard or otherwise perceived of CB’s mental state and evidence of her opinion were necessary to obtain an adequate account of her perception of CB’s mental state; in other words, in this context, if it were necessary to obtain an adequate account of what CB’s mother saw heard or

Part 3 — Admissibility of Evidence

Lancaster v The Queen cont. otherwise perceived of CB’s symptomology. As it stands, however, it does not appear to us that Dr Gibbs treats the opinion in that fashion. As we read his report, he adopts CB’s mother’s description of CB’s suffering from multiple personality as if it were a competent clinical diagnosis of multiple personality disorder; and, on that basis, he then goes on in the report to expatiate on the forensic significance of the possibility that CB was suffering from that disorder. If that is so, the representation of opinion would not be admissible under s 69(2). [70] If, however, it were established in a voir dire that Dr Gibbs’ report is properly to be understood as treating CB’s mother’s opinion as no more than a short hand descriptor of particular observed symptoms; and, in Dr Gibbs’ view, the existence of those symptoms bespeaks the reasonable possibility of Multiple Personality Disorder properly so called, the representation may be admissible under s 69(2) by reason of s 77. … (Appeal allowed, convictions quashed and new trial ordered.)



Thomas v New South Wales [7.250] Thomas v New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316

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Facts [Thomas was convicted of two serious criminal offences. The convictions were set aside by the Court of Criminal Appeal on the basis of evidence given by one of the investigating police officers (Eastwood) to the Royal Commission into the NSW Police Service. The evidence was that the police had “verballed” the appellant in relation to an interview (ie the police officer fabricated admissions said to have been made in an interview with Thomas). Thomas sued the State of New South Wales for malicious prosecution. The case was dismissed by the primary judge because Thomas had failed to establish the absence of reasonable and probable cause for prosecution (an element of malicious prosecution). Thomas appealed from the dismissal. NSW contended that a transcript of evidence from the Royal Commission was wrongly admitted pursuant to s 69. An issue before the Court of Appeal was whether that transcript was admissible under s 69, bearing in mind s 69(3)(a).] Judgment HODGSON JA: … [7] The crucial question is whether s 69(2) is excluded by reason of s 69(3)(a). In my opinion, it is. In my opinion the representation, that is, Eastwood’s assertion that he verballed the appellant and did so to assist in convicting him for the assault, was “obtained” “in connection with” “an Australian or oversees proceeding”. [8] The Royal Commission was plainly a proceeding in an “Australian court”, defined in the Dictionary to mean, among other things, “a person or body authorised by Australian law … to hear, receive and examine evidence”. [9] The representation in question was plainly “obtained” by the Crown for the purposes of the activity it was engaged in; and it was plainly obtained “in connection with” the proceeding in question. The circumstance that the representation was made in the course of the proceedings does not indicate otherwise. [10] The alternative view would, in my opinion, be contrary to the rationale of the business records exception to the hearsay rule, which is based on the likely reliability of entries made in the ordinary course of business or government activities, when there is no reason to suspect ulterior purposes.

Hearsay CHAPTER 7

Thomas v New South Wales cont. [11] The alternative view would also mean that a transcript of evidence given in other proceedings would always be admissible in both civil and criminal proceedings, subject only to the discretion to exclude it under s 135 or 137 of the Evidence Act; since in my opinion, the proceedings of a court fall within par (d), and perhaps also par (b), of cl 1(1) of Pt 2 of the Evidence Act Dictionary. This admissibility would not sit well with other statutory provisions, which closely restrict circumstances in which transcripts of evidence in other proceedings are admissible. … CAMPBELL JA: [17] I agree with the reasons of Gyles AJA on all topics except the admissibility of the statement of Eastwood. On that topic, I agree with the reasons of Hodgson JA, but add the following remarks. [18] The essential point of difference between Gyles AJA and Hodgson JA concerns whether the representations contained in the evidence that Eastwood gave to the Royal Commission was made by him “in connection with” the proceeding constituted by the Royal Commission, within the meaning of s 69(3) of the Evidence Act. “In Connection With”

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[19] In Elkateb v Lowindi (1997) 42 NSWLR 396 at 402 Giles CJ Comm D said: The phrase “in connection with” has on many occasions been said to be of considerable width, satisfied by a link or an association (Commissioner for Superannuation v Miller [1985] FCA 445; (1985) 8 FCR 153) or a relationship (Our Town FM Pty Ltd v Australian Broadcasting Tribunal [No 1] [1987] FCA 301; (1987) 16 FCR 465; Drayton v Martin (1996) 137 ALR 145) and summed-up in the phrase “having to do with”: see the same cases and Nanaimo Community Hotel Ltd v Board of Referees [1945] 3 DLR 225. As with the phrase “in relation to”, no doubt the context or the purpose may require that the link, association or relationship be of a particular kind, sometimes described as an appropriate or relevant relationship (Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474; R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 and O’Grady v Northern Queensland Co Ltd [1990] HCA 16; (1989) 169 CLR 356), but it should not be read down unless there be compelling reason to do so (Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615). [20] As appears from the judgment of Mason J (with whom Stephen J agreed) in Fountain v Alexander at 629, both the content of, and the context in which, a statutory provision containing the words “in relation to” appears can provide a “compelling reason” for reading the expression down. The same applies to a statutory provision containing the words “in connection with”. In construing a statutory expression of the form “X in connection with Y” if one can see that there is a connection of some sort between X and Y, one must look to other matters, such as the context and purpose of the statutory provision, to decide whether that connection is an “appropriate or relevant” one. [21] In my respectful view, the correct approach to construction of a statutory provision containing the words “in connection with” is stated by Spigelman CJ (which whom Grove and Sully JJ agreed) in R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [30]-[32]: Furthermore, as the Full Court of the Federal Court has said in Burswood Management Ltd v Attorney-General (Cth) [1990] FCA 203; (1990) 23 FCR 144 at 146: The words “in connection with” are words of wide import; and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear. The Court went on to quote with approval from the judgment of Davies J in Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491: Expressions such as “relating to”, “in relation to”, “in connection with” and “in respect of” are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute. … The terms may have

Part 3 — Admissibility of Evidence

Thomas v New South Wales cont. a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear. Finally, the Full Federal Court returned to this matter in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 where the Court said: The words “in connection with” have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. However, as was pointed out by Sackville J in Taciak v Commission of Australian Federal Police (1995) 59 FCR 285 at 295, the question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the statute. That requires a “value judgment about the range of the statute”: see Pozzolanic (at 289).

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The process of statutory construction [22] This statement of the law illustrates how statutory construction is a particular application of the concept of the hermeneutic circle, familiar in other areas of discourse. That concept is that understanding of the parts is dependent upon understanding the larger whole, but the larger whole can only be understood on the basis of the parts, so that arriving at an understanding of any particular part involves movement to and fro between the parts and the whole. In the context of statutory interpretation, the “whole” that can influence understanding of one of the parts includes not only the entire text of the particular statute in question, but also matter such as the historical circumstances from which it sprang, and the purpose it is intended to achieve. That is because a statute is not a text that can be understood in isolation. It is a type of text that is intended to form part of a wider body of law, so the meaning of a particular statutory expression can be influenced by parts of the law that are beyond the statute. A statute is a type of text whose role is to regulate certain types of human activities, so the manner in which the relevant type of activity is carried out, and the purposes for which the statute seeks to regulate that type of activity, can also influence the meaning given to a particular statutory expression. [23] Even though ascertaining the meaning of a statutory provision involves this to and fro between the whole and the parts, it must start somewhere. A convenient starting point is to consider the provision in question by itself. Construing Section 69(3)(a) in isolation [24] As a matter of simple construction of the words of s 69(3)(a) it is hard to think of a way in which a representation could have a closer connection with “an Australian or overseas proceeding” than by being made in the course of that proceeding. That type of connection is not a strained or unusual one. I see no oddity in the drafter of s 69(3) having made no express mention of excluding evidence given “in the course” of an Australian or overseas proceeding, when evidence given in the course of the proceeding was already comfortably within the expression “in connection with” the proceedings. Rationale of Section 69(3)(a) and Section 65(3) [25] I turn now to whether the purpose or rationale of s 69(3) affects its construction. In Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; (2005) 147 FCR 235 at [25]-[27] Lindgren J construed s 69(3)(a), saying: Unlike its New South Wales predecessor, s 69(3)(a) does not use the formula “made or obtained”. In order for s 69(3)(a) to apply, a person must have “prepared” or “obtained” the representation (not the document) in contemplation of a proceeding. It is an unusual use of language to refer to the “preparing” of a representation, but I think that the intention is clear

Hearsay CHAPTER 7

Thomas v New South Wales cont. enough; the reference is to the person who prepared, formulated, shaped or framed the terms in which the representation is made. This will typically, perhaps always, be or include the maker of the representation. The person who “obtains” a representation is a person who seeks the representation or procures it to be made. This person is not the maker of the representation, but may be a person who “prepared” it. By referring to persons who prepared or obtained the representation, the legislature was attempting to encompass all those who might cause a representation to be made in the form which it takes. That it was attempting to do so is consistent with the rationale of reliability which underlies the business records exception to the hearsay rule, and the rationale of unreliability which underlies the subs (3) exception to that exception: see LRC 17, at [48], [51]; Australian Law Reform Commission’s Report on Evidence (Interim) (ALRC 26) Vol 1, at [343]; Vitali v Stachnik [2001] NSWSC 303 at [12]; ALRC Discussion Paper, Review of the Uniform Evidence Acts (ALRC DP 69) at [7.240]. [26] In Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038; (2008) 170 FCR 9 at [8] Finn J said:

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It is well accepted that the hearsay rule contained in s 69(2) is founded on the “rationale of reliability” of business records generally. The exception to that subsection is founded on a “rationale of unreliability” of representations made in the circumstances envisaged by subs (3). [27] I would not accept that this states the totality of the rationale of s 69(2) and (3) – minimising unnecessary time, trouble and expense involved in calling live witnesses, and avoiding situations where the court is deprived of relevant information because no available live witness can depose to it from his or her own knowledge are also part of the rationale. However, I would readily accept that a very important reason for drawing the dividing line between evidence admissible by reason of s 69(2), and evidence not admissible by reason of s 69(3) was the likely reliability of evidence that fell within s 69(2) but not within s 69(3), and the risk of unreliability of evidence that fell within s 69(3). [28] Clearly, one of the effects of s 69(3)(a) would have been to make inadmissible any written proof of evidence that Eastwood might have given before giving evidence to the Royal Commission. It would be a strange conclusion if the transcript of evidence given in accordance with such a proof should be admissible. [29] Evidence before a tribunal has some significant differences to a mere proof of evidence. It is given on oath or affirmation, and the taking of the oath or affirmation, the formality and seriousness of the occasion, and (in those tribunals where it happens) knowledge that one’s evidence will be subject to cross-examination, may all be significant incentives for many witnesses to try to tell the truth. Even so, it is daily experience in the courts that evidence given on oath or affirmation is rejected or found to be unreliable. The process of litigation, frequently involves a witness in telling his or her story several times out of court, and being questioned about it, and being questioned about whether the witness can say anything on other topics of relevance to the case. This has the effect that by the time the witness gives evidence in court, the evidence lacks the spontaneity and freshness that attaches to most facts recorded in business records. [30] The law of evidence contains rules that state the types of material that, as a class, are admissible or inadmissible. It also contains discretions that can result, in a particular case, in material that falls within a class of admissible evidence not ultimately being received in evidence. Section 69(2) and (3) set out rules of the former kind. Thus, their rationale must be decided by reference to the classes of documents they relate to. Evidence given in the course of a proceeding does not, as a class, have the same inherent likelihood of reliability as attaches to statements in business records. Thus, it is in accord with the rationale of s 69(3)(a) for representations contained in a transcript of evidence given in a proceeding, to fall within s 69(3)(a).

Part 3 — Admissibility of Evidence

Thomas v New South Wales cont. [31] Considering the context in which s 65(3) occurs and the purpose of s 65(3) provides an explanation for why the drafter made express mention in s 65(3) of a representation made “in the course of” giving evidence in a proceeding. Part 3.2 of the Evidence Act deals with the topic of hearsay. It has three Divisions. Division 1, consisting of ss 59-61, states the hearsay rule. Division 2, consisting of ss 62-68, states the circumstances in which firsthand hearsay can be admissible. Division 3, consisting of ss 6975, contains a miscellaneous assortment of other exceptions to the hearsay rule. [32] In Div 2, the “first-hand” hearsay that the title of the Division refers to is, in accordance with s 62, evidence of a representation that was made by a person who had personal knowledge of an asserted fact. The Division makes separate provision about the circumstances of admissibility of such hearsay depending upon whether the proceedings in which it sought to be adduced are civil or criminal, and on whether the maker of the representation is or is not available to give evidence. [33] Understandably, the circumstances in which firsthand hearsay is rendered admissible in a criminal trial are more restricted than those in which firsthand hearsay is admissible in a civil trial.

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[34] Section 65 is concerned with the conditions on which firsthand hearsay can be adduced if the person who made the previous representation is not available to give evidence about an asserted fact. Section 65(2) provides one set of conditions for admissibility of evidence in those circumstances, while s 65(3) provides an independent set of conditions in which such evidence might be admissible. The text of s 65(3) is set out in the judgment of Hodgson JA at [12]. [35] That a defendant in criminal proceedings should have the opportunity to cross-examine those who give evidence against him or her is an important part of our legal system’s concept of a fair trial. Section 65(3) seeks to preserve, so far as possible, that element of a fair trial, in circumstances where firsthand hearsay evidence is given concerning a representation made by a person who is not available to give evidence in the trial. The effect of s 65(3) is that such evidence is not automatically rendered inadmissible, if the defendant in the proceeding in which firsthand hearsay is sought to be adduced has either actually cross-examined the person who made the representation concerning that representation, or had a reasonable opportunity to do so. Necessarily, there will have been such crossexamination, or opportunity for cross-examination, only if the previous representation was made in the course of giving evidence in an earlier proceeding. In this way, the reference to “in the course of giving evidence” in s 65(3) is an essential part of implementing the policy that gives rise to s 65(3). [36] There is no corresponding need to make express reference to “in the course of” a proceeding, to implement the policy of s 69(3). … GYLES AJA (dissenting): [87] In my opinion, the evidence was not excluded by s 69(3)(a). The sub-section would have operated upon a previous representation in a statement prepared or obtained from Eastwood prior to leading of evidence in the Police Royal Commission: s 69(3) relates to pending or contemplated proceedings. However, here, the representation was made in the course of giving evidence in the proceeding, not prepared or obtained for the purpose of conducting the proceeding or in contemplation of or in connection with it. The provenance and rationale of the exception is explained by Lindgren J in Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 at [24]-[27]. [88] As Barrett J said in Vitali v Stachnik [2001] NSWSC 303 at [12]: The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings. [89] That rationale was cited by Hamilton J in Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 at [4], and followed by this passage:

Hearsay CHAPTER 7

Thomas v New South Wales cont. (5) This links with what Barrett J has said to be the policy of the section in Vitali v Stachnik supra at [12]: The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings. (6) The point, as I apprehend it, is that the contemplation or existence of any proceedings may lead even persons of good intent to make purely self serving statements that may, without the exclusory provisions of subs (3), be admissible through the scheme of s 69. From this natural tendency to make self serving statements springs the policy that statements made in those circumstances ought be excluded from the ambit of s 69 which is, in general terms, generous towards the admission of statements contained in documents that meet the criteria of the section. (7) It is not, as Mr Motbey has suggested to me, a requirement of subs (3) that a conclusion be reached that the creator of the document had the purpose of making self serving statements, whether true or false. It is, rather, that the possibility, bearing in mind human nature, to make self serving statements in such circumstances, leads the Act to exclude all statements made in such circumstances as a precaution against purely, and particularly false, self serving statements being taken into evidence. Evidence given on oath is in a different category.

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(See also Finn J in Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038; 170 FCR 9 at [8]-[15].) [90] The drafting of this exclusion is to be compared with the drafting of s 65, particularly subss 65(3)-(6) that expressly deal with previous representations made in the course of giving evidence. If it had been intended that s 69(3) should deal with that topic it can be assumed that similar express provisions would have been included. [91] Of course, s 65 and s 69 each deal with a different head of exemption from the hearsay rule. The substantive exemption from the hearsay rule that is dealt with by s 69(1) and (2) is that for business records. Sub-section 69(3) is an exclusion from that exemption. It is conceded for present purposes that the transcript is a business record, as are any formalities associated with tendering the transcript. This is not the occasion to deal with any issue of principle as to the reception of previous representations given in evidence apart from the narrow issue as to the exclusion provided for by s 69(3). Any difficulty that may be perceived with admitting a transcript into evidence as a business record should not be addressed by a strained construction of s 69(3). ... (Appeal dismissed.)

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Lithgow City Council v Jackson [7.260] Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Facts [Jackson was found unconscious and injured in a drain. Jackson conceded that the Council was only liable if he fell from a vertical retaining wall. Jackson could not remember how he fell. A document called a “Patient Healthcare Record” recorded the following under the heading “Patient History”:

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. Found by bystanders — parkland ?Fall from 1.5 metres onto concrete No other Hx. “Hx” means “history”. The record was signed by two persons, J Goodwin (described as driving) and M Penney (described as officer treating); neither gave evidence at the trial. Both were ambulance officers. The record was admitted at the hearing pursuant to s 78 as an opinion that Jackson fell from the vertical retaining wall. The appeal to the High Court was based on the admissibility of the document.] Judgment FRENCH CJ, HEYDON AND BELL JJ: ... [17] The onus of demonstrating the conditions of admissibility of evidence under the Act lies on the tendering party. In the present case the respondent had to demonstrate that the impugned representation fell within the exclusion created by s 78 from the inadmissibility generally applying to opinions by reason of s 76(1). But the impugned representation was also hearsay. The “hearsay rule” is defined in the Dictionary as meaning s 59(1). Section 59(1) provides:

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Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. Section 59(2) provides: “Such a fact is in this Part [Pt 3.2] referred to as an asserted fact” (emphasis in original). But s 69 creates an exception to the hearsay rule in relation to business records. The parties did not dispute the proposition that the “Patient Healthcare Record” in which the impugned representation appeared was a business record for the purposes of s 69. But s 69 does not render business records as such admissible. It concerns representations in a document which is or forms part of a business record within the meaning of s 69(1). The representations are admissible if s 69(2) is satisfied. Section 69(2) provides: The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. What is the “asserted fact”? If the “asserted fact” is “the respondent fell 1.5 metres onto concrete”, at once a difficulty arises which was not debated by the parties. Section 69(2)(a) cannot apply, because the makers of the representation, the ambulance officers, did not have personal knowledge of a fall of 1.5m onto concrete, and could not reasonably be supposed to have had it, since the fall had happened some time before they arrived. And s 69(2)(b) cannot apply, because even if it were the case that the ambulance officers were told by bystanders that the respondent fell in that fashion, the bystanders did not have personal knowledge of the fall, and could not reasonably be supposed to have had it: again, the fall took place before the bystanders arrived. The problem may be reduced by the approach adopted by the majority of the Court of Appeal: they saw the impugned representation as a representation that there was a question whether the respondent had fallen 1.5m onto concrete. And the problem may be completely overcome if “asserted fact” in s 69 includes an opinion in relation to a matter of fact. There is authority that it does [Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 at 573 [18]; Australian Securities and Investments Commission v Rich (2005) 216 ALR 320 at 366-367 [206]-[207]. See also Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [3] (document admissible under hearsay

Hearsay CHAPTER 7

Lithgow City Council v Jackson cont. exception created by s 64(3) of the Act)]. But the construction of “asserted fact” to include an opinion in relation to a matter of fact, though convenient, is a little strained. In one sense every person who holds an opinion has personal knowledge of it, and indeed is the only person to have personal knowledge of that person’s opinion. But to hold an opinion that the respondent fell in a certain way (or that there is a question about it) is different from having personal knowledge that he fell in that way (or that there is a question about it): that personal knowledge could normally only be derived from seeing or perhaps hearing the event, not by drawing inferences from other circumstances observed some time later. However, it was not argued in this Court that the authorities which state that “asserted fact” includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage. That is because, even if it is assumed that the s 69 difficulty does not exist, the evidence must be held inadmissible on other grounds. (French CJ, Heydon and Bell JJ found that the record was inadmissible under s 69 and concluded that it was also irrelevant, was not an opinion and even if it were an opinion it was inadmissible under s 78. Gummow and Crennan JJ agreed with the joint judgment.)



Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [7.270] Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355

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Facts [See the facts of this case in Chapter 3.] Judgment PERRAM J: … [40] AirNZ submitted that the minutes of these meetings did not fall within the business records exception to the hearsay rule in s 69 of the Evidence Act. In a nutshell, the submission was that the HK BAR-CSC and the EC and SWG were not businesses and that the mere fact that Cathay Pacific appeared to have had possession of the minutes did not mean that they formed part of a record or records kept by it. An allied submission was that, where the minutes contained statements such as “[i]t was agreed that the surcharge would be increased”, the word “agreed” was an inadmissible opinion not rescued from inadmissibility by being in a business record. … [63] A considerable body of first instance decisions have concluded that an opinion as to the existence of a fact falls within the scope of the term “asserted fact” in s 69: ASIC v Rich [2005] NSWSC 417; (2005) 191 FLR 385 at 433-434; [2005] NSWSC 417 at [206]-[207] per Austin J; Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [3] per White J; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 177 at [95] per Stevenson J; Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; (2003) 130 FCR 569 at 573 per Hely J; Supetina Pty Ltd v Lombok Pty Ltd [1984] FCA 376; (1984) 5 FCR 439 at 442 per Spender J; Investmentsource v Knox Street Apartments [2007] NSWSC 1128 at [19]-[21] per McDougall J; Street v Luna Park Sydney Pty Ltd [2007] NSWSC 688 at [5] per Brereton J; SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116 at [238] per Griffiths J. [64] I should not depart from this view of s 69 unless persuaded that it is plainly wrong. I am not of that view. It is true that French CJ, Heydon and Bell JJ described this approach to the construction of

Part 3 — Admissibility of Evidence

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) cont. s 69 as a “little strained” in Lithgow City Council v Jackson (2011) [2011] HCA 36; 244 CLR 352 at 362 [11], but I reject the submission that that statement should be characterised as considered dicta of the High Court binding on me. I take that course because in the same paragraph their Honours also said: However, it was not argued in this Court that the authorities which state that “asserted fact” includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage. [65] I would not, in any event, accept that the mere fact that an interpretation is “strained” means inevitably it is wrong. Here the legislation was always intended as a beneficial reform. If “asserted fact” does not extend at least to lay opinion as defined in s 78 then an important, reliable and common form of business record will be inadmissible. For example, a building site log recording that the site is “slippery due to rain”; a hotel incident report that a patron was “drunk”; a police pocket note that a person was “angry” and so on.



Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [7.280] Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26

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Facts [Prime (the appellant) appeals from the dismissal of proceedings brought by it seeking possession of a property owned by the first respondent. Prime challenged the rejection by the primary judge of the tender of the Bancorp file (12 pages of documents that were produced on subpoena). The primary judge rejected the tender of the 12 pages as she was not satisfied that the documents were business records, and even if they were, her Honour would have excluded them under s 135.] Judgment Leeming JA (Basten and Gleeson JJA agreeing) … [67] The primary judge observed in her reasons that, in order for s 69 of the Evidence Act 1995 (NSW) to be satisfied it was necessary for the Court to be satisfied that the documents were the records or part of the records kept by Baycorp relevant to its dealings with the Callejas, that they contained a previous representation made in the course of Baycorp’s business, and that the representation was made by a person with personal knowledge of it, or who had received that information from someone who did. Her Honour said that: the only evidentiary basis upon which the conclusions could be made are the documents themselves. [68] Her Honour then said, with respect correctly, that the content of the documents could go some way to establishing that, in that parts of the documents had the appearance of the sort of records Baycorp might keep. Her Honour noted that their title was “Baycorp files notes”, and that they were prefaced by a letter from Baycorp’s General Counsel indicating that they were file notes. However, her Honour was concerned about both the authenticity of the documents and whether they contained representations made by a person with personal knowledge of the representations or representations deriving from such a person. The primary judge said that the heading and the footer on each of the pages were not parts of a record contemporaneously made. Her Honour said that

Hearsay CHAPTER 7

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. both the heading and the footer changed the document and “raises the prospect that what has been produced has been tailored or otherwise edited for production”. Her Honour noted that it was not proposed to call anyone from Baycorp to explain the header or the footer. Her Honour proceeded on the following basis: If the Court is to be asked to take the documents as proof of their nature and origin, those things should be unequivocally clear from their face. That is not the position.

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[69] On the question of whether the representations had been made by a person with personal knowledge or recorded information from such a person, the primary judge observed that the records “generally have the appearance of a contemporaneous computer record made by a person who undertook the recorded activity”. However, her Honour then identified a series of entries which, in her Honour’s view, called this into question. Those matters were essentially twofold: (1)

Each of the telephone numbers identified as that of Ms Calleja was missing its last digit. Her Honour said that the number was “non-existent”, and observed that although it was a small error, which might represent no more than a typographical error, “where records are relied upon to prove themselves, small errors may say a great deal”. Her Honour identified 13 occasions when this occurred.

(2)

There was also said to be a “significant error” contained in the entry for 17 April 2015, which was “PMT made by debtor to ARL 032003000006092wbc B/CHQ 62877.61”. Her Honour said that “anyone with personal knowledge of this payment would have known that the payment of $62,877.61 was not in fact made by the debtor”.

[70] Her Honour said that those aspects called into serious question the authenticity and the knowledge of the person or persons who made the entries in them. Her Honour was not satisfied that the documents were “genuine” business records, being “unamended and unedited business records”, and rejected the tender on that basis. [71] Her Honour also declined to admit the documents under s 135 of the Evidence Act. That section provides: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. [72] The entirety of her Honour’s reasons on this basis were as follows: If I am wrong in that conclusion, I would reject the tender of the documents in the exercise of the Court’s discretion pursuant to s 135 of the Evidence Act. It is clear that the record is an incomplete record. It does not, as I have already noted, contain any information prior to 1 June 2014, including what seems to be a critical matter to a fact in issue, being the agreement said to have been reached by Mrs Calleja and Baycorp for payment by $500 instalment payments of the debt owed. There are also inaccuracies, as I have noted. The incomplete nature of the record, coupled with the inaccuracies, could work a significant unfairness to the defendant and therefore be unfairly prejudicial. Section 135 of the Evidence Act is thus enlivened. [73] Grounds 1-3 challenge the rejection of this evidence. Ground 1 is expressed generally. Ground 2 was that there was error in finding that the documents were not business records, and ground 3 was that there was no unfair prejudice because there was no fact in issue concerning the dealings with Baycorp prior to the financial year ended 30 June 2015.

Part 3 — Admissibility of Evidence

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. [74] It is not necessary to summarise Prime’s submissions in support of those grounds. Ultimately, it became clear in this Court that Ms Calleja sought to maintain the ruling of the primary judge on three bases: (1)

the primary judge was correct to conclude that the business records exception to the rule against hearsay had not been established;

(2)

there was no error in the exercise of discretion under s 135, and

(3)

in any event, non-admission of these 12 pages did not have a material effect on the trial.

Documents and copies of documents [75] In light of the reasons of the primary judge and the submissions made in this Court as to the significance of the header and footer to the documents, it is necessary to return to first principles. [76] First, Prime did not seek to tender the documents produced on subpoena. Instead, it placed a photocopy of Baycorp’s letter and the documents it enclosed in answer to the subpoena in the Court Book, and it was the copy which was sought to be tendered. [77] This must happen dozens or hundreds of times every day in Australian courts. Rather than tendering an original document, a copy is tendered. The process is ordinarily entirely uncontroversial, although (as this trial illustrates) it is not uncommonly desirable to tender the original documents. [78] The best evidence of the documents produced in answer to the subpoena was the original of those documents. However, the Evidence Act facilitates the tender of secondary evidence of documents, notably by ss 47 and 48, supported by a regime for parties to make requests to test the authenticity of such secondary evidence in Pt 4.6. Sections 47 and 48 relevantly provide:

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47(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence. (2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects. 48(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: ... (b) tendering a document that: (i) is or purports to be a copy of the document in question, and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents; ... (d)

if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device,

... [79] To be clear, the pages sought to be tendered were on no view Baycorp’s actual file notes. They were copies of the pages which had been produced to the Court by Baycorp in answer to a subpoena. I mention this because of its similarity with the different submission which found favour with the primary judge and which was repeated on appeal. [80] The original documents produced on subpoena were, likewise, not Baycorp’s original file notes. Instead, they were pages which had the appearance of having been brought into existence in 2017

Hearsay CHAPTER 7

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. from an electronic system to record payments, letters, emails and telephone conversations relevant to a particular debt. Each page contained information which bore two very different characters. (1)

On the one hand, there was the footer, and in the case of the first page, the logo and heading, which plainly had been brought into existence in 2017 in answer to the subpoena.

(2)

On the other hand, there was the information in the black boxes, comprising lines of notations following a date in 2014 or 2015, which appeared to reproduce screenshots of an electronic system for recording file notes.

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[81] Sub-sections 47(2) and 48(1) have application here, although they were not drawn to the attention of the primary judge. The fact that the pages produced on subpoena include some words and numbers which were added in 2017 does not preclude the pages from being copies of Baycorp’s file notes from 2014 and 2015. The pages produced on subpoena are not exact copies (because of the logo and the heading and the footers), but admissibility does not depend on the document being an exact copy: R v Giovannone [2002] NSWCCA 323 at [57]. The pages purport to be a copy which is identical in all relevant respects, which is sufficient. The heading and footers are not relevant to any issue in the litigation (and indeed were excluded from the tender). The screenshots “purport to have been produced” by use of Baycorp’s electronic records system, within the meaning of ss 48(1)(b)(ii) and/or 48(1)(d), and the 12 pages purport to reproduce the entirety of the entries in the electronic record system between June 2014 and May 2015, which are identical “in all relevant respects” within the meaning of s 47(2). (It may be that some of the provisions directed to facilitation of proof contained in Div 1 of Pt 4.3 of the Act would also be available to strengthen the inference that the pages are what they purport to be, but it is not necessary to express a view on that.) [82] I have engaged in the detail of what the 12 pages purport to disclose in light of the submissions advanced on appeal and accepted by the primary judge. It may be doubted that in many or most cases, where no question of authenticity arises, that this level of detail would be warranted when a party seeks to tender a document purporting to have been produced from electronic records maintained for the purposes of a business. The business records exception to the hearsay rule [83] The “hearsay rule” is found in s 59(1) of the Evidence Act. The rule is that “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation”. The rule is subject to various exceptions, of which presently relevant is the exception for business records contained in s 69. That section is in the following terms: 69(1). This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

Part 3 — Admissibility of Evidence

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question; and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind; the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

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[84] The following propositions are applicable to those provisions. [85] First, the onus lay on the party seeking to tender the documents (Prime) to establish that the exception in s 69 applied: Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [17]. The primary judge proceeded on that basis. It may be noted that although some of the Baycorp file notes referred to the possibility of litigation, the primary judge did not rely on the qualification in s 69(3). Although the matter was raised during the hearing, it was no part of Ms Calleja’s submissions that the documents were made in contemplation of litigation, a stance which in my view it was correct to adopt, because there is insufficient connection with litigation. Thus the qualification in s 69(3) may be put to one side; compare Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122. [86] Secondly, it is important to recognise the distinction drawn in s 69 between a “document” and a “representation”. The first limb of the exception turns on the nature of the document. That in turn picks up ss 47 and 48. Neither party addressed submissions to these provisions. Putting them to one side, the Court needed to be satisfied that the file notes are or form part of the records belonging to or kept by Baycorp “in the course of, or for the purposes of, a business”, or “at any time was or formed part of such a record”. [87] The second limb of the exception turns on the particular representation contained in the document the admission of which would otherwise contravene the hearsay rule. It is necessary for the court to be satisfied that each relevant representation was made “by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact or on the basis of information directly or indirectly supplied” by such a person. [88] To the extent that s 69(2) is satisfied in respect of that representation, then to that extent the hearsay rule does not apply to the document: Lithgow City Council v Jackson at [17]. The distinction between document and representation was not always observed during the submissions made to the primary judge or in this Court. [89] Thirdly, s 69(2)(a) and (b) and (5) all contain references to “or might reasonably be supposed to have had personal knowledge”. It is well settled, as McDougall J observed in Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [19], that those words indicate that the Court is allowed to draw inferences not just from the form of the document, but from the nature of the information contained in it: see (for example) Lin v Tasmania [2012] TASCCA 9 at [87] (Tennant and Porter JJ) and Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214 at [48] (Hansen, Ferguson and McLeish JJA). [90] Fourthly, the same reasoning as to the availability of inferences applies to the first limb of s 69, when read with ss 48(1)(b). That paragraph refers to “purports to be a copy” and “purports to have

Hearsay CHAPTER 7

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. been produced”, statutory language which authorises inferential reasoning from the form and context of the document. [91] Fifthly, and consistently with the last two points, s 183 of the Evidence Act authorises a court to draw reasonable inferences from the document itself as well as from other matters from which inferences may properly be drawn. That provision provides that where a question arises about the application of the Act to, inter alia, the operation of s 69 to a document, then the court may “draw any reasonable inferences” from the document as well as from other matters from which inferences may properly be drawn. [92] A similar provision was found in s 14CL of the Evidence Act 1898 (NSW) (introduced in 1976). In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548B-D, Hope JA relied on s 14CL and the “form and content of the consultation sheets themselves” to infer that the documents were business records and contained statements made by a qualified person. See further P Wood, “The Admissibility of Business Records with Special Reference to New South Wales” (1986) 14 Australian Business Law Review 245 at 254-6.

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[93] All of these provisions undercut the traditional “best evidence” rule, consistently with s 51 of the Evidence Act 1995 (NSW), which provides “the principles and rules of the common law that relate to the means of proving the contents of documents are abolished”. As Sackar J has observed, such provisions are of considerable antiquity and serve a useful purpose. In Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 at [81]-[82] his Honour observed: The special status accorded by the rules of evidence to business records has long been recognised, albeit in varying and more limited degrees (see for example, Thomas Peake, A Compendium of the Law of Evidence, 3rd ed (1808) Luke Hanfard & Sons at page 92 and Edmund Powell, The Practice of the Law of Evidence, (1856) Law Times Office at page 121 and following). The policy underlying the business records provisions (in what was then Part IIC of the Evidence Act 1898) was explained by Hope JA in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 (at [6]-[7]) and is relevant to the present form of the business records provisions: [6] ... Pt IIC ... has extended the common law rules of evidence in a way which is of great importance in the search for truth. Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate. … When what is recorded is the activity of a business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth. Application of s 69(1) to the Baycorp documents [94] Ms Obrart conceded, very properly, that the file notes were derived from documents which comprised business records of Baycorp. So much is patent on the face of the documents. 95 The primary judge proceeded on the basis that “the only evidentiary basis upon which the conclusions could be made are the documents themselves”. That may have been a slip, in a judgment delivered extempore, because her Honour with respect correctly noted that (a) the documents were produced in answer to a subpoena which called for documents evidencing communications during the 2014-15 financial year in relation to any debt relating to Capital Finance by Ms Calleja, and (b) that the General Counsel of Baycorp wrote to the Registrar of the Supreme Court of New

Part 3 — Admissibility of Evidence

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. South Wales that the documents supplied in answer to the subpoena were “our file notes for this period”. [96] The primary judge was correct to proceed on the basis that the onus lay on Prime to satisfy the conditions in s 69(1) and (2). However, with respect, the “unequivocal clarity” to which the primary judge referred discloses error. It was sufficient for Prime to establish to the civil standard the facts necessary for deciding whether s 69 was satisfied: s 142. [97] The primary judge placed much weight upon the heading and footer which has, quite plainly, been added to the 12 pages at the time they were being prepared in answer to the subpoena in 2017 and could not have been records made in 2014 or 2015. But those parts of the document, which are readily distinguished from what appeared to be the electronic recording system maintained by Baycorp, do not prevent the operation of s 69(1) when read with ss 47(2) and 48(1)(b). [98] There was an overwhelming inference that the documents were copies of business records of Baycorp. The fact of production pursuant to court order is evidence to which the Court may have regard in determining whether s 69 is satisfied. The letter from the General Counsel of Baycorp advising the Registrar that he was supplying his company’s file notes is further evidence supporting a finding that the documents supplied were copies of the file notes and therefore fell within s 69(1) when read with ss 47(2) and 48(1)(b). And the content of the documents, replete with entries which could only have been made contemporaneously, confirms this. There was nothing to preclude the conclusion that, to the civil standard of proof, the boxes reproduced on each of the pages were copies of screenshots of electronic records maintained by Baycorp for the purposes of its business; to the contrary, that is the finding which should have been made.

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National Australia Bank Ltd v Rusu [99] In support of her objection to the tender of the 12 pages of file notes, Ms Obrart relied upon a single decision, National Australia Bank Ltd v Rusu (1997) 47 NSWLR 309; [1999] NSWSC 539. Neither party made submissions on the decision. In it, Bryson J rejected the tender of documents apparently obtained on subpoena from the Advance Bank and tendered as business records on the basis that: So far as I am aware there is no judgment which has decided that under the Evidence Act 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom: at [28]. [100] In making that ruling, Bryson J lacked the benefit of argument. All of the defendants who opposed the tender were unrepresented; further it seems that none of them spoke English, there was no skilled interpreter and the defendant most directly affected by the tender, the second defendant, was not present at the hearing because, so the Court was told, he was in prison: see at [12]. His Honour does not appear to have been taken to s 183, nor do his reasons mention that section. The absence of argument in Rusu was emphasised by V Bell, “Documentary Evidence under the Evidence Act 1995 (NSW)” (2000) 5 The Judicial Review 1 at 3. [101] Regrettably, the primary judge was not referred to s 183, nor the authorities on that section referred to above, nor to the authorities which have either doubted this aspect of the reasoning in Rusu or indeed considered it to be plainly wrong. Without being exhaustive, in Australian Competition and Consumer Commission v Air New Zealand (No 1) (2012) 207 FCR 448; [2012] FCA 1355 at [94][104], Perram J held that the decision was plainly wrong and declined to follow it. His Honour’s reasons were approved by White J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342 at [93]-[94]. They have also been endorsed in N Williams et al, Uniform Evidence in Australia (LexisNexis Butterworths Australia, 2015), p 312. On the other hand, parts of the reasoning in Rusu were endorsed in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [46] and in J D Heydon, Cross on Evidence (11th ed, LexisNexis Butterworths Australia, 2017), pp 1448, 1516. See also the analysis by Brereton J in Re Wollongong Coal Ltd (formerly known

Hearsay CHAPTER 7

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. as Gujarat NRE Coking Coal Ltd) [2014] NSWSC 1952 at [7]-[15]. Most recently, this Court noted that aspects of Rusu are controversial, without deciding its correctness, in Bobolas v Waverley Council (No 4) [2015] NSWCA 337 at [42]. [102] This Court heard no submissions on the correctness of Rusu and it is sufficient to note the foregoing, and to observe that it is regrettable that her Honour was not given the assistance to which she was entitled on this issue. The application of s 69(2) to the Baycorp documents [103] Turning to the issues raised by s 69(2), the primary judge was also concerned that Ms Calleja’s telephone number was incompletely recorded in the file notes (it appears to have been missing its last digit on every single occasion it was recorded, save for one entry on 24 January 2014). There is no explanation for how this occurred, and it was appropriate for her Honour to have regard to this. However, the question raised by s 69(2) goes to the nature of the particular representation sought to fall outside the hearsay rule. I accept that it is possible in theory for a concern about authenticity of one aspect of a document to inform the question whether a representation elsewhere found in the same document satisfied s 69(2). But if the course required by s 69(2) had been adopted, and Prime had identified the representations sought to be excluded from the operation of the hearsay rule, then it would have been easier for the judge to have correctly framed the concern about the inaccuracy of the telephone number.

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[104] The primary judge regarded the entry for 17 April 2015 as containing a “significant error” because her Honour formed the view that “someone with personal knowledge of this payment would have known that the payment of $62,877.61 was not in fact made by the debtor”. I respectfully disagree. [105] Documents which were not the subject of objection established with a very high degree of probability that Baycorp was paid on 17 April 2015 by cheque provided by Prime: (1)

By email dated 13 April 2015, Baycorp advised Gadens that the outstanding balance was $62,877.61 and Baycorp’s Westpac account details were provided.

(2)

An email sent from Gadens on the afternoon of 16 April 2015 advised that a settlement had been tentatively booked in for the following day and that three cheques, for Capital Finance, Kemp Strang and Baycorp, were required.

(3)

Primary records showed that Prime’s own bank account was debited in the amount of $62,877.61 on 17 April 2015.

[106] It may readily be inferred that Prime supplied a cheque in the amount of $62,877.61 and either delivered it to someone on behalf of Baycorp at a settlement on 17 April 2015 or else presented it to Baycorp’s bank on that day. The “significant error” to which the primary judge referred, as I understand it, was that the file note referred to that payment being made by the debtor (ie Ms Calleja) whereas in fact it was made by cheque supplied by Prime with funds lent by Prime to the debtor. That is a very fine distinction. For example, although it is conventional to say that a customer may “pay” a merchant using a credit card, what may in fact be happening is that the customer’s financial institution pays the merchant’s financial institution and increases the customer’s indebtedness to it: see, for example, Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977 at [71]. As Perram J has observed, “only a pedant would protest that a woman who buys a pair of shoes on a credit card has not paid for them”: Commissioner of Taxation v Rozman (2010) 186 FCR 1; [2010] FCA 324 at [20]. His Honour records many authorities to the effect that payment can be by direction at [23]. [107] What is more, the numerous entries in the 12 pages of file notes which commence with the words “PMT MADE BY DEBTOR” all have the appearance of having been automatically generated. Each such entry includes a lengthy alphanumeric identification followed by an amount. The earlier instances in the 12 pages appear to involve payments made by BPAY (an example is in the fifth row of

Part 3 — Admissibility of Evidence

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. the first box reproduced above). There is every reason to think that those entries were automatically generated, for there is no reason for an automatically generated number to be manually typed into the system every time a payment is made. Her Honour’s reasons do not address the significance of this aspect of the file notes. [108] True it is that the identity of the person within Baycorp who made the representations is not known. In cases where the identity is given, that may assist establishing the knowledge requirement of s 69(2) (it may also tend to detract from establishing that requirement). But as is plain from the face of the section, as well as from Hely J’s judgment in Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 at [22], it is not necessary that the identity of the person be known. [109] In order to apply s 69(2), it is necessary to look to the particular representations which are said to be outside the operation of the hearsay rule: see, for example, Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93 at [17]. In this Court, Prime relied on the statements to Ms Calleja that litigation was possible, and Ms Calleja’s offer to pay $60,000 to “settle in full” the indebtedness to Baycorp. The inference to be drawn is that the file notes disclose a series of representations reflecting conversations made at the same time as, or immediately before, the file notes were made, by the person who participated in those conversations. [110] Accordingly, the documents were admissible and the two representations on which Prime sought to rely in this Court are not caught by the hearsay rule.

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Discretionary rejection pursuant to s 135 [111] The second basis upon which the primary judge excluded the file notes was in the exercise of discretion under s 135 of the Evidence Act. Her Honour stated that the file notes contained no information prior to 1 June 2014. That reflects the limited nature of the subpoena to which they were produced in response. Her Honour also stated that the omission included a “critical matter to a fact in issue”, being the agreement reached between Ms Calleja and Baycorp for payment of $500 per week. Mr Young said that this was neither a fact in issue, nor was it a critical matter. No submissions were made in response to that submission, which I would accept. [112] The reasons of the primary judge on s 135 were confined to explaining why there was the possibility of unfair prejudice to Ms Calleja flowing from the inaccuracies and incomplete nature of the record. I respectfully disagree. I do not regard the reference to a payment being paid by the debtor as inaccurate, let alone prejudicial. There is no prejudice in the fact that most references to Ms Calleja’s telephone number omit a digit. I would not infer prejudice from the possibility that the document has been altered. [113] Further, a determination of the risk of unfair prejudice required attention to the steps, if any, taken between the time when Prime sought to rely on the file notes, and the time when the objection was taken. That is a period of at least a fortnight, and included two working days (Monday 30 October and Friday 4 November) when the trial did not proceed. There is nothing to suggest that Ms Calleja’s lawyers availed themselves of any of the procedures authorised by Pt 4.6 of the Evidence Act. Section 167 entitled reasonable requests to be made about the Baycorp file notes, including the particular representations which were claimed to be outside the hearsay rule, or the circumstances in which belated production had been secured. The sanctions for non-response included an order that the documents not be admitted: s 169(1)(c). Or, more directly, Ms Calleja’s solicitor could have written or spoken with Baycorp’s General Counsel and inquired how the documents had been produced, and if it was perceived to be necessary, could have sought leave to issue a further subpoena to Baycorp. [114] But there is a more fundamental reason why this aspect of the decision cannot be upheld. The question of the risk of unfair prejudice is only one of the three matters to which s 135 requires the Court to have regard. [115] Section 135 is a much more complex provision than, say, s 136, which authorises orders limiting the use of evidence merely upon the court being satisfied of a risk of unfair prejudice. In order to

Hearsay CHAPTER 7

Capital Securities xv Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja cont. apply s 135, it was necessary for the primary judge to consider two further aspects: (a) to make an assessment of the probative value of the evidence and (b) then to assess whether that probative value was “substantially outweighed” by the danger that the evidence might be unfairly prejudicial. With respect, the reasons do not disclose any process of analysis answering what was required in these second and third steps under s 135. The omission is substantially the same as that identified by this Court in Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [163] and James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 at [31]-[32]. Although Ms Obrart contended to the contrary, it is plain on a fair reading of the reasons that this did not occur. In order to have done so, it would have been necessary for the primary judge to have proceeded, contrary to her view, on the basis that the documents were business records containing representations which were not excluded by the hearsay rule, to have identified the probative value of those representations in light of the issues between the parties, and then asked whether that was substantially outweighed by the risk of unfair prejudice. [116] For all those reasons, the exercise of discretion under s 135 has miscarried. … (Appeal allowed and set aside orders refusing to admit the Bancorp documents)

 [7.290] Section  70 creates an exception in relation to contents of tags, label and writing.

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Section 71 creates an exception in relation to telecommunications.. Sections 73 and 74 create exceptions in relation to certain evidence of reputation. Section  75 creates an exception in interlocutory proceedings.

PROOF BY AFFIDAVIT OR WRITTEN STATEMENT [7.300] Division 2 of Pt 4.6 (ss 170-173) permits evidence of a fact that is required to be

proved in relation to a document or thing for the purposes of ss 63, 64, 65, 69, 70 and 71 to be given by affidavit (or written statement in the case of a public document) by a person permitted under s 171 to give such evidence. [7.310]

Questions

The hearsay rule 1. What is “hearsay” evidence? 2. What happened in Subramaniam v Public Prosecutor [1956] 1 WLR 965; who made the previous representation and what was it? 3. On what basis was the “out-of-court” statement in Subramaniam v Public Prosecutor admitted into evidence? What should have been the trial judge’s direction in relation to this evidence? 4. What are some of the reasons for hearsay evidence being excluded? 5. Does the Evidence Act 1995 retain the rule against hearsay? See s 59. What is a way to identify whether s 59 applies? What happens if s 59 does exclude a previous representation?

Part 3 — Admissibility of Evidence

6. Does the definition catch: • implied assertions; • conduct; • evidence of intention or state of mind? 7. Consider Walton v The Queen and answer the following questions: (a) Who made the previous representation? (b) What is the asserted fact in the representation? (c) Is the previous representation being tendered to prove the asserted fact, or something else? 8. What is the effect of s 60? 9. In what circumstances could a previous representation be admitted for a non-hearsay purpose?

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10. Read the case of Lee v The Queen. In class, students can “act out” the facts using this script: Scene 1: In Kings Cross Calin: Hey man. Where’s the 80 bucks you owe me? Lee: No, leave me alone leave me alone. Calin: I’m not f***ing going to leave you alone til you give me my 80 bucks. Where is it? Lee: I haven’t got it, leave me alone, cause I’m running because I fired two shots. Calin: What do you mean you fired two shots? Lee: I did a job and the other guy who was with me bailed out. Scene 2: In court Prosecution: We call Mr Calin as our next witness. Mr Calin, what happened on the night in question? Calin: I bumped into the accused at about 8pm in Kings Cross and we had a conversation about some money he owed me. He didn’t have it with him. Prosecution: Was anything else said? Calin: No, I cannot recall anything else. Prosecution: Your Honour, we seek leave to cross-examine Mr Calin about a statement he made to the police. Voir dire held. Judge: Alright, Mr Prosecutor, you may cross-examine the witness. Prosecution: Mr Calin, look at this document. Is that a document prepared by the police that you signed? Calin: Yes, but the statements in it are not mine. … Police officer: I took the written statement from Mr Calin and it is correct. Prosecution: We seek to tender the statement made by Mr Calin to the police. … Judge (to jury): If you accept that Mr Calin told the police that Lee had said to him “leave me alone because I’m running because I fired two shots … I did a job …”, that was evidence of the fact that the appellant did say those words to Mr Calin.

Now answer the following questions: (a)

Consider the case of Lee and assume Calin is not an unfavourable witness. • If Calin testifies about what Lee said (ie the previous representation contained in his statement to the police about “firing two shots and just doing a job”), who has made the previous representation?

Hearsay CHAPTER 7

• What is the purpose of Calin giving evidence of Lee’s previous representation? In other words, what is that person intending to assert in the previous representation? • Would Lee’s previous representation be excluded by the hearsay rule? • Is there an exception to the hearsay rule that would apply?

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(b)

Consider the trial of Lee and that Calin is an unfavourable witness and answer the following. • Who made the previous representations in Calin’s statement to the police? • How did the High Court deal with Calin’s previous representation of what Lee did (ie “walking fast” and “sweating”)? (i) Who made the previous representation? (ii) How was this previous representation admitted? (iii) What use could be made of the previous representation? • How did the High Court deal with Calin’s previous representation of what Lee said (ie “Leave me alone, cause I’m running because I fired two shots … I did a job and the other guy who was with me bailed out”)? (i) Who made the previous representation? (ii) What did Calin intend to assert? (iii) What did Lee intend to assert? (iv) Was it admissible? (v) What should the trial judge have done in the trial of Lee?

Exceptions to the hearsay rule 1. What does s 61 provide? 2. What is the effect of s 62? 3. What is firsthand hearsay? What are the preconditions to using the firsthand exceptions? 4. Read the following and explain the evidence: In a murder charge the deceased was killed by a fatal stab wound. One day after the killing the accused was seen by the postman, P, cleaning the knife in the garden. P asked what he was doing and the accused replied that he was cleaning the knife that he had used to kill someone. P then told his supervisor, S.  S then told her husband, H. • How is P’s evidence to be categorised? Is it admissible? • How is S’s evidence to be categorised and is there any distinction between what P had seen and what P had heard? Is it admissible? • How would H’s evidence be categorised? Is it admissible? 5. Fill in the following table, indicating whether each section requires the maker of the representation to be available, applies to civil or criminal cases, the requirements for its use and whether notice must be given to the other side.

Part 3 — Admissibility of Evidence

Section

Maker available?

63

Civil/crim?

Reasons for use?

Other requirement?

Notice (s 67)?

 

 

 

 

64(2)

 

 

 

 

 

64(3)

 

 

 

 

 

65(2)(a)

 

 

 

 

 

65(2)(b)

 

 

 

 

 

65(2)(c)

 

 

 

 

 

65(2)(d)

 

 

 

 

 

65(3)

 

 

 

 

 

65(8)

 

 

 

 

 

65(9)

 

 

 

 

 

66

 

 

 

 

 

66A

 

 

 

 

 

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6. Fill in the following table, indicating whether each section requires the maker of the representation to be available, applies to civil or criminal cases, the requirements for its use and whether notice must be given to the other side. Section

Civil/crim

Reason

Other requirement?

Notice (s 67)?

69

 

 

 

 

70

 

 

 

 

71

 

 

 

 

72

 

 

 

 

73

 

 

 

 

74

 

 

 

 

75

 

 

 

 

7. On 22 June 2014 there was a murder on the dance floor of a nightclub. John was stabbed in the middle of the dance floor. John died some hours after the stabbing from the fatal injuries inflicted. Detective Green is the police officer who investigated the murder and prepared the brief of evidence. George has been charged, and is on trial, for the murder of John. Hugo gave a statement to police on 24 July 2014. In Hugo’s statement he described what occurred on the night of the stabbing when he “saw George dancing close to John and then George lunged towards John and moved away”. Hugo also told Detective Green that John had yelled “my goodness, I  can’t believe that George has done this to me”. Detective Green fears that Hugo may not wish to give evidence against George. Both are members of rival gangs and Hugo may not wish to give evidence for fear of gang warfare. At the trial of George, Hugo is called as a witness by the prosecution. Hugo is asked by the Crown Prosecutor to recollect what occurred on 22 June 2014. Hugo states that he “can’t remember”. What should the prosecutor do? 8. Consider the evidential issues that arise for the following scenario. Reto is on trial, before a judge and jury, for the possession of cocaine. The offence occurred on 22 December 2015. The prosecution case relies on the evidence of Mike.

Hearsay CHAPTER 7

Mike has deposed a statement to police which states that he had a conversation with Reto on 21 December 2015 where Reto told him “I am expecting the white gold tomorrow” while he pointed to his nose. Mike also told police that Reto showed him 20 empty plastic bags. Mike had informed police of this information and the police executed a search warrant on Reto’s apartment on 22 December 2015. During the search the police found the cocaine in a box marked “Reto’s stuff”. The cocaine was in 20 small plastic bags. Police seized the cocaine, the scales and spare plastic bags. The scales have a sticker attached to the base of the scales which reads “Heroin is the best”. At the time of the search, the police officer in charge of the investigation took a statement from Reto’s son, Lucio. Lucio told police that before the police were at the house he saw his father using the weighing machine with the powder. Lucio told the police that his mummy told him that “Daddy’s job is to fit white powder into tiny bags and sell it”. Lucio was born on 22 December 2009. Lucio gives unsworn evidence in accordance with his statement. The defence objected to this evidence but the judge ruled the evidence was relevant. At the trial, the prosecution calls Mike as a witness. Mike testifies that Reto was a jewellery maker and he was expecting a shipment of gold. The trial judge allows the prosecution to admit Mike’s statement to police into evidence. The judge directs the jury to “use it to prove that the accused was expecting a supply of cocaine”.

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9. Refer to Strom v Council of the Shire of Cremorne in Chapter  20, and answer the following: (a) The plaintiff was intoxicated at the time of the accident. The Council want to call Bill Bugle, an ambulance officer, who attended the accident to give the following evidence: Bugle:

How do you feel mate?

Strom:

OK. I think I drank too much.

Bugle:

How much did you drink?

Strom:

Probably (hiccup) about (hiccup) … you know … 20 beers or so and some Jim Beam.

Bugle:

Can you feel it when I touch your legs?

Strom:

Yes, I think so.

Would this evidence have been admissible? (b) Bill Watch is a friend of Jack Strom. He witnessed Jack’s fall and told the solicitor for the Council that he thought “Jack was being really stupid. No wonder he fell”. Bill has since moved to Switzerland, where he is working as a banker. Could his statement to the solicitor have been admitted in court? (c) The Council tendered a police statement made by Sam Ross (see Document 8), that said he was “at a picnic” near the accident scene and he saw some young adults. He said: “Most of them were quite intoxicated. They all were hanging around the railing overlooking the water.” He said: “One particular tall young man, with a blue shirt, came over to us to ask for a cigarette. Soon after that he fell over the railing.

Part 3 — Admissibility of Evidence

I heard him call out and ran to see what had happened.” Assume that at the trial Sam Ross said he couldn’t remember anything about what happened that night because he became quite drunk. The Council tells the judge this police statement is relevant to show that Jack was drunk and could have been negligent. Jack’s objection to the admission of Sam Ross’s police statement was overruled. Can he appeal?

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10. Consider R v Eagle in Chapter  20. Look at the statements in the police brief against Robert Eagle and identify the hearsay issues that may arise in respect of each witness statement.

CHAPTER 8

Opinion [8.10]

OVERVIEW ................................................................................................................ 337

[8.20]

THE OPINION RULE .................................................................................................. 339

[8.30]

LAY OPINION EXCEPTION ........................................................................................ 339 [8.40] Lithgow City Council v Jackson .................................................... 340

[8.50]

EXPERT OPINION EXCEPTION .................................................................................. 352 [8.60] HG v The Queen ...................................................................... 352 [8.70] Honeysett v The Queen ............................................................. 355 [8.80] Dasreef Pty Ltd v Hawchar ......................................................... 363 [8.90] Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage ..... 372 [8.100] Langford v Tasmania ................................................................ 374 [8.105] Tuite v The Queen .................................................................... 382

[8.110]

ULTIMATE ISSUE AND COMMON KNOWLEDGE RULES ABOLISHED ......................... 387

OVERVIEW

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[8.10] Part 3.3 establishes, in s 76, the “opinion rule”, which excludes evidence of an opinion

that is sought to be used “to prove the existence of a fact about the existence of which the opinion was expressed”. No attempt is made to define the term “opinion” but the courts consider that an opinion is, in substance, an inference drawn from observed and communicable data (see Lithgow City Council v Jackson (2011) 281 ALR 223; 85 ALJR 1130; [2011] HCA 36). The opinion of a witness is more likely to be disputable and of limited assistance to the tribunal deciding the facts of a case. However, the distinction between evidence of “fact” and evidence of “opinion” assumes a dichotomy that is not always easy to draw. Evidence of physical identification illustrates the point. On the one hand such evidence may be characterised as evidence of fact; but, depending on the circumstances, it may more properly be characterised as evidence of opinion. A useful distinction may be drawn between evidence of “experience” and evidence of “opinion” – a witness with experience of how a particular type of vehicle behaves in certain conditions may give relevant evidence of that experience, which is properly regarded as evidence of fact rather than opinion. In some circumstances, an opinion may have multiple relevance. It may be relevant as evidence of the fact in respect of which the opinion is expressed and relevant in another way. In those circumstances, if the evidence has been admitted for the other purpose, s 77 permits it to be also used to prove the fact in respect of which the opinion is expressed (as with the hearsay rule) – subject to the judicial discretion created by s 136. The first major exception to the opinion rule is an opinion which is based on what a witness saw, heard or otherwise perceived about a matter or event and where “evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event” (s 78). Examples of evidence which may be admitted under this section are

Part 3 — Admissibility of Evidence

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“opinions” as to the identity of individuals, the apparent age of a person, the speed at which something was moving, the state of the weather, a road or the floor of a factory. The High Court looked closely at this exception in Lithgow City Council v Jackson (2011) 281 ALR 223; 85 ALJR 1130; [2011] HCA 36, holding that it reflected the common law approach to this kind of evidence. However, a question that remains is whether this provision should be narrowly interpreted to permit only a compendious description of what was perceived or may be more liberally applied. The second major exception to the opinion rule is opinion wholly or substantially based on “specialised knowledge” (which, in turn, is based on the person’s training, study or experience). It will be necessary to establish that, quite apart from the requirement of relevance (s 55): (a)

the person has “specialised knowledge”;

(b)

that specialised knowledge is based on the person’s training, study or experience; and

(c)

the opinion is “wholly or substantially” based on that specialised knowledge.

As to (a), the phrase “specialised knowledge” is not defined. It equates to “expertise” as under the common law, although it remains a matter of contention whether, particularly in relation to novel scientific evidence, there is any burden on the party seeking to have the evidence admitted to demonstrate its reliability. Nevertheless, in Honeysett v The Queen (2014) 88 ALJR 786; [2014] HCA 29 the High Court emphasised the significance of the word “knowledge”, adopting the approach of the US Supreme Court that “the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”. Quite apart from that issue, it will be necessary to establish that the person purporting to have such knowledge does in fact possess it, in relation to each opinion sought to be given. Thus, a psychologist may be able to express opinions about human behaviour but not as to why a person told lies in a particular context; a medical practitioner may be able to express opinions regarding the causes of particular injuries, but not about how much force would have been required to cause the injuries or whether the injuries were inflicted deliberately. In an amendment to the Act following on ALRC 102, s 79(2) makes clear that “child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse)” is an area of “specialised knowledge” for the purposes of s 79(1). As to (b), specialised knowledge may be based on the person’s training, study or experience. However, where “experience” is asserted to be the basis of “specialised knowledge”, this will need to be clearly demonstrated. Much will depend on the field of knowledge in question. A  police officer may have sufficient experience to express an opinion as to whether it was typical behaviour of a supplier to have drugs in the quantity and of the purity of the drugs discovered in the defendant’s car, but lack expertise to give evidence as to the purpose for which the defendant possessed the drug. A person may have what is sometimes referred to as “ad hoc expertise” based on particular experience (such as repeated listening to tape recordings which are substantially unintelligible to anybody who had not played them repeatedly). On the other hand, “experience”, without proper training or study, would be quite insufficient in a technical field of science. As to (c), the requirement that the opinion is “wholly or substantially” based on the expert’s specialised knowledge means that the expert will not be permitted to stray outside his or her

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Opinion

CHAPTER 8

area of expertise. Further, it is not enough that a particular opinion falls within the field in which the witness is an expert, if no “specialised knowledge” is used in reaching that opinion (because, eg, it turns on a factual analysis). The requirement that an opinion be “wholly or substantially based on” specialised knowledge means that the reasoning process leading to the formation of the opinion must be exposed (made “transparent”) so as to demonstrate that the opinion is so based: see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. It is contentious (both in relation to s 79 and possible discretionary exclusion) whether a court may insist (particularly in novel fields of specialised knowledge) that it be demonstrated by the adducing party that the purported linkage between the expert’s specialised knowledge and a particular opinion is valid or reliable. However, there is no doubt that a particular opinion may be “substantially based” on specialised knowledge notwithstanding the fact that the expert witness takes into account matters of “common knowledge” or utilises materials provided by others in formulating the opinion. It is not necessary to identify, nor adduce evidence to prove, the general and specialist knowledge customarily relied on by experts in the field. However, there are conflicting views on the question whether it is a condition of admissibility of an expert opinion that any assumed facts on which it is based are established proved by the evidence (the common law “basis rule” or “proof of assumption rule”). Justice Heydon held repeatedly that there is such a condition of admissibility, most recently in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21. There is considerable authority to the contrary and, on one view, the plurality judgment in Dasreef Pty Ltd v Hawchar considers that s 79 (and the rest of Ch 3 of the Act) does not incorporate the rule and that, as a result, issues of this type are left (as intended by the ALRC) to the determination of relevance (where it is contended that a failure by the tendering party to prove the facts assumed to exist for the purposes of expressing the opinion makes the opinion evidence irrelevant) and the discretions in Pt 3.11. On another view, the plurality in Dasreef Pty Ltd v Hawchar did not specifically consider the correctness of Heydon J’s analysis, namely that the basis rule is a common law rule that survives and coexists with the Evidence Act. However, it appears that the law is now settled, in UEL jurisdictions, and the common law “rule” no longer operates. See, most recently, Langford v Tasmania [2018] TASCCA 1, Brett J at [38]. Another exception to the opinion rule is found in s  78A, in relation to “an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group”. The term “traditional laws and customs” is defined in the Dictionary to the Act.

THE OPINION RULE [8.20] Section 76 of the Evidence Act 1995 creates the “opinion rule” which excludes evi-

dence of an opinion adduced “to prove the existence of a fact about the existence of which the opinion was expressed”. The two main exceptions to the opinion rule are for lay opinion (s 78) and expert opinion (s 79).

LAY OPINION EXCEPTION [8.30] Section 78 creates an exception to the “opinion rule” in relation to non-expert opin-

ion. The High Court considered the scope of the opinion rule and this exception to the rule in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson [8.40] Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Facts [Facts are set out at [7.260].] Judgment FRENCH CJ, HEYDON AND BELL JJ (Some footnotes omitted): ... Must a statement of lay opinion in a business record comply with s 78?

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[18] There is another question not debated in the courts below. It was, however, adverted to by Basten JA in the second Court of Appeal decision and briefly debated by the parties in this Court. The question is whether a statement of opinion in a business record has to comply with ss 76-79. There is authority that it does not have to, that is, that ss 76-79 apply only to evidence of opinions given by witnesses in court [Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 at 367-369 [208]-[218]; leave to appeal refused in Rich v Australian Securities and Investments Commission [2005] NSWCA 233; (2005) 54 ACSR 365 at 367]. If not, and subject to the s 69 problem just discussed, the impugned representation was admissible. However, Basten JA doubted the “statutory basis” for the conclusion that ss 76-79 apply only to evidence of opinions given by witnesses in court. [19] There are strong textual reasons supporting Basten JA’s doubts and indicating that the conclusion is not merely to be doubted, but is wrong. Section 69 is in Pt 3.2 of the Act. Sections 76-79 are in Pt 3.3. Section 56(1) contemplates that relevant, that is, otherwise admissible, evidence may be excluded by more than one exclusionary rule in Pts 3.2-3.11. One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies. Section 76 excludes “[e]vidence of an opinion” – not “evidence by a witness of an opinion”. There is no indication in any other provision in Pt 3.3 that it operates only in relation to the opinions of witnesses. [20] The respondent resisted the conclusion that ss 76-79 applied to hearsay evidence to which the hearsay rule does not apply, such as business records, by relying on two groups of arguments. [21] The first turned on the difficulties of complying with ss 78 and 79. The respondent had in mind that, while these difficulties can be met where evidence is received through witnesses by careful preparation and by the precise formulation of questions, they cannot be met in relation to hearsay representations like those in a business record. That is because the makers of hearsay representations do not contemplate the need to comply with the rules regarding the mode of expression of opinion evidence in future litigation. Any deficiencies in hearsay representations, unlike those in testimony, are immutable and incapable of correction. The answer to this submission is that the evils of opinion evidence which have resulted in its prohibition by s 76(1) unless there is compliance with the specific requirements of ss 77-79 are just as great when the evidence appears in hearsay representations as when it is given through witness testimony. If opinion evidence which was inadmissible when elicited through questions to a witness were admissible if it appeared in a hearsay representation, a bizarre premium would be placed on calling hearsay evidence in preference to direct evidence. If there are inconveniences, they are necessary inconveniences, and they are not so acute as to compel a construction to the contrary of what the clear words suggest. [22] The second group of arguments advanced by the respondent turned on s 60 in its form at the time of the trial. It provided: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

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Lithgow City Council v Jackson cont. The respondent submitted that this provision would be inconsistent with the application of s 78 to business records, but it did not explain why, and its reference to the Australian Law Reform Commission did not explain why either. Section 60 in its old form provided in effect that hearsay evidence admitted for one non-testimonial purpose may be used for a testimonial purpose despite its hearsay character. The submission begged the question of whether the evidence had been or could be admitted for a non-testimonial purpose: the reception of the evidence under s 69 meant only that the hearsay rule did not apply to it, not that it was admissible for a non-testimonial purpose. The appellant’s submissions on admissibility in outline [23] The appellant put four submissions on admissibility. First, the impugned representation was irrelevant. Secondly, it did not express an opinion. Thirdly, even if it did express an opinion, it was not an opinion satisfying the condition stated in s 78(a). Fourthly, that even if it were an opinion satisfying the condition stated in s 78(a), it did not satisfy the condition stated in s 78(b). [24] At the outset it should be said that s 78 conceals so many problems that it is desirable to concentrate closely on the issues which the parties wished to raise, lest other difficulties be prejudged without proper argument.

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Was the impugned representation relevant? [25] The appellant’s first submission was that even if the impugned representation satisfied s 78, it was inadmissible because it was so ambiguous as to be irrelevant. The point of the submission was that the statement does not say “Fall from vertical head wall”. A fall from top to bottom of the vertical face was a fall of nearly 1.5m (ie 1.41m), and perhaps as much as 1.9m if the respondent’s head struck an indentation out from the wall. Whatever the actual extent of the fall, the impugned representation referred to a fall of 1.5m onto concrete. It does not say where the fall took place. A fall from one of the non-vertical sides meant a vertical fall of the same distance as a fall from the vertical face, albeit one which might have been potentially less injurious because the non-vertical sides might arrest its velocity. An opinion that there had been a fall of 1.5m from one of the non-vertical sides would be relevant within the meaning of s 55(1) because it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding: its relevance would lie in negating the respondent’s case that he fell from the vertical head wall, not one of the sides. An opinion that there had been a fall of 1.5m from the vertical head wall would be relevant for the opposite reason: it would support the respondent’s case. But the appellant submitted in effect that the statement was so ambiguous that it had no probative value: it supported neither the theory of a fall from the vertical head wall nor the theory of a fall from one of the sides, and for that reason did not satisfy s 55(1). [26] The appellant’s submission as to relevance should be accepted on the basis that the impugned representation was so ambiguous that it could not rationally affect the assessment of the probability of a fall from the vertical head wall. Assuming, contrary to that conclusion, that the impugned representation was relevant, the question then arises: What kind of statement was it? Was it, as the Court of Appeal found, an opinion, admissible by operation of s 78 as an exception to the opinion rule in s 76? Was the impugned representation an “opinion”? [27] The respondent’s submission. The respondent submitted that the impugned representation was an opinion because it was an inference from observed and communicable data. The data observed by the ambulance officers were the respondent’s injuries and physical condition, his position in relation to the vertical wall and the pool of dried fluids and the scene generally. [28] The respondent’s submission rejected. The respondent’s submission must be rejected. What the ambulance officers did observe and could have observed could have caused them to draw an inference from the observations. But the present question is whether they actually did do so, not whether they could have. The question turns on the form of what they said in the context in which they were speaking. That is because what it means to raise a query about something can vary with the context. “I query whether that is so” can mean “That is probably so, though I am not sure” or “That may well

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. be so, though I am not sure”. But it can also mean: “I raise a question about whether it is so”, or “I speculate whether it is so”, or “I raise the possibility that it is not so”, or “I doubt that that is so”. It can even mean “I deny that that is so”. [29] The appellant submitted that the impugned representation did not state an inference that the respondent had fallen 1.5m onto concrete. It did no more than raise a question whether he had, or speculate whether he had, or raise as a possibility that he had. [30] The respondent’s submission depends on the idea that the ambulance officers drew an inference from observed data. What data did they observe? [31] The Court of Appeal in its first judgment said that “the most important piece of information which could throw light on what had happened was the position of the [respondent’s] body”. And it also said: “Critical is understanding the place of the body, its configuration and its relationship to the surrounding structures.” The impugned representation revealed these things indirectly, in the Court of Appeal’s opinion, because the makers of it saw the position and the configuration, and for the Court of Appeal that indirect revelation was the significance of the impugned representation.

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[32] The force or otherwise of this reasoning depends on the answers to two questions. Where was the respondent when seen by the passers-by and the ambulance officers? Was that his position earlier, when he fell? Even on the Court of Appeal’s view, the ambulance officers’ records said nothing about the position of the respondent’s body and its relationship with the wall and the drain. And there was no other evidence of where he was lying when he was found. It cannot even be concluded that the position which the respondent was in just after his fall was the same as his position, whatever it was, when help came. [33] Despite that lack of evidence, the Court of Appeal in its first decision made two findings about the data observed by the ambulance officers. The first was that the impugned representation was made by the ambulance officers “having the inert unconscious body in front of them and they having the advantage of being able to assess the position of the body and its relationship with the wall and the drain”. The second finding was that the impugned representation was “some evidence of a position of the body consistent with a view” that the respondent fell from the vertical wall. [34] The first finding was supported by a hospital record made after the respondent had been taken to Nepean Hospital stating that he was found “unconscious”. But the hospital record reflects a chain, perhaps a long chain, of hearsay, and contains errors. The first finding did not in fact long survive. It was withdrawn in the second decision because of a lack of support for it either in the impugned representation or in other parts of the ambulance officers’ records. In the second decision, Allsop P and Grove J accepted that the evidence “was not sufficient to conclude that the ambulance officers saw a still, prone and unconscious body”. The ambulance officers’ records identified a “[d]ecreased level of consciousness”, but that did not lead to the conclusion that the ambulance officers came upon the respondent “unconscious and prone”. And although the ambulance officers may have been able to “assess” the position of the respondent’s body, there is no evidence that they did so. [35] The second finding assumes, without proof, that the respondent had not moved in any respect between the moment he fell and the time when the ambulance officers saw him. It is also invalidated by the withdrawal of the first finding. The ambulance officers’ records recorded the respondent as being “combative”; and while this may only have been because painful stimuli were being administered, it is not open to find that he was incapable of changing his position. That meant that the respondent did not establish that his body position had not changed between when he fell and when the ambulance officers saw him. The respondent appeared to rely on Glasgow Coma Scale readings which were described as “low”, but without expert medical opinion as to the likely consequence that those readings had on the respondent’s capacity for physical movement after the accident, the evidence has no probative value. The respondent also contended that the fact that while his extremities were cold his trunk was warm, indicating an absence of circulation and therefore movement, is a

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Lithgow City Council v Jackson cont. matter from which no conclusion could be drawn without expert medical opinion evidence. Indeed the Court of Appeal rightly rejected the latter submission in its first decision. [36] In short, the material preceding the impugned representation recorded what apparently were personal observations by the makers of the statement. But that material said nothing about what could be observed of the precise location of the respondent in relation to the physical features of the location. And it said nothing about what the makers of the statement actually observed in those respects.

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[37] Opinion that there was a question. The appellant drew attention to the fact that, in the second Court of Appeal decision, Allsop P (Grove J agreeing) found that the Ambulance Service statement was “an opinion, in the sense of an inference drawn, that there was a question whether [the respondent] had fallen the 1.5 metres onto concrete”. They also said that the facts observed by the makers “caused them or one of them to raise the question whether he did not fall from the 1.5 metre wall. It did not cause the maker to posit any other possible cause”. But, the appellant submitted, to characterise the impugned representation as an opinion that there was a question whether there had been a 1.5m fall was to render it inadmissible. In the circumstances of some cases a statement that a question existed might be an “opinion” within the meaning of s 76. But in the circumstances of this case anything less than a statement that on the balance of probabilities there had been a fall would be outside s 76. An inference that the accident happened in a particular way would be an opinion. An inference that there was a question whether it happened in a particular way would not. [38] With respect, it is necessary to reject both the appellant’s submission and the Court of Appeal’s finding. The impugned representation cannot be said to have stated an “opinion” even in the Court of Appeal’s sense. The ambulance officers’ records are so shrouded in obscurity about what data they observed and suggest so great an unlikelihood that that data could support, or were seen as pointing to, any definitive inference that it is not possible to find on the balance of probabilities what the impugned representation was stating. It is therefore not possible positively to find that it stated an opinion. Is s 78(a) satisfied? [39] On the other hand, if it is assumed that the impugned representation did express an opinion, and a relevant one, the next question is whether s 78(a) is satisfied. Section 78(a) goes to questions of form. It must be possible to extract from the form of what the person stating the opinion said, construed in context, that the opinion is about a “matter or event”, and that it is “based” on what the person stating the opinion “saw, heard or otherwise perceived” about that matter or event. [40] What matter or event? The appellant submitted that the only matter or event about which the opinion was expressed was the respondent’s fall which caused his injuries. The opinion expressed a question about that fall. That was the point of the respondent tendering it. In contrast, in the second Court of Appeal decision Allsop P (Grove J concurring) considered that the “matter or event” was everything to be perceived about the respondent at the scene – “his state of reduced consciousness, his injuries, his position, the position of blood and urine and the surrounding structures”. If the Court of Appeal’s approach were correct, however, s 78(a) would not be satisfied. While the matters to which the Court of Appeal referred go to an opinion about the extent of the respondent’s injuries, the impugned representation was not stating an opinion on that subject, only about their cause. On that approach, s 78(a) would not be available because the position would be analogous to that considered by the New South Wales Court of Criminal Appeal in R v Howard when it held inadmissible evidence of a witness who had viewed some cannabis and estimated the period since it had been harvested. Hunt AJA, Grove and James JJ said [R v Howard [2005] NSWCCA 25; (2005) 152 A Crim R 7 at 14 [29]]: The only matter or event was the viewing and identification of the cannabis. The opinion evidence was an assertion of something said to have happened beforehand (harvest) and specifying the time which must have elapsed between the harvest and the viewing, a progression which [the witness] did not purport to see, hear, or otherwise perceive.

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. [41] Is it necessary for the holder of the opinion to have witnessed the matter or event? In fact the appellant’s submission is correct: the opinion stated a question about the “matter or event” of the fall. It then submitted that since the persons who stated the opinion did not see, hear or otherwise perceive anything about the fall, their “opinion” could not have been based on it, and hence it is outside s 78(a). The appellant submitted that s 78 only applies to opinions given by those who actually witnessed the event about which the opinion is given. That submission, although it was contested by the respondent, is also correct.

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[42] Authorities on witnessing matter or event. The appellant referred to two authorities. In Smith v The Queen [[2001] HCA 50; (2001) 206 CLR 650 at 669-670 [60]; [2001] HCA 50] Kirby J dealt with the opinion of two police officers who had not witnessed a robbery that the accused was one of the robbers. He said that it did not satisfy s 78(a) because it was only based on their examination of security photographs recording the robbery: it was not based on what they “saw, heard or otherwise perceived about a matter or event”. It was not necessary for other members of the Court to deal with this point. In the other case, Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955 at 61,756-61,758 [51]-[56], the Court of Appeal of the Supreme Court of New South Wales (Beazley and Tobias JJA, Spigelman CJ concurring) held that a conclusion about the “deceiving” nature of a defective slab in a footpath was within s 78(a), because it was based on what a witness had seen at the scene of the accident moments after it had occurred. The case is distinguishable from Smith v The Queen, but the Court’s reasoning is not inconsistent with that of Kirby J. In the language of s 78, the Court described the “matter” to which the witness’s “perception” related as “the effect on the visibility of the defective slab of the shadow over it at the time”. The witness perceived that personally. In contrast, here the “matter” was the respondent’s fall, which the ambulance officers had not perceived personally. [43] Ordinary meaning of “perceived”. The approach of Kirby J corresponds with one of the ordinary meanings of “perceive” – to observe by one of the five senses of sight, hearing, smell, taste or touch. That is the first of the two meanings which the Macquarie Dictionary gives for “perceive”: 1. to gain knowledge of through one of the senses; discover by seeing, hearing, etc. 2. to apprehend with the mind; understand. It is also the third meaning of “perceive” given by the Oxford English Dictionary: To apprehend (an external object) through one of the senses (esp sight); to become aware of by sight, hearing, or other sense; to observe; “to discover by some sensible effects”. The view that “perceived” is used in s 78(a) in the first Macquarie and the third Oxford meanings is supported by the use of the words “saw, heard or otherwise” before “perceived”. Kirby J’s approach is also supported by the fact that the expression “saw, heard or otherwise perceived” appears in s 69(5), as part of a definition of “personal knowledge of a fact”: the meaning there plainly corresponds with the first Macquarie and the third Oxford meanings. For what it is worth, that construction of s 78(a) appears to correspond with the intention of the Australian Law Reform Commission, which spoke of “the witness’ personal perception of a matter or event” and frequently used words to that effect [Australia, The Law Reform Commission, Evidence, Report No 26 (1985), vol 1 at 410-411 [739]-[740]. For the use to be made of the report, see Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 85 ALJR 694 at 721-722 [106]-[107]; [2011] HCA 21; 277 ALR 611 at 643-644; [2011] HCA 21]. [44] Respondent’s construction. The respondent rejected the construction of s 78(a) propounded by the appellant on the ground that to limit s 78 “to those witnesses who actually saw the fall renders the section otiose, because such evidence would be direct evidence”. He submitted that on the appellant’s construction s 78 “would have no function whatever because it would leave no room for inferences and mean that opinions in relation to observations or perceptions after the event could not be put in”. The respondent submitted that s 78 “clearly envisages not just what has been observed in relation to a particular event, but the opinions in relation to the surrounding circumstances. The words in [s] 78(a) ‘or otherwise perceived’ clearly intended that”. That does not follow. The respondent’s submission as

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Lithgow City Council v Jackson cont. a whole must fail. Section 78 would have a function even on the appellant’s construction. It would have the same broad function as the corresponding common law rule. [45] Function of common law rule. The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more [see eg Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7 at 44-204, §§19331978]. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.

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[46] There is controversy about whether s 78 is precisely identical with the common law. But it is clear that s 78 is dealing with the same problem as the common law did in instances within the category just described. In words of Gibson J approved by Wigmore: It is a good general rule that a witness is not to give his impressions, but to state the facts from which he received them, and thus leave the jury to draw their own conclusion; and wherever the facts can be stated, it is not to be departed from. But every man must judge of external objects according to the impressions they make on his senses; and after all, when we come to speak of the most simple fact which we have witnessed, we are necessarily guided by our impressions. There are cases where a single impression is made by induction from a number of others; as, where we judge whether a man is actuated by passion, we are determined by the expression of his countenance, the tone of his voice, his gestures, and a variety of other matters: yet a witness speaking of such a subject of inquiry, would be permitted directly to say whether the man was angry or not. ... I take it, that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separated and distinctly narrated, his impressions from these facts become evidence [Cornell v Green 10 Serg & Rawle 14 at 16 (Pa 1823) (emphasis in original), quoted by Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7 at 12 §1918]. In words of Loomis J, also approved by Wigmore, the principle rests: [O]n the ground of necessity, where the subject of the inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts on which the witness bases his opinion are so numerous and so evanescent that they cannot be held in the memory and detailed to the jury precisely as they appeared to the witness at the time. ... The very basis upon which ... this exception to the general rule rests, is that the nature of the subject matter is such that it cannot be reproduced or detailed to the jury precisely as it appeared to the witness at the time. [Sydleman v Beckwith 43 Conn 9 at 12-14 (1875), quoted by Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7 at 13 §1918] But the “impression” which the witness received must be based on a “fact” which the witness perceived – as Gibson J said, “the facts from which the witness received an impression”, or as Loomis J said, “the subject matter ... precisely as it appeared to the witness at the time”. In contrast, the respondent’s submission appears to adopt the following account of Basten JA:

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. The ambulance officers appear to have reasoned backwards from their perceptions of the [respondent] when they first saw him, to his position at an earlier point in time, which they did not see. Perceptions of the aftermath can properly be described as perceptions “about” the event which led to that result. That is to give too wide a meaning to “about”. There is, with respect, no indication in the statutory language that so wide a departure from the common law rule was made. Is s 78(b) satisfied? [47] The Court of Appeal’s opinion. Allsop P and Grove J concluded that s 78(b) was satisfied for the following reasons:

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[H]ad the ambulance officers been called to give evidence as to their perceptions of all the aspects of [the respondent] and his surroundings, they may or may not have been able to express themselves in a way to give an account of their perceptions as to [the respondent’s] body position, state of consciousness, injuries, position of blood and urine and surrounding structures. Whether the note containing their opinion in those circumstances would have been “necessary” to obtain an adequate account of their evidence might depend on what they are able to say. If, however, they were unable to recall any or many of their perceptions then to obtain an adequate account of their perceptions one would need to accept the inference (the opinion) into evidence as the only evidence bearing on the nature of what they saw. Those perceptions, whatever they were, caused the officers at the time to draw the inference (and thus form an opinion) that there was a question whether [the respondent] fell from the 1.5 metre wall. Not being called, likewise, the only way to get any account of their perception was to admit the documents and the opinion contained therein. [48] Consideration of the Court of Appeal’s opinion. With respect, the Court of Appeal’s reasoning is unsound. Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed. But in cases of the present type the primary facts are not too evanescent to remember or too complicated to be separately narrated. It would be possible for an observer to list his or her perceptions of specifically identifiable medical circumstances of someone found in a drain, perceptions of specifically measurable distances between limbs and other objects and perceptions of specifically describable angles of limbs. Professional investigators like police officers, for example, commonly make precise measurements of that kind and compose diagrams to illustrate what they have measured. Those persons can often remember what they have measured even without recourse to their notes. The process is not one where component observations are made which are incapable of meaningful expression without stating the composite opinion to which they led. It is not necessary, in order to obtain an adequate account or understanding of perceptions of that kind, that the opinion be received. Whether it would be possible for an observer who had compiled these details then to say at which point the person found in the drain fell into it would depend on whether the tender was relying on s 78 or s 79. At common law, expert opinion evidence can be given as to the cause of injuries by inference from their nature [R v Middleton [2000] WASCA 213; (2000) 114 A Crim R 258]. There is no reason to doubt that similar evidence in suitable form, from suitably qualified experts, about the causation of injuries is admissible under s

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Lithgow City Council v Jackson cont. 79. Had the ambulance officers given evidence of the medical and physical details they observed, it would have been admissible. But a statement of a conclusion by them that the respondent fell from a particular place would be opinion evidence banned by s 76. It would not have passed through the s 79 gateway into admissibility because they were not experts. It would not have passed through the s 78 gateway into admissibility because it failed to satisfy s 78(b). [49] For those reasons the conclusions stated in the paragraph quoted earlier are incorrect. Those conclusions therefore afford no valid basis for the conclusion stated in the short paragraph that the ambulance officers’ opinion is admissible even though they were not called.

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[50] Meaning of “necessary”. The meaning of the word “necessary” in statutes may vary from statute to statute. Its construction depends on the function it performs in the context of a particular statute. Allsop P and Grove J in the second Court of Appeal decision treated “necessary” in s 78(b) as meaning that the opinion could not be admitted unless it was “the only way” to obtain an account of the ambulance officers’ perceptions. Correctly understood, that test is sound in substance but it was not satisfied in this case. [51] The function of s 78(b) is to make up for incapacity to perceive the primary aspects of events and conditions, or to remember the perception, or to express the memory of that perception. But the ambulance officers were not shown to be suffering from incapacity in perception, memory or expression. Their record showed a gap in expression in fact – they had said nothing about what they perceived about the position of the respondent’s body. It did not follow that there was any incapacity to perceive, to remember what they had perceived, or to say what they had perceived about it. Allsop P and Grove J thought that the “only evidence bearing on the nature of what they saw” was the alleged opinion stated in the impugned representation. That is true in the sense that it was the only evidence tendered. But if they had been called, they might have been able to give more evidence bearing on the nature of what they saw. That possibility was not excluded by the respondent. Exclusion of that possibility on the balance of probabilities was an unfulfilled precondition of admissibility. [52] Basten JA adopted, in one place, a less strict test than that of Allsop P and Grove J. He said: When used in the [Act], the term “necessary” connotes a higher hurdle to surmount than that which is “helpful”, “convenient” or “desirable”, but does not require absolute necessity, in the sense of being the sole means of proof. Whether the exception is satisfied in a particular case may need to take account of the purpose or purposes underlying the general exclusion and the purpose of the exception. A little later he stated an even less strict test: [T]hat which is “necessary” should be understood as subject to a purposive interpretation, so that it will be effective, in practical terms, to permit the admission of non-expert opinion evidence which will have probative value. He then decided that in view of the (unproved) expense involved in calling the ambulance officers and the (unproved) unlikelihood that they could remember anything useful, “it was not unreasonable” to admit the impugned representation. [53] It is true, as the respondent submitted, that in some statutory contexts “necessary” does not mean “sine qua non”. It can mean merely “conducive”. But it is not correct to construe “necessary” as meaning “not unreasonable” in s 78. That is particularly so because s 78 is an exception to a rule of exclusion, and is not to be construed so amply as to nullify the rule of exclusion. It is also so because that construction would radically depart from the common law without any sign from the Australian Law Reform Commission that this was contemplated. In particular, the Commission rejected a “helpfulness” test: It is important that witnesses give evidence as closely connected to their original perception as is possible to minimise inaccuracy and encourage honesty. In addition, the term “helpful”

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. sets such a low threshold and is so flexible that it would be impossible for appellate courts to exercise any real control over the exercise of the power. The same would be true if the test were “not unreasonable” or “possessing probative value”. [54] The word “necessary” is not directed to meeting difficulties that arise where it is impossible or inconvenient to call the person propounding the opinion as a witness. It is not analogous to the provisions permitting evidence of hearsay statements where better evidence is unavailable (eg ss 63 and 65 of the Act) or where to call better evidence could cause undue expense or undue delay or would not be reasonably practicable (s 64 of the Act). Section 78 is not a “best evidence” provision, permitting reception of the evidence if there is no better evidence. The word “necessary” is instead directed to a relationship internal to the evidence of the perceiver – the relationship between the perceiver’s perceptions and the perceiver’s opinion. [55] The respondent’s appeal to “commonsense”. The respondent submitted that the impugned representation “was a conclusion based on the position and condition etc of the respondent, and was a commonsense conclusion, in circumstances where the respondent was found at the foot of and facing away from a concealed drop”. This is fallacious. It rests on an assertion made many times in the respondent’s submissions that the ambulance officers perceived and relied on the position of the respondent relative to his environment. For reasons given earlier, that assertion is inconsistent with the evidence and with the Court of Appeal’s second decision.

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[56] It is therefore not possible to say what perception it was that the makers made of the respondent’s position. And it is also not possible to say what “account or understanding” of that perception would be adequate, and whether the statement was necessary to obtain an adequate account or understanding. These difficulties cannot be overcome by appealing to “commonsense”. [57] Is it required that the primary perceptions be identified by the holder of the opinion? The appellant submitted that s 78 could not apply in the present circumstances where the ambulance officers had not identified the perceptions and observations on which their conclusion was based, because that left such a “disconnection” between their ultimate conclusion and any underlying observations that it cannot be said that the evidence of opinion is necessary to obtain an adequate account of their perception of the matter or event. It is not necessary to decide the point, but that submission, which, according to the Court of Appeal, contradicts a concession before it, is probably not correct. There is authority against it [R v Harvey unreported, New South Wales Court of Criminal Appeal, 11 December 1996; R v Van Dyk [2000] NSWCCA 67 at [132]-[133]; Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT [1998] FCA 480; (1998) 154 ALR 527 at 531; and Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [25]]. The common law rule does not require a full statement by witnesses of perceptions and observations – though gaps of this kind may well go to weight. Indeed the whole point of the common law rule is that it cures the difficulty that an observer may be confident about a conclusion reached from observations without being able to perceive, remember or state the primary materials which led to it. There is nothing in s 78(b) to suggest any different position. It is possible to conclude – not in this case, but in other cases – that a person’s opinion is based on what that person perceived without the person providing an exhaustive list of what the person perceived. It is true, though, that the less the witness or other observer states his or her primary perceptions, the harder will it be for the tendering party to establish the condition of admissibility in s 78(a) (because of the difficulty of establishing that the opinion is “based” on the perceptions) and the condition of admissibility in s 78(b) (because of the difficulty of establishing that the opinion is necessary to obtain an adequate account or understanding of the person’s perceptions). Notice of contention [58] The respondent filed a notice of contention. The contention of which notice was given was: [T]he fact that the [appellant] was responsible for the creation of a particular scope of risk, as posed by the concealed, unguarded, and precipitate drain wall, and, the [respondent]

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Lithgow City Council v Jackson cont. had injuries consistent with a heavy fall from height, at that location, was sufficient, in the absence of other evidence, to establish causation. That was not the contention in fact advanced. The contention of which notice was given should thus be rejected: in any event, sparse though the evidence of causation was, it was arguably sufficient to defeat the reasoning underlying the notice of contention. [59] Instead of relying on the notice of contention, the respondent supported what was said to be the reasoning of Basten JA in the Court of Appeal. Invulnerability of the Court of Appeal majority [60] The appellant pointed out that in the first decision of the Court of Appeal, the content of the impugned representation without the question mark was treated as decisive in the sense that the other evidence did not permit an inference in the respondent’s favour. It also pointed out that in the second decision of the Court of Appeal Allsop P and Grove J regarded the impugned representation including the question mark as essential if the respondent were to succeed. It followed that if Allsop P, Basten JA and Grove J had thought the impugned representation to be inadmissible in the first decision they would have found against the respondent. But in the second decision, unlike the first, Basten JA did not consider the admissibility of the impugned representation to be essential.

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[61] The appellant submitted that the appeal to this Court was a strict appeal, not a rehearing, and the fact that Basten JA later departed from his view in the first decision that the impugned representation was essential if the respondent were to succeed was not a basis for overruling the decision of the other judges, reached twice, to the contrary. Whether or not that submission is sound, it is preferable to examine the reasoning of Basten JA and the submissions of the respondent on their factual merits. Basten JA’s reasoning and the respondent’s submissions [62] In the respondent’s submission, Basten JA’s conclusion that the respondent fell over the vertical western wall when moving downhill in the dark without seeing it rested on three considerations. The first was the “nature of the respondent’s injuries being severe and consistent with an unprotected and unanticipated fall from a height greater than body height”. Those injuries included a fractured skull, traumatic brain injury evidenced by the respondent’s post-traumatic amnesia for 23 days, a fracture of the 11th thoracic vertebra, many facial injuries including a broken front tooth, and a fractured right wrist. The second was the “distribution and collection of bodily fluids, being both urine and blood, at a point 2.7m from the western wall, but about 4.5m from the northern wall”. The third was “the configuration of the drain”. [63] The problem with these submissions is that they do not correspond with the evidence. [64] Nature and severity of injuries. Thus Basten JA said that the nature and severity of the respondent’s injuries were “more likely to be caused by a fall from 1.5 metres than by stumbling when seeking to traverse the sloping wall of the drain”. He mentioned that near the pool of bodily fluids the drain was approximately 1.9m vertically below the top of the wall. It is plain that the injuries to the respondent’s head were the result of a fall in which his head struck concrete. The respondent accurately submitted that the fact that the respondent had brain damage and a fractured skull self-evidently meant that he “clearly has hit his head very hard on something”. It is common ground that wherever he fell from, his head hit a part of the concrete drain near the pool of bodily fluids. Basten JA concluded that the injuries were unlikely to have been caused while the respondent was “seeking to traverse the sloping wall of the drain”. [65] It is desirable to start by pointing out that there is no reason to suppose that the respondent was seeking to traverse either a sloping wall or the western vertical wall. However his injuries occurred, the accident which caused them was unanticipated and unexpected. If the respondent had anticipated or expected it, it would probably not have happened.

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. [66] The respondent’s proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of “commonsense” or the court’s experience of ordinary life. The proposition turns on an inference from the nature of the respondent’s injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence. No expert medical evidence from any medical practitioner was tendered. Mr William Bailey was an engineer called by the appellant, but he claimed to have specialist knowledge of and experience in anatomy and physiology. He considered that the respondent’s injuries were not caused by falling from the vertical wall. Though his conclusion is not implausible, it rests on a process of reasoning from the nature of the respondent’s injuries. His process of reasoning is unsatisfactory because it reveals an incomplete understanding of those injuries.

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[67] A pervasive fallacy in the respondent’s submission about his injuries is the appeal it made to their seriousness. That appeal seeks to point the Court towards assuming that a fall from the vertical western end was capable of producing most damage, and inferring that it was that fall which did cause the respondent’s injuries. Even if the assumption is correct, the inference underrates the fragility of the human body, particularly the human head. It also overlooks the fact that it was not proved – and proof would have had to rest on expert medical evidence – that a fall down one of the sides was incapable of causing the respondent’s injuries. Indeed this was not suggested by the Court of Appeal or submitted to this Court. It is thus accepted that there was a possibility that the cause of the injuries was falling down one of the sides. The evidence does not permit the view that it was only a bare possibility. Since each of the three possible causes (a fall from the vertical western end, a fall from the northern side or a fall from the southern side) is capable of causing the respondent’s injuries, at least in the circumstances of this case, a conclusion that the cause was the cause capable of producing the most damage does not follow. That is because that cause was a sufficient but not a necessary condition for the injuries: the other causes would have been sufficient as well. [68] The position of the pool of bodily fluids and the configuration of the drain. It is convenient to take together the second and third factors identified by the respondent as being persuasive to Basten JA. [69] The second factor was the “distribution and collection of bodily fluids, being both urine and blood, at a point 2.7m from the western wall, but about 4.5m from the northern wall”. Basten JA found, conformably with the evidence, that the pool of bodily fluids was approximately 2.7m from the western vertical wall. Basten JA also said that “the sloping sides of the drain ... appear to have been further away from the stain than was the wall”. [70] The third factor was what the respondent called “the configuration of the drain”. In that regard Basten JA said: The vertical wall was at its higher end and extended for a length which does not appear to have been identified in the evidence but which the photographs and measurements in evidence suggests was about 10 metres. The stains appear to have been roughly in the middle of the drain, which had sloping sides. At the lowest point in the vicinity of the accident, the drain may have been almost two metres deep. One side of the concrete drain appears to have been slightly higher than the other, or at least the wall of the drain on that side was somewhat steeper than on the other. On the south side, the slope was relatively shallow. On the north side, the slope was steeper, at the lip, but quickly became similar to the shelving on the other side. The position of the blood stain would appear to be some 4-5 metres from the relatively steeper slope on the north side of the drain. If the [respondent] did not fall from the vertical wall, it would seem that he must have stumbled going down the steeper slope, heading across the drain from north to south. If he did that, he was heading away from his home. Assuming he did not see the drain (which would have required a deviation of only a few metres from his assumed direction to head above the wall) he would have presumably stumbled for several metres before losing his footing completely and falling. It is not impossible that he would have fallen in a manner which resulted in him landing on his face, but it

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Lithgow City Council v Jackson cont. is unlikely. The nature of the injuries are more consistent with an unprotected and unanticipated fall from a height greater than body height. (emphasis in original) [71] The respondent advanced a related submission to the effect that the vertical wall was a great deal closer to the pool of fluids than the sides, and that the pool was “at the very foot of the vertical drop”.

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[72] With respect, this reasoning rests on an error. One aspect of the error lies in the statement that the length of the vertical wall “does not appear to have been identified in the evidence”, and the suggestion that it was about 10m. In fact there is photographic evidence to which this Court was taken by counsel for the respondent and which he described as showing “some dimensions which might be helpful”. That evidence showed that the tops of the side walls were 5m apart, not 10m, and that the pool of bodily fluids was about equally distant between the side walls. Counsel for the appellant said without contradiction that that was the only evidence of the length of the vertical wall. Basten JA correctly stated that the pool of fluids was roughly in the middle of the drain. It follows that it was about 2.5m from either side, not 4-5m from the northern side. Thus the sloping sides of the drain were nearer the pool of fluid than the western vertical end, not further away. Hence the location of the pool, once it is correctly identified, does not suggest any inherent improbability in the proposition that the respondent stumbled down one of the sides of the drain and fell in the centre of the drain, where the pool was found. And it does not support a conclusion on the balance of probabilities that he fell from the vertical end. [73] Another error concerns the statement that if the respondent did not fall from the vertical wall, he must have stumbled heading across the drain from north to south, in a direction going away from his home. The point that that direction was away from his home lacks significance, since he would also have been heading away from his home if he had fallen from the vertical end, for his home was to the north-west of the drain. Indeed the respondent submitted that the direction from which he would have come was from his home towards the vertical end. The respondent submitted, and the Court of Appeal accepted, that it was for the respondent a “natural route”. The respondent relied on the trial judge’s finding that the respondent’s mother used that route to traverse Endeavour Park while moving from her residence to her son’s and back again. This is speculative. The respondent was to some extent intoxicated. He left home in an unknown direction. He could have walked anywhere in Lithgow for some time. He could have approached Endeavour Park from any number of directions. Further, the respondent gave evidence that he could not recall ever having been in Endeavour Park in his life. For him there was no “natural” or usual route. [74] Further, the respondent submitted that the side walls had a “relatively gentle slope”. Considered in relation to the vertical drop, that is true. Photographs can be untrustworthy, but at least some of the photographs suggest that the slope was not particularly gentle. The vertical depth at the centre was the same as the vertical depth from the end. It has not been demonstrated that the depth and the slope were insufficient, if the respondent, cold on a midwinter night on the western side of the Blue Mountains, and intoxicated, stumbled from the edge of one of the sides in such a fashion that his limbs became entangled with each other and he fell head first, to cause the respondent’s injuries. At all events the respondent has not demonstrated the contrary. [75] Conclusion. Allsop P concluded the Court of Appeal’s first judgment in relation to liability by saying: if it is not legitimate to use the ambulance officers’ record in the way that I have, I would agree with the primary judge that on the material available it was not possible to infer that the accident happened in the way asserted by the [respondent]. All the other material, while consistent with that being the case, does not permit ... any inference that it occurred in that fashion. As noted earlier, the Court of Appeal in its second decision withdrew the finding that the ambulance officers had the respondent’s inert unconscious body in front of them and had the advantage of being able to assess its position and its relationship with the wall and the drain. This withdrawal ought to

Part 3 — Admissibility of Evidence

Lithgow City Council v Jackson cont. have led to the dismissal of the appeal after the second Court of Appeal hearing. Once it is concluded, as it has been, that the impugned representation was inadmissible, the same result follows, for the Court of Appeal’s conclusion is deprived of any support. The alternative reasoning propounded by Basten JA cannot supply support to a sufficient degree. The reasoning of Basten JA does not establish what the position of the respondent’s body was when the fall took place. In the absence of that evidence, or satisfactory expert evidence, the conclusion that a fall from the vertical face took place cannot be drawn on the balance of probabilities. (Appeal allowed.)



EXPERT OPINION EXCEPTION [8.50] Section 79 creates an exception to the “opinion rule” in relation to expert opinion.

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For expert opinion to be admissible as an exception to s 76, it must satisfy the three requirements of s 79(1), namely: (a)

the person must have a “specialised knowledge”. This means that the subject-matter of the opinion; that is, the field of expertise or topic of the opinion, must be a “specialised knowledge”;

(b)

the person giving the opinion must be qualified in the specialised knowledge; that is, the specialised knowledge must be based on the person’s training, study or experience; and,

(c)

the opinion must be “wholly or substantially” based on that specialised knowledge.

The plurality in Dasreef Pty Ltd v Hawchar at [32] interprets s 79 as requiring the satisfaction of two criteria: The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.

“Specialised knowledge” is not defined in the Act. A contentious area has been the applicable test in deciding whether a field of expertise is recognised by the courts.

HG v The Queen [8.60] HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 Facts [The appellant was convicted before a judge (Kirkham DCJ) and a jury of having sexual intercourse with a child under the age of 10 years. The appellant was the de facto husband of the complainant’s mother. The acts of sexual intercourse were alleged to have taken place in the complainant’s bedroom in 1992 and 1993. At the start of the trial, counsel for the appellant applied for an adjournment to enable him to have available as a witness the psychologist Mr McCombie. McCombie had examined the complainant and prepared a report in which he expressed the opinion that the complainant had not been sexually assaulted by the appellant in 1992 and 1993 but had instead been sexually assaulted by her natural father five years earlier. The Crown resisted the application for an adjournment. The Crown contended that McCombie’s evidence was not admissible under s 409B(3) of the Crimes Act 1900 (NSW) (now s 293 of the Criminal Procedure Act). Section 409B(3) provided that evidence

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HG v The Queen cont. which disclosed or implied that the complainant had or may have had sexual experience or a lack of sexual experience or had or may have taken part in any sexual activity was inadmissible. The trial judge ruled that McCombie’s report was excluded by s 409B(3) and refused to grant an adjournment. At trial the appellant’s counsel only wished to call McCombie if he could express an opinion that the complainant had been assaulted by her natural father. The trial judge held that McCombie could not give that evidence. On appeal, the High Court considered, in dismissing the appeal, whether s 409B(3) operated to exclude McCombie’s evidence and whether McCombie’s evidence was inadmissible under s 79.] Judgment (footnotes omitted) GLEESON CJ: Evidence Act ss 76, 79 ... [37] … It was Mr McCombie’s opinions that were in issue, and the critical parts of those opinions have been set out above. The opinions had both positive and negative aspects, formed in the context of the complainant having been referred to him for assessment: the complainant had been sexually abused; the abuse was not recent, as she claimed, but had happened several years earlier than she said; the perpetrator of the abuse was not the appellant, but the complainant’s natural father. [38] It was common ground on this appeal that, by reason of s 76, evidence of these opinions was not admissible unless it could be brought within the exception provided by s 79. That section provides:

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If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. [39] The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Argument in this court proceeded upon the basis that it was possible to identify from Mr McCombie’s written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. [40] Mr McCombie’s report referred to a number of matters he took into account in reaching the conclusions he expressed: things he was told by the complainant, by her mother, and by the general practitioner who referred the complainant for assessment; his training as a psychologist; his experience in counselling victims of sexual abuse; and his knowledge of patterns of behaviour of disturbed children. It is not in dispute that psychology is a field of specialised knowledge, and that a psychologist may be in a position to express an opinion based on his or her specialised knowledge as a psychologist. However, the witness had to identify the expertise he could bring to bear, and as Clark v Ryan illustrates, his opinions had to be related to his expertise. [41] If all that Mr McCombie had said was that, based on his study, training and experience, he considered that the behaviour of the complainant during 1992 and 1993, as recounted to him by others, appeared to be inconsistent with her having been sexually abused during that time (the plausibility of such a proposition is not now in issue), then that might have been one thing. It would have required identification of the facts he was assuming to be true, so that they could be measured against the evidence; and it would have required or invited demonstration or examination of the scientific basis of the conclusion. However, that was not what the defence wanted from him; if it were, no question of s 409B would have arisen. What defence counsel wanted was evidence of his opinion that, although

Part 3 — Admissibility of Evidence

HG v The Queen cont. the complainant had been abused, the abuse had occurred back in 1987 when, for a period of a month, she was in the custody of her father, and that it was the father who was the abuser. That opinion was not shown to have been based, either wholly or substantially, on Mr McCombie’s specialised knowledge as a psychologist. On the contrary, a reading of his report, and his evidence at the committal, reveals that it was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist. He did not put to the complainant, for her comment, the suggestion that she had been abused by her father; the complainant told him she could not remember her father. He does not appear to have considered or investigated the possibility of abuse by some third party. He appears to have inferred, for no apparent reason, that the words “stop it daddy”, attributed to the complainant by her mother, referred to sexual as distinct from some other form of abuse. [42] Logically, there were a number of competing possibilities. The complainant may have been sexually abused by nobody; she may have been abused as she claimed, by the appellant; she may have been abused by her father; she may have been abused by both her father and the appellant; she may have been abused by some person or persons unknown. It was not demonstrated, and it is unlikely, that it is within the field of expertise of a psychologist to form and express an opinion as to which of those alternatives was to be preferred.

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[43] To paraphrase what was said by Dixon CJ in Clark v Ryan about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely. [44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided. ... GAUDRON J: ... [58] So far as this case is concerned, the first question that arises with respect to the exception in s 79 of the Evidence Act is whether psychology or some relevant field of psychological study amounts to “specialised knowledge”. The position at common law is that, if relevant, expert or opinion evidence is admissible with respect to matters about which ordinary persons are unable “to form a sound judgment ... without the assistance of [those] possessing special knowledge or experience ... which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience”. There is no reason to think that the expression “specialised knowledge” gives rise to a test which is in any respect narrower or more restrictive than the position at common law. [59] It may be assumed, for the moment, that, if Mr McCombie had been permitted to give evidence, he would have testified that there is a body of knowledge with respect to the behavioural patterns of children who have been the victims of trauma or sexual abuse and that that body of knowledge is sufficiently recognised to be accepted as a reliable body of knowledge or expertise. And it is not a matter of ordinary knowledge – as distinct from expert or specialised knowledge – that children who have been the victims of trauma or sexual assault manifest “a clear behaviour change”. [60] The first argument advanced by the respondent with respect to the admissibility of the evidence it was intended to lead from Mr McCombie as opinion evidence was that “he did not describe the nature and extent of his expertise in relation to identifying who had sexually assaulted the complainant or in being able to eliminate the appellant as someone who had done so”. That argument misunderstands the expertise which Mr McCombie was claiming. He was not claiming expertise with

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HG v The Queen cont. respect to the identification of persons who did or did not sexually abuse the complainant. Rather, he was claiming expertise – knowledge or experience of some matter “outside the experience and knowledge of the judge and jury” – with respect to the changed behaviour of children who have been exposed to trauma or sexual abuse. [61] It was on the basis of his opinion that trauma always results in “a clear behaviour change” and the statements of the complainant’s mother that there was no deterioration in her behaviour in the period during which the sexual assaults by the appellant allegedly took place, that Mr McCombie concluded that she was not assaulted during that time. It followed, therefore, that, in his opinion, she was not sexually assaulted by the appellant. [62] Moreover, it was on the basis of the opinion earlier referred to and the history given to him of a change in the complainant’s behaviour after she spent time with her father that Mr McCombie concluded that she may have been sexually assaulted whilst with him. A fair reading of his report indicates that that is all that he asserted, the statement that “the assault happened during [the complainant’s] time with her natural father” being qualified by the further statement that “[c]ertainly the behaviour change she produced after her visit with him was consistent with this”. [63] The respondent raised a number of other criticisms of Mr McCombie’s report and, also, of his evidence at the committal proceedings. Save for one matter, the criticisms were concerned with his failure to expose his reasoning process, his failure to identify the precise factual matters upon which his conclusions with respect to the complainant were based and the want of complete consistency between his assumptions and the evidence given by the complainant’s mother at trial. These are matters that might persuade a judge, in the case of trial by judge alone, or a jury not to accept Mr McCombie’s evidence. They are not matters bearing on its admissibility as opinion evidence.

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[64] The only other argument put by the respondent with respect to the admissibility of Mr McCombie’s evidence as opinion evidence was put in these terms: There may in fact exist ... a recognised area of expertise in identifying and analysing symptoms of trauma exhibited by children who have been sexually assaulted. However, this was not demonstrated by Mr McCombie and could not have been simply assumed. [65] As the respondent’s argument accepts, it may fairly be assumed that there is a recognised field of expertise with respect to the behavioural patterns of children who have been victims of trauma or, more to the point, that Mr McCombie would have given evidence to that effect. In circumstances where what was sought was an adjournment to enable Mr McCombie to give evidence, it can hardly be complained that there was no evidence as to the existence of a recognised field of expertise of the kind indicated. That being so, and given that Mr McCombie’s evidence with respect to the changed behaviour of children who have been sexually assaulted or exposed to trauma was not otherwise inadmissible opinion evidence, it cannot be held that “the opinion rule” in s 76 of the Evidence Act justifies the trial judge’s refusal to adjourn the appellant’s trial. (The evidence in question was not admissible as opinion evidence. Appeal dismissed.)



Honeysett v The Queen [8.70] Honeysett v The Queen (2014) 88 ALJR 786; [2014] HCA 29 Facts [Honeysett was convicted of armed robbery at a hotel on 17 September 2008. CCTV recorded the robbery where each of the three robbers was disguised and each had some form of weapon. At the trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of

Part 3 — Admissibility of Evidence

Honeysett v The Queen cont. anatomical characteristics that were common to the appellant and to one of the robbers (Offender One). Professor Henneberg’s opinion was based on viewing the CCTV images of the robbery and images of the appellant taken while he was in custody. The CCA dismissed his appeal on the basis that the Professor Henneberg’s evidence had been rightly admitted because it was evidence of opinion based on specialised knowledge based on Professor Henneberg’s training, study and experience. In the alternative, the Court of Criminal Appeal held that Professor Henneberg’s evidence had been rightly admitted because repeated viewing of the images had rendered him an “ad hoc expert” [citing R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681].] Judgment (Some footnotes omitted) FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ: …

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[10] The objection to the admission of Professor Henneberg’s evidence was determined at a voir dire hearing which was conducted before the jury was empanelled. No oral evidence was adduced at the hearing. The evidence at the hearing included: two expert certificates signed by Professor Henneberg; an expert certificate signed by Dr Sutisno, an anatomist; and one signed by Glenn Porter, a forensic photographer. The latter two certificates were tendered in the appellant’s case and contained criticisms of Professor Henneberg’s opinion and methodology. The second of Professor Henneberg’s certificates responded to some of those criticisms. [11] Professor Henneberg identified his specialised knowledge, based on his training, study and experience, as biological anthropology and anatomy. He has a doctorate and postdoctoral qualifications in biological anthropology. At the date of his evidence, Professor Henneberg occupied the Wood Jones Chair of Anthropological and Comparative Anatomy in the School of Medical Sciences at the University of Adelaide. Professor Henneberg also identified “forensic identification” as within his specialised knowledge, stating that he has practised this discipline (also described as “anatomical identification”) since 1976 and has published the results of his forensic research in peer-reviewed international journals and in books. He described forensic identification as the comparison of individuals based on the inspection of images. He stated that he has provided “numerous expert certificates to police” and that his evidence has been admitted in Australian courts. [12] Professor Henneberg’s curriculum vitae recorded his research interests as “[h]uman evolution and microevolution, evolution of human brain, theory of biocultural evolution, human ecology, population genetics, paleodemography and historic demography, palaeopathology human physical growth and development, anatomical variation, body composition, ergonomy”. The titles of the many articles authored by Professor Henneberg that are listed in his curriculum vitae appear to reflect these wide research interests. [13] Professor Henneberg stated that the police had asked him to conduct anatomical comparisons of an offender and a known person. He had been supplied with a disc containing a copy of the CCTV recording of the robbery and asked to identify the anatomical features of Offender One. He had been supplied in a separate envelope with two discs containing images of the appellant. These included video recordings showing the appellant moving about his cell and carrying out various activities. These recordings and some still photographs of the appellant were all taken on 16 January 2009. [14] Professor Henneberg made his assessment of the physical characteristics of Offender One before he opened the envelope containing the images of the appellant. He did this to avoid the psychological phenomenon of “displacement”, which is the tendency to read the features of a known person into poor quality images. [15] Professor Henneberg expressed this opinion of the physical characteristics of Offender One: He is an adult male of ectomorphic (thin, “skinny”) body build. His shoulders are approximately the same width as his hips. His body height is medium compared to other persons, and to familiar objects (eg doorways) visible in the images from the [offence]. He carries

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Honeysett v The Queen cont. himself very straight, so that his hips are standing forward while his back has a very clearly visible lumbar lordosis (the small of his back is bent forward) overhung by the shoulder area. Although the offender covers his head and face with a cloth (what looks like a T-shirt) … the knitted fabric is elastic and adheres closely to the vault of his skull (= braincase). This shows that his hair is short and does not distort the layout of the fabric. The shape of the head is clearly dolichocephalic (= long head, elongated oval when viewed from the top) as opposed to brachycephalic (= short head, nearly spherical). The offender is right-handed in his actions. ... Although most of the body of the offender is covered by clothing, head wrap and gloves, an area of naked skin above his wrist (between the glove and the sleeve) in images … is visible and can be compared to the skin colour of a female hotel employee on the same images. [16] Professor Henneberg expressed this opinion of the physical characteristics of the appellant: [The appellant] is an adult male of ectomorphic (= slim) body buil[d]. His hips and shoulders are of approximately the same width. His stance is very straight with well marked lumbar lordosis and pelvis shifted forward. His skull vault is dolichocephalic when viewed from the top. Comparison of lateral (side) and front views of his head also indicates the head … is long but narrow. His skin is dark, darker than that of persons of European extraction, but not “black”. ... He is right-handed – uses his right hand to sign documents.

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[17] Professor Henneberg concluded that “[t]here is [a] high degree of anatomical similarity between [Offender One] and [the appellant]”. His opinion was strengthened by the fact that he was unable to discern any anatomical dissimilarity between the two individuals. [18] Professor Henneberg’s method of “forensic identification” can be shortly described. Professor Henneberg looks at an image of a person and forms an opinion of the person’s physical characteristics. His opinion is not based on anthropometric measurement or statistical analysis. Professor Henneberg stated that statistical analysis may yield reliable results when anthropometric measurements can be taken or the photographs are taken at the same angle and in prescribed body positions. Surveillance images and standard police photographs are not of this standard. He explained that his examination of images does not differ from that of a lay observer save that he is an experienced anatomist and he has a good understanding of the shape and proportions of details of the human body. [19] Much of Dr Sutisno’s and Mr Porter’s evidence was directed to Professor Henneberg’s capacity to express an opinion of the high degree of anatomical similarity between Offender One and the appellant. As will appear, the prosecution did not seek to adduce Professor Henneberg’s opinion in this respect. Dr Sutisno and Mr Porter were critical of Professor Henneberg’s failure to explain how artefacts produced by lens distortion had been taken into account in the identification of the physical characteristics of Offender One. In light of the quality of the images and the head to foot clothing worn by Offender One, Dr Sutisno disputed the capacity to make an assessment of that individual’s height, gender, maturity, build and hair length. She considered that Professor Henneberg’s conclusion respecting the last-mentioned characteristic was “purely guess work and extremely subjective”. Mr Porter, who at the date of his certificate had submitted a PhD thesis for examination on the subject of the reliability of CCTV images, was not aware of any studies of Professor Henneberg’s method. Opinion evidence under the Evidence Act [20] Before turning to the reasons given by Bozic DCJ for holding that Professor Henneberg’s evidence was admissible, there should be reference to the provisions of Pt 3.3 of the Evidence Act, which governs opinion evidence, and to decisions of the New South Wales Court of Criminal Appeal concerning the admissibility of opinion evidence of anatomical comparison, sometimes described as “body mapping”. [21] Section 76(1) of the Evidence Act states a rule of exclusion: “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” An opinion is an inference drawn from observed and communicable data [Lithgow City Council v Jackson

Part 3 — Admissibility of Evidence

Honeysett v The Queen cont. [2011] HCA 36; (2011) 244 CLR 352 at 359 [10] per French CJ, Heydon and Bell JJ; [2011] HCA 36; Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, §1917; Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 76 [156]]. Professor Henneberg’s identification of Offender One’s physical characteristics consisted of inferences from his observations of the CCTV images. It was evidence of opinion. The evidence was adduced to prove the existence of a fact about the existence of which the opinion was expressed. The evidence was inadmissible unless it came within one of the exceptions to the opinion rule in Pt 3.3 of the Evidence Act.

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[22] The exception on which the prosecution relied is contained in s 79(1) of the Evidence Act: [section extracted]. [23] Section 79(1) states two conditions of admissibility: first, the witness must have “specialised knowledge based on the person’s training, study or experience” and, secondly, the opinion must be “wholly or substantially based on that knowledge”. The first condition directs attention to the existence of an area of “specialised knowledge”. “Specialised knowledge” is to be distinguished from matters of “common knowledge”. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject-matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines “knowledge” as “acquaintance with facts, truths, or principles, as from study or investigation” [Macquarie Dictionary, rev 3rd ed (2001) at 1054] (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J’s formulation [The formulation stated was with respect to r 702 of the Federal Rules of Evidence. At that time, the rule provided: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise”] in Daubert v Merrell Dow Pharmaceuticals Inc: “the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. ... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds” [[1993] USSC 99; 509 US 579 at 590 (1993), cited in R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681 at 712 [138] per Spigelman CJ]. [24] The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert’s opinion depends “observations and knowledge of everyday affairs and events” [Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 at 427 [158] per Gummow and Callinan JJ; [2002] HCA 4; 187 ALR 233 at 268; [2002] HCA 4]. It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based [HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 427 [39] per Gleeson CJ; [1999] HCA 2]. [25] As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving [[2011] HCA 21; (2011) 243 CLR 588 at 602 [31] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 21]. It is to be noted that at trial Professor Henneberg’s opinion was tendered to prove that Offender One and the appellant shared similar physical characteristics in support of a conclusion of identity. R v Tang and Morgan v The Queen [26] In R v Tang, the Court of Criminal Appeal dealt with a challenge to evidence that a person depicted in still frames taken from a CCTV recording of a robbery was the same as a person depicted in a police photograph. The evidence in that case was given by Dr Sutisno. Her opinion took into account her assessment of the “relatively upright posture” of the person in each of the images [R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681 at 688 [26]]. The observation was an essential element of her opinion of identity.

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Honeysett v The Queen cont. [27] Spigelman CJ (Simpson and Adams JJ concurring) cautioned against introducing an extraneous idea such as “reliability” into the determination of admissibility under s 79(1)[20]. Importantly, his Honour laid emphasis on the requirement of knowledge by reference to the statement in Daubert set out earlier in these reasons. The opinion that the individual displayed “relatively upright posture” was not wholly or substantially based on Dr Sutisno’s specialised knowledge of anatomy. His Honour found that it had not been established at the trial that the comparison of physical attributes – “body mapping” – constituted an area of “specialised knowledge” capable of supporting an opinion of identity. [28] In Morgan v The Queen, opinion evidence given by Professor Henneberg as to the high degree of anatomical similarity between images of a disguised offender recorded by CCTV and police photographs of the accused was found to have been wrongly admitted [[2011] NSWCCA 257; (2011) 215 A Crim R 33 at 61 [146] per Hidden J (Beazley JA agreeing at 35 [2], Harrison J agreeing at 62 [155])]. The Court of Criminal Appeal was critical of the lack of research into the reliability of Professor Henneberg’s method. It was also critical of the lack of explanation of Professor Henneberg’s capacity to detect anatomical similarity between individuals in circumstances in which no part of the body of the person depicted in CCTV images was exposed. The voir dire determination

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[29] No doubt mindful of the statements in Tang, the prosecution did not apply to tender at the trial Professor Henneberg’s opinion of the “high degree of anatomical similarity” between Offender One and the appellant. The voir dire was conducted on the understanding that Professor Henneberg’s evidence would be confined to three topics: the physical characteristics of Offender One; the physical characteristics of the appellant; and the absence of observable anatomical dissimilarity between the two. [30] Consistently with the statement in Dasreef, Bozic DCJ first asked whether “the opinion [is] relevant, including whether the field of knowledge is one in which expert opinion can properly be called”. His Honour concluded that Professor Henneberg’s evidence of the similarities between Offender One and the appellant was a relevant item of “circumstantial identification evidence”. He moved to a consideration of whether Professor Henneberg possessed specialised knowledge based on his training, study or experience. His Honour found that Professor Henneberg has specialised knowledge based on study and experience in relation to anatomy and anatomical features and experience in the application of that knowledge to the observation of CCTV images and still photographic images. He concluded that Professor Henneberg’s opinion as to similarities was based wholly or substantially on that knowledge. [31] Judge Bozic considered that Professor Henneberg’s opinion complied with the obligation to furnish the trier of fact with the criteria to enable it to be tested. His Honour illustrated that conclusion by reference to Professor Henneberg’s second certificate, in which he explained that he assessed that Offender One was an adult “on the basis that the individual was not one metre short and the limb to trunk proportions were within adult range, bearing in mind that children have short extremities in proportion to trunk and large heads in relation to the body”. Judge Bozic appears to have accepted that Professor Henneberg’s specialised knowledge included his experience in the conduct of “forensic identification” as earlier described. His Honour took into account the criticisms of Professor Henneberg’s method made by Dr Sutisno and Mr Porter. He said that expert evidence based on factual material that is deficient or unreliable is not for that reason inadmissible. His Honour did not, in terms, consider whether an opinion of the characteristics of a human body based on looking at CCTV images is an area of specialised knowledge. [32] Judge Bozic declined to exercise the discretions to reject Professor Henneberg’s evidence under ss 135 and 137 of the Evidence Act. His Honour concluded that the evidence of similarity between Offender One and the appellant was “of potentially significant probative value”. The conclusion took into account that the prosecution case was circumstantial and otherwise dependent on the DNA evidence.

Part 3 — Admissibility of Evidence

Honeysett v The Queen cont. The trial [33] Professor Henneberg’s evidence in the trial accorded with the opinions in his certificates. In the course of evidence-in-chief the CCTV footage of the robbery was played and Professor Henneberg pointed out the physical characteristics that he discerned in Offender One. Evidence-in-chief continued:

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Q. Professor as part of your comparison were you aiming to find any discernible differences? A. Yes that’s the first thing I was looking for. Q. [If] one obvious difference between the offender and the accused is found is that sufficient to exclude the accused? A. If it’s an obvious and consistent difference yes it is. Q. Did you find any differences? A. No. [34] Professor Henneberg gave a fuller account of the basis for his conclusions in the course of oral evidence. He considered that it would have been obvious to anyone looking at the CCTV footage that Offender One is male. He concluded that Offender One was an adult based on comparing Offender One’s body size with familiar objects and with the other persons depicted in the CCTV images. He concluded that Offender One was a male because he did not appear to have breasts nor the distribution of fat deposits around the hips and buttocks that are consistent with the characteristics of a female. He concluded that Offender One’s hair was short because the shape revealed by the fabric adhering to the head was consistent with a characteristic shape of the human brain case. He concluded that Offender One was of skinny build because the clothing worn by the offender was not very bulky and clothing hangs closer to the central line of the body in the case of a thin person, a feature observable in the images of Offender One. He also observed that Offender One did not appear to have a protruding stomach. Professor Henneberg accepted that to a certain degree loose-fitting clothing makes it difficult to tell the shape of a person’s spine. He explained that each and every person has lumbar lordosis; it is a normal anatomical feature. His conclusion that Offender One was of medium height was an approximation based on comparing the offender to other objects, such as doors. The Court of Criminal Appeal [35] The appellant argued in the Court of Criminal Appeal that Professor Henneberg’s evidence at his trial was “essentially identical” to his evidence in Morgan and should have been rejected for that reason. The focus of Macfarlan JA’s analysis (with which the other members of the Court agreed) was directed to the rejection of that submission. His Honour observed that the opinion in Morgan, of the existence of a high level of anatomical similarity, had come close to evidence of identification. As such it was strongly arguable that admission of that evidence would have conflicted with authority, including Tang. His Honour commented that the difficulty with opinion evidence of that kind is the absence of established criteria for determining the number and type of similarities that would support it. He distinguished Morgan because Professor Henneberg had not given evidence in the appellant’s trial of a conclusion drawn from his observations of identified common characteristics. [36] Macfarlan JA said that the evidence that Professor Henneberg had not discerned dissimilarity between the persons depicted in the two sets of images was not evidence of similarity. His Honour considered that “[Professor Henneberg’s] evidence, and the CCTV footage itself, would have made it clear to the jury that the clothing of the offender made it very difficult to do more than identify a very limited number of characteristics”. In the circumstances, his Honour said that the jury could not have reasonably understood Professor Henneberg’s evidence as an assertion that there were no points of difference between the two individuals. [37] Macfarlan JA did not give separate consideration to the preconditions for admissibility under s 79(1). His Honour appears to have accepted Bozic DCJ’s analysis in these respects. The critical passage in his Honour’s reasons is set out below: In addition to his formal qualifications in anatomy, Professor Henneberg is a person of extensive practical experience in examining CCTV footage, with all its deficiencies, and attempting

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Honeysett v The Queen cont. to identify characteristics of persons depicted in it. The view he expressed on this topic is necessarily subjective and not amenable to elaboration beyond the reasons he gave, or to measurement and calculation. The submissions [38] The appellant submits that an opinion that is “necessarily subjective” and “not amenable to elaboration” or to “measurement and calculation” is not one that is wholly or substantially based on “specialised knowledge”. He contends that in order to constitute an area of “specialised knowledge” there must be an independent means of gauging the reliability and validity of an opinion based on that knowledge.

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[39] On the hearing of the appeal, the respondent did not support Bozic DCJ’s analysis that Professor Henneberg has specialised knowledge based on his experience examining CCTV images. The only specialised knowledge on which the respondent now seeks to support Professor Henneberg’s evidence is his knowledge of anatomy. The respondent argues that the appellant’s challenge to the reliability of Professor Henneberg’s method is not to the point. This is because Professor Henneberg did not give evidence in the trial of identification based on anatomical comparison. It is said that his evidence was no more than an account of the characteristics of the body of the person depicted in each set of images and was incapable of supporting a conclusion of identity: it was evidence of opinion wholly or substantially based on Professor Henneberg’s specialised knowledge of anatomy. [40] In this Court the respondent submitted the fact that Professor Henneberg’s evidence had been adduced to prove was that the appellant was not excluded as Offender One. The submission should not go unremarked. The contention that Professor Henneberg’s evidence was adduced to prove no more than that the appellant could not be excluded as the offender was not the basis on which it was tendered. As earlier noted, the evidence was admitted as an item of circumstantial evidence to support a conclusion of identity. This was the use made of the evidence by the prosecutor at the trial. In her closing address, the prosecutor took the jury through each of the physical characteristics of Offender One identified by Professor Henneberg and continued: [W]hen [Professor Henneberg] assessed then the [appellant] from the known images he found all those characteristics to be the same. … I’d suggest that you would accept his evidence as being of assistance to you, because it’s reliable science and it is something that he can explain, even though you may not be able to see all of the things that he’s been able to see. [41] It will be recalled that Bozic DCJ declined to exclude the evidence because of its significant probative value as “circumstantial identification evidence”. In due course his Honour directed the jury that “the similarities observed by Professor Henneberg between the CCTV footage at the [hotel] and the footage of the [appellant] in custody at the police station” were one of the circumstances upon which it was open to draw the conclusion of guilt. [42] The respondent is nonetheless right to say that the appeal does not raise an issue of whether “body mapping” was shown at the trial to constitute an area of “specialised knowledge” [see R v Gray [2003] EWCA Crim 1001; R v Gardner [2004] EWCA Crim 1639; R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681; Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329; R v Atkins [2002] EWCA Crim 1768; [2010] 1 Cr App R 8; Morgan v The Queen [2011] NSWCCA 257; (2011) 215 A Crim R 33; Otway v The Queen [2011] EWCA Crim 3; Shepherd v The Queen [2012] 2 NZLR 609]. In light of the concession that Professor Henneberg’s specialised knowledge was confined to anatomy, the appeal does not provide the occasion to consider the appellant’s larger challenge respecting the requirement of an independent means of validation before an opinion may be found to be based on “specialised knowledge”. [43] Professor Henneberg’s opinion was not based on his undoubted knowledge of anatomy. Professor Henneberg’s knowledge as an anatomist, that the human population includes individuals who have

Part 3 — Admissibility of Evidence

Honeysett v The Queen cont. oval-shaped heads and individuals who have round-shaped heads (when viewed from above), did not form the basis of his conclusion that Offender One and the appellant each have oval-shaped heads. That conclusion was based on Professor Henneberg’s subjective impression of what he saw when he looked at the images. This observation applies to the evidence of each of the characteristics of which Professor Henneberg gave evidence. [44] The respondent accepted that, with the possible exception of the opinion that Offender One and the appellant are both right-handed, it would have been open to prosecuting counsel in the course of her closing address to have invited the jury to inspect the images and find that Offender One and the appellant share each of the characteristics identified by Professor Henneberg without the necessity of evidence. The reservation respecting right-handedness was based on the circumstance that Professor Henneberg’s master’s thesis was on the topic of handedness. However, Professor Henneberg’s specialised knowledge of handedness was not the basis of his opinion. Professor Henneberg inferred that Offender One and the appellant are each right-handed because he observed that Offender One used his right hand to remove cash from the till and the appellant used his right hand to write his name and insert a swab into his mouth. [45] Professor Henneberg’s evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One share a number of physical characteristics [HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 429 [44] per Gleeson CJ; Morgan v The Queen [2011] NSWCCA 257; (2011) 215 A Crim R 33 at 61 [145] per Hidden J]. Among other things, the use of technical terms to describe those characteristics – Offender One and the appellant are both ectomorphic – was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny. [46] Professor Henneberg’s opinion was not based wholly or substantially on his specialised knowledge within s 79(1). It was an error of law to admit the evidence. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Ad hoc expertise [47] As earlier noted, an alternative basis for the Court of Criminal Appeal’s conclusion that Professor Henneberg’s evidence was admissible was as an ad hoc expert. Macfarlan JA said that Professor Henneberg’s detailed examination of the CCTV footage over a lengthy period had qualified him as such. [48] In Butera v Director of Public Prosecutions (Vic) [(1987) 164 CLR 180; [1987] HCA 58] this Court endorsed the statement of Cooke J in R v Menzies [Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 at 188 per Mason CJ, Brennan and Deane JJ, citing [1982] NZCA 19; [1982] 1 NZLR 40 at 49] that a person may “be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc”. In issue was the admission of the transcript of a tape recording as an aid to assist the jury in its understanding of an indistinct recording. Butera and Menzies concerned the common law of evidence. The particular problem that they addressed is the subject of provision under the Evidence Act [Evidence Act, s 48(1)(c). 42]. Whether the New South Wales Court of Criminal Appeal is right to consider that the repeated listening to an indistinct tape recording or viewing of videotape or film may qualify as an area of specialised knowledge based on the listener’s, or viewer’s, experience does not arise for determination in this appeal [R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681 at 709 [120], referring to Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405 and Li v The Queen [2003] NSWCCA 290; (2003) 139 A Crim R 281]. The respondent acknowledged that Professor Henneberg had not examined the CCTV footage over a lengthy period before forming his opinion. In this Court, the respondent does not maintain the submission that Professor Henneberg’s opinion was admissible as that of an ad hoc expert. (Appeal allowed, conviction quashed and new trial be had.)



Opinion

CHAPTER 8

Dasreef Pty Ltd v Hawchar [8.80] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

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Facts [Mr Hawchar recovered in the Dust Diseases Tribunal in respect of silicosis that the Tribunal found was caused when the respondent was employed by Dasreef Pty Limited as a labourer. Mr Hawchar worked for Dasreef between 1999 and 2005. In 2006 he was diagnosed with silicosis. When Mr Hawchar was working for Dasreef there was an applicable standard prescribing the maximum permitted exposure to silica. The exposure standard for respirable silica was a time-weighted average of 0.2mg per cubic metre over a 40-hour working week. Mr Hawchar relied on opinion evidence from Dr Basden, a chartered chemist, chartered professional engineer and retired academic, whose evidence was objected to at the trial. Dr Basden was retained to provide an opinion on the procedures that an employer could utilise to reduce the risk of a silica-related injury. His report identified two procedures that could have reduced Mr Hawchar’s exposure to dust, but were not implemented by Dasreef: the employment of wet cutting and the provision of an exhaust hood close to the source of dust. Dr Basden also expressed an opinion that the masks provided by Dasreef were inadequate. His report considered the level of dust concentration generated in Mr Hawchar’s breathing zone when he was using a cutting wheel, which Dr Basden estimated was a thousand or more times greater than 0.2mg per cubic metre. As a consequence, he expressed the opinion that the minimum protection factor required by ANZ Standard 1715 would be a powered air purifying respirator fitted with a filter. The primary judge used Dr Basden’s evidence (his estimate that the level of respirable dust was a thousand or more times greater than 0.2mg per cubic metre) as an integer to calculate that the levels of silica dust to which Mr Hawchar had been exposed in the course of working for Dasreef were greater than the prescribed maximum level of exposure. The primary judge calculated that the time-weighted average of Hawchar’s exposure to dust while working for Dasreef, assuming he was exposed for 30 minutes on each of five days per week, was 0.25mg per cubic metre, which exceeded the limit of 0.2mg per cubic metre in the relevant Australian standard. The central question before the Court of Appeal was whether the primary judge “erred in admitting evidence of Dr Basden as to the numerical level of respirable silica dust in [Mr Hawchar’s] breathing zone”. The Court of Appeal (Allsop P, with Basten and Campbell JJA agreeing) dismissed Dasreef’s appeal on the inadmissibility of Dr Basden’s evidence. Allsop P stated that Dr Basden’s cross-examination on the voir dire “revealed that his opinion was not based on a precise measurement or a view expressed with precision, but rather an estimate drawn from his experience”. Allsop P concluded that Dr Basden’s “experience and specialised knowledge allowed him to say that given that dusts have a consistent fraction of respirable content and given that the [respondent] was working in clouds of silica as the evidence revealed, an inexact estimate of the concentration of respirable silica dust was what he said it was – a thousand times the acceptable level of the standard”.] Judgment FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ: ... [30] Section 79(1) of the Evidence Act must be understood in its statutory context. Section 76(1) of the Evidence Act provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. That exclusionary rule is referred to in the Evidence Act as “the opinion rule”. Subsequent provisions of the Evidence Act provide a number of exceptions to the opinion rule. Section 79(1) provides that: If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Part 3 — Admissibility of Evidence

Dasreef Pty Ltd v Hawchar cont. [31] Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered “to prove the existence of a fact”. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between “opinion” and “fact” or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of “fact”. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” [Evidence Act, s 55(1)]. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.

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[32] To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”. The complaint which Dasreef made at trial, on appeal to the Court of Appeal and on appeal to this Court was that Dr Basden did not express an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar in working for Dasreef that was an opinion based on any specialised knowledge Dr Basden had that was based on his training, study or experience. [33] The expression “numerical or quantitative level” requires explanation. It is used in these reasons in the sense of assigning a value capable of use in a calculation of the kind the primary judge made. In his written report Dr Basden spoke of the operator of an angle grinder being exposed to dust “of the order of a thousand or more times” the permissible levels. In one sense that was a numerical or quantitative assessment of the level of exposure to silica dust during the particular operation. But it was not, and was evidently not intended to be, an assessment which could form the foundation for a calculation of the time weighted average level of exposure of a particular worker. So much is evident from Dr Basden’s use of the phrase “of the order of” as an expression of approximation. [34] As explained earlier in these reasons, it may greatly be doubted that Dr Basden sought to express an opinion about the numerical or quantitative level of respirable silica to which Mr Hawchar had been exposed. On the voir dire he denied that this was what he was trying to do. Read as a whole, Dr Basden’s written report is better understood as offering an opinion about what measures could have been taken to prevent Mr Hawchar contracting silicosis if he was exposed to respirable silica at levels as much as 1,000 times greater than permissible levels. And in Dr Basden’s evidence on the voir dire, that was what he said he was doing. But as also explained earlier in these reasons, that was not how the primary judge or the Court of Appeal used Dr Basden’s evidence. Both the primary judge and the Court of Appeal took his evidence as expressing an opinion about the numerical or quantitative level of exposure encountered by Mr Hawchar. That is, his evidence was taken as expressing an opinion that could found the calculations made by the primary judge of the time weighted average level of respirable silica to which Mr Hawchar had been exposed. If that opinion was expressed, was it an opinion based on specialised knowledge Dr Basden had that was based on his training, study or experience? [35] In order for Dr Basden to proffer an admissible opinion about the numerical or quantitative level of Mr Hawchar’s exposure to silica dust it would have been necessary for the party tendering his evidence to demonstrate first that Dr Basden had specialised knowledge based on his training, study or experience that permitted him to measure or estimate the amount of respirable silica to which a worker undertaking the relevant work would be exposed in the conditions in which the worker was undertaking the work. Secondly, it would have been necessary for the party tendering the evidence to demonstrate that the opinion which Dr Basden expressed about Mr Hawchar’s exposure was wholly or substantially based on that knowledge.

Opinion

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Dasreef Pty Ltd v Hawchar cont. [36] In this case, demonstration of those matters could come only from evidence given by Dr Basden. That is why, in HG v The Queen, Gleeson CJ pointed out that, “[b]y directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question” [(1999) 197 CLR 414 at 427 [39]; [1999] HCA 2]. [37] It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744 [85]) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita (2001) 52 NSWLR 705 at 744 [85], that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject-matter about which the opinion is proffered.

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[38] But that was not this case. [39] Dr Basden gave evidence of his training, study and experience. He did not give evidence asserting that his training, his study or his experience permitted him to provide anything more than what he called a “ballpark” figure estimating the amount of respirable silica dust to which a worker using an angle grinder would be exposed if that worker was using it in the manner depicted in the photograph of Mr Hawchar or a video recording Dr Basden was shown. Indeed, in his written report, Dr Basden had pointed out that he had seen the use of an angle grinder in this way only once before. And he gave no evidence that he had then, or on any other occasion, measured directly, or sought to calculate inferentially, the amount of respirable dust to which such an operator was or would be exposed. [40] There was, in these circumstances, no footing on which the primary judge could conclude that a numerical or quantitative opinion expressed by Dr Basden was wholly or substantially based on specialised knowledge based on training, study or experience. [41] Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called “the basis rule”: a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission’s interim report on evidence [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 417 [750]] denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness’s specialised knowledge based on training, study or experience. [42] A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of

Part 3 — Admissibility of Evidence

Dasreef Pty Ltd v Hawchar cont. the evidence, not its weight. To observe, as the Court of Appeal did, that what Dr Basden said about the volume of respirable dust to which Mr Hawchar was exposed over time was “an estimate” that was “contestable and inexact” no doubt did direct attention to its worth and its weight. But more importantly, it directed attention to what exactly Dr Basden was saying in his evidence and to whether any numerical or quantitative assessment he proffered was admissible. And if, as the Court of Appeal observed [[2010] NSWCA 154 at [44]], his opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case, inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge. [43] Dr Basden’s evidence was not admissible to found the calculation made by the primary judge of the level of respirable dust to which Mr Hawchar was exposed. [The plurality concluded that Dr Basden’s evidence was inadmissible for the purpose for which the primary judge used it (to base a calculation to prove unsafe levels of exposure). However, the appeal was dismissed as there was undisputed evidence that Mr Hawchar was suffering from silicosis, that silicosis is a disease caused only by exposure to silica dust and given the disease’s latency, the disease was due to his employment with Dasreef.] HEYDON J:

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... [61] The respondent submitted that the evidence was admissible, because there was no “basis rule” in s 79. The expression “basis rule” can be used in a variety of senses. By it the respondent referred to, but denied the existence of, three requirements. He summed them up as the need to prove “the facts, the assumptions and the reasoning which are the basis of the opinion”. First, the respondent denied any requirement that the expert disclose the “facts” and “assumptions” on which the expert’s opinion was founded. It is convenient to call that requirement the “assumption identification” rule. Secondly, the respondent denied any requirement that the “facts” and “assumptions” stated be proved before the evidence was admissible. This requirement is often called the “basis” rule, following the usage of the Australian Law Reform Commission (“the Commission”) [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 417 [750] (ALRC 26)]. But it is convenient to refer to it below as the “proof of assumption” rule. Thirdly, the respondent denied any requirement that there be a statement of reasoning showing how the “facts” and “assumptions” related to the opinion stated so as to reveal that that opinion was based on the expert’s expertise. [It is possible to state this requirement more elaborately. But the formulation set out in the text will suffice for the purposes of deciding this appeal.] It is convenient to call this requirement the “statement of reasoning” rule. [Heydon J found that there is “no doubt” that each of the three rules exists at common law (at [64], [66] and [91]) and that the common law position is relevant to the construction of s 79 because of the text of s 79 (at [63] and [108]). Heydon J found that the common law continues to apply in respect of the second rule, whereas the first and third rules are retained by the text of s 79.] Section 79 and the proof of assumption rule … [102] The respondent’s submissions. Is an opinion tendered under s 79 inadmissible unless there was evidence, admitted or to be admitted before the end of the tendering party’s case [Rhoden v Wingate (2002) 36 MVR 499 at 499-500 [1]-[2] and 517-519 [60]-[63]; Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 at 794 [136]], capable of proving matters sufficiently similar to the assumptions to render the opinion of value? The correct answer is in the affirmative. The respondent answered in the negative. He relied on some remarks of Gaudron J in HG v The Queen (1999) 197 CLR 414 at 433 [63] and on various Federal Court authorities [Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at 357 [10]; Neowarra v Western Australia (No 1) (2003) 134 FCR 208 at 215-218 [16]-[25] (citing Guide Dog Owners’ & Friends’ Association Inc v Guide Dog Association of New South Wales & ACT (1998) 154 ALR 527 at 531); Sampi v Western Australia [2005] FCA 777 at [798]-[799]]. He accepted that if the

Opinion

CHAPTER 8

Dasreef Pty Ltd v Hawchar cont. expert’s assumptions were wrong the opinion based on them would have no relevance. He accepted that sometimes expert evidence might be provisionally admitted subject to relevance (ie depending on whether the assumptions were established). But he submitted that even when cross-examination and other forensic testing rendered evidence either worthless or much reduced in significance, it did not become inadmissible. The respondent relied on the absence of any words in s 79 retaining the common law rule and on the Commission’s stated intention to “refrain from including a [proof of assumption] rule in the legislation” [Australia, The Law Reform Commission, Evidence, Report No 26, (1985) vol 1 at 417 [750]]. ... [105] Principle. The respondent, like the Federal Court cases on which he relied, placed determinative significance on what was said by the Commission in ALRC 26. [There are detailed references to or quotations from the passage quoted at [67] above in Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at 357 [10] and Neowarra v Western Australia (No 1) (2003) 134 FCR 208 at 215-216 [16]-[19].] [106] Section 34 of the Interpretation Act 1987 (NSW) and s 3(3) of the Act [footnote omitted] permit ALRC 26 to be taken into account in interpreting s 79 for the purposes listed in s 34(1). They are: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule …), or (b) to determine the meaning of the provision:

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(i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule …) leads to a result that is manifestly absurd or is unreasonable. [107] For what purpose did the courts and the respondent refer to ALRC 26 – to confirm the ordinary meaning of s 79, or to determine the meaning of s 79 in view of its ambiguity or obscurity, or to determine its true meaning in view of the manifest absurdity or unreasonableness of the ordinary meaning? The cases relied on by the respondent do not say. Nor did the respondent. [108] The ordinary meaning of s 79, taking into account its language, its context in the Act (including ss 55-57), the function of the Act (which is the efficient and rational regulation of trials from an evidentiary point of view), and the unreasonable results which a contrary construction would produce, is that it does not abolish the common law proof of assumption rule. Failure by the tendering party to comply with the proof of assumption rule makes the opinion evidence irrelevant. The court may find the opinion relevant, however, if the evidence already tendered of the primary facts, taken with further evidence to be admitted at a later stage, makes it reasonably open to make a finding that they exist: s 57(1). [109] While the respondent submitted that the Commission was wrong to conclude that there is no proof of assumption rule at common law, he also submitted that it followed from the Commission’s decision “to refrain from including a [proof of assumption] rule” in its draft Bill that the legislature had abolished that rule. The conclusion does not follow. The Commission’s reasoning has misled both itself and some of its readers. A decision to refrain from including what was thought to be a rule which does not exist at common law does not demonstrate abolition of a rule which does in fact exist at common law. The Commission wrongly thought that there is no proof of assumption rule at common law. On that hypothesis, as the Commission correctly saw, the question was whether it should recommend that the legislature should enact one, and it decided not to make that recommendation. In fact there is a proof of assumption rule at common law, and the question for the Commission thus should have been whether to recommend that it be abolished by legislation. To abolish it by legislation would have called for specific language. The Commission’s misapprehension of the common law, and hence

Part 3 — Admissibility of Evidence

Dasreef Pty Ltd v Hawchar cont. of its task, has resulted in a failure to have enacted specific language ensuring that s 79 tenders need not comply with a proof of assumption rule. [110] The respondent asked: “Does s 79 provide for the common law proof of assumption rule?” That was not the correct question. The correct question was: “Does s 79 abolish that rule?” The Act is far from being a complete code. It often deals with complex and important subjects, like expert evidence, in very general words. Sometimes the Act changes the previous law. Sometimes it repeats it. At many points it assumes the continuance of the common law. An example is the common law exception to the hearsay rule permitting experts to rely on the writings of others in the relevant area of expertise as a basis for their opinion. [See above at [69].] Although s 79 says nothing about that rule, the Full Federal Court, correctly, did not approach the issue by asking whether s 79 provided for the permissible reliance of experts on other expert works, but simply held that nothing in s 79 has abolished it [Bodney v Bennell (2008) 167 FCR 84 at 108 [92]-[93]]. Similarly, s 79 does not in express terms state that experts must articulate the factual assumptions on which their opinions are based. But the vast bulk of authority holds that that principle applies in relation to tenders under s 79.

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[111] Section 79 presents a significant contrast with s 80. Section 80 reflects the desire of the Commission to abolish what it saw as two unsatisfactory common law rules. [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 194 [354], 196-197 [359] and 412 [743]. See also Australia, The Law Reform Commission, Evidence, Report No 38 (1987) at 84 [151].] Acting on that desire, it recommended specific language eventually used by Parliament to abolish those rules. The Commission’s misconception about the common law led it not to adopt that technique in relation to the proof of assumption rule. [112] Inconvenience of proof of assumption construction? The authorities on which the respondent relied [see notes 139 and 140] adopted the familiar technique which sees it as legitimate to favour one construction of legislation because of the disadvantages of others. Those authorities adopted an argument advanced by the Commission about the unsatisfactoriness of a proof of assumption rule. The argument was that the rule would eliminate much material from sources normally open to experts in their professional lives. The Commission relied on a passage in Fauteux J’s judgment in the Canadian case of Wilband v The Queen [1967] SCR 14 at 21. [This was quoted in Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 198 [363], summarised by it at 417 [750], and quoted by Sundberg J in Neowarra v Western Australia (No 1) (2003) 134 FCR 208 at 216 [18].] He said: to form an opinion according to recognized normal psychiatric procedures, the psychiatrist must consider all possible sources of information, including second-hand source information, the reliability, accuracy and significance of which are within the recognized scope of his professional activities, skill and training to evaluate. Hence, while ultimately his conclusion may rest, in part, on second-hand source material, it is nonetheless an opinion formed according to recognized normal psychiatric procedures. … The value of a psychiatrist’s opinion may be affected to the extent to which it may rest on second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information. The Commission criticised any proof of assumption rule as requiring proof of the “reports of technicians and assistants, consultation with colleagues and reliance upon a host of extrinsic material and information”. This “would be an endless and unfruitful task with which to burden the courts” [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 417 [750]]. [113] Do the Commission’s words refer to the sources of the witness’s expertise in training and experience, in works of authority and research, in conversations with colleagues, and in all the witness’s past dealings with problems similar to that involved in the litigation? If so, the proof of assumption rule does not render that material inadmissible.

Opinion

CHAPTER 8

Dasreef Pty Ltd v Hawchar cont. [114] Do the Commission’s words refer to dealings the expert has had with others, or contributions by others to the expert’s report, in relation to his or her evidence about the problem involved in the litigation? If so, the proof of assumption rule does not prevent evidence being given, for example, of the calculations performed by the assistants to expert accountant witnesses, even though the assistants did not give evidence. [115] Do the Commission’s words refer to the opinions of fellow experts about the case in issue, or the observations by fellow experts, professional persons who are not experts and other lay witnesses of primary facts to do with the case in issue? If so, it is clear that at common law the evidence is inadmissible. [R v Abadom [1983] 1 WLR 126; [1983] 1 All ER 364. Hence where scientific tests are run by assistants of an expert witness and the expert relies on those tests, the assistants must be called: R v Jackson [1996] 2 Cr App R 420 at 424.] GJ Samuels put the following justification for rejecting:

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subsidiary expert opinions [consisting] of reports of other experts, amounting to their unsworn findings or observations, those others not being called in the proceeding. In such cases, there will be no evidence of the truth of the material, nor of the competence of the authors to make the findings. This is a situation which often arises in the Courts where a doctor is asked to express an opinion based in part upon the reports of radiologists, or asked to express a conclusion based upon pathological reports or upon myelograms, ECG’s and the like. It would seem that in no case could such material be used as a basis for a further opinion. That is on the assumption of course, that proof of it is not ultimately to be introduced. This would be so although the expert was to give his opinion not solely upon the reports of others but upon that material coupled with his own direct knowledge by examination. [“Problems Relating to the Expert Witness in Personal Injury Cases”, in Glass (ed), Seminars on Evidence (1970) 139 at 147] The Commission did not demonstrate why that was wrong. Its prediction that the proof of assumption rule would burden the courts with an “endless and unfruitful task” came strangely from a body which denied or doubted the existence at common law of the proof of assumption rule, and was therefore disabled from pointing to adverse experience. The rule has not in fact proved excessively burdensome. And it is easier for counsel and for triers of fact to deal with evidence in the open than with shadowy untendered material. [116] Unnecessariness of proof of assumption rule? The other reasons given by the Commission for its proposal to refrain from including a proof of assumption rule in the draft legislation do not cast doubt on the reasonableness of a construction acknowledging its survival. One was put thus [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 198 [363]]: [I]n most cases the important facts on which the opinion is based will be established by other evidence. Parties are under strong tactical pressure to do so. On this reasoning, virtually no rules of evidence would be needed at all. It is reasoning at odds with the slackness and arrogance revealed in modern times in a great many expert reports. [117] Capacity of proof of assumption rule to be insisted on oppressively? Another reason given by the Commission was [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 198 [363]. See also at 417 [750]]: To place parties in a position where they can insist on proof of all the bases of the opinion, including that which is not contested, would introduce costly, time consuming and cumbersome procedures. What are the “costly, time consuming and cumbersome procedures” that the proof of assumption rule “would introduce”? [Australia, The Law Reform Commission, Evidence, Report No 26 (1985) vol 1 at 198 [363] (emphasis added)] It has existed for centuries without any difficulties the Commission was able to point to. The Commission spoke of parties insisting on proof of “all the bases of the

Part 3 — Admissibility of Evidence

Dasreef Pty Ltd v Hawchar cont. opinion, including that which is not contested”. [Australia, The Law Reform Commission, Evidence, Report No 26, (1985) vol 1 at 198 [363]] If part of the basis is not contested, ex hypothesi there is no need for proof of it, at least in civil cases, and a party cannot insist on proof of it. If it is contested in good faith, subject to the court’s power to compel admissions, a party can insist on proof of it, and it is not unreasonable that a party should be able to do so.

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[118] In the Federal Court of Australia it has been said that, if s 79 tenders depended on compliance with a proof of assumption rule, “the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence”. [Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at 359 [16] per Branson J] These have been described as “practical difficulties” which “should not be underestimated”. [Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 564 [451] per Weinberg J] Those complaints overlook a key distinction. It is a distinction between the need for the party tendering an expert opinion to establish that the other evidence (tendered or yet to be tendered) taken at its highest is capable of supporting the expert’s factual assumptions, on the one hand, and, on the other hand, the need for the tendering party to persuade the trier of fact to accept that the evidence tendered to support the factual assumptions actually does support them. And it is necessary to set against any practical difficulties caused by the proof of assumption rule a competing consideration. That is whether the reception of evidence which turns out to be useless because the assumptions on which it rests are unproven does not create countervailing difficulties – costs burdens, unduly long trials, the risk of misleading the trier of fact, and unnecessary appeals. [119] Sufficiency of discretionary power of exclusion? The Commission argued that, while a proof of assumption rule would have advantages, any corresponding disadvantages which might flow from its absence could be overcome by a discretionary power of exclusion (now to be found in s 135). This technique eschews the primary technique of a rule of strict inadmissibility, and instead falls back on a weaker device. Expert evidence is expensive. For defendants in particular, it is necessary to know with reasonable certainty before the trial begins whether the expert evidence tendered by the moving party is admissible. If it is, it may be necessary to incur the expense of meeting it. If it is not, that expense can be avoided. To make the criterion of admissibility turn not on the satisfaction of a rule but on the invocation of a discretion is to abandon the search for reasonable predictability. Reliance on discretionary powers of exclusion to seek to secure the “advantages” of a proof of assumption rule which s 79 putatively did not introduce is inefficient. [120] Abolition of proof of assumption rule removes a safeguard against useless expert evidence. To admit evidence of the primary facts that is of weak probative value is one thing. To admit expert evidence that is of weak probative value because the expert’s assumptions about the primary facts are not supported by evidence capable of establishing those primary facts is another. Whether evidence of primary facts will in fact be accepted is often not a question that can be answered at the moment of tender. Usually it can only be answered after it has been considered in relation to all the other material evidence of primary facts. On the other hand, whether evidence of primary facts, taken at its highest, is capable of corresponding with the expert’s assumptions is a question which can be answered at the moment of tender. An expert witness’s high qualifications and impeccable intellectual processes will produce only useless evidence unless there is a link between the opinion and a version of the primary facts made possible by the evidence. A proof of assumption rule is a significant safeguard against the dangerous consequences of experts giving opinions which fail to mesh with the concrete factual controversies before the court. [121] Procedural advantages of a proof of assumption rule. A construction of s 79 which does not require establishment at the time of tender that there either has been, or will be, evidence admitted capable of proving the assumed facts permits more expert opinion evidence to be received. It permits postponement of the difficulties by seeking to solve them as questions of weight at a later time – even as late as the end of the trial. [Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at 358 [14]. See also at 357 [9], 358-359 [15]-[16] and 379 [87]] But increasing the amount of this type of evidence is not necessarily valuable. It may be unfair to the opposing party. It is indecisive.

Opinion

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Dasreef Pty Ltd v Hawchar cont. Its indecisiveness inflicts uncertainties on the parties. The additional evidence received may have a cloud over it for the rest of the trial. [122] In contrast, a proof of assumption rule diminishes the risk of clouds. It encourages early and decisive rulings. Early and decisive rulings are important, both for the party opposing tender and for the tendering party.

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[123] From the point of view of the party opposing tender, it is vitally important to know what evidence is or is not in, and how much utility expert opinion evidence is likely to have. That knowledge affects decisions about cross-examining the witnesses called by the tendering party; decisions by defendants whether or not to submit that there is no case to answer; decisions whether or not to call particular categories of evidence; and, if rulings are delayed until after the close of the trial, decisions about what is to be said in address. A practice of deciding whether a proof of assumption rule has been complied with at the time when expert opinion evidence is tendered avoids a dilemma for crossexaminers. One horn of the dilemma is that to cross-examine a witness about expert evidence which may later be rejected or treated as useless carries the risk of giving it a foothold in the record which it lacked at the time of the tender. The other horn of the dilemma is that, if the opposing party avoids that danger by not cross-examining on the expert evidence, there is a risk that it will be accepted despite its feebleness. It is a dilemma which cross-examiners should not have to face. [124] From the point of view of the tendering party, it is desirable that the admissibility of expert opinion evidence tendered by that party be clear by the moment when the case for that party closes. It is undesirable that expert opinion evidence admitted in that party’s case should later be held – perhaps as late as the time of judgment – to be subject to such doubts about its weight that it lacks utility. It is undesirable that its admissibility be in suspense until a time after the tendering party’s case has closed. If the admissibility of expert opinion evidence which is tendered and conditionally admitted is not finally ruled on until after the case for the tendering party is closed, and the evidence is then rejected, or its weight has become so questionable that it is useless, the tendering party may have lost an opportunity to repair the position before its case closed, either by calling further witnesses or tendering further documents, or by recalling witnesses who had already been in the box. The capacity of tendering parties who are the prosecution or the plaintiff to reopen their cases rests on a discretion in the court which may not be favourably exercised; their capacity to tender evidence in reply is constricted by fairly strict rules, particularly in criminal cases. [125] Jury trials. There are yet further difficulties in relation to jury trials. If evidence is rejected when tendered, the jurors are not confused by it, for they will ordinarily be absent during the debate about the tender: s 189(4) of the Act. If circumstances change and evidence once rejected becomes admissible, it can be re-tendered successfully. Again there is no risk of jury confusion. However, considerable confusion can flow where, although opinion evidence is admitted conditionally, later it becomes apparent that the condition is not satisfied. The evidence must be removed from the record, otherwise there would be no difference between conditional and unconditional admission. The same problems arise where opinion evidence is admitted, not on any formal condition, but simply in the expectation that at some time after the tender of the opinion evidence, witnesses will be called to establish the factual assumptions on which the opinion was pronounced, but that expectation is disappointed. In either event the jury will have heard evidence which is inadmissible. Should it be struck out? Should it be withdrawn from the jury? Should the jury be directed that the issue to which the expert’s evidence was directed no longer arises? Should the jury be told not to consider the expert’s evidence? Should the jury be told to disregard the expert’s evidence on the ground that the factual basis has not been proved? [See Wigmore, Evidence in Trials at Common Law, Tillers rev (1983), vol 1 at 702, 731 [14][14.1] and 847-855 [19]] All these courses are possible. Each course is less attractive than a regime having a proof of assumption rule and a practice of rejecting the tender until it has been satisfied. [126] And what is to be done with any evidence that was called in relation to that conditionally admitted but inadmissible evidence, whether it was elicited by the cross-examination of the party opposing tender or tendered by that party in its own case? That problem is reduced if decisive rulings about compliance with a proof of assumption rule are made.

Part 3 — Admissibility of Evidence

Dasreef Pty Ltd v Hawchar cont. [127] Conclusion. A construction of s 79 which holds that there is no proof of assumption rule in relation to s 79 tenders is difficult to reconcile with the practical exigencies pursuant to which parties conduct their cases. It is necessary for trials to be conducted in a businesslike and efficient way. That is a matter of context pointing to the view that there is a proof of assumption rule with which those tendering expert opinion evidence must comply by reason of ss 55, 56 and 79 read against the background of the common law. (Appeal dismissed.)



Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [8.90] Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114

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Facts [Kyluk pleaded guilty to an environment offence of picking plants that were part of an endangered ecological community. At the sentence hearing, Kyluk objected to expert evidence of Mr Tulau on which the prosecutor sought to rely. Mr Tulau provided an expert report about the soil present at the site of the offence (“place of offence”) and relied on particle size analysis performed by a laboratory. The particle analysis was not admitted as evidence in the trial. Mr Tulau’s report did not reveal the tests the laboratory had undertaken in relation to the soil or by whom; or anything as to the chain of the samples. The issue on appeal was whether the expert report was inadmissible due to the factual basis for the opinion not being proved by evidence. Kyluk relied on Heydon J’s decision in Dasreef to argue that the report was inadmissible.] Judgment PRICE J: … [61] I do not think that it is appropriate to attempt to resolve this apparent conflict as the Court has not had the benefit of detailed submissions on this issue. In any event, it is not necessary to do so. Although there is no rule that precludes the admissibility of expert evidence that fails to comply with the Expert Witness Code, the Code remains relevant when considering the exclusionary rules under ss 135-137 of the Evidence Act: Wood v R [2012] NSWCCA 21 at [729]. Furthermore, even if an opinion based on assumed but unproven facts is admissible, the opinion may be given little or no weight if the assumption is not made good by the evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642. [62] It appears from the reasons of the trial judge that she considered that she had a discretion to admit the report where there was a breach of cl 5(1)(f) of the Code. The parties had accepted that her Honour had the power to make an “otherwise order”. This concession seems to have been derived from Supreme Court Rules Pt 75 r 3J(3) and UCPR r 31.23, although it is not entirely clear from the transcript. Whilst that might be so, her Honour in exercising that discretion did not turn her mind to ss 135-137 of the Evidence Act. [63] Section 135 of the Evidence Act relevantly provides: [section extracted]. [64] The term “probative value” is defined in the Dictionary to the Evidence Act as follows: [definition extracted]. [65] Mr Tulau gave evidence that the particle size analyses was crucial to the opinions expressed in the report. Although he moved from that position when questioned by Mr Glissan, it is plain from the report that he had relied on the laboratory analyses in conjunction with his observations in the field

Opinion

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Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage cont. and the analyses were basic to the questions on which he had been asked to provide expert opinions. Furthermore, there was no documentation that established the chain of possession from collection of the soil samples by Mr Tulau to analysis in the laboratory. It seems to me that in the absence of the email from the laboratory, some evidence as to qualifications of the person or persons conducting the tests and documentation establishing the chain of possession that the extent to which Mr Tulau’s evidence could rationally affect the assessment of the probability of the existence of a fact in issue was not much. [66] On the other hand, without the material from the laboratory being in evidence, the appellant could not evaluate and test the cogency of the conclusions expressed by Mr Tulau and was unfairly disadvantaged. The breach of the Code by Mr Tulau was not relatively minor. [67] The trial judge did not have regard to the unfair prejudice to the appellant that might arise from the admission into evidence of Mr Tulau’s report nor did she undertake the weighing exercise that s 135 of the Evidence Act requires. In my respectful opinion, when exercising the discretion to admit the report, her Honour fell into an error of a kind that is reviewable in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. [68] I conclude that the probative value of Mr Tulau’s report is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. In my view, her Honour should have refused to admit the report. … MCCALLUM J:

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… [138] Schmidt J considers that the report was inadmissible. I agree with her Honour’s analysis of the principles informing the issue of when opinion evidence should be excluded for want of proof of a fact assumed or accepted by the expert as a premise of the opinion. I am less confident in reaching a view as to whether, on the proper application of those principles, Mr Tulau’s report was inadmissible in the present case. Although he acceded in cross-examination to the proposition that the particle size analysis undertaken by a third party was “crucial” to his opinion, he appeared to resile from that concession in re-examination and to put forward a more robust defence of his position (at T20.26 and T59.4). The trial judge was better placed to assess the impact of that evidence on the basis for the opinions expressed in the report. However, it is not necessary for me to decide that issue. … SCHIMDT J: … [176] In the result, the current position appears to be that for expert opinion evidence to be admissible under s 79 of the Evidence Act, it must satisfy the two criteria identified by the plurality in Dasreef. That is, it must establish that the expert “has specialised knowledge based on the person’s training, study or experience” and that the opinion expressed by the expert “is wholly or substantially based on that knowledge”. The evidence must also be presented in a form which reveals the facts and reasoning on which the opinion rests. [177] An expert opinion which meets those requirements need not be excluded if all of the factual bases upon which the opinion is proffered are not established by the expert’s own evidence. Even if facts which the expert “assumes” or “accepts” in reaching the opinion expressed are not proved in some other way, then the opinion may still be admissible. That will depend on the nature of those facts and what bearing they have on the opinion. If they provide but a small part of the basis upon which the opinion rests, then the failure to prove those facts may have but little impact, and not render the opinion inadmissible. The failure to prove facts which provide a significant basis for the opinion might, by way of contrast, be such as to render the opinion no longer relevant to a fact in issue, no foundation for the opinion having been established. Such an opinion, even if it were admitted,

Part 3 — Admissibility of Evidence

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage cont. would be of no value. Where an opinion is admitted, the failure to establish a fact which is not of such significance, may nevertheless have an impact on the weight given to the opinion. … (Appeal allowed.)



Langford v Tasmania [8.100] Langford v Tasmania [2018] TASCCA 1 Facts [Langford was found guilty of unlawfully setting fire to property. It was alleged that the appellant, a taxi driver, had set fire to a taxi owned by another driver in the early hours of the morning of 23 February 2016. Important pieces of circumstantial evidence were CCTV footage which showed the appellant walking away from the vehicle at the time that the fire commenced, and the opinion of the fire investigator that the fire had started on the external surface of the car, in particular the rear bumper bar. This opinion, if accepted, excluded the possibility that the fire may have commenced accidentally as a result of a malfunction of equipment within the vehicle, for example, the battery or electrical circuitry. The appellant appealed on the admissibility of the fire investigator’s evidence.] Judgment

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Brett J (Blow CJ and Wood J agreeing) [4] The fire investigator (Mr Catterall) based his opinion on a number of pieces of information. The majority of this information came from his observations and examination of the scene. He interpreted this information, and formulated his opinion, having regard to his specialised knowledge as to the cause and behaviour of fires. This knowledge had been acquired from his experience and training in that field. The methodology of the formation of his ultimate opinion consisted of the preliminary identification of possible sources of the fire, followed by the elimination of as many as possible on the basis of more detailed investigation. One of the possible causes of the fire, identified in the preliminary stage of the investigation, was an electrical fault within the vehicle. However, the investigator did not have expertise in the electrical circuitry of motor vehicles generally, including a Toyota Prius, which is a hybrid vehicle. Accordingly, he consulted an unnamed person or persons at the Toyota dealership in Launceston. The person or persons he spoke to said that they were not aware of problems with the electrical circuitry of that model. He was also told that use of an incorrect battery could be a fire risk. He took the battery from the taxi to Toyota and confirmed that it was the correct type for the vehicle. He then carried out a further inspection of the vehicle, looking for evidence that the fire had commenced internally. He did not locate any such evidence. Ultimately, he formed the opinion that the fire had not been caused by an electrical fault. The person or persons from Toyota who provided the information were not called to give evidence. There was a degree of imprecision in the evidence of the investigator as to the role that this information played in the formation of his ultimate opinion, and, in particular, his exclusion of electrical fault as a cause of the fire. [5] At trial, the defence objected to the fire investigator giving evidence of his opinion as to the fire starting on the external surface of the vehicle on the basis that his opinion depended on the exclusion of electrical fault as a cause, that he did not have the relevant expertise to assess or form an opinion about that question, and that any opinion he expressed was, in reality, the opinion of an unidentified person at Toyota, who would not give evidence. The trial judge, Pearce J, conducted a voir dire and then ruled that the evidence was admissible, although he directed the jury that the evidence of what the fire investigator was told by Toyota was not admissible to prove the truth of those representations, and this may affect the weight that they should attribute to the opinion.

Opinion

CHAPTER 8

Langford v Tasmania cont. [6] The appellant appeals against his conviction on the basis that the trial judge erred by admitting the opinion evidence of the fire investigator. The grounds of appeal raise the following issues: (a)

Whether the evidence was excluded by the opinion rule (the Evidence Act 2001 (the Act), s 76), and not excepted from that rule on the basis of the witness’s specialised knowledge under s 79.

(b)

In any event, whether without proof of the facts asserted by the out-of-court representations of the persons at Toyota, the opinion was so lacking in probative value that it ought to have been excluded under ss 135 and/or 137 of the Act.

[7] The appeal squarely raises the question of whether proof of the facts and assumptions upon which expert opinion is based is a necessary precondition of admissibility under s 79 of the Act and, if not, the consequences of lack of such proof on the probative value of the opinion. … Ground 1 – The admissibility of Mr Catterall’s expert opinion …

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[33] The ground asserts that Mr Catterall’s ultimate opinion as to the source of the fire is inadmissible because it relies, in part, on opinion and facts within the knowledge of others which has not been proved by calling those persons to give evidence. This is an appeal to what at common law may have been called the “basis rule” or “proof of assumption rule”. The decision of the High Court in Ramsay v Watson (1961) 108 CLR 642 was often cited as authority for the proposition that proof of assumed facts was a necessary precondition of admissibility of expert opinion at common law. Whether such a rule was actually identified by that case was a matter of some controversy. [34] In any event, as he must, counsel for the appellant framed his argument within the context of the relevant provisions of the Act. Section 76(1) provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (the opinion rule). However, s 79 provides for an exception to the opinion rule in the case of an opinion based on specialised knowledge. In particular, s 79(1) provides as follows: (1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. [35] Mr Doyle, counsel for the appellant, concedes that Mr Catterall had demonstrated specialised knowledge based on his training, study and experience in respect of the identification of the cause and source of fires, and fire behaviour. However, counsel argues that Mr Catterall’s opinion in this case was not wholly or substantially based on that knowledge because it was, to an undetermined extent, based on the factual information and/or opinion provided by the unnamed representative of Toyota. These facts or opinions had not been established by admissible evidence, for example, the testimony of the Toyota representative. [36] The question of whether facts upon which an expert relies to form an opinion must be proved by independent evidence as a condition of admissibility under s 79 was considered by the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21, 243 CLR 588. In reasons delivered separately from the balance of the court, Heydon J contended for the existence of “the proof of assumption rule” in the operation of s 79. His Honour noted that the proper application of the rule required proof of the factual basis of an opinion as an effective condition of admissibility, because the failure to prove such underlying facts can render the opinion irrelevant, and irrelevant evidence is inadmissible. On the other hand, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) refrained from reading such a requirement into the wording of the section and made it clear that the admissibility of opinion evidence is to be determined by the application of the requirements of the Act. The exception to the opinion rule under s 79 applied if the witness had “specialised knowledge based on the person’s

Part 3 — Admissibility of Evidence

Langford v Tasmania cont.

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training, study or experience” and the opinion was “wholly or substantially based on that knowledge”. The section does not expressly require proof of underlying factual assumptions. However, as was noted by the New South Wales Court of Criminal Appeal in Taub v The Queen [2017] NSWCCA 198, the plurality also considered that these requirements implied a further condition of admissibility. Their Honours reasoned that the need for the evidence to demonstrate that the opinion is wholly or substantially based on the specialised knowledge of the witness requires an explanation of this relationship in the context of the factual assumptions upon which the opinion is based: [37] It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles 2001] NSWCA 305; (2001) 52 NSWLR 705 at 743-744 [85]) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. [37] The plurality made it clear that this “third” condition of admissibility did not introduce or reestablish a general rule that necessarily required proof of the underlying factual assumptions of an opinion: [41] Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called “the basis rule”: a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission’s interim report on evidence Australia, The Law Reform Commission, Evidence, Report No 26, (1985) vol 1 at 417 [750]. denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness’s specialised knowledge based on training, study or experience. [42] A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. [38] The effect of the plurality’s reasoning is that evidence of an opinion is admissible if the requirements of the section are satisfied and the connection between the witness’s opinion and his specialised knowledge, as it applies to the assumed facts is demonstrated on the evidence. The factual assumptions must therefore be stated and their relationship to the opinion explained, but they need not necessarily be independently proved. The failure to prove facts upon which the expert has relied

Opinion

CHAPTER 8

Langford v Tasmania cont. to form the opinion will therefore not affect the application of s 79 to the evidence, and hence unless the evidence is excluded for another reason, it will be admissible.

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[39] However, proof, or lack thereof, of the underlying facts will be relevant to the weight of the evidence. As Simpson JA explained in Taub, in the context of consideration of Dasreef: [30] The plurality declined to engage with the question whether the “proof of assumption rule” (what their Honours called “the basis rule”) existed at common law; such a rule, their Honours said, was directed to the facts of a particular case. From that it might be inferred that their Honours considered that whether the facts upon which the opinion was based are established as true is a question that goes not to admissibility, but to the weight to be attributed to the opinion expressed. This is also the analysis of Schmidt J in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 at [176]-[177]. [31] It seems to me that the difference between Heydon J and the plurality lies in the rigour with which Heydon J would insist on the availability of evidence to prove the truth, or correctness, of the assumptions or facts forming the foundation of the opinion as a condition of admissibility and at the time admissibility is being considered. It is not the position of Heydon J that, before evidence of the opinion could be admitted, it was necessary that the assumptions or facts be proved to be true or correct; rather, it was necessary that it be shown that ultimately the evidence would be capable of establishing that the facts or assumptions were true or correct. To insist on the availability of evidence to prove the truth of the assumptions enhances efficiency of the trial process (see [127]). Whether the evidence succeeds in establishing the truth of the facts is a question for the trier of fact. [32] The plurality, on the other hand, would allow admission of the opinion evidence provided the reasoning was exposed, reserving to the tribunal of fact whether the evidence was sufficient to establish the truth or correctness of the assumptions or facts. Failure to prove the truth of the assumptions would render the opinion evidence of little or no value. [40] Of course, it is possible to envisage a case in which the failure to prove the underlying assumptions impacts on the admissibility of an opinion. It must, of course, be possible that an opinion completely unrelated to proved facts may be so hypothetical that it simply does not satisfy the test of relevance contained in s 55 of the Act, in that it could not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding. See IMM v The Queen [2016] HCA 14, 257 CLR 300 at [39]. [41] However, provided that the opinion is relevant, even if only tenuously so, and satisfies the conditions of admissibility set out in s 79, the failure to prove underlying factual assumptions may affect the weight to be attributed to the opinion, but not its admissibility. Apart from the extreme case just discussed, weight will never affect relevance, and hence admissibility under s 55. This point was also made in IMM at [40]: Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, “probative”. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law Festa v The Queen (2001) 208 CLR 593 at 599 [14]; [2001] HCA 72. [42] Of course, evidence which is admissible under s 55 may be subject to exclusion under another provision of the Act. In a case where the opinion rule does not exclude the evidence, because the requirements of s 79 have been met, the evidence may still be liable to exclusion under the provisions of ss 135 and 137 of the Act. That issue is the subject of ground 2, and will be considered by reference to that ground. [43] In this case, with respect to the preconditions of admissibility under s 79, Mr Catterall gave unchallenged evidence as to the specialised knowledge he had acquired as a result of training, study

Part 3 — Admissibility of Evidence

Langford v Tasmania cont. and experience. He also explained in some detail the methodology which he employed to arrive at the opinion. In so far as the opinion relied on his interpretation of the scene and the fire residue, it was apparent that it was substantially based on his specialised knowledge. This included his understanding of fire language and his knowledge as to the tendency of a fire which has commenced internally in a car in which the windows are closed to produce and leave as residue considerable soot, and to extinguish through lack of oxygen. He conducted his own examination of the battery and the electrical componentry in order to identify any indication that the fire may have commenced from that source, and explained that he was looking for evidence of electrical shorting.

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[44] The only real issue was the extent to which he had relied on information provided to him by Toyota, and the nature of that information in the formation of his opinion. It is true that there was a degree of imprecision in relation to these questions. However, an examination of Mr Catterall’s evidence on the voir dire and at trial reveals that the information provided to him was limited to a lack of knowledge on the part of the Toyota person as to any history of spontaneous fire in hybrid vehicles, and identification of the battery from the vehicle as the correct type for that vehicle. It is difficult to understand how the former piece of information could have played any real part in the formation of Mr Catterall’s opinion, and he did not suggest that it had. The identification of the battery as the correct battery is a fact asserted by the Toyota dealer and was not otherwise proved. However, in the voir dire Mr Catterall made it clear that he had satisfied himself by independent examination that the battery was not the cause of the fire. [45] The only reasonable view of Mr Catterall’s evidence is that he was expressing his own opinion based on his specialised knowledge and, in forming his opinion, had regard to a number of facts, the majority of which were either proved by other evidence or attested to by him. The opinion he expressed was not the opinion of the unnamed representative from Toyota. The only effect of that information was to establish the battery as the correct one for the vehicle. It is a reasonable inference that the significance of this fact in the formation of his overall opinion was limited, particularly when considered in the context of the evidence he gave as to his own independent examination, and other factors which supported his opinion. [46] The partial reliance by an expert on information, factual or otherwise, provided by others, will not impact on the admissibility of the opinion, provided that the opinion is based wholly or substantially upon the expert’s specialised knowledge. Whether the opinion is substantially based on such knowledge is a question of degree, and requires an evaluative assessment by the court when determining admissibility. It is inevitable that experts will often rely partially on such information when formulating an opinion. In his submissions, the Director of Public Prosecutions referred to comments of Hall J in R v Jung [2006] NSWSC 658 at [57]: [57] It is not uncommon for professional persons or experts in various fields to utilise materials produced by third party specialists for the purpose of assisting them apply their specialised knowledge. That does not mean that the opinion of the former is not based wholly or substantially upon his or her specialised knowledge (the making or production of such materials being proved independently or admitted in legal proceedings). An example is the radiologist who produces an MRI scan which, in due course, is utilised by a medical specialist for the purposes of forming an opinion concerning causation, diagnosis and/or treatment. The specialist utilises such materials (and equipment) for the purposes of exercising his specialised knowledge in order to arrive at an opinion for the purposes of treatment or otherwise. It is apparent from the evidence that Dr Sutisno has, from her experience, an appreciation that photographic images can be affected by issues such as distance between subject and lens, angle, perspective and other issues. Whether or not the ATM photographs and forensic procedures are affected by circumstances that impact upon their quality or utility are matters that go to the soundness or value or integrity of the factual material utilised by her as an expert.

Opinion

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Langford v Tasmania cont. [47] When the whole of the evidence of Mr Catterall is taken into account, the only rational inference available is that his ultimate opinion was based wholly or substantially on his specialised knowledge despite his partial use of the Toyota information. Accordingly, the evidence satisfied the requirements for admissibility specified in s 79. [48] The fact in issue, which the prosecution sought to prove by the opinion evidence, was that the appellant had set fire to the vehicle. The fact which the opinion sought to prove, and about which the opinion was expressed, was that the fire had commenced on the external surface of the vehicle, as opposed to having commenced in or around the battery or otherwise internally. This fact, and hence the opinion expressed by Mr Catterall, clearly had the capacity to rationally affect the assessment of the probability of the existence of the fact in issue. Mr Catterall’s reliance on some information, which had not been otherwise proved in the context of the overall formation of his opinion, did not eliminate the capacity of his evidence to have the required effect. The evidence was therefore relevant. As already noted, it satisfied the requirements of s 79, as explained in Dasreef. Accordingly, the opinion rule did not apply to the evidence of Mr Catterall’s opinion. It was, therefore, admissible, subject to any other basis of exclusion, such as ss 135 and 137. Ground 2 – Should the evidence have been excluded under ss 135 and 137 of the Act? …

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[50] Both ss 135 and 137 relate to the refusal of a court to admit evidence in a case where the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Section 135 provides for discretionary exclusion, but s 137 is a mandatory requirement. Under that provision, 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. [51] “Probative value” is defined by s 3 of the Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The determination of the probative value of a piece of evidence requires an evaluative assessment. In IMM v The Queen, the majority explained the assessment of probative value as follows: [42] Both s 97(1)(b) and s 137 require an assessment of the probative value of the evidence tendered. As mentioned, the Dictionary definition of the “probative value” of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which “could rationally affect … the assessment of the probability of the existence of a fact in issue”. [43] The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence. … [45] The use of the term “probative value” and the word “extent” in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various.

Part 3 — Admissibility of Evidence

Langford v Tasmania cont. [52] Their Honours went on to conclude that, for the purposes of the assessment, it should be assumed that the jury will accept the evidence, having regard to both its credibility and its reliability. In other words, in conducting the evaluative assessment of probative value, the evidence should be taken at its highest in terms of its capacity to affect the assessment of a fact in issue, and the trial judge should ignore issues of credibility and reliability. This basis of assessment was noted to apply specifically to the assessment of probative value for the purposes of s 137: [47] In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. [53] The relevance of the reliability of the evidence to the assessment was further considered at [52]: [52] Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply. They are both subsumed in the jury’s acceptance of the evidence.

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[54] Finally, the majority observed at [57] that to the extent that reliability is relevant to the application of s 137, it falls to be considered in respect of the risk of prejudice, not as part of the assessment of the probative value of the evidence. [55] A strict application of these observations would suggest that the failure to establish the facts upon which the opinion is based will not affect the assessment of probative value for the purposes of ss 135 or 137. If an assumption is made that the witness’s opinion will be accepted by the jury, then the only real question is the extent to which the fact about which the opinion was expressed could rationally affect the assessment of the probability of the existence of a fact in issue. In this case, that must mean the extent to which Mr Catterall’s opinion that the fire was highly likely to have originated at the rear and on the external surface of the vehicle, affected the assessment by the jury as to whether the appellant was responsible for the fire. In making this assessment, the trial judge was entitled to consider the significance of the evidence in the context of other evidence presented by the prosecution. This included the improbable coincidence that the fire started spontaneously at the precise moment that the appellant is seen on the CCTV footage walking away from the vehicle, particularly having regard to the evidence that the vehicle had been parked in that location for several hours by that time. On any reasonable view of the prosecution case, on the assumption that the jury accepted Mr Catterall’s opinion in proof of the fact about which the opinion was expressed, that is, that the fire had started on the external surface of the vehicle, it was highly probative of the fact in issue, that is, that the appellant had started the fire. [56] An aspect of the reasons of the majority in IMM which is somewhat difficult to reconcile with the comments from those reasons quoted earlier, is their Honours’ reference at [50] to the “weak identification” example and the suggestion that the deficiencies surrounding an identification would impact on the assessment of the probative value of such evidence. On one view, the aspects of an identification which make it weak are matters which affect the reliability of the evidence, and, hence, ought not be considered when assessing the probative value of the evidence. However, if those aspects are relevant to the assessment of probative value, as the said example suggests, then, by analogy, unproved or discredited assumptions which form the basis of an opinion would be relevant to the assessment of the probative value of that opinion. However, in this case, even if the assessment of probative value was to take into account the failure to independently establish the Toyota information, in particular, the suitability of the battery for the vehicle, it must still be the case that this evidence has

Opinion

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Langford v Tasmania cont. a high degree of probative value. While the failure to call the representative from Toyota to prove the relevant facts must necessarily have some impact on the probative value of the opinion, it is necessary in the assessment of this question to consider Mr Catterall’s opinion in the context of the whole of his evidence, and the evidence generally. As already noted, Mr Catterall based his opinion on a considerable body of fact, much of which had been established by his or other evidence. This included: The fire language indicators which supported the conclusion that the fire had commenced externally and at the rear of the vehicle. The broken rear window which was consistent with the fire having commenced externally and then moving to the interior. The interior fire language. The absence of soot residue on the windows, which tended to be inconsistent with the fire having commenced internally. Mr Catterall’s own examination of the battery and the electrical circuitry, and the absence of indications which would be consistent with the fire having commenced in those areas. The information provided to him by Mr Parker, which had been confirmed in Mr Parker’s evidence, and was consistent with the fire having commenced externally at the rear of the vehicle. [57] On an overall view of this evidence, even if allowance is made for the unproved facts asserted by the Toyota information, the opinion of Mr Catterall had significant probative value.

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[58] Sections 135 and 137 also require consideration of whether the admission of the evidence carries a danger of unfair prejudice to the appellant. The concept of unfair prejudice was explained by Crawford CJ in Neill-Fraser v Tasmania [2012] TASCCA 2 at [184]: [184] When considering the danger of unfair prejudice, care must be taken not to confuse prejudice with unfair prejudice. Too often, defence counsel fail to distinguish between them. All evidence that may tend to convict an accused person is prejudicial, but that does not mean that it is unfairly prejudicial. What is meant by unfair prejudice is that the jury may use the evidence to make a decision on an improper, perhaps emotional basis. If there is a real risk that the evidence may be misused by the jury in some way, then it may be unfairly prejudicial. [R v BD (1997) 94 A Crim R 131 at 139, 151] [59] In this case, the risk of misuse arises from the possibility that the jury may not have properly factored into its assessment of the weight of Mr Catterall’s opinion, the impact upon it of the absence of proof of the Toyota information. Such a risk arose in this case because of the imprecision in the evidence as to the precise role which the relevant information played in the formation of Mr Catterall’s opinion. [60] While it would clearly have been desirable for attention to be addressed to this question in leading the evidence of Mr Catterall, particularly given that it was known when he gave his evidence that the Crown had no intention of calling the person to whom he had spoken at Toyota, nor proving those matters in any other way, the danger of unfair prejudice arising from this evidence was relatively low. An overview of Mr Catterall’s evidence demonstrates that he confined the use of this information to an early consideration of the possibility that the fire had occurred through electrical malfunction. His evidence went on to explain that he had performed investigations to exclude this possibility and had formed an opinion on the basis of the other considerations referred to above. Further, in cross-examination, he confirmed with defence counsel that the opinion concerning the fire starting externally was a probability, not a certainty. Finally, the trial judge clearly explained to the jury that the information had not been proved, and that it should not act on the basis that that information was true. If one accepts that the jury followed this direction, then having regard to the other evidence which supported Mr Catterall’s opinion, it can be seen that the jury would still have been justified in accepting that opinion. It is appropriate to take into account directions by the trial judge when

Part 3 — Admissibility of Evidence

Langford v Tasmania cont.

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assessing the danger of unfair prejudice: Standage v Tasmania (above). In assessing the effect of jury directions, it should be assumed that “as a general rule, juries understand, and follow, the directions they are given by trial judges”: Gilbert v The Queen [2000] HCA 15, 109 A Crim R 580 at [13]; Sio v The Queen [2016] HCA 32; Marshall and Richardson v Tasmania [2016] TASCCA 21, per Brett J at [63]-[65]. [61] There is a further matter that arises in relation to unfair prejudice. At the point of determining the admissibility of the evidence, the trial judge was entitled to assess this question on the basis of the evidence presented at the voir dire. In that evidence, Mr Catterall went into considerable detail about the role that was played by the Toyota information. As already noted, in cross-examination he was challenged extensively about the role that this information played in the formation of his opinion. He was clear that although initially he was concerned about the possibility of the fire originating from the electrical system, he was able to discount that possibility, relying on his own investigations as detailed above. The effect of the evidence was that the information set him on the correct investigative path, but ultimately had little effect on the formation of his final opinion. This evidence was not repeated in the evidence before the jury, largely because Mr Catterall was not challenged about this question by defence counsel. It may well be that defence counsel did not pursue that line of questioning as a forensic choice, having regard to the answers given by Mr Catterall on the voir dire, but that is of little importance. The significance of the evidence on the voir dire is that the trial judge was aware of Mr Catterall’s evidence concerning the actual role played by the Toyota information in the formation of his opinion. The trial judge was therefore entitled to conclude that any risk that the jury might assume the truth of the Toyota information would have little impact in their overall assessment of the importance of the opinion evidence of Mr Catterall because, whether the evidence was true or not, ultimately had little importance in the formation of his opinion. In fact, it could be argued with the benefit of hindsight, that the trial judge’s directions to the jury concerning the use of the evidence placed greater importance on this information and, accordingly, had greater potential to undermine the jury’s acceptance and use of Mr Catterall’s opinion, than was actually warranted. Whether that is the case or not, the trial judge was entitled to use the voir dire evidence when assessing the question of unfair prejudice, and entitled to regard it as obviating to a considerable extent the danger of misuse of the evidence. [62] I am satisfied that the probative value of the evidence was not outweighed by the danger of unfair prejudice and the trial judge correctly concluded so. Accordingly, there was no basis upon which the evidence could have been excluded under ss 135 or 137 of the Act. [Appeal dismissed]



Tuite v The Queen [8.105] Tuite v The Queen [2015] VSCA 148 Facts [In an interlocutory appeal, the applicant (Tuite) raised two questions in respect of the admissibility of DNA evidence which utilised a relatively new statistical methodology. The two questions were: (a)

is reliability a criterion of admissibility of opinion evidence under s 79(1) of the Evidence Act 1995 (the Act), or is reliability to be assessed in deciding whether the evidence should be excluded (under s 135 or s 137); and

(b)

by what criteria is the reliability of expert scientific evidence to be assessed?

The trial judge concluded that the DNA evidence had probative value:

Opinion

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Tuite v The Queen cont. In my view, the DNA evidence viewed as a whole is highly probative. It may be used by a jury to put the accused both inside and outside the house on the night in question. This is so, notwithstanding only small amounts of DNA matching that of the accused were found on the relevant items inside the house, and that other people also contributed to the DNA found on these items. The limitations in the STRmix methodology acknowledged by the prosecution witnesses must have some effect on the quality of the DNA evidence. However, I am not persuaded that they erode its probative value to any significant degree. Whilst the amounts of DNA may be small in some cases, the fact that DNA matching the accused’s was found on a number of items both inside and outside the house in my view fortifies the overall probative value of the DNA evidence, which I assess to be high. The trial judge concluded that the probative value was not outweighed by unfair prejudice: In this case, the danger of unfair prejudice is said to arise from a particular issue identified by Ms Taupin in the STRmix analysis of Item 1-2, although it has wider consequences as it is a product of the way in which STRmix works generally. Ms Taupin identified, having closely examined the STRmix case-notes, that at two of the 10 markers the probability of the evidence given the prosecution hypothesis was very very low, yet the likelihood ratios for the markers favoured the prosecution hypothesis. Ms Taupin pointed out that this means that STRmix produces likelihood ratios strongly favouring the prosecution hypothesis in circumstances where there is only very weak evidence to support that hypothesis. That, in combination with the very high likelihood ratios generated by STRmix, is said to be unfairly prejudicial to the accused and not something that should be allowed in a criminal trial.] Judgment Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

MAXWELL ACJ, REDLICH and WEINBERG JJA: [2] The applicant has been charged with aggravated burglary, rape, indecent assault and intentionally causing injury. Expert opinion evidence is to be called at the trial about the analysis of DNA samples from the crime scene and what are said to be the similarities between those samples and a DNA sample provided by the applicant following an unrelated conviction. [3] The DNA evidence is to be presented in the usual form of a “likelihood ratio” [see R v Berry (2007) 17 VR 153, 161 [30] (Berry)]. That is, for each DNA sample where the suspect cannot be excluded as a contributor, a ratio is calculated which shows how much more likely it is that the suspect was the source of the DNA (or a contributor to it) than that some other person chosen at random from the population was the source (or a contributor). [4] In this case, the likelihood ratios have been calculated using a recently developed software package, known as STRmix, which was introduced into Victoria in March 2013. At a pre-trial hearing, the applicant challenged the admissibility of the DNA evidence on the ground that the new methodology was not – or had not been shown to be – sufficiently reliable for use in criminal trials. The methodology was largely untested, it was said, and had not been generally accepted by the forensic science community. [5] The novelty of the methodology and its lack of proven reliability meant, according to the argument, that the opinion evidence must be excluded. This was said to be so because either: (a)

the opinions were not based on “specialised knowledge” within the meaning of s 79(1) of the Act, and the evidence was therefore inadmissible; or

(b)

even if the evidence were admissible under s 79(1), its probative value was outweighed by the danger of unfair prejudice and the evidence must therefore be excluded under s 137 of the Act.

[6] The pre-trial hearing extended over some 22 days, in the course of which the judge heard evidence from the three prosecution experts and one defence expert. In a reserved decision, her Honour

Part 3 — Admissibility of Evidence

Tuite v The Queen cont. rejected the application to exclude the evidence. Her Honour delivered comprehensive reasons for her conclusion that the evidence was admissible under s 79(1) and that s 137 did not require its exclusion. [7] The applicant sought leave to appeal against the ruling. He had first sought and obtained a certificate from the judge that the decision concerned the admissibility of evidence which, had it been ruled inadmissible, would have “eliminated or substantially weakened” the prosecution case [such a certificate is a precondition of an interlocutory appeal where the decision under challenge concerns the admissibility of evidence: Criminal Procedure Act 2009 s 295(3)(a)]. The application for leave to appeal was heard on 23 March 2015. On 27 March, we announced that the application for leave to appeal would be refused and that we would publish our reasons in due course. These are those reasons. [8] Two preliminary points should be made. First, as the decisions of this Court have made clear, where a question is raised on an interlocutory appeal about the admissibility/exclusion of evidence, appellate intervention is limited by the principles in House v The King (1936) 55 CLR 499. The question at this stage is whether the judge’s decision was reasonably open, not whether it was correct. A different standard of review applies if the issue is raised on a conviction appeal [McCartney v The Queen (2012) 38 VR 1, 11-12 [46]-[51]]. [9] Secondly, her Honour had the benefit of hearing from each of the three Crown experts, and from a defence expert, over some 22 days of hearing. It is simply not possible at this stage, nor is it necessary given the nature of an interlocutory appeal, for this Court to acquire the same level of technical understanding of the particular field of scientific learning.

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[10] For reasons which follow, we concluded that: (a)

the question of the reliability of an expert opinion does not fall to be considered under s 79(1);

(b)

it was open to the trial judge, on the evidence before her, to conclude that the opinion evidence of the Crown witnesses was based upon their specialised knowledge, and was therefore admissible under s 79(1);

(c)

the question of the reliability of opinion evidence falls to be determined as part of the assessment which the Court undertakes for the purposes of s 137 [Or the Act s 135];

(d)

there was no error of principle in her Honour’s approach to the assessment of reliability for that purpose; and

(e)

it was open to her Honour, on the evidence before her, to conclude that the probative value of the opinion evidence was not outweighed by the danger of unfair prejudice and hence that s 137 did not require its exclusion.

[11] The obvious risk in a criminal trial when expert evidence is led from a forensic scientist is that a jury will give the evidence more weight than it deserves [Murphy v The Queen (1989) 167 CLR 94, 130-1; R v Mohan [1994] 2 SCR 9, 21; Hannes v DPP (Cth) (2006) 165 A Crim R 151, 226 [289]-[290]]. To prevent unfair prejudice of that kind, it is essential that the reliability of expert evidence be established to the court’s satisfaction (under s 137) before it is led. We have concluded that the touchstone of reliability for this purpose is proof of appropriate validation, both of the underlying science (where necessary) and of the particular methodology being employed. [12] In the present case, the trial judge scrutinised the proposed evidence with great care. In particular, her Honour carefully examined the validation studies carried out in relation to the STRmix methodology and was satisfied that the requirement of evidentiary reliability had been met. That conclusion, too, was well open on the evidence. ... [70] In our respectful opinion, the conclusion reached by the New South Wales courts – first in McIntyre and then in Tang (2006) 65 NSWLR 681 – is correct. That is, the language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility.

Opinion

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Tuite v The Queen cont. [71] As Gleeson CJ said in HG (1999) 197 CLR 414, “it is the language of s 79(1) which has to be applied” [427 [40] n 37]. The High Court has repeatedly emphasised that statutory interpretation begins, and ends, with the words which Parliament has used [Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22]. See also Baini v The Queen (2012) 246 CLR 469, 476 [14]; Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, 509 [49], 511 [59]]. For it is through the statutory text that the legislature expresses, and communicates, its intention. Of course, the interpretation of a particular provision requires consideration of the legislative context and – where relevant – the legislative history. But if the words are clear and unambiguous, the provision must be given its ordinary and grammatical meaning. [72] The first condition of admissibility under s 79(1) is that the person who is to give the opinion evidence “has specialised knowledge”. As is apparent from what was said in Honeysett [see [44]], this phrase presents neither conceptual nor linguistic difficulty. Applying the Daubert formulation as approved in Honeysett, the focus of the inquiry will be on the witness’s “acquaintance with facts, truths or principles, as from study or investigation”. At the same time, under that formulation “knowledge” is not confined to a body of facts but encompasses “ideas inferred from such facts … on good grounds”. On this view, the witness’s “specialised knowledge” will encompass both the facts of which he/she has knowledge and the “ideas” – inferences, hypotheses and theories – based on those facts. [73] In order for the knowledge to be “specialised”, the witness must be shown to have knowledge of the relevant subject-matter

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which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. The witness’s possession of knowledge having that specialist character is a question of fact [Hamod v Suncorp Metway Insurance Limited [2006] NSWCA 243, [39]]. In assessing the admissibility of the evidence, the judge must, of necessity, ascertain and define with some precision the scope, and the limits, of the witness’s “specialised knowledge” [see Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146, 151 [22]]. This must be so, given that the second condition of admissibility requires the opinion to be “wholly or substantially based” on that knowledge [Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 604 [36]-[37]]. [74] What is to be made of the Daubert requirement that – in order to qualify as “knowledge” – an inference must be drawn “on good grounds”? This notion was further elaborated in Daubert, in a passage not quoted in either Tang or Honeysett, as follows: [I]n order to qualify as “scientific knowledge”, an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation ie “good grounds” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability [Daubert 509 US 579, 590 (1993) (emphasis added)]. [75] As this passage makes clear, the Supreme Court was here construing the phrase “scientific knowledge” as it appeared in r 702 of the Federal Rules of Evidence. The Court viewed “good grounds” as being synonymous with the “appropriate validation” required by “scientific method”. Section 79(1), by contrast, speaks of “knowledge”, not “scientific knowledge”. Unlike r 702, therefore, s 79(1) does not itself establish “a standard of evidentiary reliability” [cf Gary Edmond and Mehera San Roque, “Honeysett v The Queen: Forensic Science, ‘Specialised Knowledge’ and the Uniform Evidence Law” (2014) 36 Sydney Law Review 323, 332-3; see Amaba Pty Ltd v Booth [2010] NSWCA 344, [57]. It should be noted that the US Supreme Court itself, in the subsequent decision in Kumho Tire Co v Carmichael, took a different view, holding that what had been said in Daubert about r 702 applied to all “scientific”, “technical” and “other specialised” matters within the scope of the rule: Kumho Tire Co v Carmichael 526 US 137, 147 (1999)].

Part 3 — Admissibility of Evidence

Tuite v The Queen cont. [76] In our view, s 79(1) contains its own specification of the requisite foundation of the witness’s “knowledge”, namely, that the knowledge must be “based on the person’s training, study or experience” [see Adler v Australian Securities and Investments Commission (2003) 179 FLR 7, 137-8 [629]]. To take an example discussed in argument, a medical specialist with expertise in occupational lung disease may have come up with a new theory about the link between a particular form of lung disease and a particular industrial emission. Notwithstanding its novelty, the theory could properly be viewed as part of the expert’s “specialised knowledge” provided that the theory was demonstrably based on “the person’s training, study or experience”. Once that was established, it would be no objection to admissibility that there was dispute in the relevant field about whether the theory was “correct”. Questions of reliability would fall for consideration separately, as discussed further. [77] It follows, in our view, that a person’s knowledge may qualify as “specialised knowledge” for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others. The position would have been different if, instead, s 79(1) had provided that an opinion was only admissible if shown to be based on a “reliable” or “established” body of knowledge. No such language was used, however, and the legislative history makes clear that this was a deliberate legislative choice. ...

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[87] As we have seen, it was the view of the ALRC originally, and of the three Commissions in their joint report in 2005, that the reliability of expert evidence could adequately be addressed under s 137 (or s 135). As noted earlier, the applicant’s alternative argument was that the judge should have excluded the DNA opinion evidence under s 137. Applying Dupas, her Honour addressed the question of reliability in deciding whether to exclude the evidence under s 137 [see Gary Edmond, David Hamer, Andrew Ligertwood and Mehera San Roque, “Christie, Section 137 and Forensic Science Evidence (After Dupas v The Queen and R v XY)” (2014) 40 Monash Law Review 389, 401, 411]. ... [101] In our view, the touchstone of reliability for scientific evidence must be trustworthiness, and trustworthiness depends on validation. We would respectfully adopt what the US Supreme Court said in Daubert, as follows: We note that scientists typically distinguish between “validity” (does the principle support what it purports to show?) and “reliability” (does application of the principle produce consistent results?). Although “the difference between accuracy, validity, and reliability may be such that each is distinct from the other by no more than a hen’s kick,” … our reference here is to evidentiary reliability – that is, trustworthiness. In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity [509 US 579, 590 n 9 (1993) (emphasis added)]. [102] It follows, in our view, that the focus of attention for the purposes of assessing the reliability of scientific evidence should be on proof of validation. Ideally, there should be proof of both in-house validation and independent external validation. But, as the Caddy Report noted in 2008, the commercialisation of forensic science makes this latter requirement increasingly difficult to satisfy [Caddy Report, 26 [9.2]]. [103] In our view, the focus on proven validation has a number of advantages. First, and most importantly, it means that the scrutiny of scientific evidence in the judicial process will apply the rigour which the discipline of science itself demands. As it was put in Daubert, evidentiary reliability will be based on scientific validity. Secondly, the trial judge considering scientific evidence will ordinarily be able to assess the sufficiency of validation – based on the published results of validation tests – without needing to acquire particular expertise in the relevant field of science. [104] Thirdly, validation studies provide a framework which assists the judge – and, ultimately, the jury – to evaluate the evidence [Gary Edmond, “The Admissibility of Forensic Science and Medicine

Opinion

CHAPTER 8

Tuite v The Queen cont. Evidence under the Uniform Evidence Law” (2014) 38 Criminal Law Journal 136, 139]. Fourthly, this approach avoids what we consider to be the unworkable imprecision of a “general acceptance” test, and will ensure that new developments and novel techniques are not excluded, provided always that their scientific validity is established to the satisfaction of the court. [105] Of all the many subsets of forensic science, the science of interpreting DNA samples is both the best known and the most thoroughly investigated and tested. This does not, however, reduce the need for appropriate validation when – as here – a new methodology is adopted within a recognised field. As will appear, her Honour separately addressed the applicant’s argument that STRmix had not been appropriately validated. [106] Special care must be taken, of course, in a case where the proposed expert evidence is based on “new science” properly so called. In such a case, the party proposing to rely on the expert evidence will need, as the Supreme Court in Canada has said, to establish that the underlying science is “sufficiently reliable to be admitted in a court of law” [Trochym [2007] 1 SCR 239, [33]].

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... [109] In our view, consideration should be given to the establishment – preferably on a national basis – of something equivalent to the UK’s Forensic Science Regulator and Forensic Science Advisory Council (which provides advice to the Regulator). Their remit encompasses the establishment and maintenance of quality standards relating to forensic science organisations, processes and techniques, and specifically includes the development of “procedures for validating and approving new technologies”. A regulatory body of that kind could provide independent, expert assessments of the reliability of particular scientific theories and techniques, which would in turn greatly assist the Court in determining the reliability of evidence to be given by a particular expert [R v Reed [2009] EWCA Crim 2698, [111]; see, further, Gary Edmond and Andrew Roberts’ proposal for a “multidisciplinary advisory panel” in “Procedural Fairness, The Criminal Trial and Forensic Science and Medicine” (2011) 33 Sydney Law Review 359, 389-92].



ULTIMATE ISSUE AND COMMON KNOWLEDGE RULES ABOLISHED [8.110] Section 80 abolishes these common law rules. [8.120]

Questions

1. French CJ, Heydon and Bell JJ concluded that the ambulance officers’ records were “so shrouded in obscurity about what data they observed and suggest so great an unlikelihood that that data could support, or were seen as pointing to, any definitive inference that it is not possible to find on the balance of probabilities what the impugned representation was stating. It is therefore not possible positively to find that it stated an opinion”. Given that the effect of s 76 is to create a rule of inadmissibility, subject to exceptions created by s 77, s 78 and s 79, does it make sense that s 76 would not apply unless the court were satisfied, on the balance of probabilities, that an opinion had been expressed? Should it be enough that it would be open to the tribunal of fact to find that a particular inference has been drawn (that is, a particular opinion expressed)? 2. In Australian Securities & Investments Commission v Rich (2005) 216 ALR 320 at [205]-[222] Austin J of the NSW Supreme Court held that the opinion rule in s 76 is

Part 3 — Admissibility of Evidence

confined to evidence of an opinion given by a witness in court, so that it does not apply to out-of-court hearsay representations of opinion. Is that analysis good law now? 3. In Lithgow City Council v Jackson, French CJ, Heydon and Bell JJ stated that s 78(a) “goes to questions of form” and requires that the opinion is about a “matter or event” as well as being “based” on what the person stating the opinion “saw, heard or otherwise perceived” about that matter or event. Is it strictly correct that the opinion must be about the “matter or event”? Does s 78(a) go to “questions of form” or rather to ensuring that the opinion is based on what was actually perceived about a matter or event with the person’s senses? Is the result of the plurality judgment that s 78(a) will only permit admission of the kind of evidence that was admitted under the common law rule? 4. As regards s 78(b), was it “necessary” to admit evidence of the ambulance officers’ opinion in order to obtain an adequate account or understanding of what they perceived? Is it required that the primary perceptions be identified by the holder of the opinion? May the opinion be expressed in terms of an inference from what the person perceived rather than a compendious description of what the person perceived?

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5. Is it possible to determine the position of the plurality in Dasreef Pty Ltd v Hawchar to the common law “basis rule” or “proof of assumption rule” under the Act? 6. Do you agree with the statement of Justice Heydon that “failure by the tendering party to comply with the proof of assumption rule makes the opinion evidence irrelevant”? In what circumstances do you believe that a failure by the tendering party to prove the facts assumed to exist for the purposes of expressing the opinion makes the opinion evidence irrelevant pursuant to s 55? How different must the facts proved be to the facts assumed before the opinion can have no rational bearing on a fact in issue? 7. If opinion evidence is relevant, not inadmissible pursuant to s 79 and it is not appropriate to exclude it in discretion, is there any room left for the operation of the common law “basis rule” or “proof of assumption rule” in NSW (bearing in mind s 56(1) and the concluding words of s 9(1) in the NSW Act)? See, generally, [1.40]. 8. The requirements for the admissibility of expert evidence were considered by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where Heydon JA said: [85] In short, if evidence tendered as expert opinion evidence is to be admissible, must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not

Opinion

CHAPTER 8

based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]). What is the source of law for each of the above propositions?

9. Answer the following questions: (a) What is the opinion rule? (b) What are the exceptions to s 76? (c) What is the effect of s 77? (d) Provide examples of lay opinion. In what circumstances will lay opinion be admissible? (e) What are the requirements for admissibility of expert opinion? (f)

How is “specialised knowledge” determined?

(g) What does s 80 provide? (h) How can s 177 be used? 10. What was the expert evidence in Honeysett v The Queen? Was the court satisfied that there was a field of expertise? Give your reasons.

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11. Refer to the case of Strom v Council for the Shire of Cremorne in Chapter 20 and answer the following questions: (a) Jack Strom was arguing that his fall was due to the negligence of the Council in not providing an adequate railing at the lookout. Assume Fiona Picket is called as a witness for Jack Strom. She states that she has worked for many years as a fence builder for the Council of Bangor in Sydney. She has no formal qualifications but has worked for 20 years building fences and railings in public areas. She is asked: Q:  Do you think the railing at the Cremorne lookout was high enough to protect the public? A: In my opinion, it should have been about 50cm higher. Most railings at lookouts are higher. The Council was clearly negligent in this case.

The evidence was received over objection. Should it have been admitted? (b) Refer to Document 4. How could the report by Mike Thompson have been admitted into evidence? (c) Refer to Document 9: Witness Statement of Miriam Strom. Would Miriam be allowed to give evidence that Jack was not drunk? What form of evidence is this? 12. See the case of R v Eagle in Chapter 20. (a) Is the forensic pathologist’s opinion as to the cause of death admissible if the pathologist based her opinion on: • the photographs of Abby Star’s body; • the photographs of the body, and an autopsy of the body; • the photographs of the body, an autopsy of the body and a view of the crime scene?

Part 3 — Admissibility of Evidence

(b) Do you think that the forensic pathologist should view the hospital records before providing an opinion as to the cause of death? (c) Can the pathologist express an opinion on the following: • cause of death; • time of death; • place of death; • effect of an overdose of insulin; • probability of death being a suicide or murder? 13. Answer the following questions relating to R v Eagle in Chapter 20: (a) Refer to exhibit 2.  How could the report by Star’s accountant be admissible? Consider relevance, the opinion rule and the discretions to exclude evidence in your answer. (b) Refer to exhibit 6. Is this document admissible? Explain. (c) Can Abby Star’s psychiatrist provide an opinion that Abby Star was likely to have committed suicide? (d) Refer to the documents produced on subpoena by Dr Psychiatrist (documents produced in respect of subpoena 3). Can the defence use the file notes which record Star’s heroin use? (e) Refer to Jeremy Eagle’s statement. Are pars 4 and 5 admissible?

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(f)

Refer to Jade’s statement. Discuss objections on the basis of s 76 and whether any exceptions would operate to admit the evidence.

(g) Refer to Cliff East’s statement. Is the evidence in par 5 admissible? (h) Refer to the statement of Maria-Rosa Dominguez. Can her evidence that was the result of hypnosis be admissible?

CHAPTER 9

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Admissions [9.10]

OVERVIEW ................................................................................................................ 391

[9.20]

ALLEGEDLY FABRICATED ADMISSIONS...................................................................... 393

[9.30]

EXCLUDING AN ADMISSION INFLUENCED BY VIOLENCE AND CERTAIN OTHER CONDUCT .................................................................................................... 393 [9.40] R v Zhang .............................................................................. 393

[9.50]

EXCLUDING AN UNRELIABLE ADMISSION MADE TO, OR IN THE PRESENCE OF, AN INVESTIGATING OFFICIAL ................................................................................... 395 [9.60] R v Zhang .............................................................................. 395 [9.70] R v Moffatt ............................................................................. 398 [9.80] R v McLaughlan ....................................................................... 400

[9.90]

DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED ADMISSIONS ............................................................................................................ 403 [9.100] R v Helmhout .......................................................................... 403

[9.110]

DISCRETION TO EXCLUDE ADMISSIONS ON THE BASIS OF UNFAIRNESS................. 406 [9.120] Foster v The Queen ................................................................... 407 [9.130] R v Swaffield; Pavic v The Queen ................................................. 410 [9.140] Em v The Queen ...................................................................... 415 [9.150] R v DRF .................................................................................. 424

[9.160]

EVIDENCE OF SILENCE .............................................................................................. 431 [9.170] Petty and Maiden v The Queen ................................................... 431

OVERVIEW [9.10] Part 3.4 creates (in s 81) an exception to both the hearsay and opinion rules for first-

hand evidence (s 82) of an “admission”, defined as a previous representation made by a person who is or becomes a party to a proceeding, civil or criminal, which is adverse to that person’s interest in the outcome of the proceeding (and including the context in which the admission was made). Any acknowledgment of some relevant fact that tended to establish guilt, or liability, would be an admission. An admission may be made by adoption of a representation made by another. As the definition of “representation” in the Dictionary at the end of the UEL indicates, an admission may be made by conduct from which an admission might reasonably be inferred (an “implied” representation). A representation which, on the face of it, is exculpatory, may be an “admission” if it is relied upon as constituting an implied admission. For example, a lie may be capable of revealing a “consciousness of guilt” and regarded as an admission on that basis. On the other hand, words relied upon to establish lack of consent for an identification parade or consent for a search are not admissions since no inference is drawn from the words or conduct (reliance is placed directly on the conduct itself and, for that reason, the evidence would not be caught by either the hearsay or opinion rules in the first place).

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Part 3 — Admissibility of Evidence

Section 83 deals with use of an admission against a co-party. It is intended to ensure that evidence of an admission by one defendant (D1) cannot be used against another defendant (D2) in the proceedings, unless D2 consents. Where D2 does wish to rely on parts of the admission, the entire admission will be admissible both for and against him or her. Section 87 deals with admissions made by agents (formal and informal) of a party. Section 89 deals generally with alleged admissions by “silence” in response to questions put or representations made by an investigating official and provides, in substance, that silence in such circumstances, whether total or selective, and whether or not a caution has been given, cannot be treated as an admission or “consciousness of guilt” or a basis for inferring that a defence or explanation advanced at trial is less credible. However, in NSW, s 89A provides that in proceedings for a serious indictable offence, if a number of conditions are satisfied, an unfavourable inference may be drawn from the defendant’s failure or refusal to mention a fact during official questioning that the defendant “could reasonably have been expected to mention” and that is later “relied on” by the defence in the proceedings. Section 84 imposes threshold requirements for admissions in both civil and criminal proceedings (so that admissions obtained by violence or similar conduct will be inadmissible) while, exclusively in criminal proceedings, s 85 attempts to ensure that an admission is reliable and s  90 focuses on considerations of “fairness” to a defendant. The latter discretion may have application, for example, where a police suspect has not been cautioned about the right to silence, which will also raise the issue of police impropriety (s 139) and the possibility of discretionary exclusion on public policy grounds (s  138). There is no general provision dealing with the reliability of evidence of admissions (s 88 provides that, for the purposes of determining admissibility, a court must assume the admission was made if such a conclusion is “reasonably open”) although s 86 excludes an unsigned record of police interview in certain circumstances and other legislation mandates electronic recording of police interviews (see eg s 23V of the Crimes Act 1914 (Cth); s 281 of the Criminal Procedure Act 1986 (NSW); and s 464H of the Crimes Act 1958 (Vic)). For an “admission” to be admissible, a number of conditions must be satisfied. In summary, those conditions are as follows: (a)

In criminal proceedings for admissions obtained “to, or in the presence of, an investigating official”: •

the admissions must be firsthand: s 82;

•

they must not be obtained by violence and certain other conduct, and must be reliably obtained: ss 84, 85;

•

they generally must be taped: see, for example, s 281 of the Criminal Procedure Act 1986 (NSW);

• consideration is given to whether a caution was given: s 139. If the abovementioned conditions are satisfied, there is still discretion in the court to exclude the “admission” on the basis of s 90 (fairness discretion), s 135, s 137 (prejudicial effect) and/or s 138 (illegally or improperly obtained discretion). (b)

In criminal proceedings in respect of other admissions, the relevant sections of the Act to consider are ss 82, 84, 90, 135, 137 and/or s 138.

(c)

In civil proceedings, the relevant sections for considering the admissibility of an “admission” are ss 82, 84, 87, 135 and/or s 138.

Admissions CHAPTER 9

ALLEGEDLY FABRICATED ADMISSIONS [9.20] Under s 88, a court may admit evidence of an alleged admission if it is reasonably open

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to find that it was made. However, there are provisions addressing the problem of allegedly fabricated admissions. Section 86 deals with unsigned records of interview. Legislation mandates electronic recording of police interviews (see eg s 23V of the Crimes Act 1914 (Cth); s 281 of the Criminal Procedure Act 1986 (NSW); and s 464H of the Crimes Act 1958 (Vic)). For example, s 281 of the Criminal Procedure Act 1986 (NSW) provides that “an admission” is not admissible unless it was tape-recorded or there is a “reasonable excuse” for the failure to tape-record it. “Reasonable excuse” is defined in s 281 of the Criminal Procedure Act 1986 to include: (a)

mechanical failure; or

(b)

refusal of a person being questioned to have the questioning electronically recorded; or

(c)

the lack of availability of recording equipment within a period for which it would be reasonable to detain the person being questioned.

Further, s 165 that requires a warning to be given to the jury that the evidence of witnesses within the various categories of suspect witnesses may be unreliable, with information as to the matters which may cause it to be unreliable, and a warning of the need for caution in determining whether to accept the evidence and the weight to be given to it: s 165(2). This must be done whenever any party so requests, unless the judge is satisfied that there are good reasons for not doing so (s 165(2) and (3)), and not only where the oral admissions form the only (or substantially the only) evidence of guilt and where they were made in police custody: McKinney v The Queen at 476; R v Small (1994) 33 NSWLR 575 at 602-604. The warning, if sought by counsel, should be given where the Crown is relying upon evidence coming within the category described in the section.

EXCLUDING AN ADMISSION INFLUENCED BY VIOLENCE AND CERTAIN OTHER CONDUCT [9.30] Section  84 provides that evidence of an admission is not admissible where it was

obtained by serious misconduct. Section 84 applies in civil and criminal proceedings.

R v Zhang [9.40] R v Zhang [2000] NSWSC 1099 Facts [Zhang was on trial for two counts of murder. He was interviewed for the purpose of taking a witness statement and ascertaining whether he was suitable for the witness protection program. During the interview Zhang admitted his guilt (Exhibit A). Zhang was then interviewed again and the interview was recorded electronically (Exhibit B). When the interview was concluded he accompanied police to the crime scene and demonstrated what happened on the occasion of the murders (Exhibit C). The police then recorded another interview (Exhibit D).] Judgment SIMPSON J: ...

Part 3 — Admissibility of Evidence

R v Zhang cont. [38] The provisions of s 84 set out the circumstances in which the absence of true voluntariness in admissions will result in the exclusion of evidence of the admissions. The section confers no discretion. Where there has been conduct of the kind described, unless the Crown satisfies the court that the conduct did not influence the admission or the making of the admission, the court is bound to reject the evidence. [39] Having concluded that the facts are substantially as outlined by the accused, the questions which next arise are, in sequence: (i)

whether the conduct of either or both of the detectives was violent or oppressive;

(ii)

whether the conduct of either or both of the detectives constituted a threat of violence or oppression;

if either (i) or (ii) is answered affirmatively:

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(iii)

whether I am satisfied that the accused’s admission was not influenced by that conduct.

[40] Counsel for the accused argued that the promise of witness protection alone is capable of amounting to oppressive conduct. I do not find it necessary to isolate the evidence concerning the offer of future protection from the other evidence relating to the events which preceded the making of the admission, but I doubt whether that circumstance alone could be regarded as oppressive. In this case, the accused was not merely offered witness protection; he was not merely offered witness protection in return for co-operation (which it is also difficult to construe as oppression); he was offered witness protection in exchange for co-operation in the context of being confronted with two alternatives only: to co-operate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his cooperation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused. [41] I am satisfied that the conduct of the police as [a] whole was designed to and did in fact oppress the accused. [42] On behalf of the Crown it was argued that, even if the conduct of the police was capable of being oppressive, the Crown had nevertheless discharged the onus of establishing that the accused’s admissions, or his decision to make admissions, was not influenced thereby. [43] The basis for that submission lay in something that occurred during the cross-examination of the accused. Counsel for the Crown was asking him some questions about the young woman with whom he had had a failed relationship. The accused became extremely distressed and tearful. When pressed he gave some answers that demonstrated conclusively that, even in late 2000, the subject is a cause of considerable emotional pain to him. It was pointed out that his breakdown in the police station in July 1997 could be pinpointed in time as following closely upon his giving Detective Breton information on the same subject. It might, therefore, be inferred that, in 1997 when the breakdown of the relationship with the woman was fresher in his mind, it was even more painful, and that it was this vulnerability that broke down his defences and caused him to make the admissions he did. The submission was that the admission was not influenced by any conduct on the part of the police, but rather by his own emotional vulnerability in relation to its subject matter. [44] Having observed the accused in the witness box I am satisfied that the subject of the relationship is one that renders him vulnerable and its having been raised at that time may well have been a factor that precipitated his confession. However, s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible.

Admissions CHAPTER 9

R v Zhang cont. [45] I am not satisfied that the making of the admission by the accused was not influenced by the oppressive conduct. [46] The provisions of s 84 therefore dictate that the evidence not be admitted.



EXCLUDING AN UNRELIABLE ADMISSION MADE TO, OR IN THE PRESENCE OF, AN INVESTIGATING OFFICIAL [9.50] Section 85 provides that evidence of an admission is not admissible in a criminal pro-

ceeding where, in certain circumstances, the admission is not reliable. It should be noted that s 189(3) provides that, in the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant. R v Zhang and R v Moffatt provide two examples of the operation of s 85.

R v Zhang [9.60] R v Zhang [2000] NSWSC 1099 Facts

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[During a trial in the New South Wales Supreme Court, Simpson J considered a submission that admissions made by the accused were inadmissible under s 85.] Judgment SIMPSON J: ... [49] The next section invoked is s 85 of the Evidence Act which is concerned with evidence of admissions the reliability of which is in question … [50] It was not in dispute that, even though the accused was not initially being questioned as a suspect, all his admissions were made in the course of official questioning, and, in any event, the admissions certainly resulted from the acts of others with the relevant capacity to influence the decision to prosecute. Accordingly, s 85 has application. By sub-s (2) evidence of the admission is not admissible unless the circumstances were such as to make it unlikely that the truth of the admission was adversely affected. [51] Application of this section produces a different result to the application of s 84. Once again I proceed on the basis that the accused’s account of events is to be preferred to that of the police officers. The focus of s 85 is the reliability of the admission in the circumstances in which it was made. It is necessary to consider with some care what the two officers said to the accused. Detective Breton had offered him the benefits mentioned earlier in (par 27). Sergeant Lai had advised him to co-operate. Detective Goodwin had held out the offer of no, or a reduced, sentence; had expressed sympathy for the two victims and made a threat of violence; had imposed a deadline on the time during which the accused would be allowed to take advantage of the offer of co-operation; had conveyed his belief that the accused was involved in the killing; and had offered a choice of “co-operating” with police or being charged with murder. In cross-examination the accused agreed that Detective Goodwin had impressed upon him the importance of telling the truth, including the small details that may have seemed unimportant. Apart from the last matter, while the conduct of police affected the voluntariness of the accused’s confession, it does not, to my mind, have the same impact on its reliability.

Part 3 — Admissibility of Evidence

R v Zhang cont. Generally speaking, s 85 is directed to the circumstances in which an admission is made and any impact those circumstances may have on the reliability or otherwise of the admission. The section is not directed to the truth or falsity of the content of the admission: see R v Rooke (unreported, Court of Criminal Appeal, NSW, 2 September 1997 per Barr J) but that position is not absolute. Section 189 governs the conduct of voir dire proceedings. [52] The combined effect of sub-ss 189(1) and (3) is that where the voir dire determination concerns the admission of evidence of an admission in a criminal case, the truth or falsity of the admission is to be disregarded unless that issue is introduced by the accused. It seems to me that sub-s (3) is designed to obviate a “bootstraps” argument in the determination of the admission of the evidence. That is, evidence of an admission will not be admitted because the admission can be shown, by other evidence, to be truthful. The attention of the court is to be directed to the circumstances in which the admission was made, excluding evidence that would substantiate or contradict the admission. The legislation delineates the circumstances in which the admission was made from its independently verifiable (or otherwise) content. An exception to that position, provided in s 189(3), is made where the accused introduces the question of truth or falsity of the admission. Where the accused takes that course, neither the Crown or the court is precluded from embarking on an examination of the proof of the admission, although it may be that the extent to which that will be considered is limited: R v Donnelly (1997) 96 A Crim R 432 at 438 per Hidden J.

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[53] Here the accused has explicitly raised the question of the truth or falsity of the admission he undoubtedly made. In his evidence he claimed that he began making up things that were not true. His counsel pointed to various details of the confession that were at odds with facts objectively provable. If the truth or falsity of the confession bears upon the determination of the preliminary question, consideration of that issue is not, therefore, prohibited. [54] Section 189 is not without complexity. A “preliminary question” is, relevantly, a question as to whether a fact, upon which the admission of evidence depends, exists. The “preliminary question”, for present purposes, is whether the circumstances in which the accused’s admission was made make it unlikely that its truth was adversely affected. In the consideration of that question, because the accused has asserted that that admission was untruthful, it is legitimate to have regard to all of the evidence concerning its veracity. However, it is appropriate to consider separately the two questions, that is, the question relating to the circumstances in which the admission was made (excluding issues of its veracity) and, only after that has been done, the question of its truth or falsity. [55] I have already indicated that I do not consider that the circumstances generally (excepting one) in which the admission was made adversely affected its reliability. Putting that correctly, I am satisfied that the Crown has established that the circumstances (excluding one) in which the admission was made were such as to make it unlikely that its truth was adversely affected. I specifically include in this Detective Goodwin’s injunction to the accused that he had a limited time in which to make up his mind to co-operate. While that placed pressure on the accused to decide to make the admission (a circumstance relevant to s 84) it did not operate adversely on the veracity of what he said. Indeed, it may well have had the opposite effect. [56] The remaining circumstance, however, is less favourable to the Crown. Detective Goodwin gave the accused two alternatives only: to “co-operate” or be charged with murder – it being, presumably, implicit that if he were charged with murder in the absence of co-operation, he would not obtain the benefit of a reduced sentence, witness protection and so on. [57] Co-operating with police in this context plainly meant admitting participation in the killings. This alone (leaving aside questions of veracity) would prevent my being satisfied that it was unlikely to have adversely affected the truth of the admission. The accused well knew what was expected of him in terms of “co-operation”. However, as I have noted earlier, it is legitimate to take into account, and make an assessment of, the truth or falsity of the admission. There is no dispute that the initial admissions were in terms substantially as recorded by Detective Breton. Subsequent admissions are objectively verifiable by reason of the video recording of the interview following the admission (Ex B)

Admissions CHAPTER 9

R v Zhang cont. and the video of the “walkaround” (Ex C). The accused gave a great deal of detail on each occasion. Some of that detail has been shown to have been incorrect. For example, the accused said that he met the two co-offenders at Ashfield Railway Station at about 2pm (on a June day) and walked with them the relatively short distance to Cecil Street. In the answer referred to above he said that it was still sunny when they left Cecil Street, having murdered the two victims. Other evidence establishes that Ms Wang was last seen at Petersham TAFE at 3.45 on 2 June; Mr Zhang was believed to have left work at Glebe at about 4.30pm. Sunset on that day was at 4.55pm. These facts make it plain that the accused’s answers about the time in which the events he described took place cannot be correct.

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[58] The point made by counsel for the accused is a telling one. Added to that, there are other discrepancies between the account given by the accused and other objectively proven circumstances. He told police that at the time he was living at the Matthew Talbot Hostel at Woolloomooloo and had been asked to leave because he had not paid rent for his accommodation. Records of the Matthew Talbot Hostel show that he did not take up accommodation there until 4 June, two days after the murders. He had, however, been living at another hostel, apparently of a similar kind to the Matthew Talbot, and in the same general area of Sydney. [59] The accused explained the ease with which the three gained access to the victims’ apartment by reference to the “taxation letter” that he said Mr Zhang had advised was ready for collection. His counsel submitted that the evidence demonstrated relevant and substantial inaccuracy. There was indeed found at the premises a letter from the Australian Taxation Office addressed to the accused, but it was a letter to do with superannuation and did not meet the description given by the accused. Moreover, it bore the date 28 May 1997, a Wednesday. It was initially addressed to the accused’s accountants in another suburb, who had, evidently, on receipt, forwarded it to the address at Cecil Street given to them by the accused. The available evidence does not disclose whether or not it was in the Cecil Street unit when the victims were killed on 2 June. It may have been found among mail collected by a neighbour. The Crown has submitted that the existence of the letter is an important factor corroborating the accused’s account; counsel for the accused has, to the contrary, submitted that the divergences between the description given by him, and the relevant dates, suggest that his account was untruthful. The dates are material because, it was submitted, it was unlikely that the letter dated 28 May (Wednesday) had been posted and arrived at the accountants’ in time to be re-directed to and arrive at Ashfield by 2 June (Monday) and allow Mr Zhang time to make the two phone calls notifying the accused and Song of the arrival of and the contents of the letter. I do not accept the submission made on behalf of the accused. In my view the presence of the letter gives substantial support to the accuracy of the version given by the accused. [60] Another divergence between incontrovertible facts and the description given by the accused relates to the position of the victims on the bed after their murder. In the walkaround video the accused asserted that they were lying across the bed; police who discovered the bodies said they were lying, conventionally, lengthwise. [61] Reference was also made by counsel to the contents of media reports of the murders, especially those in Chinese-language newspapers. These were relied upon as containing much of the information which the accused gave to police, indicating a source, other than personal knowledge, of the detail of the murders. One matter in this regard was highlighted. A motor vehicle belonging to the couple was located in the supermarket car park. When the accused was asked in the interview (Ex B) about Mr Zhang’s car, he answered that the car was a blue-coloured Nissan. In fact, Mr Zhang’s car was yellow (Ex P). However, it was described in a newspaper article as a Nissan Bluebird. This, on the argument of the accused’s counsel, demonstrated the extent to which the accused had absorbed and adopted what he had read and that he recounted that to the police as distinct to recounting what he knew of his own knowledge. [62] These arguments are of some substance and cannot be discounted. The suggestion that the accused fabricated his confession cannot be seen in isolation from the fact that he has now been diagnosed as suffering from schizophrenia. But Dr Wong, who has examined the accused on at least

Part 3 — Admissibility of Evidence

R v Zhang cont. three occasions, has also viewed the video tapes of the records of interview, and saw in them no evidence of psychiatric disorder at the time they were made. Counsel indicated that he intended to have Dr Wong and another psychiatrist listen to the audio tapes recorded by the listening devices for the same purpose. No evidence was adduced to suggest that, at the time the accused answered the questions put to him by police, he was psychiatrically disturbed. I do not think that the consideration of the veracity of the admissions, so far as that is relevant to the s 85 determination, should be based upon doubt emanating from the later diagnosis of schizophrenia. The earliest evidence of a diagnosis, or provisional diagnosis, of that disorder is in Dr Wong’s report of April 1999, following interviews with the accused in the same month. [63] I was asked to watch the whole of the video tape of the “walkaround” and did so in Chambers. It shows the accused willingly answering police questions, identifying relevant parts of the apartment, demonstrating what he said had taken place. It was, as the Crown submitted, a compelling piece of evidence. [64] I am satisfied that, notwithstanding the circumstances in which the admissions were made, and my conclusion that they were deprived of the necessary quality of voluntariness that would permit their admission into evidence, the reliability of the circumstances in which they were made is unaffected. I would not, on the basis of s 85, reject this admission. The veracity or accuracy of the content of the admissions would, if they were otherwise admissible, be a matter for jury determination.

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R v Moffatt Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[9.70] R v Moffatt (2000) 112 A Crim R 201 Facts [The appellant was convicted of the offence of murder, following trial by judge alone. Both he and the deceased had consumed significant quantities of alcohol before becoming engaged in an argument in the course of which the appellant struck the deceased with a hammer and strangled him. The appellant appealed against the conviction on the ground that the oral admissions alleged to have been made by him and admissions contained in his ERISP should not have been admitted into evidence. The New South Wales Court of Criminal Appeal dismissed the appeal, Wood CJ at CL delivered the main judgment.] Judgment WOOD CJ at CL: ... [50] The circumstances now said to be of relevance for s 85, and for the remaining provisions, concern the effects of intoxication upon the appellant: (a)

Firstly at the time of the incident, and specifically at that point, in relation to his awareness of what was occurring, and his ability to understand or gauge the significance of the signs which he saw in the deceased, and to fix them in a proper context of time;

(b)

at the time of the making of the admissions, and specifically at that point, in electing to speak to police, and in being able to recount, in a lucid and accurate way what he had seen, or heard, during any altercation with the deceased.

[51] At the trial these issues were examined by reference to whether or not the Crown had excluded beyond reasonable doubt the possibility of confabulation, and if so, whether or not the ERISP was, in all the circumstances, to be regarded as reliable.

Admissions CHAPTER 9

R v Moffatt cont. [52] As to the first, his Honour found that confabulation had been excluded taking into account the following matters: • Dr Wong’s assessment that it was unlikely that the account to police was invented; • the fact that the interview showed, consistently with the medical evidence, that the appellant had developed a significant tolerance to alcohol; • that absence of signs such as slurred speech when interviewed; • the circumstance that the accounts the appellant gave to the neighbours, and to Sergeant Hazlewood before the ERISP and subsequently to Drs Strum and Wong, were substantially similar and consistent with the account given in the ERISP. In my view the finding in this respect was the only finding reasonably open, having regard to the expert evidence, and the matters identified by his Honour. [53] As to the second, his Honour had regard to the submissions that: • inebriated persons are not reliable witnesses; • in some respects the version given was confused or contradictory; • the appellant’s assessment of the level of intoxication of the deceased was awry.

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[54] His Honour also resolved this point in favour of the Crown, after taking into account the evidence of the professional witnesses which was in turn based upon the appellant’s responsive and lucid answers, and upon the fact that he was able accurately to paraphrase certain matters put to him by the police, to correct mistakes made by them, to seek clarification of certain questions, and to disagree with some matters put to him. [55] I can see no error in the approach taken by his Honour in relation to this evidence, or to the assessment that, although the blood alcohol level of the appellant was high, his tolerance was such as to minimise its effects. The expert evidence in fact was all one way in this regard, and was supplemented by the absence of any clear indication of underlying brain damage. Moreover, the circumstance that the appellant had his wits sufficiently about him to try the pulse and breathing of the deceased to see if he was still alive was a powerful indication that he was not significantly affected by alcohol, and that his cognitive powers were unimpaired. [56] His Honour appropriately, in this respect, also rejected the submission that the account given was implausible, in so far as the appellant had claimed to have murdered someone who was a complete stranger, or had grossly overreacted to an insult, or had argued over a trivial matter, or had underestimated the degree of intoxication of the deceased, or had given answers which were possibly inconsistent concerning the time interval between the two insults. [57] I can see no error whatsoever in his Honour’s assessment in this regard. Indeed Dr Strum provided an explanation for the way in which the appellant responded to what might have been seen to be trivial insults, namely that it was attributable to his personality disorder. [58] I can also see no error in the approach which his Honour took, in relation to the independent evidence corroborative of the events described in the interview, of which Dr Strum thought the appellant seemed to have a full memory. That evidence came from the neighbours and police concerning the damage done to ornaments and the like in the unit; concerning the presence of the blood of the appellant (but not of the deceased) on the hammer which he acknowledged in the ERISP, came from his hand which he cut while smashing those objects; concerning the presence of broken ribs in the deceased which, according to the expert evidence, would be expected to be accompanied by cracking sounds of the kind the appellant described; concerning the presence of bruise marks upon the throat of the deceased and of a fractured thyroid cartilage, again consistent, according to the medical evidence with the actions the appellant described and the further crack he heard; and concerning the fact that, as foreshadowed to the neighbours, he was found by the police only metres away from the police station to which he said he was going.

Part 3 — Admissibility of Evidence

R v Moffatt cont. [59] In my view, although the critical issue seems not to have been addressed specifically in the terms of ss 85 and 90, at least at the time of tender of the ERISP, the factual findings expressly made by his Honour in his reasons for the findings on guilt necessarily subsumed the issues arising under those provisions, so far as he found that the ERISP was reliable. Moreover, so far as the appellant’s free exercise of choice to participate in the ERISP is concerned, this was clearly put to rest by Dr Strum. [60] Having regard to my assessment that his Honour’s findings on guilt, as well as those in the judgment of 18 March 1999, concerned with ss 135 and 137, were free of error, I am of the view that the challenge to the tender of the ERISP, and of evidence of Sergeant Hazlewood, has not been made good.



R v McLaughlan [9.80] R v McLaughlan (2008) 218 FLR 158; [2008] ACTSC 49

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Facts [The accused was charged with causing damage to a house by voluntarily setting fire to it. When police attended the burning house, the accused was present and made some admissions. The issue was whether they were admissible. A neighbour, Mr Bliesner, saw the accused at the scene, and testified that she appeared disorientated. When the accused was arrested and taken to the police watchhouse, she was examined by Dr Alexandra Tyson. Dr Tyson found her to be co-operative, quiet and suicidal. She took a medical history of multiple suicide attempts, brain damage and drug dependency. She noted, somewhat cryptically, “Psychiatric diagnosis –? What”. She noted the psychiatric history and medications and that the accused used alcohol heavily and cannabis. Dr Tyson formed the opinion that the accused was not fit to be interviewed “due to psychiatric condition and suicidal intent/ focus”. Dr Tyson did not explain exactly how this rendered the accused unfit to be interviewed. For example, she did not suggest she was delusional, confabulating or confused.] Judgment REFSHAUGE J: ... [57] Section 85 is directed to the reliability of admissions rather than their voluntariness (which was the common law precursor to the section: see, for example, R v Ye Zhang [2000] NSWSC 1099 at [51]). Where the question legitimately arises, usually by the defence identifying an arguable point as to whether the circumstances were such that the truth of an admission might have been adversely affected, then the prosecution must establish on the balance of probabilities that this is unlikely: R v Esposito (1998) 45 NSWLR 442 (Esposito) at 459-460; R v McNeill (No 1) (2007) 209 FLR 124 at 155. [58] The question for the court does not include a consideration of the actual truth or reliability of the admission: Esposito at 460; R v Ul-Haque [2007] NSWSC 1251 at [102]. The focus of the inquiry to be undertaken by the court is upon the impact of the circumstances in which the admission was made on the actual reliability of the admission: Esposito at 460. [59] The section does not require police impropriety: R v Jung [2006] NSWSC 661 at [7]. No such impropriety is alleged here and none is discernible. Indeed, it would be very proper and entirely expected that Constable Dzuibinski should ask the question he did. Further, it is not necessarily the case that Constable Dzuibinski should have known of the matters I have taken into account, such as the personal condition of the accused. As Higgins J (as he then was) said in R v Taylor [1998] ACTSC 47 at [29]: [I]t is obvious from the terms of s 85(2) that the “circumstances” are not confined to those known to the interrogator. Nor are they confined to any objective tendency in the questions or the manner in which they had been put to produce an unreliable or untruthful answer.

Admissions CHAPTER 9

R v McLaughlan cont To a large extent, that latter kind of issue is addressed by s 84 of the Evidence Act 1995 (Cth). [60] In considering this issue, however, I have, however, been troubled by what fell from McClellan J in R v Munce [2001] NSWSC 1072, where his Honour addressed whether the psychiatric impairment of the accused can be included in consideration of whether s 85 applies to exclude evidence of an admission. His Honour referred to the well-known passage in R v Rooke (NSWCCA, 2 September 1997, unreported) where Barr J said: I think that the expression “the circumstances in which the admission was made” as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under par (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions – adversely to affect their truth – the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury. The authors of ALRC 26 said at par 765, speaking of the draft forerunner to s 85, “the trial judge should determine as a preliminary issue whether the reliability of the admission may have been impaired by the way it was obtained”. This construction is consistent with subs 189(3).

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[61] His Honour then went on to address the particular circumstances of the case before him and said: [27] In the present case the accused’s questioning arose from his voluntary presentation at the Auckland police station where he agreed to a formal interview. There is no suggestion that that interview was other than scrupulously fair. Although the accused has consumed significant alcohol and cannabis during the course of the day, it is not suggested that he was intoxicated or unable to understand and respond to the questions he was asked. No doubt his long-term abuse of both substances gave him a tolerance beyond that of an ordinary person. [28] Although, by reason of his undoubted psychiatric problems there may be real doubt as to whether the accused was giving an accurate account of the events, there is nothing arising from the objective circumstances of the interview which would impact upon the truth of the admission. [29] In my opinion s 85 does not allow me to reject the ERISP. Whether the admissions should be accepted is a matter for the jury. [62] The author of Uniform Evidence Law (7th ed, Thomson LawBook Co, Sydney, 2006), Stephen Odgers SC comments at p 341: “it is not self-evident why those circumstances [referred to in s 85(2)] do not include the vulnerabilities of the suspect of which the police were unaware.” Mr Odgers also points to s 85(3) which clearly refers to the subjective circumstances of the person being questioned and notes that the reference “is not subject to any qualification that the condition or characteristic be one that was known to the official questioner or ‘objectively’ apparent”. [63] That certainly seems to be the approach taken in R v Braun (NSWSC, Hidden J, 24 October 1997, unreported) but McClellan J in R v Munce [2001] NSWSC 1072 specifically adverted to that case. Admittedly, R v Braun (NSWSC, Hidden J, 24 October 1997, unreported) was a case where the accused “was handcuffed for her own safety and still considered at risk of harming herself”. [64] It is clear that a psychiatric illness is not itself sufficient to prove the unlikelihood of the reliability of an admission: R v Starecki [1960] VR 141 at 151-2. Similarly, the fact that a person being questioned

Part 3 — Admissibility of Evidence

R v McLaughlan cont is depressed is not, by itself, sufficient to show that the reliability of admission made are adversely affected: Truong (1996) 86 A Crim R 188 at 193. For a somewhat different view, see Donnelly (1997) 96 A Crim R 432 at 435. In Parker (1990) 19 NSWLR 177 at 183-4, Gleeson J observed: Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth. [65] Nevertheless, if the psychiatric and psychological vulnerabilities and circumstances of a person questioned are clearly potentially relevant to the issue of reliability and it would appear from the decision of the NSW Court of Criminal Appeal in R v GA (NSWCCA, Gleeson CJ, James and Sperling JJ, 17 July 1997, unreported) that if relevant they are to be considered in the context of s 85(2). [66] Andrew Ligertwood in Australian Evidence (4th ed, LexisNexis Butterworths, Sydney, 2004) submits at p 644 that “[t]here must be some intersection between the condition of the suspect and the questioning process before s 85 can take effect”. He refers, as an example, to R v Taylor [1998] ACTSC 47 but that was a similar case to this, in that the accused had alcohol-induced brain damage, was affected by alcohol and had a “cultural” objection to “dobbing”. His mental state meant that he could not understand the caution. It is not clear on this material where there is the supposedly necessary “intersection” between the condition and the questioning process. It is, for example, quite unlike Waters (2002) 129 A Crim R 115 where Gray J found an evidentiary basis for requiring exclusion in the accused’s concerns that “unless he confessed, the police might involve his de facto wife, keep him in custody and continue to harass him”. This does actually look a little like a case under s 84, but perhaps it was not sufficient to be oppressive conduct.

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[67] The weight of authority, accordingly, seems to be that the personal and psychological vulnerabilities of the accused such as described by Mr Bliesner (see below) are relevant to the issue of whether it is unlikely that the truth of the admission was adversely affected. [68] I remain of the view that Dr Tyson’s opinion in this case is not of great assistance in itself and that the initial response of the accused to an open question is, without more, quite unlikely to be adversely affected by the fact that it was asked by a police officer or that it was asked immediately after the accused has been taken from a burning house. In such a situation, the answer is probably more likely to be reliable. [69] I am concerned, however, about two other matters to which my attention was not specifically drawn and which, together with the accused’s psychiatric condition and the above circumstances, appear to require me to revisit my original view. [70] The first is not strong, in itself, but adds weight to the others. It is that Constable Healey noted that he “could smell an intoxicating substance on [the accused’s] breath”. On previous occasions police had found her drunk. [71] The second and more important consideration is the description given by Mr Bliesner of the accused when he went to help her. He reported: Once the Fire Brigade entered the house, I hold [sic] the Fire Brigade members walk a female out of the house. The female was covered in soot and smoke and appeared disorientated. I went over to the female and assisted in keeping her away from the house. The female was non responsive, scrambled and I could not keep her in one spot as she was continually moving about. I attempted to speak with the female, but was unable to get any sense out of her. [72] Given this statement, to which my attention was not specifically drawn, together with the other circumstances, I consider that the question of whether the circumstances, including the accused’s mental and intellectual disability (s 85(3)(a)), were such as to make it unlikely that the truth of the admission was adversely affected must be decided in favour of exclusion and I so rule.



Admissions CHAPTER 9

DISCRETION TO EXCLUDE IMPROPERLY OR ILLEGALLY OBTAINED ADMISSIONS [9.90] Evidence of an admission may be excluded under the discretion to exclude improp-

erly or illegally obtained evidence (see [9.30]-[9.80]). Section 138(2) provides that evidence of an admission is taken to have been obtained improperly in certain specific circumstances. Section 139 provides that evidence of an admission is taken to have been obtained improperly in certain specific circumstances. R v Helmhout provides an example of how this discretion to exclude admissions works. This discretion is covered in more detail in Chapter 6.

R v Helmhout [9.100] R v Helmhout (2001) 125 A Crim R 257; [2001] NSWCCA 372 Facts

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[Helmhout was convicted of murder. In his appeal he argued that a confession he made while in custody of the police should not have been admitted. Helmhout is Aboriginal and therefore the police were required to comply with Crimes (Detention after Arrest) Regulation (the Regulations), which affects Pt 10A of the Crimes Act 1900 (inserted by the Crimes Amendment (Detention after Arrest) Act 1997) which confers powers on police to detain persons under arrest for periods of time in order to enable the persons’ involvement in the commission of offences to be investigated. The Regulation specifies particular procedures for people identified as “vulnerable”. Aboriginal persons fall within the relevant statutory definition of “vulnerable persons”. Clause 28 of the Regulation modifies the application of Pt 10A with respect to vulnerable persons and therefore with respect to Aboriginal persons. It provides: If a detained person is an Aboriginal person or a Torres Strait Islander, then, unless the custody manager is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must: (a) immediately inform the person that a representative of an Aboriginal legal aid organisation will be notified that the person is being detained in respect of an offence, and (b) notify such a representative accordingly. The police failed to comply with cl 28 and Helmhout therefore argued the confession ought to have been excluded from evidence.] Judgment HULME J (Ipp AJA and Sperling J agreeing in substance): ... [29] … [I]t was common ground in the appeal that the custody manager at the time, a Sergeant Dagwell, did not comply with either sub-paragraph [of the regulation] between the time of the Appellant’s arrival at the police station at about 9.20am on 20 June 1998 and the time of the interview at 11.28am later that day. [30] The errors raised in the Appellant’s submissions and said to have been committed by Bell J in deciding that notwithstanding the contravention of Regulation 28, the ERISP should be admitted were as follows: (i)

Her Honour erred in concluding that “the contravention was not … reckless” and was the result of Sergeant Dagwell overlooking his obligation under that regulation.

Part 3 — Admissibility of Evidence

R v Helmhout cont (ii)

Her Honour failed to give adequate weight to the fact that the Appellant was denied the right, or opportunity, of receiving advice from a legal practitioner experienced in dealing with Aboriginal persons under arrest.

[31] So far as the first of these matters is concerned, her Honour found that Sergeant Dagwell was a witness of truth and observed that the contrary was not suggested. He had said that he understood it was his obligation to notify the Aboriginal Legal Service and had done so on other occasions. He could not recall doing so in the case of the Appellant. Her Honour accepted that due to the totality of demands on his time on the day of the Appellant’s arrest, Sergeant Dagwell was busy and the physical conditions of the police station made the situation at the time somewhat chaotic. [32] Her Honour said that Sergeant Dagwell impressed her as an officer who would faithfully carry out each function he was required to perform and that there was nothing in the documents to which the Sergeant had had regard in fulfilling his duties to remind him of the notification requirement imposed by cl 28.

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[33] It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term “reckless” in par (e) of s 138(3). In the context of “improperly or in contravention of an Australian law” the concept “reckless” must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a “don’t care” attitude generally, in this case, by Sergeant Dagwell. The mere failure to comply with cl 28 on one occasion cannot, without more, demonstrate these matters. There is no other evidence to suggest the failure was reckless and her Honour’s findings referred to in the preceding paragraph – findings which were well open to her on the evidence – are inconsistent with any suggestion along these lines. [34] And once the conclusion was reached that Sergeant Dagwell had the qualities to which her Honour referred, that he was aware and had complied with cl 28 on other occasions, that conditions at the police station on the occasion the Appellant was there were somewhat chaotic and that Sergeant Dagwell’s failure to comply with cl 28 was not deliberate – all of which conclusions were both open to, and found by, her Honour, the statement that he “overlooked” the requirement of the clause was reasonably open. [35] It should also be mentioned that it was never suggested to Sergeant Dagwell during the course of the voir dire inquiry that his omission had been deliberate or reckless but, even apart from that, there is no substance in the first challenge to Bell J’s decision. [36] Turning to the second challenge, her Honour said that she considered the failure to comply with the requirements of cl 28 to be a “serious matter”, associated as those requirements are with the other provisions of Pt 10A of the Crimes Act and designed to provide “important” and “special” protection for the interests of “vulnerable persons”, an expression which included Aboriginals. [37] In support of the appeal, it was submitted that her Honour had omitted to recognise that cl 28 created a “right” in Aboriginal persons to notice and notification as the clause contemplates. Pollard v The Queen (1992) 176 CLR 177 was cited in support of that proposition – see at 195, 220 and 230. See also R v Swaffield (1997) 192 CLR 159. However, having regard to the view which her Honour took as to the importance of cl 28 and compliance with it, it does not seem to me that her failure to characterise the protection and benefits which the provision is intended to afford as “rights” is of any significance. [38] Subject to the following remarks, the terms her Honour used also seem to me to answer the criticism that she failed to give adequate weight to the fact that the Appellant was denied the right, or opportunity, of receiving advice from a legal practitioner experienced in dealing with Aboriginal persons under arrest. Furthermore, it cannot be said that her Honour’s conclusion to admit the ERISP of itself so indicates. There is nothing in cl 28 to indicate that a failure to comply with its terms, even in the circumstances under consideration in this appeal, must be determinative of the manner of exercise of the discretion under s 138 of the Evidence Act. [39] During the hearing of the appeal, the Court raised with the parties one further aspect of possible non-compliance with the terms of cl 28 which did not figure in her Honour’s reasons for exercising her

Admissions CHAPTER 9

R v Helmhout cont discretion to admit the ERISP. It was the effect of the departure from the requirements of the clause on the Appellant himself – a topic which invites attention to his particular personal characteristics and to the possibility or likelihood that, had cl 28 been complied with, no ERISP, or at least no ERISP which contained significant admissions, would have eventuated. [40] There can be no doubt that in at least many cases any consideration of the gravity of the impropriety of contravention to which s 138 requires attention will involve a consideration of the particular accused’s personal characteristics. Demonstrably a breach of cl 28 in the case of an uneducated and ignorant Aboriginal would be a graver contravention than in the case of one who was in fact a practising criminal lawyer. Thus I disagree with the submissions advanced on behalf of the Crown to the effect that, as all Aboriginal persons are regarded by the Crimes (Detention after Arrest) Regulation as “vulnerable”, there is no occasion to consider their situation individually. A fortiori, is this so as the expression “vulnerable person” is defined to include not only Aboriginals but also children (necessarily of a wide variety of ages) and persons with impaired intellectual functioning (whose degrees of impairment are also likely to extend over a wide range).

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[41] Thus as a general proposition a judge should, when considering s 138 and in particular the requirements of s 138(3)(d), direct attention to the Appellant’s personal characteristics. [42] To some extent her Honour did so, albeit not in terms when considering s 138(3)(d). Her Honour directed attention to the Appellant’s appearance, conduct and mental functioning as depicted on the video tape recording of the Appellant’s ERISP. She concluded that these matters gave rise to no concern that he was noticeably incapacitated. She also referred to the fact that during his evidence on the voir dire the Appellant said that he was aware of his right to silence and that when he arrived at the police station, he was intending to take part in a record of interview. Her Honour referred to evidence, confirmed in the ERISP itself, that the Appellant had been asked if he wished to speak to a solicitor and had said that he did not. She noted that the Appellant’s evidence suggested he had a good recall of the course of the interview. She adverted specifically to s 85(2) and cannot have been unconscious of the terms of s 85(3) which follow and refer to the “age, personality and education and any mental, intellectual or physical disability” of a person being questioned. [43] Counsel for the Appellant drew the Court’s attention to some further matters that argue for the gravity of the contravention being greater than it might otherwise have been. He pointed to evidence that the Appellant was still undergoing distress as the result of the death of his brother and to other evidence in a report from Dr Nielssen, a psychiatrist, that there was a probability that the Appellant suffered from mild alcohol-related brain damage, had a history of the use of illegal drugs and in the period shortly before his arrest had used cannabis, amphetamines, heroin, and prescribed medication and had returned to the use of alcohol which he had given up some years before. At the police station he had taken Valium. [44] On the other hand, there was evidence that the Appellant had not had a deprived family background, having been born to an Aboriginal mother and Dutch father and having spent his early years in Canberra and later Port Moresby. He achieved his school certificate and then trade qualifications as a mechanic and had worked through most of his adult years. He had recently been living in a stable de facto relationship for some seven years and had a close relationship with his children. He had no psychiatric history. [45] He told Dr Nielssen that he had noticed his memory and concentration were not as good as previously, matters he attributed to the effects of heavy drinking. However, tests of his concentration showed no impairment and he was attentive throughout his interview with the doctor and made good eye contact. A consideration of the ERISP suggests that the Appellant could not be regarded as a person to whom the term “vulnerable” would normally apply. [46] I am content to proceed on the assumption that her Honour’s failure to advert to these matters and to the Appellant’s characteristics generally when addressing s 138(3)(d) means that the exercise of her discretion miscarried. However, having regard to their nature and weight I am persuaded that the matters now relied on could have made no difference favourable to the Appellant. Indeed the Court was told that the matters were not relied on before her Honour – a circumstance relied on by

Part 3 — Admissibility of Evidence

R v Helmhout cont the Crown as supporting the proposition that there was no need of her Honour to consider them. I do not find it necessary to embark on a consideration of this last mentioned submission but it obviously would not have helped the Appellant’s claims that the contravention was grave and that the record of the ERISP should not be admitted for her Honour to have concluded that, despite the Appellant’s aboriginality, he was not in fact “vulnerable” and needing the protection of cl 28. [47] I am reinforced in my view that the matters now relied on could have made no difference favourable to the Appellant by her Honour’s conclusion that it would not be unfair, under s 90 of the Evidence Act, to permit use of the confession, notwithstanding her recognition that had cl 28 been complied with, no confession might have been forthcoming. [48] That conclusion by her Honour also answers the suggestion that, in the circumstances here, the gravity of the impropriety or contravention should have been assessed upon the basis that no confession would have been forthcoming had cl 28 been complied with, and that, if the gravity had been so assessed, her Honour’s decision under s 138 to admit the record of the ERISP might have been different.

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[49] That no confession would have been forthcoming had cl 28 been complied with is, in my view, a conclusion which should be drawn. There was evidence from a Mr Jeffrey of the local Aboriginal Legal Service that he and the other member of it, who were the persons likely to have been contacted if Sergeant Dagwell had directed his attention to cl 28, almost always had their mobile phones on and that they were but about 15 minutes away. There was no evidence about what advice would have been given to the Appellant had such contact been made and one or other of the persons attended but general experience indicates that the advice would probably have been not to participate in the recorded interview at all. Although the Appellant himself gave no evidence on the topic, I would infer that had such advice been given, it would have been followed. [50] I am also prepared to assume that it is appropriate in judging the gravity of an impropriety or contravention to have regard to its consequences. In some circumstances of life outside the purview of s 138 one would clearly do so. [51] However, I do not see how a decision that even though the ERISP record was a product of the contravention, it was not unfair to admit it, could be reconciled with a conclusion that those same circumstances made the gravity of the contravention such as to provide any significant weight for the document’s rejection under s 138. Particularly is this so when her Honour had found that the contravention was neither deliberate nor reckless. [52] I would go further. Even without her Honour’s decision that it was not unfair under s 90 to admit the document, once one accepts her findings – unchallenged by the Appellant in the appeal – as to the probative value of the evidence – “very high”, as to the importance of the evidence – “critical”, as to the nature of the offence – murder, that it had not been suggested that the contravention was contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights, together with the conclusion that the contravention was not deliberate or reckless, and her view of the Appellant’s circumstances at the time of the interview, her Honour’s decision under s 138 was clearly correct. [53] The appeal should be dismissed.

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DISCRETION TO EXCLUDE ADMISSIONS ON THE BASIS OF UNFAIRNESS [9.110] Section 90 creates a distinct, but overlapping, discretion to exclude evidence of an

admission adduced by the prosecution in a criminal proceeding, on grounds of fairness. The

Admissions CHAPTER 9

unfairness discretion at common law is considered in Foster v The Queen (1993) 66 A Crim R 112; [1993] HCA 80. R v Swaffield; Pavic v The Queen looks at the common law discretion in the context of the existence of the Evidence Act 1995. Em v The Queen considered the application of s 90 directly.

Foster v The Queen [9.120] Foster v The Queen (1993) 66 A Crim R 112; [1993] HCA 80 Facts [Foster, an Aboriginal man of 21, was convicted of setting fire to a local school. The prosecution case rested on a seven-line confessional statement, which the appellant had signed while he was in custody. In the voir dire the appellant alleged that he had only signed the statement because of threats made against him and his brother. The police evidence, favoured by the judge, was that the statement had been signed by the appellant voluntarily after he had been shown confessional statements of two alleged companions. On the unlawfulness of Foster’s detention, it was held that he had not been arrested “merely for the purpose of questioning”, and thus the discretion to exclude the statement for unfairness did not arise. Foster appealed on the admissibility of the confessional statement.] Judgment MASON CJ, DEANE, DAWSON, TOOHEY and GAUDRON JJ (at 117):

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... [11] It is now settled that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent discretions. The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence. The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or “real”. It is the discretion to exclude evidence of such a confessional statement on public policy grounds. The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the court. To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on “large matters of public policy” and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case. In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement [at 118] obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused. It is so in the present case. [12] As has been seen, the appellant was in the company of a number of other persons in the vicinity of his own home when he was unlawfully arrested by the police by being ordered to get into the caged section of a police truck. He was then transported to the Narooma Police Station where he was unlawfully detained in police custody. He was allowed no opportunity to contact a lawyer. He was given no choice about whether he would participate in an interview with the police or about where any such interview would take place. He was deprived of the presence of any non-police witness and placed in “the special position of vulnerability … to fabrication” of a confessional statement to which reference was made in the judgment of the majority of the court in McKinney v The Queen: “his detention … deprived him of the possibility of any corroboration of a denial of the making of all or part of [the] alleged confessional statement.” In a context where video or audio facilities were either not

Part 3 — Admissibility of Evidence

Foster v The Queen cont available or not utilised, his detention also effectively precluded any non-police corroboration of his account of the nature and content of the police questioning which led to his eventual signing of the statement. In that regard and in a context where the evidence indicates that the appellant was semiilliterate, it is relevant to recall the comments of the court (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ) in R v Lee: The uneducated – perhaps semi-illiterate – man who has a “record” and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a “statement” may be “taken” which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the “statement” made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them.

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[13] The abovementioned considerations alone constitute substantial grounds upon which evidence of the confessional statement might have been excluded pursuant to the discretion to exclude evidence whose reception would be unfair to an accused. There were, however, some more particular aspects of the present case which weighed heavily in favour of exclusion of the evidence. We turn to identify them. [14] First, there was the nature of the police infringement of the appellant’s rights. It was both serious and reckless. The courts of this country have been at pains to stress that the right to personal liberty under the law is, in the words of Fullagar J, “the most elementary and important of all common law rights”. It is “beyond question that at common law” neither a member of [at 119] the police force nor any other person “has power to arrest a person merely for the purpose of questioning him”. Nor was there any statutory provision which even arguably conferred a power upon the police, in the circumstances of the present case, to arrest the appellant otherwise than for the purpose of taking him before a “Justice to be dealt with according to law”. It was, as the “Police Instructions” in force in New South Wales at the relevant time made clear, a basic obligation of a member of the Police Force to be and remain “fully acquainted” with the limitations upon police powers of arrest and including the fact that, in the absence of a lawful arrest, “[p]olice have no authority to exercise any restraint whatever upon a person being questioned or to detain him in any way, whether upon [p]olice premises or elsewhere”. In circumstances where, at the time when the appellant was arrested, the police had neither the intention to charge him with an offence nor the evidence to justify such a charge, the gravity of the infringement of the appellant’s rights involved in his public arrest and subsequent detention in custody is apparent. It should be mentioned that it appears from the evidence that Detective Sergeant Liversidge, who was the officer who actually arrested the appellant, believed that it was lawful to arrest a person solely for questioning. In the context of the clear law and of the content of the “Police Instructions” at the time, however, that explanation is simply unavailing by way of excuse. [15] Second, it was clear from the police evidence that the unlawful arrest and detention of the appellant had been for the purpose of questioning him in an environment from which he had no opportunity of withdrawing. Thus, in the transcript of evidence on the committal proceedings, Detective Sergeant Liversidge had made clear that, notwithstanding that there was insufficient evidence to charge the appellant, he was not prepared to release him on the basis of his repeated denials of his involvement in the fire at the Narooma High School: Q – What was your attitude to how long he would remain at the police station? A – He was interviewed in relation to all the evidence that I was in possession of, that I was aware of and questions were put to him along those lines and he would have remained there until I had put to him all the information that I had. Q – He had remained there for as long as you liked is that the case? A – Until I had finished. Q – For as long as you liked is that the case? A – Yes. Q – I am sorry? A – Yes.

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Foster v The Queen cont Detective Sergeant Liversidge’s intentions and attitude in that regard were confirmed at the actual trial when he gave the following evidence (under cross-examination) in relation to his questioning of the appellant: Q – Did you ever turn your mind as to the circumstances under which you would release the accused Foster? A – I don’t follow? [at 120] Q – Did you ever think about what he might say that would cause you to release him? A – No. Q – Because the truth of the situation is, isn’t it, that you did not intend to release the accused Foster until such time as he signed a confession? A – I couldn’t predetermine that. I mean, all I can do is put questions to him and receive his reply to them. I don’t know how long it may have taken. … Q – It was your intention to break him down, wasn’t it? … A – My personal intention is when I interview somebody who I am aware of or believe has committed a crime I feel that the interview, I would like to think that I would be able to break a person down to tell the truth, yes. Q – To break a person down to a point where they told you something that you believed, is that the case? A – To the point of they told me, yes, I suppose that is fair to say that, to what I believed, yes.

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When the appellant’s mother arrived at the Narooma Police Station and sought to see him, the appellant was not told of her presence. She was informed that she must wait until the interview between the police and the appellant had been completed. [16] Third, there was a real question in the present case about whether any admissions by the appellant were voluntary in the sense of meaning “in the exercise of a free choice to speak or be silent”. Inevitably, the subjection of a person to involuntary and persistent interrogation by the police while he or she is unlawfully detained in police custody gives rise to a situation in which there are likely to be grounds for concern about whether any confessional statement has been voluntarily made since the unlawful detention in custody is likely to carry with it an implicit threat of continued unlawful detention unless and until the questions of interviewing police are answered to their satisfaction. In the present case, there was the added factor that the appellant specifically claimed that the confessional statement had been fabricated by the police and that his signing of it was the direct result of police threats of physical violence to himself and of action against his younger brother. As has been seen, the trial judge’s reasons disclose that he saw the question of voluntariness as a “difficult” one. In that context, the fact that the appellant’s unlawful detention in police custody effectively deprived him of any chance of corroboration of his allegations against the police assumes particular significance. Indeed, to admit evidence of the appellant’s alleged confessional statement was to compound the wrong done to him by his unlawful arrest and detention by subjecting him to the risk of conviction [at 121] upon police evidence of what had occurred while he was unlawfully held in a police environment and deprived of any possibility of independent confirmation of his evidence. [17] Ultimately, the question whether evidence of the appellant’s confessional statement should, as a matter of discretion, have been excluded on the ground that its reception in evidence and use against him on his trial would be unfair to him must be answered by reference to “the conduct of the police and all the circumstances of the case”. When one has regard to the nature and the effects of the police infringement of the appellant’s rights and to the other circumstances and considerations to which reference has been made, it is plain that the case was one in which a proper exercise of the learned trial judge’s discretion required the exclusion of evidence of the confessional statement. That being so, it is unnecessary to consider whether the evidence should also have been excluded on public policy grounds. It is, however, appropriate that we indicate that we consider that the circumstances of the present case are such that the evidence should also have been excluded on the ground that the seriousness of the unlawful conduct on the part of the police was such that considerations of public policy precluded its reception. In that regard, the case manifests “the real evil” at which the discretion

Part 3 — Admissibility of Evidence

Foster v The Queen cont to exclude unlawfully obtained evidence on public policy grounds is directed, namely, “deliberate or reckless disregard of the law by those whose duty it is to enforce it”.

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R v Swaffield; Pavic v The Queen [9.130] R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 Facts [These appeals were heard together and concern the admissibility of evidence obtained by means of a conversation recorded without the knowledge of both defendants. Swaffield Swaffield was convicted on 7 December 1995, in the District Court of Queensland, of three offences: breaking and entering the workshop of Metal Recyclers (Qld) Pty Ltd and stealing various articles including cutting equipment (which was then used in the commission of the second offence); breaking and entering the premises of Leichhardt Rowing Club with intent to commit an indictable offence; and wilfully and unlawfully setting fire to the Leichhardt Rowing Club.

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Swaffield had initially been charged with these offences on 7 September 1993. He had declined to be formally interviewed by police, and blood and hair samples had been taken. The police offered no evidence against him at the committal hearing on 13 November 1993; at that time the only evidence against him was that a car similar to his had been seen in the vicinity of the Rowing Club on the night the premises were set alight. In May 1994 Swaffield became a target of an undercover police operation aimed at drug suppliers. In July 1994 the “controller” of Constable Marshall, an undercover officer, was given the brief of evidence concerning the Rowing Club arson offence; on 11 August 1994 Constable Marshall had a conversation with Swaffield, during which the former pretended his brother-in-law was in trouble for burning a car. Swaffield subsequently made admissions of his involvement in the fire at the Rowing Club during conversations with Constable Marshall. As a consequence, fresh charges were laid against Swaffield and the trial began on 5 December 1995. During the trial, counsel for Swaffield submitted that evidence of his conversations with Constable Marshall should not be admitted, on the ground that the failure of the officer to caution Swaffield had led to unfairness. The trial judge declined to exercise his discretion to exclude the conversations, and Swaffield was convicted. On appeal to the Court of Appeal, the conviction was quashed. The Crown appealed to the High Court. Pavic Pavic was interviewed by police investigating the murder of Andrew John Astbury. At the outset of the interview, Pavic was cautioned and told he had a right to consult a solicitor; after contacting a solicitor he acted on the solicitor’s advice and declined to answer any questions. During the interview the police told Pavic they believed he was guilty of the murder; however, he was not charged, and was released. Subsequently, police took a statement from Clancy, a friend of Pavic, who provided them with further evidence against Pavic. Clancy agreed to wear a recording device while having a conversation with Pavic; during that conversation Pavic made admissions of his involvement in the killing of Astbury. At trial, Pavic’s counsel objected to the evidence of the conversation with Clancy, on the ground of unfairness. The trial judge declined to exercise his discretion to exclude the evidence and Pavic was convicted of murder. An appeal to the Court of Criminal Appeal was dismissed; Pavic appealed to the High Court.]

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R v Swaffield; Pavic v The Queen cont Judgment TOOHEY, GAUDRON and GUMMOW JJ: The issues ... [50] In each of the appeals, what the accused had sought to have excluded was a confessional statement, that is, a statement acknowledging, or from which an acknowledgment might be drawn, that he was guilty of the offence charged. Four bases for the rejection of a statement by an accused person are to be discerned in decisions of this Court. The first lies in the fundamental requirement of the common law that a confessional statement must be voluntary, that is, “made in the exercise of a free choice to speak or be silent”. The will of the statement-maker must not have been overborne. The relevant principle was stated by Dixon J in McDermott v The King in these terms: If [the] statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. It should be said immediately that in neither of the appeals was it contended that the confession was made involuntarily.

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[51] The second, third and fourth bases for the rejection of a statement made by an accused person proceed on the footing that the statement was made voluntarily. Each involves the exercise of a judicial discretion. [52] The second basis is that it would be unfair to the accused to admit the statement. The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. The third basis focuses, not on unfairness to the accused, but on considerations of public policy which make it unacceptable to admit the statement into evidence, notwithstanding that the statement was made voluntarily and that its admission would work no particular unfairness to the accused. The purpose of the discretion which is brought to bear with that emphasis is the protection of the public interest. The fourth basis focuses on the probative value of the statement, there being a power, usually referred to as a discretion, to reject evidence the prejudicial impact of which is greater than its probative value. The purpose of that power or discretion is to guard against a miscarriage of justice. Unfairness [53] The term “unfairness” necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear: [T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him … Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement. [54] Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred. …

Part 3 — Admissibility of Evidence

R v Swaffield; Pavic v The Queen cont General considerations [66] It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused’s right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial. [67] The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. [68] Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 – Discretions to Exclude Evidence contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained

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(a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; … unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. This expresses in the widest terms the policy discretion developed by the common law. It is true that an approach, expressed in such terms, lacks certainty. But as the Law Reform Commission of Canada has said: there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities. [69] It is appropriate now to see how the argument developed in the present appeals. When the Court resumed after the first day’s hearing, the Chief Justice asked counsel to consider whether the present rules in relation to the admissibility of confessions are satisfactory and whether it would be a better approach to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards. [70] Putting to one side the question of voluntariness, the approach which the Court invited counsel to consider with respect to the common law in Australia is reflected in the sections of the Evidence Acts to which reference has been made, when those sections are taken in combination. The question which arises immediately is whether the adoption of such a broad principle is an appropriate evolution of the common law or whether its adoption is more truly a matter for legislative action. Subject to one matter, an analysis of recent cases, together with an understanding of the purposes served by the fairness and policy discretions and the rationale for the inadmissibility of non-voluntary confessions, support the view that the approach suggested by the Chief Justice in argument already inheres in the

Admissions CHAPTER 9

R v Swaffield; Pavic v The Queen cont common law and should now be recognised as the approach to be adopted when questions arise as to the admission or rejection of confessional material. The qualification is that the decided cases also reveal that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained. The unfairness and policy discretions: further analysis …

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[74] One matter which emerges from the decided cases is that it is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. The overlapping nature of the unfairness discretion and the policy discretion can be discerned in Cleland v The Queen. It was held in that case that where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded. That overlapping is also to be discerned in the rationale for the rejection of involuntary statements. It is said that they are inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable. That rationale trenches on considerations of fairness to the accused. And if admissibility did not depend on voluntariness, policy considerations would justify the exclusion of confessional statements procured by violence and other abuses of power. … [78] Unreliability is an important aspect of the unfairness discretion but it is not exclusive … the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence. Thus, in McDermott, where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses. In R v Amad, Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness. And the significance of forensic disadvantage is to be seen in Foster where the inability of the accused to have his version of events corroborated was taken into account. … Conversations secretly recorded [80] In two recent decisions of the Queensland Court of Appeal the issue was whether evidence, secretly tape-recorded at the request of the police, should have been excluded. In R v O’Neill (No 1) (2007) 209 FLR 124 the Court (Pincus JA and Dowsett J, Fitzgerald P dissenting) held that the evidence was rightly admitted. The difference in approach between the majority and the minority is perhaps best encapsulated in the following passage from the judgment of Fitzgerald P: This is not a case in which the behaviour of the police who procured Lally to engage the appellant in conversation in order to obtain and record inculpatory admissions should be condemned as improper. I do not consider it necessarily improper to use deception in law enforcement activities to detect, investigate or prevent crime. Nor will evidence obtained in the course of, or through, such activities necessarily be excluded. However, that is not the issue. Lally’s conduct, at police instigation, entrenched on the appellant’s privilege against self-incrimination, which was a basic personal right and it did so for that express purpose. The appellant was deliberately tricked into surrendering her right to silence at the instance of law enforcement personnel by an implicit misrepresentation that Lally sought her confidence as a friend, not a police agent. That being so, in my opinion, it was unfair to the appellant to receive evidence of her recorded statements to Lally at the appellant’s trial. [81] Here the emphasis is placed on the privilege against self-incrimination and what Fitzgerald P regarded as the loss of that right through trickery. This, it was said, made it unfair to the appellant to

Part 3 — Admissibility of Evidence

R v Swaffield; Pavic v The Queen cont receive evidence of her recorded statements. In the passage questions of unfairness and police behaviour seem to be subsumed in a broad approach based on the loss of the privilege. [82] Fitzgerald P took much the same approach (again, in dissent) in R v Davidson and Moyle; Ex parte Attorney-General (Q) … [89] The Australian decisions generally have not expressed the relevant principles by reference to the informed choice spoken of in Canadian cases. At least in terms of voluntariness, they have tended to approach the matter in terms of an immunity from compulsion. The emphasis has been on whether duress has been brought to bear on the suspect, that is whether the will has been overborne in some way. That emphasis is well placed when voluntariness is at issue but it is too narrow when the exercise of discretion is involved. …

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[91] However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. [92] It is relevant to bear in mind the provisions of the Evidence Acts. Although, in general, the Commonwealth Act applies only in the external Territories and in proceedings in federal courts and courts of the Australian Capital Territory (ss 4, 5, 6), it has been substantially re-enacted in New South Wales. It may well be re-enacted in other States. It may be thought undesirable to have two streams, as it were, one legislative and the other judicial, the latter simply echoing the former or perhaps deviating from it. On the other hand there is no comparable legislative provision in Queensland and Victoria, the two States with which the Court is presently concerned. It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak. Conclusion – Swaffield [93] Nothing which Constable Marshall did in relation to his conversation with Swaffield can be said to have been illegal. In that respect there is a clear distinction with the situation in Ridgeway. [94] However, there is the broader question of whether what Constable Marshall did was in violation of Swaffield’s right to choose whether or not to speak to the police. There is the added question whether there had been a breach of Rule 2 of the [Queensland] Judges’ Rules and, if so, the consequence for the admissibility of the conversation. As for Rule 2, there can be no doubt that a police officer had “made up his mind to charge a person with a crime”. He had been charged on 7 September 1993, just under a year before the conversation with Constable Marshall. So far as the Judges’ Rules are concerned, the critical point is the absence of a caution. [95] Certainly no caution was administered by Constable Marshall before the conversation on 11 August 1994. However, as the Australian authorities stand, the absence of a caution triggers the exercise of a discretion to exclude what was said but does not require exclusion. That is clear from the decision of this Court in Stapleton v The Queen. And in R v Azar after referring to Stapleton, Gleeson CJ said: There are numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered. It is hardly likely that those statements were intended to apply only in the case of an accused person who knows of his right to silence even without a caution.

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R v Swaffield; Pavic v The Queen cont It follows that unless Stapleton and a number of other decisions are overturned the breach of Rule 2 permitted but did not dictate exclusion of the conversation. [96] In the Court of Appeal Pincus JA, who dissented, asked what it was that made the absence of a caution so significant as to warrant interfering with the trial judge’s exercise of discretion to admit the conversation. His Honour thought it could only be because the charge had earlier been dropped. He thought that the real significance of the dropped charge “is that it establishes that the police not only suspected, but believed, that [Swaffield] was guilty”. We agree with Pincus JA that the distinction between suspecting on the one hand and believing or knowing on the other is not a satisfactory one in the present context. [97] What if a test is applied by reference to Swaffield’s right to choose whether or not to speak to the police? The application of such a test turns, at least so far as the Canadian authorities are concerned, on the extent to which any admission was elicited. It is clear from Hebert that the Canadian Supreme Court regards the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude. [98] In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed. Conclusion – Pavic

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[99] As in the case of Swaffield, nothing which the police did in relation to Pavic was illegal. Since Pavic was not in custody at the time he spoke with Clancy, s 464A of the Crimes Act 1958 (Vic) had no application. No reference was made to the Judges’ Rules in the course of argument. [100] No caution was administered by Clancy, which is hardly surprising in the circumstances. The circumstances are close to those in Broyles, the Canadian decision. As in Broyles, the person with whom Pavic spoke must be regarded as an agent of the State. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device. [101] If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy? [102] Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said: Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence. [103] In all the circumstances there is no sufficient reason to interfere with the trial judge’s refusal to exclude the evidence of the conversation. This appeal should also be dismissed.

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Em v The Queen [9.140] Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Facts [The appellant was formally interviewed on 24 April 2002 at a police station in respect of a murder and, after being cautioned in the usual way, he asserted his right to silence. On 15 May 2002, the police invited him to accompany them to a park where they asked a number of questions after reminding him that he did not have to answer. However, they did not warn him that anything he did

Part 3 — Admissibility of Evidence

Em v The Queen cont say might be used in evidence against him. They did not say this because they were secretly recording the conversation and did not want to alert him to that. The appellant believed that anything he said that was not electronically recorded could not be used in evidence against him. Thus, he believed that nothing he said at the park could be used as evidence against him. The police knew this, although they had not set out to induce that belief (at least initially). The appellant made a number of admissions. The trial judge excluded some that were made after the police intentionally said to the accused (in effect) that anything he said could not be used against him. However, he admitted admissions made prior to that statement by the police. The appellant did not contend that the evidence should have been excluded under s 138. There was no impropriety under s 139 since the police had not arrested the appellant, even under the extended definition in s 139(5). Reliance was placed on s 90. It was argued that it was unfair to admit an admission in circumstances where the police knew that the accused believed nothing he said could be used against him and they did nothing to correct his misconception.] Judgment GLEESON CJ and HEYDON J: ...

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[67] The appellant accepted that the mere fact that a conversation was being secretly recorded was not sufficient to make it “unfair” to the defendant to admit the recording into evidence. Yet decisions to record conversations with a particular accused person secretly are made because no recording would be possible if that accused person knew of the recording. Thus secret recordings often could not be made without some kind of trickery – a positive representation or conduct suggesting, and leading to the false assumption, that there was no recording being made, a deliberate failure to correct that false assumption, or conduct confirming that false assumption. [68] The scheme of the Listening Devices Act 1984 (NSW), pursuant to which the detectives made their recordings, is that by reason of ss 5 and 10 it is a criminal offence to record a private conversation without consent of all parties unless an exception applies. The relevant exception is a warrant granted by an “eligible Judge” pursuant to the various safeguards set out in s 16. If no exception applies, evidence of the private conversation is inadmissible (s 13). This implies that if an exception applies, the evidence is admissible subject to the general law of evidence. [69] Hence the appellant’s concession that if his mistaken assumption consisted only in a belief that the conversation was not being recorded its use in evidence would not be unfair was rightly made. To reach the opposite conclusion would be for the judiciary, by exercise of its capacity to reach a judgment characterising conduct as “unfair” under s 90, to create an automatic and universal rule of exclusion in place of a provision calling for case-by-case judgment. For the courts to adopt such a rule would be to substitute their view about the merits of the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime for that which has been adopted by the legislature. [70] It is true that the appellant’s mistaken assumption went beyond a belief that the conversation was not recorded to a belief that evidence of the conversation could not be given. And counsel for the appellant submitted that there was a “big difference” between speaking while falsely assuming that no recording was being made of what was said, and speaking while falsely assuming that what was said could not be used in criminal proceedings. The difference was said to be that in the former instance, accused persons would assume that, although the admission was unrecorded, police officers who heard it could give oral evidence of it. This would give accused persons the “limited benefit” of being able to advance an argument about the unreliability of the police evidence of what was said. In the second instance, ex hypothesi they could not: if accused persons falsely believed that what they said could not be used in evidence, “a very significant factor in exercising [their] right to silence is missing”.

Admissions CHAPTER 9

Em v The Queen cont [71] One difficulty with the submission is that it attributes improbably subtle reasoning to the appellant, which cannot be inferred from the circumstances and which is unsupported by testimony from the appellant. But the most fundamental difficulty with the submission is that the appellant’s belief that evidence of the conversation could not be given was integrally connected with his belief that the conversation was not being recorded. That is because, as counsel for the appellant said: “[T]he appellant incorrectly assumed that the conversation was not being electronically recorded and, as a result, incorrectly assumed that anything he said could not be used in evidence” (emphasis added). To conclude that while it is not unfair to use an admission which its maker did not believe was being recorded, it is unfair to use an admission which its maker did not believe could be used, when the reason for the second false assumption is the existence of the first, is illogical. ... GUMMOW and HAYNE JJ: ... [92] The central issue in the appeal is whether the primary judge’s decision admitting in evidence, at the appellant’s trial for murder, sound recordings of admissions the appellant made to police officers should have been held, in the Court of Criminal Appeal, to be wrong. The only ground advanced in this Court is that s 90 of the Evidence Act 1995 (NSW) (the Act) was engaged and the power conferred by s 90 should have been exercised so as to refuse to admit the evidence. Section 90 states: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and

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(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. [93] Section 90 appears in Pt 3.4 of the Act (ss 81-90) which is headed “Admissions”. Some of these provisions (including s 84) apply in civil and criminal proceedings. Others, including ss 85, 86 and 90, apply only in criminal proceedings. Sections 85 and 86 apply only to evidence of admissions by the defendant; s 84 is not so limited. [94] It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be “unfair to a defendant”. [95] Part 3.11 (ss 135-139) is headed “Discretions to exclude evidence”. The heading is misleading. Section 137 obliges the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution where the danger of “unfair prejudice to the defendant” outweighs its probative value. Sections 138 and 139 are accurately described as providing a discretion to exclude improperly or illegally obtained evidence. [96] In considering the case the appellant seeks to base upon s 90, it is necessary to read the Act as a whole, with particular reference to the operation of the provisions of ss 84, 85, 86, 137, 138 and 139. [97] The particular questions about the operation of s 90 of the Act that are presented in this matter are questions that arise on the premise that evidence of the appellant’s out-of-court admissions to police officers was not to be excluded under other provisions of the Act. It is important to identify the content of that premise. Doing that will not only identify the bases upon which the application of s 90 must be considered in this case, it will direct attention to some more generally applicable observations about its operation. In particular, it will reveal how the Act deals with a number of matters that otherwise might have loomed large in the determination of whether the use of evidence of an admission would be “unfair” to the defendant.

Part 3 — Admissibility of Evidence

Em v The Queen cont [98] The premise that evidence of the appellant’s out-of-court admissions to police officers was not to be excluded under other provisions of the Act can be conveniently dealt with as six separate propositions. [99] First, evidence of the admissions the appellant made was not to be excluded as having been influenced by violence or other conduct of the kind described in s 84. There was no suggestion of any conduct of that kind. [100] Secondly, the evidence was not to be excluded under s 85, on the ground that the circumstances in which the admissions were made to police were likely to have adversely affected their truth. It was not suggested in this Court that this section was engaged. [101] Thirdly, the evidence was not to be excluded under s 86 as it would be had it been unrecorded and unacknowledged. What the appellant said to the police was recorded in a sound recording and s 86 was accordingly not engaged. [102] Fourthly, the evidence was not to be excluded under s 137. It was not submitted that the probative value of the evidence was “outweighed by the danger of unfair prejudice to the defendant”. If that imbalance had been demonstrated, the trial judge would have been bound to exclude the evidence. [103] Fifthly, the evidence was not to be excluded under s 138. Either it was not obtained improperly or in contravention of an Australian law or, if it was, the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. In particular, it was not submitted that either s 138(2) or s 139 applied to deem the evidence to have been obtained improperly.

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[104] Section 138(2) provided that evidence of an admission made during or in consequence of questioning is taken to have been obtained improperly if (among other things) the person conducting the questioning: made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. It is to be assumed that this provision was not said to be engaged in the present matter because the interviewing police officers said nothing that was false. The appellant’s complaint was that their silence, coupled with what they did say, conveyed a misrepresentation that their conversation with the appellant was not being recorded. [105] Section 139 provided that, in certain circumstances, evidence of a statement made during questioning by a police officer is taken to have been obtained improperly if the investigating official did not caution the person that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence. It was accepted that the conditions specified in s 139 as the conditions in which a caution must be administered (lest evidence of what is said be deemed to have been obtained improperly) were not satisfied. [106] Sixthly, and finally, it was accepted that s 281 of the Criminal Procedure Act 1986 (NSW), requiring that evidence of admissions by suspects not be admissible unless tape recorded, was satisfied and that no aspect of the New South Wales Police Code of Practice for Custody, Rights, Investigation, Management and Evidence (CRIME), regulating the interrogation of suspects, was breached. (The Code of Practice was published to provide “a succinct reference to the powers of police when investigating offences”. It is a document that was intended to record rights and duties; it was not a source of those rights or duties.) Later in these reasons it will be necessary to return to the significance of the six propositions that have been stated. [107] As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the

Admissions CHAPTER 9

Em v The Queen cont admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, “would be unfair”. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as “fair” or “unfair”.

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[108] Understanding s 90 in this way is consistent with the language of the section. It is also consistent with what was said in the Report of the Australian Law Reform Commission that recommended the enactment of what was to become s 90. In that report the proposal was to enact “an exclusionary discretion similar to that known as ‘the Lee discretion’ in existing law”. In R v Lee, this Court said that the discretion required asking “whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused”. In Lee, the argument focused upon what was said to be the “ ‘improper’ or ‘unfair’ methods [used] by police officers in interrogating suspected persons or persons in custody”. Yet, in that case, the Court emphasised that it is in the interests of the community that all crimes “should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered”. The content and application of this common law discretion have subsequently been examined by this Court on a number of occasions, including in Cleland v The Queen, R v Swaffield and most recently Tofilau v The Queen. [109] When it is “unfair” to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. “Unfairness”, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90.The consequence is that the discretion given by s 90 will be engaged only as a final or “safety net” provision. [110] That this is the way in which the Act, and s 90 in particular, operates is apparent when two circumstances that may be relevant to the exercise of the common law discretion (the reliability of the confession and the use of improper means to secure it) are considered. [111] At common law, questions of reliability play an important part in considering the exercise of the common law unfairness discretion. As pointed out in Swaffield, other considerations may be engaged. In particular, admitting evidence of a confession may, sometimes, disadvantage an accused in ways that are not readily remedied. Cases of the latter kind include cases where admitting evidence of the confession would put the accused at a particular forensic disadvantage. The circumstances considered by this Court in Foster v The Queen and in the Supreme Court of Victoria by Smith J in R v Amad are examples of such cases. Because the chief focus of the common law discretion falls upon the fairness of using the accused person’s out-of-court statement, not upon any purpose of disciplining police or controlling investigative methods, the reliability of what was said out of court is important to the exercise of that discretion. [112] As noted earlier, s 90 of the Act expressly directs attention only to the fairness of using the evidence at the trial of the accused. Section 85 deals with evidence of an admission made by a defendant in the course of official questioning, and provides that the evidence is not admissible unless the circumstances in which the admission was made “were such as to make it unlikely that the truth of the admission was adversely affected”. It follows that consideration of the reliability of what was said in a statement made to police can have no part to play in the operation of s 90. (By contrast, questions of reliability may well have a role to play in the application of s 90 if the statement was not made in the course of official questioning or “as a result of an act of another person who is capable of influencing

Part 3 — Admissibility of Evidence

Em v The Queen cont the decision whether a prosecution of the defendant should be brought or should be continued”. But that is not this case.) [113] Because s 85 was not engaged to exclude the disputed evidence in the present case, no question of the reliability of what this appellant said in the admissions now in question was relevant to the exercise of the discretion under s 90. The hypothesis upon which that discretion was to be exercised must be that the circumstances were not such as to make unreliable the admissions the appellant made. [114] The second consideration that is relevant to the present matter, and assists in demonstrating that s 90 is to be understood as a safety net which catches a residuary category of cases not expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair, is the consideration of improper police methods. The appellant’s central complaint in the present matter was that the police deceived him. He thought that what he said to the police was not being recorded, but it was. This complaint lay at the heart of his contention that s 90 should have been applied to exclude the evidence.

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[115] For present purposes, it may be accepted that what the police did and said (and most importantly what they did not say) caused or contributed to the appellant forming the belief that what he said was not recorded and would not be admissible in evidence. (We leave aside any question of whether the evidence led on the voir dire showed that the appellant in fact held this belief.) The question presented by s 90 was: why did these circumstances make the use at his trial of the evidence of what he had said unfair? But that question was to be asked and answered only after other questions presented by the Act had been considered. [116] The appellant’s argument, shorn of expressions like “trick” and “trickery”, amounted to the propositions that what the police did, by interviewing the appellant as they did, was to be condemned, and that he had been misled into saying something that could be used in evidence against him. Neither of these propositions, whether taken separately or together, established that use at his trial of the evidence of what he said to police would be unfair. [117] First, the proposition implicit in much of the appellant’s argument, that what the police did is to be condemned, requires close attention to other provisions of the Act which regulate when evidence may be excluded. The operation of those other provisions denies the conclusion, implicit in so much of the appellant’s argument, that what the police did in this case was not only to be condemned but was such as to require the exclusion of the evidence. Particular importance must be attached in this respect to the provisions of s 138 excluding evidence that is illegally or improperly obtained and to the particular amplifications of those general provisions by the deeming provisions of s 138(2) and s 139. [118] Counsel for the appellant accepted that s 138 was not engaged. It follows either that the circumstances in which the admissions were obtained from the appellant were not such as to warrant description as “illegal” or “improper”, as those words are used in the Act, or if they were, that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that was obtained in the way it was obtained. If either of the deeming provisions was engaged (and it was not submitted that either was) the desirability of admitting the evidence of the appellant’s admission must be assumed to outweigh the undesirability of admitting evidence that was obtained as a result of misrepresentation (if there was one) or without benefit of caution (if one was required). [119] The very nature of the inquiries required under s 138 denies that the application of s 90 can be approached from a premise that attaches weight to an assertion that what was done by police was “improper”. In particular, the discretion to exclude the evidence of what the appellant told police is not to be engaged by simply asserting that a full caution was required, or expected, or should have been administered to the appellant. If that assertion is well founded (and it was not demonstrated, in argument, why it was) it fell to be considered under s 138. It was not relevant to the exercise of a discretion under s 90. [120] Nor was the discretion to be engaged by asserting that the conduct of the police is worthy of condemnation for more general (if unspecified) reasons. First, it was not suggested that what the

Admissions CHAPTER 9

Em v The Queen cont police did was unlawful. Indeed, argument proceeded on the footing that the police recorded their conversation with the appellant under warrants issued under the Listening Devices Act 1984 (NSW) that permitted them to do just that. Secondly, as to the other limb of s 138, concerning improperly obtained evidence, either what the police did was not improper, or if it is asserted that it was (and again it was not demonstrated in argument why that was so) the significance to be attached to the impropriety of the conduct was to be judged according to the balancing exercise that was called for by s 138. It was not a matter that bore upon the exercise of the discretion under s 90. [121] It also follows from the conclusions just expressed about the operation of s 138 that to begin examination of the operation of s 90 from a premise which attaches determinative significance to the fact that the appellant had the mistaken belief (caused or contributed to by the police) that what he said was not being recorded and would not be admissible in evidence would be erroneous. It would be erroneous because that would not take the operation of provisions like ss 85 and 138 into account. The relevant questions presented by the Act (in particular, by ss 85 and 138) are about the reliability of the admissions made to police, and the lawfulness and propriety of the methods used to obtain the admissions. Showing that the person making the admission acted under some misapprehension is not to the point. [122] It is a truism that an Act must be read as a whole. When the Act that now is under consideration is read in that way, it is evident that the discretion given by s 90 is not to be understood as unaffected by the more particular provisions of the Act. Yet that, in essence, is what the appellant sought to argue. ... KIRBY J:

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... [208] Omission of a full caution: The most important consideration favouring the conclusion that use of the contested evidence was unfair to the appellant was the detectives’ intentional failure to administer to him the second part of the caution set out in the Police Code of Practice. That caution includes the following warning: “We will record what you say or do. We can use this recording in court. Do you understand that?” [209] There is nothing unusual in the second part of the caution. Giving such a caution is a regular feature of police practice in dealing with suspects, in Australia and in other common law countries. It is therefore a feature that will be normal in conduct anterior to “a criminal proceeding” to which s 90 of the Act applies. It recognises a suspect’s “right to silence” and the character of an accusatorial trial. The rights of suspects in this respect are not to be undermined by courts unless derogation is expressly authorised by Parliament. [210] The failure of the detectives to administer the second part of the caution to the appellant was incontestably a conscious one. It rested in the detectives’ fear that, had the caution been given, the appellant would have said nothing, as was his legal right. For the purposes of s 90 of the Act, the vice of the incomplete caution did not lie in the detectives’ deliberate transgression of the Police Code of Practice. Rather, it lay in their resulting failure to alert the appellant, whom they had under their control, to a vital consequence of continuing the conversation into which he had been drawn. [211] The importance of the second part of the caution has been explained in many cases. In Miranda v Arizona, the Supreme Court of the United States explained: The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make [a suspect] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system – that he is not in the presence of persons acting solely in his interest.

Part 3 — Admissibility of Evidence

Em v The Queen cont [212] Although these remarks were made in the context of the requirements of the Fifth Amendment to the US Constitution, they usefully explain the purpose of the caution obliged, in Australia, by both Judges’ Rules and Police Instructions or Codes of Practice. In New South Wales, the caution might not be required under binding legislation. However, it is incontestable that it represents an established feature of police practice. It is founded on what is by now a “fundamental rule of the common law”. It reflects the recognition, as noted in the Police Code of Practice, that: If you fail to caution at the appropriate time, or if the suspect does not fully understand it, any subsequent conversation or admission might be ruled to be improperly obtained and inadmissible. Particular care should be taken in relation to vulnerable persons. [213] In the present case, the detectives were quite aware of their obligation to give the appellant a full formal caution. At the beginning of the May conversation, they reminded him of the “piece of paper” they had given him in April. Notwithstanding this, their oral caution was limited to an intimation that “the same [went] again” in that the appellant “didn’t have to say anything to the police”. The omission of the second part of the caution was significant. It was clearly intended to influence the appellant’s thoughts and actions. It was knowing, apparently carefully planned and, in the result, effective.

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[214] If it was necessary on 15 May 2002 to repeat the first part of the caution, it was equally necessary to repeat the second part. Either this Court is serious about the right to silence and the need for police and like officials to caution suspects about the incidents of that right, or it is not. To condone the consequences that flowed after providing half a caution is, in effect, to accept that giving half the caution is adequate and the deletion of the other half results in no unfairness to a suspect. [215] Recognising that millions of cautions containing both parts of the specified warning must have been administered over many decades, in this country and elsewhere, I find it impossible to brush aside the intentional administration of an incomplete caution to the appellant on the part of Detectives Abdy and McLean, both sworn officers of police. I acknowledge their frustrations. I am willing to accept the sincerity of their objectives. If their conduct on this occasion is vindicated by this Court, we must face the reality that what they did will be repeated. By condonation, it may well become a common or general practice. I will not willingly accept that development. It carries with it the seeds of the destruction of a suspect’s right to silence and the undermining of the accusatorial character of criminal proceedings. [216] Before leaving this point, I would note that it would be incorrect to infer, if that is what is intended, that counsel for the appellant conceded that there was no obligation on the part of the detectives to caution the appellant. To the contrary, it was a repeated theme of the appellant’s submissions to this Court that a caution was required when the May conversation commenced and that it had to be the full caution, not just the first half. [217] In this Court, the obligation to caution was expressly argued for the appellant to be one “arising from the circumstances of this case”. Moreover, as was acknowledged from the Bench at the time this argument was put (encapsulating what was being submitted), “you either give it all or you give nothing. A misleading character, in a way, arises from giving half of it”. [218] Trickery and informed choices: The foregoing conclusion is reinforced by the fact that trickery was used by the detectives to overcome the appellant’s obvious initial unwillingness to speak about the Logozzo home invasion, and to deprive him of an “informed choice” as to whether to make admissions or not to speak until appearing in court with the benefit of legal advice. [219] The detectives arrived at the appellant’s home and took him for what was presented as an informal chat in a public park on a specific and limited subject. They repeatedly emphasised that he was “not under arrest” and “not going to … the police station”. They reassured him on a number of occasions that he was not being “tricked” or “conned”. It was not, therefore, a neutral conversation with public officers in which he was allowed to say what he wished. It involved a course of conduct consciously designed to deceive the appellant into believing that he was engaged in an off-the-record

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Em v The Queen cont conversation. The detectives’ reference to his earlier interview with them, following which he had not been arrested but released, renders still more apparent the unfairness of the trickery. It compounds the unfairness occasioned by the administration of only half of the official caution. Necessarily, the deception influenced everything that the appellant then proceeded to say and do in the course of the May conversation. It caused the attempted use of admissions contained in that conversation (including the first part thereof) to be unfair to the appellant. It violated the appellant’s right in law to choose whether or not to make admissions that would later be used against him in his trial. It engaged the application of s 90 of the Act. [220] Selection of the park venue: Of itself, the fact that the meeting with the detectives on 15 May 2002 took place in a suburban park might seem innocuous. However, given the context, the detectives’ selection of that venue for their second extended conversation with the appellant was far from so. Indeed, it was part of the deliberate deception designed to emphasise in the appellant’s mind the distinction between a formal interview at the police station and an off-the-record chat in the park. [221] The detectives’ repeated statements throw this fact into sharp relief: “[Y]ou don’t want to go to the cop shop and talk”; “[W]e didn’t even take you to a police station … we’re not trying to trick you or anything”; “We’ve brought you to a God damn park. We’re not, we haven’t got you in the police station.”

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[222] Whilst trickery, deception and covert operations are an inevitable part of modern policing, the detectives’ conduct on 15 May 2002 transgressed the threshold of acceptable police investigative behaviour in a material respect. It rendered unfair the reception and use in criminal proceedings of the appellant’s subsequent admissions. In effect, it deprived the appellant of his right to silence. [223] With all respect, it is impossible to reconcile the outcome favoured by the other members of this Court in this case with the unanimous conclusion reached in Swaffield. Even if what the detectives did here was not illegal as such, there remains “the broader question” of whether it “was in violation of” the appellant’s “right to choose whether or not to speak to the police”. In Swaffield, no caution at all was administered. Here, the caution administered was incomplete, and even its limited effectiveness was undermined through trickery and deception, including that arising from the non-official venue chosen for the conversation. … [228] Gleeson CJ and Heydon J state that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute”. Their Honours suggest that the appellant’s incorrect belief about the availability of any admissions in the May conversation at a trial was simply a species of such “ignorance or stupidity”. This approach implies that the educated and the clever enjoy a special position under the law which the ignorant and stupid do not. I could never agree with such a view. [229] It is true that a well-advised, clever accused would probably not have gone to a park with detectives expecting to engage in an off-the-record conversation in such a place. Indeed, in all likelihood, no attempt would have been made to deceive and trick such a person, or to administer to him or her only half of the official police caution. [230] However, the law, including the Act, exists to protect all defendants in criminal proceedings against relevant unfairness, not just the educated and the clever. The law is not silent for vulnerable people who are “ignorant” about their rights and who are regarded as “stupid”. This point was made by this Court in 1950 in a powerful passage in Lee: It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated – perhaps semi-illiterate – man who has a “record” and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a “statement” may be “taken” which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the “statement” made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. They provide the

Part 3 — Admissibility of Evidence

Em v The Queen cont real justification for the Judges’ Rules in England and the Chief Commissioner’s Standing Orders in Victoria, and they provide … a justification for the existence of an ultimate discretion as to the admission of confessional evidence. As far as I am concerned, nothing has changed in this respect since 1950. The expansion of covert police operations and techniques only heightens the continuing force of what the Court then said. [231] To adapt the words of Tobriner J in People v Dorado, to limit the protection s 90 of the Act offers to defendants who are “stupid and ignorant” would be “to favor the defendant whose sophistication or status had fortuitously” made the need for protection unnecessary (or less necessary) in that defendant’s circumstances. That could not be the purpose of s 90, and that provision should not be applied as though it were. [232] Conclusion on application of s 90: In the light of the reasoning in Swaffield, it cannot seriously be suggested that a failure to provide a caution, whether contemplated by the Judges’ Rules or a Police Code of Practice, is irrelevant to the fairness to the defendant of the use of evidence gathered after that failure. This is so whether no caution at all was administered (as in Swaffield) or whether the caution was only half given and then undermined by deception, tricks and the venue chosen for the conversation (as was the case here). The result is the same. The consequent admissions are subject to exclusion as their use would be unfair to the defendant. This Court should be consistent in its approach to such defaults. It should visit them with similar consequences. Conclusions

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… [237] Adhering to established law: Self-evidently, resolving a serious murder is a matter of very high public importance for any society. However, s 90 of the Act (as well as the antecedent common law) provides that such resolution may not be achieved by reliance on admissions procured in circumstances that render their use unfair to the suspect. In evaluating fairness courts must take into account a suspect’s right to silence and the concomitant entitlement “to choose whether or not to speak to the police”. As the Supreme Court of the United States has recognised: The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law. [238] Necessarily, by its decisions, this Court sets the standards for police interrogation of suspects in this country. We are either serious or not serious about upholding the basic principles of the accusatorial trial; the “fundamental rule” of the accused’s right to silence; and the privilege to speak only after a full and proper police caution is administered. The inference is becoming inescapable that despite a long line of decisions including McDermott, Lee, Petty, and Swaffield this Court has shifted its direction. It is not now resolved to preserve the previously stated values. Such an alteration to the law is not warranted by the language of s 90 of the Act. It is not justified by analogical reasoning from basic common law principles. In my view, such a change should not be made by the Court but only by Parliament, accepting the seriousness of the step that is then taken, and imposing its own alternative restrictions and protections for the rights of suspects.



R v DRF [9.150] R v DRF [2015] NSWCCA 181 Facts [The complainant is the stepson of the respondent. He was born in 1970, the youngest of three children of his mother (RF) and father. From about 1979, when the complainant was nine years

Admissions CHAPTER 9

R v DRF cont of age, and for a period of about three years, the respondent developed a practice of entering the complainant’s bedroom and engaging in various sexual acts. These began as indecent assaults but progressed to anal sexual intercourse and fellatio. This behaviour ceased somewhat suddenly, in early 1982. The complainant continued to live with RF and the respondent. Arising out of this conduct, the respondent was charged with three counts of indecent assault, two counts of buggery, and one count of sexual intercourse without consent. In 1987, the complainant aged 17, disclosed the sexual abuse in general terms to a few of his friends. Soon after he disclosed the abuse to his mother, who did not believe him. In 1991, on his 21st birthday, he told his sister. In 2011, the complainant reported the sexual abuse to the police. In 2012, police contacted the respondent and he exercised his right to silence and refused to be interviewed. Police then obtained a warrant under the Surveillance Devices Act 2007 (NSW) to allow police to place two listening devices on the complainant for the purpose of him confronting the accused in order to generate conversation between the complainant and the respondent by; the complainant re-establishing contact with the respondent and discussing the relevant offences. The police strategy could involve one or a series of telephone calls and/or face-to-face meetings.

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On 14 December 2012, the complainant was fitted with two listening devices. One was capable of recording, the other of transmitting, “audio product”. Police took the complainant to the home of the respondent and RF. He entered the premises. Both the respondent and RF were present. A conversation followed. Initially, the conversation was entirely between the complainant and RF, and about matters not relevant to the present proceedings. Eventually, the complainant addressed the respondent directly. The following was recorded: [Complainant]: Can I just ask you why you did it? [Respondent]: Mmm? [RF]: Mmm? [Complainant]: Could I just ask you why you did it? [Respondent]: Oh, [first name of complainant] I’ve asked myself the same question for forty years. [Complainant]: But why? [Respondent]: I don’t know the answer. Honestly, I don’t. If I had an answer I would have given your mother an answer, I would have given you an answer. [Complainant]: It’s just – [Respondent]: I know, I – [Complainant]: – playing on my mind and I don’t know why. [Respondent]: It’s playing on my mind too, mate. It’s played on my mind all the time, continuously every day. Like you I put up with it as well, I can feel it. [RF]: Yeah, well – [Complainant]: It didn’t happen to you but. [Respondent]: I know that, I know that. Well, I just, I wish I could change life but I can’t, I just wished I could. [Complainant]: No, but you haven’t said sorry or anything. [Respondent]: I’ve, I’ve said, tried to say sorry every time, [first name of complainant], I’m – [Complainant]: But you can’t. [Respondent]: I am sorry, I’m very, I’m that sorry it’s not funny. I wished I could do, anything I could do but I can’t. … [Respondent]: No, but I’m sorry, all I can do is say I’m sorry, I apologise totally. I can’t do any more. I wish I had answers, I wish I had answers for meself, I even got counselling, I couldn’t get answers. [Complainant]: Yeah, I’m still getting counselling.

Part 3 — Admissibility of Evidence

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R v DRF cont [Respondent]: Yeah, I went and got counselling, I’m sorry. I wish I’d knew. It’s just something that I did, I know it was wrong and I kept doing it, and I don’t know why I did it. I don’t know why. [Complainant]: Maybe you should have come out and told mum when you was doing it. I don’t know. [Respondent]: I don’t know, I just – [Complainant]: And things wouldn’t be like this now would they? [Respondent]: Yeah, and all of a sudden it hit ya, “Oh, this is wrong. That’s when I stopped suddenly, bang, this is it, this is wrong.” [Complainant]: Oh, was it that or ’cause I was getting to an age – [Respondent]: No, no, no. [Complainant]: – I was getting older? [Respondent]: No. I said to myself, “Bang. This is it, this is totally wrong.” [Complainant]: Hmm. [Respondent]: And that’s when I stopped. I’m sorry. [Complainant]: You should’ve known the first time, eh? [Respondent]: I know that, I know I should’ve. [Complainant]: Yeah. [Respondent]: – I know I should have but I didn’t. I’m sorry. I couldn’t do anything about it. I don’t know what it was. [Complainant]: I do. [Respondent]: Yeah, I know – [Complainant]: And it wouldn’t be colourful, it would be pretty colourful language for what I call it. [Respondent]: Yeah, I know. I know, I’ve thought the same thing. [Complainant]: Yeah. Sick. [Respondent]: Yep. [Complainant]: I can see why I’ve turned out how I am. Why I turned to drugs, why I bloody drank, why I’m angry all the time. Why I hardly talk. Why I isolate myself. [Respondent]: I know that. [Complainant]: Do you but? [Respondent]: I do know it [first name of complainant], I do know it. I’m, I said if I could change it I’d change every bit of it but I can’t. [Complainant]: Like I said, you could change it after the first time. (PHONE SIGNAL) [Complainant]: You just had to keep going back and back and back. I just need to get in me head why. Oh, I’m going to go. [There followed a conversation with RF.] [Respondent]: I never threatened you in my life. [Complainant]: Yes, you, yes, you did. [Respondent]: I never threatened you in my life, [first name of complainant]. There was a preliminary application to determine the admissibility of the abovementioned conversation. Colefax SC DCJ who heard the application excluded the conversation. His Honour’s reasoning was that the decision in this case and a previous decision of Colefax SC DCJ in LDV (No 2) [2013] NSWDC 215 was that the power to grant warrants under the Surveillance Devices Act was intended by Parliament to be confined to investigations of cases of “serious criminal activity”, such as murder, terrorism and drug manufacture or importation. Further, his Honour excluded the conversation pursuant to s 90.] Judgment Leeming JA (agreeing with Simpson JA) …

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R v DRF cont [4] I can readily imagine a spectrum of more or less deceptive conduct by the complainant which may at least arguably lead to the use of the recording being unfair (I am not to be taken to be implying that any of what follows applies to the particular complainant in this appeal). The complainant may choose a time at which the accused is particularly vulnerable (eg because under the influence of legal or illegal drugs) which may not be apparent on the recording. More subtly, the complainant may use words with a special meaning, or which are deliberately ambiguous. The complainant’s words may be accompanied by unrecorded gestures or facial expressions so as to enhance the ambiguity of what is conveyed with a view to controlling the subject-matter and content and apparent meaning of the conversation. I do not regard the ambiguities to which I have referred as academic. It is sufficient to consider a case where a complainant believes correctly that he or she was indecently assaulted by the accused, but further believes incorrectly that he or she was much more seriously violated as well. To my mind, it is easy to see how a complainant motivated by animosity and with the knowledge and desire to obtain as damaging an admission as is possible may in any particular case engage in conduct which could render the recording unfair. [5] I am not expressing a conclusion that such tactics would, or would not, amount to unfairness. That has not been argued in this appeal. I merely hold the view that I would prefer not to decide issues of that nature until the question arises in a particular case.

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[6] What is critical in this appeal is that the accused knew that he was the subject of an ongoing police investigation, in respect of which he had retained solicitors, and, it may be presumed, had the benefit of legal advice. At the same time that the accused’s solicitor advised that he would not be participating in a police interview, a copy of a statement made by the complainant’s mother was requested. The statement by his mother includes her confronting her husband over the allegations made by her son, and his response: “[p]art of this is true, the majority of it is not true. I did not penetrate him. I didn’t threaten him. I did play with him.” I am comfortably satisfied that the accused believed that there was every possibility that his stepson was a complainant. [7] In those circumstances as disclosed in the materials in this appeal, there was no unfairness within the meaning of s 90 for his lawfully recorded conversation with the complainant to be tendered against him. …. Simpson JA (Leeming JA and Schmidt J agreeing) … [68] The essence of the decision in this case and LDV was that the power to grant SDA warrants was intended by Parliament to be confined to investigations of cases of “serious criminal activity”, such as murder, terrorism and drug manufacture or importation. (Implicit in this is the notion that sexual offending against children does not come into the category of “serious criminal activity”. That is a questionable proposition.) … [81] The approach taken to the question of the admissibility of the evidence was erroneous in law. For that reason alone, the decision must be set aside. However, counsel who represented the Director urged that the Court proceed to deal with a subsidiary issue, concerning s 90 of the Evidence Act. Evidence Act, s 90 [82] Although it is not entirely clear, there is a strong indication in [95] of LDV (see [67] above) that his Honour considered that, independently of his construction of s 17 of the SDA, the evidence of the conversation ought to be excluded on the application of s 90 of the Evidence Act. It is convenient to repeat the terms of s 90: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

Part 3 — Admissibility of Evidence

R v DRF cont (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. [83] The ambit of s 90 was explored in depth by the High Court in Em v The Queen [2007] HCA 46; 232 CLR 67. Gummow and Hayne JJ considered that s 90 is a “final or ‘safety net’ provision”, to be considered after all other provisions containing more specific exclusions have been dealt with (at [109]). [84] In R v Burton [2013] NSWCCA 335, I considered at some length the issues arising in a case where evidence was similarly obtained. I do not propose to repeat all that I there said. As indicated earlier, the Crown conceded that the complainant was “an agent of the state”, and it is necessary to proceed on the basis of that concession. That does not have the necessary consequence that the evidence must be excluded, although it is a relevant consideration, because it provokes inquiry along the lines of the discussion in two decisions of the Supreme Court of Canada, R v Hebert [1990] 2 SCR 151, and R v Broyles [1991] 3 SCR 595.

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[85] In Broyles, Iacobucci J first raised the concept of “an agent of the state” and said: 28 In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question, one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se … 29 … Where the statements are made to an informer, as in the case at bar, it may be arguable whether or not the coercive power of the state was brought to bear on the suspect in obtaining the statement from him or her. 30 … Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? [86] The High Court had both Hebert and Broyles in mind when deciding R v Swaffield; Pavic v The Queen. However, the High Court, while considering the Canadian authorities “instructive” (see [83]), did not fully endorse the approach of the Supreme Court. Ultimately, in the joint judgment of Toohey, Gaudron and Gummow JJ the following conclusions were reached: 91 … it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations. 92 It is relevant to bear in mind the provisions of the Evidence Acts … It is therefore appropriate to develop the common law in Australia in terms of a broad principle based on the right to choose whether or not to speak. [87] In Swaffield; Pavic, the High Court recognised a number of circumstances relevant to the exercise of “the fairness discretion”. One circumstance is “unreliability”: [78]. It follows as a corollary that reliability is also a relevant consideration: see Em, at [73].

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R v DRF cont [88] Another relevant circumstance is public policy: see [52]. A third is the probative value of the evidence relative to any prejudicial effect it may have: [62] and following. This consideration is to be found in statutory form in s 137 of the Evidence Act. [89] I turn then to apply those considerations to the circumstances of the present case. First, there was no element of coercion in the respondent’s engagement with the complainant. The respondent was entirely free to speak or not to speak as he chose. Although it may be accepted that the complainant, in engaging with the respondent on the subject of his assertions of sexual abuse, was acting at the behest of police, the conversation is one that might easily have occurred without police intervention. There is no reason to think that the respondent would have responded differently had the complainant simply confronted him of his own volition. Moreover, the admissions made by the respondent have an apparently high degree of reliability.

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[90] It is not uncommon in the investigation of allegations of sexual offences for investigating police to implement methods such as they did in the present case. These have come before this Court on a number of occasions: see, for example, R v XY [2013] NSWCCA 121; 84 NSWLR 363; Burton; and, in the District Court, LDV. The strategy is to arrange for a complainant to engage in conversation with an alleged offender, with a view to securing some confessional evidence. Such a device is seen to be called for two reasons. One is that, typically, sexual offences take place in private, in circumstances where there is no witness to the events. That leaves the prosecution in the position of having no corroborative evidence. The second, related, reason concerns the attitude that courts have, historically, taken to the reliability of complainants in cases of alleged sexual offences: Carr v The Queen [1988] HCA 47; 165 CLR 314; Ewen v The Queen [2015] NSWCCA 117, and the cases there cited. It is true that the legislature has, over the years, attempted to curb the enthusiasm for directions to juries that imply that the evidence of a complainant is somehow deficient simply because it is uncorroborated, but those efforts have taken some time to yield results. This issue has been explored in Ewen. [91] Notwithstanding that s 294AA of the Criminal Procedure Act now prohibits a direction that juries, before convicting in trials of sexual offences, should scrutinise with great care the uncorroborated evidence of a complainant (see Ewen, at [146]), it may be expected that juries, in applying the principle of the presumption of innocence, and the need for the Crown to prove its case beyond reasonable doubt, will treat the uncorroborated evidence of complainants with some scepticism. Corroborative evidence is an important aspect of the public policy interest in the prosecution of crime. Securing confessional evidence by means that do not involve coercion or unfair tactics does not contravene public policy consideration. [92] The question is whether arranging for a complainant to engage in a secretly recorded conversation with an alleged offender involves unfair tactics such as to render the use, in the alleged offender’s trial, unfair. In my opinion, that circumstance alone does not. That is so even taking into account the respondent’s clear refusal to be interviewed by police. In Em, the person suspected of serious crime repeatedly made abundantly clear that he would not participate in any conversation with investigating police if that conversation was to be audio or video recorded. He did engage in conversations with police in the belief that no recording was made, and he made significant admissions on that assumption. Police obtained a warrant under the Listening Devices Act (the predecessor of the SDA) and recorded further conversations, including admissions. The High Court held that it was not unfair, within the meaning of s 90, to use that evidence in his trial (see [67][68], [123]). [93] In this respect it is material that the Parliament of NSW has permitted the issue, under specific circumstances, of warrants authorising the use of surveillance devices to intercept and record private conversations. A surveillance device warrant may be issued where (relevantly) an eligible judge is satisfied that there are reasonable grounds for suspecting or believing that an indictable offence has been committed (s 17). In determining whether a warrant should be issued, the eligible judge is to have regard to various specified considerations, set out in s 19(2) of the SDA. These include:

Part 3 — Admissibility of Evidence

R v DRF cont the nature and gravity of the indictable offence in question; the extent to which the privacy of any person is likely to be affected; the existence of alternative means of obtaining the evidence or information; the extent to which the information sought to be obtained would assist the investigation; and the (potential) evidentiary value of any information sought to be obtained. [94] It is to be taken that the judge who issued the warrant in this case considered all of these factors. Moreover, as mentioned earlier, the affidavit that supported the application disclosed the respondent’s prior refusal to be interviewed by police. [95] It is not asserted in this case that the warrant was invalidly issued. The evidence so obtained was therefore obtained not only lawfully, but on the express authorisation of a judge of this Court fully informed as to the relevant facts. To categorise the admission of evidence so obtained as “unfair” would be to subvert “the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime” that has been expressly adopted by the legislature: see Em, at [69] and [78]. [96] Each case, of course, will be decided on its own facts. In this case, the one additional circumstance that must be taken into account is that the respondent expressly declined to be interviewed by police. The meeting arranged by police was plainly designed to circumvent his refusal to do so. That fact was known to the eligible judge who nevertheless exercised his/her discretion to issue the warrant.

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[97] The respondent was not interviewed by police. He was not coerced into participating in an interview. There was no treachery or deception in what either the complainant or the police did. The respondent engaged in a conversation with his stepson in which he allegedly made some statements that a jury may consider to be incriminating. He had made similar incriminating statements to RF. There is no suggestion that the evidence of RF should be excluded. [98] Two circumstances mark out the evidence obtained by the conversation between the complainant and the respondent from the evidence of RF. One is that, in meeting the respondent, the complainant was acting at the suggestion of investigating police. Since the respondent did not know that, his responses were not influenced by the police involvement. That says a good deal about the reliability of the evidence. The second circumstance is that the conversation was tape recorded. That is important. Had the complainant, without police intervention, confronted the respondent, and subsequently made a statement recording his recollections of the conversation, there is no doubt that the evidence would have been admissible. It is the fact that it was recorded, giving it credibility, reliability, and accuracy, that gives rise to the present complaint. The circumstances in which the evidence was obtained significantly enhanced its reliability. (In this respect, I refer not to the reliability of the content of the respondent’s admissions but the reliability of the evidence of what he in fact said. Oral evidence given by the complainant of his recollections of such a conversation, which, I have already suggested would have been admissible, would be subject to all of the frailties of human recollection. Here, there can be no doubt of what the respondent said. How it is to be interpreted is, of course, a matter for the jury.) [99] In my opinion, there is no basis under s 90 to hold that the circumstances in which the evidence was obtained render it unfair to the respondent for the Crown to use the evidence in his trial. [100] For these reasons, the decision to exclude the evidence was legally flawed and must be set aside. [101] Since preparing these reasons, I have read in draft the judgment of Leeming JA. That prompts me to add the following. [102] I do not intend, by what I have said, to convey the impression that, in any case where a complainant or alleged victim has, at the behest or with the assistance of investigating police, taken part in a recorded conversation with an alleged perpetrator, the record of that conversation cannot be excluded under s 90 of the Evidence Act. I acknowledge the various scenarios postulated by Leeming JA as potentially relevant to the assessment of unfairness and the exercise of discretion. There may be others.

Admissions CHAPTER 9

R v DRF cont [103] In this case, there are no circumstances that warrant the exercise of the discretion to exclude the evidence. [104] The orders I propose are: (1) (2)

The appeal is allowed; The ruling of the District Court that evidence of a conversation between the complainant and the respondent of 12 September 2014 is quashed.



EVIDENCE OF SILENCE [9.160] Section 89 (which, in NSW, is subject to s 89A) deals with admissions alleged to be

inferred from silence. In Petty and Maiden v The Queen, the High Court considered the scope of the right to silence under the common law.

Petty and Maiden v The Queen [9.170] Petty and Maiden v The Queen (1991) 173 CLR 95; [1991] HCA 34

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Facts [The two applicants, Petty and Maiden, were convicted of the murder on or about 25 November 1987 of a man named Mark White. When questioned by the police, Maiden blamed Petty, while Petty claimed the death was accidental. A witness, James Crawley, testified at the committal hearing that Maiden told him in January 1988 that he (Maiden) and Petty had planned to kill White and they did it together. At their trial, Maiden and Petty both claimed the death was accidental. Crawley was crossexamined by the defence to suggest that the conversation which he said he had had with Maiden was not as he had recounted it, but was a conversation in which Maiden had given an account of events much in accordance with the account of events given by Petty in his record of interview and was to the effect that the deceased’s death was accidental. The trial judge allowed the prosecution to lead evidence from Crawley that no such suggestion was made to him at the committal hearing by the solicitor acting for Maiden and Petty. That cross-examination went no further than to suggest to Crawley that he was not telling the truth and did not suggest that there was a different version of the conversation which he had recounted. The trial judge told the jury that they were not permitted to draw any inference or conclusion of guilt from Maiden’s failure to raise the accident explanation prior to trial but “as he did offer at least one version of what happened when he made his record of interview” the jury were permitted to “take into account in judging the weight to be given to this explanation now put forward so late his failure to put it forward either at the time of his record of interview or during the committal proceedings … in time for the Crown to investigate it fully”.] Judgment (footnotes omitted) MASON CJ, DEANE, TOOHEY and McHUGH JJ: ... [2] A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his

Part 3 — Admissibility of Evidence

Petty and Maiden v The Queen cont or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. It is unnecessary for the purposes of the present case to consider whether any qualification of the right of silence should be recognized in order to accommodate what has been described as “a vigorous artificial respiration” of the old offence of misprision of felony (see Allen, Misprision, Law Quarterly Review, vol 78 (1962), at p 40). Even if it be assumed that that common law offence still exists in at least some Australian jurisdictions (see, generally, Howard’s Criminal Law, 5th ed by Professor Fisse (1990), p 353, n 23; Morris, Criminal Law Review (1955), 290, at pp 291-293; and, as regards Victoria, Crimes Act 1958, s 326(5)), it is, in our view, clear that silence about an offence on the part of a person liable to be suspected of being criminally involved in its commission cannot constitute misprision of felony.

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[3] That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. [4] There is, however, a significant body of authority to support the existence of a “distinction between reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time … at the trial”: see R v Foster (1955) NZLR 1194, at p 1200. That distinction, initially made by Lord Hewart CJ in R v Littleboy (1934) 2 KB 408, at pp 413-414, and accepted in Ryan (1964) 50 Cr App R 144, at p 148, has been accepted and applied in Australia: see R v Bouquet (1962) SR NSW 563, per Sugerman J at pp 568-571; R v Sadaraka (1981) 2 NSWLR 459, per Street CJ at p 462; King v The Queen (1986) 15 FCR 427; R v Wright (1980) VR 593; R v Bruce (1988) VR 579, at pp 589 et seq; R v McNamara (1987) VR 855, at pp 870-871; R v Fellowes (1987) 2 Qd R 606; R v Fraser (1989) 1 Qd R 182. The distinction was criticised by Professor Cross (The Evidence Report: Sense or Nonsense, Criminal Law Review (1973), pp 332-334) and rejected by the English Court of Appeal (Viscount Dilhorne, Lord Scarman and Jupp J) in Gilbert (1977) 66 Cr App R 237. [5] In Gilbert (1977) 66 Cr App R 237, Viscount Dilhorne, speaking for the court, disagreed (at p 244) with the statement approved in Ryan (1964) 50 Cr App R 144. That statement was in these terms: This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today: you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation. Viscount Dilhorne went on to say of this statement that it: seems to us an invitation to the jury to draw an inference adverse to the accused on account of his exercise of the right of silence, though in a more oblique fashion than in Davis ((1959) 43 Cr App R 215). [6] In the present case, Priestley JA expressed the view that there is a “significant distinction” between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused’s earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in

Admissions CHAPTER 9

Petty and Maiden v The Queen cont a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound.

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[7] If all that had been involved in the present case had been the exercise by Maiden of the right to remain silent, it would be clear that evidence was inadmissible to establish that it had not been suggested, in cross-examination of the witness James Crawley on the committal hearing, that Maiden had previously told him that the killing of the deceased, Mark White, had been accidental. In fact, however, as the learned trial judge pointed out to the jury, Maiden had not remained silent about the killing of the deceased. He had participated in a record of interview with the police in which he had asserted that he and Petty had agreed to kill Mark White and that Petty had actually killed him. Neither on the committal hearing nor, apparently, on any other occasion prior to the trial had Maiden withdrawn or corrected that allegation against Petty to anyone in authority. Obviously, his assertion to the police that Petty had killed Mark White was inconsistent with the defence raised at the trial that he had himself accidentally killed White while defending himself from attack. [8] In the circumstances, evidence of the earlier allegation to the authorities against Petty was admissible against Maiden. Among other things, it cast doubt upon the genuineness of the defence that Maiden had killed White accidentally in self-defence or without relevant intent. Evidence of Maiden’s subsequent failure to withdraw the assertion that Petty had killed White was also relevant and admissible in that it could lead to an inference of adherence right up to the time of trial to what was, in effect, an allegation of murder against Petty and constitute a denial by conduct of his defence at the trial. Any suggestion that Maiden had, before the committal proceedings, told Crawley that the killing of Mark White had been an accident would plainly be calculated to raise a question about whether Maiden had abandoned the allegation that Petty had killed White at some stage before the committal proceedings. That being so, once that suggestion was raised on behalf of the defence for the first time on the trial, it was open to the Crown to establish that, throughout the whole of the committal proceedings, Maiden had, through his legal representative, said or done nothing to suggest abandonment of his allegation that Petty was the murderer. Since the suggestion was first made in the cross-examination of Crawley, it was open to the Crown to elicit in the course of re-examination that such a suggestion had never been put to him in cross-examination at the committal proceedings. [9] It should be stressed that nothing in what is written earlier should be understood as suggesting that evidence of a failure to raise some defence or matter of explanation at committal proceedings is ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused. Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused. What makes the present case different is the fact that Maiden’s conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious. The re-examination was admissible once the suggestion was made by the defence that Maiden had abandoned his assertion that Petty had murdered the deceased in a conversation with a Crown witness before the commencement of the committal proceedings. [10] The one aspect of the learned trial judge’s direction which has caused us real concern is his Honour’s statement: But that does not mean that, as Maiden has chosen not to remain silent and as he did offer at least one version of what happened when he made his record of interview on 15 February, you cannot take into account in judging the weight to be given to (Maiden’s) explanation now put forward so late his failure to put it forward either at the time of his record of interview

Part 3 — Admissibility of Evidence

Petty and Maiden v The Queen cont or during the committal proceedings … but at any event in time for the Crown to investigate it fully. (emphasis added) It is arguable that the comment which we have emphasised at the end of the above extract carries with it an inference that Maiden was under some duty to disclose a defence of accident or lack of relevant intent before the trial so that the Crown could investigate it. As we have sought to make clear, Maiden was under no such duty. The comment was, however, made in a sentence which immediately followed a direction to the jury that they were not “permitted to draw any inference or conclusion of guilt from Maiden’s failure to raise this explanation that Mark White’s death was an accident at some earlier stage”. In that context and in view of the earlier words which we have emphasised in the above extract, it seems to us that his Honour’s comments should be, and would have been, understood as referring not to mere silence but to what was, in effect, a persistence in the unwithdrawn allegation that Petty had killed Mark White. So understood, his Honour’s comments do not seem to us to be unfair or unjustified. Indeed, in the circumstances of the present case, it was open to the trial judge to go further and to point out to the jury that the allegation of murder by another, which Maiden had made to the police and allowed to remain unwithdrawn and unqualified right up to the trial, was completely inconsistent with the defence raised at the trial and would obviously have been likely to divert the focus of police investigation and prosecution preparation away from the issues which Maiden would raise at the trial.



Questions

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Read ss 81-90 and 138-139 of the Evidence Act. Answer the following questions: 1. What are the justifications for allowing admissions into evidence as an exception to the hearsay rule? 2. What is the definition of an “admission” in the Dictionary to the Act? 3. What is the exception to the hearsay rule for a “previous representation” that is an “admission”? What is the effect of s 82? What do ss 81 and 82 require? 4. Are admissions admissible against co-parties according to s 83? 5. What is the effect of s 87? Is it an exception to s 59 or is it a definitional section? 6. Fill in the following table, explaining each section’s effect, requirements for application, and whether it can be used in a civil or criminal case. Section

Effect

Requirements

Criminal/Civil

84

 

 

 

85

 

 

 

86

 

 

 

90

 

 

 

138(2)

 

 

 

139

 

 

 

Admissions CHAPTER 9

7. Refer to the case of R v Edwards, and answer the following: • will evidence of a lie affect the credit of the accused; • will evidence of a lie be used as an implied admission of guilt; • is every lie told by an accused probative of their guilt; • what should be the contents of a judge’s direction to a jury in respect of a lie told by an accused? 8. Apply the Evidence Act 1995 to the facts of R v Edwards. Would the prosecution be able to adduce evidence of the accused’s lies? 9. Refer to R v Eagle in Chapter 20. Read the accused’s record of interview and discuss the admissibility of the interview. 10. Refer to R v Eagle in Chapter 20. Are there any other admissions in the witness statements obtained by police that are admissible pursuant to s 81?

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11. Apply the Evidence Act to the facts of Foster v The Queen. Would the prosecution be able to adduce evidence of the accused’s confession?

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CHAPTER 10

Tendency and Coincidence [10.10]

OVERVIEW ............................................................................................................... 437

[10.20]

TENDENCY AND COINCIDENCE EVIDENCE ............................................................ 441 [10.20] [10.30] [10.40] [10.50]

[10.60]

IMM v The Queen .................................................................... 441 Hughes v The Queen ................................................................. 446 R v GM .................................................................................. 454 DSJ v The Queen ...................................................................... 461

TENDENCY AND COINCIDENCE EVIDENCE IN CIVIL PROCEEDINGS ....................... 472 [10.70] Jacara Pty Ltd v Perpetual Trustees WA Ltd ..................................... 472

OVERVIEW

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[10.10] Part 3.6 of the UEL applies to “tendency evidence” and “coincidence evidence” in

certain situations (s 94). At common law, this evidence is usually referred to as “propensity” or “similar fact” evidence. The rules apply to both admissibility and use of evidence (s 95). Section 96 provides that, for the purposes of the Part, an “act” includes a failure to act. Section 97 creates the tendency rule. Section 98 creates the coincidence rule. Section 100 imposes further limitations on tendency evidence and coincidence evidence adduced by the prosecution in a criminal proceeding. Sections 99 and 101 deal with notice requirements. The “tendency rule” (s 97) excludes “tendency evidence”, that is, evidence of conduct, character or reputation adduced to prove a “tendency” to act or think in a particular way, unless the evidence has “significant probative value” and reasonable notice has been given of the intention to adduce the evidence (although s 100 allows a court to dispense with the notice requirement). An example of the application of s 97 in criminal proceedings where the evidence is adduced by the defence relates to the contentious area of previous sexual history of a complainant in a sexual offence prosecution. His or her “reputation” is highly unlikely to meet the test of “significant probative value” while evidence of previous sexual conduct would only be admissible (to show “tendency”) in relation to the incident of the alleged sexual offence in question if the circumstances of the occasions were substantially and relevantly similar. However, in addition, statutory provisions in other legislation dealing specifically with this area continue to apply (see eg in New South Wales, s 293 of the Criminal Procedure Act 1986). An example of the application of this provision in civil proceedings would be where a plaintiff in a motor vehicle accident negligence action adduced evidence that the defendant had been involved in previous accidents, to infer a tendency to bad driving and thus infer negligence in the accident in question. Like the hearsay rule in s 59, the tendency rule is a “use” rule. Thus, for example, evidence of a person’s prior conduct is not caught by s 97 if it is not adduced to prove the existence of some tendency to act or think in a particular way, but adduced for some other purpose. For example, a defendant’s history of physical violence may explain why the complainant in a sexual assault trial appeared to consent to the offence charged and may explain why no immediate complaint was made after the alleged offence

Part 3 — Admissibility of Evidence

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was committed. It is not caught by s 97 (or s 101, discussed at [10.20]). However, to avoid application of the provision, it will not be sufficient to assert that the evidence is relevant to prove something other than “tendency” (eg “system”, “habit”, “relationship”, “context”, etc) but to demonstrate that the evidence is relevant to a fact in issue by a process of reasoning which does not involve the drawing of an inference from evidence of “tendency” to conforming behaviour (for an example of the difficulties of analysis in this context, see R v Cakovski (2004) 149 A Crim R 1; [2004] NSWCCA 280). The requirement of “significant probative value” in s 97(1)(b) has been considered by the High Court. In IMM v The Queen (2016) 257 CLR 300, the majority of the High Court held that in assessing “probative value” of the evidence of a witness, a judge must proceed on the assumption that the evidence “is accepted” and thus the evidence of the witness is to be regarded as both truthful and reliable. However, the majority also held that, in a case where the probative value of the evidence lies in its capacity to support the credibility of a complainant’s account, the fact that the tendency evidence came from the complainant meant that the evidence lacked significance or importance in establishing that her account of the charged acts was true because it came from her, was unsupported by a source independent of her and there was no feature of her account which gave it “significant probative value”. In Hughes v The Queen (2017) 344 ALR 187, the majority emphasised that it is necessary to identify with some precision what the tendering party proposes to establish by the evidence and, in assessing the probative value of the evidence, the focus must be on: (a)

the strength of the inference that can be drawn from the conduct to the tendency of the person to have a particular state of mind or to act in a particular way; and

(b)

the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur.

A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency, but it may also mean that the tendency cannot establish anything more than mere relevance to a fact in issue. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. However, contrary to earlier Victorian authority, this test does not import the stringency of the common law rules in respect of “similar fact” evidence and, while similarity in alleged conduct or circumstances may provide a basis for establishing significant probative value, that test “does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue”. Part 3.6 also establishes the “coincidence rule” (s 98), which excludes evidence “that 2 or more events occurred” adduced “to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally” unless the same requirements imposed in respect of tendency evidence are satisfied. It has been observed that the essence of coincidence evidence is that there is established to have been two events in circumstances where the existence of one event establishes the likelihood that the defendant was responsible for, or involved in, the other separate event or to establish that the other of those events did not occur by accident. Thus, for example, striking similarities in the conduct of a defendant on different occasions may reveal a pattern from which it may be inferred that the defendant did a particular act or had a particular state of mind. In such circumstances, the

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Tendency and Coincidence

CHAPTER 10

coincidence evidence may have “significant probative value” for the purposes of s 98(1)(b). Alternatively, striking similarities in the accounts of two or more witnesses regarding the conduct of the defendant may make it likely that the witnesses are telling the truth, in the absence of joint concoction or contamination. However, there is continuing uncertainty as to whether evidence pointing to such joint concoction or contamination should be taken into account in determining whether the evidence has “significant probative value”. Both ss 97 and 98 apply in civil and criminal proceedings, although s 94 makes it clear that they do not apply to evidence that relates only to the credibility of a witness, to bail or sentencing proceedings, or to evidence of character, reputation, conduct or tendency if it is (as distinct from relevant to) a fact in issue. An example of a case where character is directly in issue is a defamation action when justification is pleaded. In such a case, evidence of that character (in the form of evidence of reputation, opinion or specific conduct) may be admissible to establish the character of the person allegedly defamed. The facts of the classic similar fact case of Makin v A-G (NSW) [1894] AC 57 illustrate the use of tendency and coincidence. Mr and Mrs Makin were convicted of murdering an infant. Evidence was led that the Makins had promised the child’s mother that they would adopt the child in return for money. The mother of the child became concerned for the child’s welfare and notified the authorities. Authorities found the child’s body buried in the Makins’ backyard. There was no evidence of the cause of death or that the child was murdered. The Makins claimed that the child had died of accidental causes. The prosecution led evidence that the Makins had adopted other babies and they had disappeared. The prosecution also led evidence that 12 babies’ bodies were found in the gardens of several houses occupied by the Makins in Sydney. The Makins had not been convicted or charged in relation to the 12 babies’ deaths. The Privy Council dismissed the appeal and held that the evidence of the 12 babies’ bodies rebutted the Makins’ defence of accidental death. The evidence was relevant to prove a lack of coincidence. However, the evidence was not admissible to prove that the Makins had a tendency to kill children. Section 101 imposes further restrictions in criminal proceedings on tendency evidence and coincidence evidence about the defendant adduced by the prosecution. As the majority judgment stated in Hughes v The Queen (2017) 344 ALR 187 at [32], the risk in criminal proceedings that the admission of tendency or coincidence evidence “may work unfairness to the accused is addressed by” this provision. Such evidence “cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”: s 101(2). Initially, courts applied the common law test of admissibility established by the High Court in Pfennig v The Queen (1994) 182 CLR 461; [1995] HCA 7 (the evidence must be so probative that “it bears no reasonable explanation other than the inculpation of the accused in the offence charged”). However, after R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319, it is now established that this provision calls for a balancing exercise which can only be conducted on the facts of each case and after consideration of the actual prejudice which the probative value of the evidence must substantially outweigh, although it has also been said that there “may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the ‘no rational explanation’ test were satisfied”: R v Ellis at [96] per Spigelman CJ. Probative value depends upon the circumstances of each case, the nature of the evidence involved, whether the evidence is in dispute, the issue to which the evidence is relevant, the way in which it is relevant and the other evidence in the case (although the

Part 3 — Admissibility of Evidence

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truthfulness of the evidence is assumed). Where coincidence evidence is involved, it will be much more probative if the similarities are “striking”. In R v GM [2016] NSWCCA 78, the NSW Court of Criminal Appeal considered the issue of concoction and/or contamination of tendency evidence. The Court concluded that the possibility of concoction or contamination is a relevant consideration in determining whether evidence has significant probative value under s 97. In assessing probative value of tendency evidence for the purposes of ss 97 and 101, it is no part of the function of the Court to assess, and make its own findings as to, the weight of the evidence, or to determine the likely acceptance or rejection of the evidence by a jury. Hoeben CJ at CL summarised the relevant test at [111] as follows: “Does the evidence in this matter amount to a real risk or contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value. Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible. In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded.” While prejudicial effect from showing that a criminal defendant has committed other criminal or wrongful acts is often inevitable, the degree, and the level of unfairness to the defendant, will vary from case to case. In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ stated at [17]: The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

Section 95 makes it clear that, where this Part renders evidence not admissible (or prevents it being used) to prove a particular matter, but the evidence has been admitted for another purpose, the evidence cannot be used in the prescribed way (contrast the hearsay and opinion rules). Careful directions to a jury would usually be required from the trial judge that direct the jury on the use of evidence. For example, evidence relevant and admissible to show bad character may also have an inadmissible tendency or coincidence use if the evidence does not satisfy the standards of admissibility in Pt 3.6. A  trial judge would need to direct the jury that they can use the evidence to prove bad character but not to establish a tendency to do a particular thing or to prove a lack of coincidence. The common law case of BRS v The Queen (1997) 191 CLR 275 illustrates this concept. BRS was convicted of sexually assaulting a pupil at a school where he was a teacher. BRS adduced evidence of good character. The prosecution called another student, W, who gave evidence that he had masturbated with BRS at school. The trial judge erred in not directing the jury that the evidence of W could only be used to rebut good character (which BRS put in issue) and could not be used to prove a propensity of sexual impropriety (the evidence could not be used to prove a propensity as it did not satisfy the strict standards of admissibility for similar fact evidence). In Victoria, the Jury Directions Act 2015, ss 25-30 (see also ss 12-17) regulates the giving of jury directions in respect of “other misconduct evidence”, defined in s 26 to mean “(a) coincidence evidence; or (b) tendency evidence; or (c) evidence of other discreditable acts and

Tendency and Coincidence

CHAPTER 10

omissions of an accused that are not directly relevant to a fact in issue; or (d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed”.

TENDENCY AND COINCIDENCE EVIDENCE IMM v The Queen [10.20] IMM v The Queen [2016] HCA 14; 257 CLR 300 Facts [The appellant had been convicted of various sexual offences against his step-granddaughter. At trial, she gave evidence that he ran his hand up her leg whilst he gave her a massage. This evidence was relied upon by the prosecution as tendency evidence, as it was capable of showing that the accused had a sexual interest in his step-granddaughter and was prepared to act on it. One issue on appeal was whether this evidence ought to have been admitted as tendency evidence.] Judgment

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FRENCH CJ, KIEFEL, BELL AND KEANE JJ [19] The arguments raised by the appellant on this appeal are directed principally to the exercise to be undertaken by a trial judge in determining the “probative value” of the evidence for the purposes of each of ss 97(1)(b) and 137. The appellant contends that the trial judge ought not to have proceeded upon the assumption that the jury would accept the evidence in question when her Honour applied s 97(1)(b) to the tendency evidence and s 137 to the complaint evidence. The appellant submits that that assumption may be appropriate to the test of relevance for the purposes of s 55, but that is because the words “if it were accepted” appear there. Those words are omitted from the Dictionary definition of “probative value” and it is to be inferred that that omission was deliberate. The “probative value” of evidence under the Evidence Act [35] The issue here concerning a trial judge’s assessment of the probative value of the evidence in question arises in the context of a statute that was intended to make substantial changes to the common law rules of evidence. The statute’s language is the primary source], not the pre-existing common law. … [37] The first question, posed by Pt 3.1, is a threshold one for all evidence – whether it is relevant. Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences, especially in areas such as opinion evidence and tendency evidence. [38] By s 55, evidence is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. There can be no doubt that the reference to the effect that the evidence “could” have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its “rational” effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact. [39] The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial

Part 3 — Admissibility of Evidence

IMM v The Queen cont. judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance. [40] Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, “probative”. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law. [41] Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised. The exceptions provided with respect to the exclusionary rules of the Evidence Act have the effect that if relevant evidence liable to be excluded comes within an exception, it may nevertheless retain its character as admissible. The condition to be met for the exception in s 97(1)(b) to apply is that the court must think that the evidence will “have significant probative value”.

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[42] Both ss 97(1)(b) and s 137 require an assessment of the probative value of the evidence tendered. As mentioned, the Dictionary definition of the “probative value” of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which “could rationally affect [...] the assessment of the probability of the existence of a fact in issue”. [43] The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence. [44] The assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as “significant”. [45] The use of the term “probative value” and the word “extent” in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge. [46] Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

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IMM v The Queen cont. [47] In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. [48] It has been explained that the basic enquiry as to whether evidence “could rationally affect [...] the assessment of the probability of the existence of a fact in issue”, which appears in both s 55 and the definition of "probative value" of evidence, is not altered by the further enquiry required by the definition as to the extent to which the evidence could have the effect stated. The assessment of extent does not import new and different considerations, such as might affect whether the evidence is accepted as credible or reliable.

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[49] The same construction must be given to the words “could rationally affect [...] the assessment of the probability of the existence of a fact in issue” where they appear in the definition of “probative value” as is given to those words in s 55. This requires an assessment of the capability of the evidence to have the stated effect. And because the question to which those words give rise remains the same for the passages of the definition of “probative value”, that enquiry must be approached in the same way as s 55 requires: on the assumption that the jury will accept the evidence. The words “if it were accepted”, which appear in s 55, should be understood also to qualify the evidence to which the Dictionary definition refers. It is an approach dictated by the language of the provisions and the nature of the task to be undertaken. [50] At a level of logic it is difficult to see how a trial judge could approach the question as to what the probative value of the evidence could be in any other way, for the reasons alluded to by Gaudron J in Adam v The Queen. It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by JD Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach, it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence. [51] At a practical level, it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence at the point of admissibility. As Simpson J pointed out in R v XY, the evidence will usually be tendered before the full picture can be seen. A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not only on its place in the evidence as a whole, but on an assessment of witnesses after examination and cross-examination and after weighing the account of each witness against each other. [52] Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply. They are both subsumed in the jury’s acceptance of the evidence. [53] The Evidence Act itself creates a difficulty in separating reliability from credibility. The definition of “credibility”, which concerns both a person who has made a representation that has been admitted into evidence and a witness, includes the person’s or witness’s “ability to observe or remember facts and events” relevant to the representation or their evidence. These are matters which go to the reliability of the evidence.

Part 3 — Admissibility of Evidence

IMM v The Queen cont. [54] The view expressed in Dupas v The Queen, which reserved a particular role for the trial judge with respect to the reliability of evidence, did not have its foundations in textual considerations of the Evidence Act, but rather in a policy attributed to the common law. The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by s 65(2)(c) and (d) and s 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165. [55] In arguing that a trial judge should nevertheless consider the reliability of evidence for himself or herself, the appellant placed reliance on what was said by the Australian Law Reform Commission in its report on the proposed Evidence Bill 1987 (Cth). In that report the Commission expressed the view that “[t]he reliability of the evidence is an important consideration in assessing its probative value”. This view was volunteered somewhat out of the context of the issues with which the Commission was there dealing, which concerned the use of exclusionary discretions. Neither s 97(1)(b) nor s 137 fall into this category. In any event, a view of the Commission could hardly prevail over the language of the definition of “probative value” and the way in which it must be taken as intended to apply.

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[56] The appellant also placed weight on a statement made by McHugh J in Papakosmas v The Queen. After referring to the definition of “probative value”, his Honour said [t]hat assessment, of course, would necessarily involve considerations of reliability”. This appears to have been a comment in passing when dealing with a different issue – whether reliability played any part in the test of relevance. It is not further explained. It is to be observed that the comment is made with reference to the importance of the probative value of the evidence to the exercise of the powers conferred in ss 135 and 137. [57] In R v XY, Basten JA spoke of reliability being taken into account, but this was in the context of an assessment of the risk of prejudice under s 137, not as part of the assessment of the probative value of the evidence, which is the other side of the “weighing” exercise. In R v Shamouil, Spigelman CJ ventured that there may be some limited circumstances in which credibility and reliability will be taken into account in determining probative value. His Honour referred in this regard to what had been said by Simpson J in R v Cook. Her Honour there suggested that evidence that was obviously “preposterous” might be withheld from the jury. [58] It would not seem to be necessary to resort to an assessment of the reliability of evidence of this quality for it to be excluded under s 137. For the reasons already given, evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance. If it were necessary, the court could also resort to the general discretion under which evidence which would cause or result in an undue waste of time may be rejected. [59] Before turning to the application of ss 97(1) and 137 to the facts in this case, there should be reference to the appellant’s submission concerning the risk of joint concoction to the determination of admissibility of coincidence evidence. The premise for the appellant’s submission – that it is “wellestablished” that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen – should not be accepted. Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the “rational view … inconsistent with the guilt of the accused” test found in Hoch v The Queen. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting. The extent of the probative value of the evidence The tendency evidence [60] The complainant gave evidence of an occasion which occurred shortly before the appellant and the complainant’s grandmother separated. There is no suggestion that there was anything untoward

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IMM v The Queen cont. about the activity being undertaken at the time. The complainant and a granddaughter of the appellant were giving the appellant a back massage, as he had requested. The appellant was lying face down on a bed. The complainant was standing next to the bed. The complainant said that the appellant “ran his hand up my leg”. She was wearing shorts at the time, so his hand did not contact her skin. She said that she moved away. [61] It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value. [62] In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant’s unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value. [63] Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.

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[64] For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b). The complaint evidence [65] SS was a friend of the complainant. She gave evidence that the complainant rang her and told her that the complainant’s grandparents had separated. The complainant was upset and crying and told SS that her step-grandfather had “touched me”, which SS took to mean in the area of the complainant’s vagina. [66] The principal issue concerning the probative value of this complaint concerned the time at which it was made. The prosecution case was that it was made in late 2010 or early 2011. The defence case was that it was made much later, after the complainant spoke to her mother about the appellant, which occurred in August 2011. It was accepted that the probative value of this evidence was affected by the time when it was made. It is not necessary to go into the reasons for that. [67] There does not seem to be any reason to doubt the view of the Court of Criminal Appeal, that the preponderance of the evidence points to the complaint having been made at the earlier time, as the complainant suggested. In particular, evidence of events which occurred when the conversation took place enabled it to be placed in time. [68] The complaints to the complainant's family all occurred in August 2011. They commenced with a statement made to the complainant’s aunt. The aunt had challenged the complainant about the complainant’s recent conduct. The complainant responded by saying: “[t]he things you are trying to protect me from have already happened.” When the complainant would not further expand upon this, the aunt asked “[w]as it [the appellant]?”, to which the complainant replied “[y]es”. [69] The complainant’s grandmother was present when the conversation with the aunt took place. The grandmother said in evidence that the complainant, after answering the aunt’s enquiry, said “that it had been happening since she [the complainant] was little”. [70] The mother was not present when these discussions took place. The aunt rang her to advise what the complainant had been saying about the appellant. The mother spoke to the complainant when

Part 3 — Admissibility of Evidence

IMM v The Queen cont. she returned home the next day. The mother asked “[h]ow long has this been going on for?” and the complainant replied “from when I was little, about four”. The mother asked “[h]ow often did this go on?” and the complainant replied “every day”. The complainant said “I was naked … he was naked” and “[h]e used to lay on top of me and squash me”. [71] The appellant submitted that an assessment of the probative value of the evidence should have been restricted to its effect upon the complainant’s credibility, which is to say by treating it as relevant to context, rather than as evidence that the offences took place. The appellant’s submission is reminiscent of the view of the common law that, because of the hearsay rule, evidence of recent complaint could only be used for a purpose relating to the credibility of the complainant. It was pointed out in Papakosmas v The Queen that the Evidence Act has changed that. [72] The Australian Law Reform Commission recommended that complaint evidence be received as evidence of the facts in issue in certain circumstances. The concern of the common law with respect to hearsay evidence of this kind was its potential to be unreliable. Section 65 addresses this by requiring a judge to consider the reliability of evidence, when the maker is not called. When the maker is called, as in this case, s 66 requires that the act complained of be fresh in the memory of the maker of the statement.

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[73] The complaint evidence was tendered for the purpose of proving the acts charged. Given the content of the evidence, the evident distress of the complainant in making the complaint and the timing of the earlier complaint, it cannot be said that its probative value was low. It was potentially significant. [74] The trial judge held that the evidence did not create the prejudice to which s 137 referred. Neither at trial nor in the Court of Criminal Appeal did the appellant suggest that there was a risk of the jury misusing the evidence or giving it more weight than it deserved, as he now seeks to do. In any event, it is difficult to see how the jury could misunderstand the use to which this evidence could be put. There is no reason to think that the jury would apply it as tendency evidence, when they have been directed that they may use it more directly. Conclusion and orders [75] The grounds of appeal respecting the complaint evidence are not made out, but the ground alleging error in assessing the tendency evidence for probative value is. The result is that inadmissible tendency evidence was admitted. The trial miscarried. [76] The appeal should be allowed and the order of the Court of Criminal Appeal of the Northern Territory dismissing the appeal should be set aside. In lieu it should be ordered that the appeal against conviction be allowed, that the appellant’s conviction be quashed, and that there be a new trial of the offences of which he was convicted. [Gageler J delivered a separate judgment that the appeal ought to be allowed.]

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Hughes v The Queen [10.30] Hughes v The Queen [2017] HCA 20; 344 ALR 187 Facts [Hughes was arraigned on an indictment that charged him in 11 counts with sexual offences committed against five underage girls. Prior to the trial, the prosecution served the appellant with notice of its intention to adduce tendency evidence at the trial. The evidence of each complainant and a number of other witnesses was to be adduced in the trial of each count to prove tendencies identified

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Hughes v The Queen cont. as “having a sexual interest in female children under 16 years of age” and using “his social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them”. The notice particularised differing forms of sexual conduct with underage girls. One particular of that conduct was its occurrence within the vicinity of another adult. The trial judge assessed the probative value of proof of the tendencies to be significant in circumstances in which the fact in issue in each count was the occurrence of the sexual conduct charged. The trial judge held that the evidence of the workplace tendency witnesses was not admissible in support of counts 1 to 10. The evidence of those witnesses was found to have significant probative value with respect to proof of the offence charged in count 11. This offence occurred at Hughes’ workplace and involved him exposing his penis to the complainant, who was aged 12 or 13 years. The jury was directed that the evidence of the workplace tendency witnesses was relevant to the determination of count 11. The Court of Criminal Appeal concluded that the evidence had been rightly admitted because proof of the tendency made proof of the fact of the commission of the offence charged more likely to a significant extent.] Judgment

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KIEFEL CJ, BELL, KEANE AND EDELMAN JJ [1] Section 97(1)(b) of the Evidence Act 1995 (NSW) excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind (“tendency evidence”) unless the court thinks that the tendency evidence will have “significant probative value”. The provision is enacted in the same terms in the uniform evidence legislation of the Commonwealth, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory (“the Evidence Act”). The issue in the appeal is the extent to which, if at all, evidence of conduct adduced to prove a tendency is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. [2] The issue arises in the familiar context of the trial of counts charging an accused with sexual offences against several children at which the prosecution seeks to adduce the evidence of each complainant in support of its case on each count. The issue reduces in this case to the question of whether proof that a man of mature years has a sexual interest in female children aged under 16 years (“underage girls”) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl. The answer is that, in a case in which the complainant’s evidence of the conduct the subject of the charge is in issue, proof of that tendency may have that capacity. The scheme of the Evidence Act governing tendency evidence [13] Subject to the exclusionary rules in Pts 3.2 to 3.11 of the Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding. Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. Part 3.6 governs the admission of evidence of tendency and coincidence. At common law, this evidence is governed by rules concerning propensity and similar fact evidence. The intention of the Evidence Act to make substantial changes to the common law rules is evident in the provision for the admission of tendency and coincidence evidence. [14] That provision in respect of tendency evidence is in s 97(1) … [15] That provision in respect of coincidence evidence is in s 98(1) … [16] The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact

Part 3 — Admissibility of Evidence

Hughes v The Queen cont. in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. [17] In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case, the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

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[18] In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused. The appeal is concerned with the answer to the first question. Ground two – a requirement of similarity [19] It is convenient to address the second ground first. This ground contends that the Court of Criminal Appeal erred by holding that an “underlying unity” or “pattern of conduct” need not be established before tendency evidence is held to have significant probative value and by declining to follow Velkoski. [20] The appellant’s argument acknowledges that s 97(1) does not refer to similarity, unlike s 98(1). Nonetheless, he submits that the inferential process of reasoning from proof of tendency inherently invokes consideration of the similarity between the tendency and the fact or facts in issue: tendency evidence depends for its probative value on how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency. The legislative choice to condition the admission of tendency evidence on the evidence having significant probative value, and to preclude tendency reasoning if the evidence is not admissible under Pt 3.6 even if it is relevant for another purpose, is said to reflect longstanding scepticism of tendency reasoning and appreciation of the dangers of the unfair prejudice to which it may give rise. The appellant refers to the interim report of the Australian Law Reform Commission (the ALRC) for the proposition that the dangers of tendency reasoning are greater in cases in which the tendency does not share features of similarity with the conduct in issue. [21] At the time the ALRC published its reports in its landmark reference on the law of evidence, the preponderance of English and Australian authority was against the admission of evidence of propensity altogether. The ALRC considered that the rules precluding the prosecution from adducing evidence of the bad character of the accused were supported by the results of psychological research. The research was concerned with the value of evidence of general behavioural traits such as honesty. A person’s general disposition was found to be of little value as a predictive tool, whereas a person’s behaviour in similar situations might justify prediction.

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Hughes v The Queen cont. [22] The ALRC questioned the inflexible rejection of reasoning from propensity. In cases in which it is established that the accused was responsible for other unusual acts, the ALRC pointed out, it is possible to reason to guilt via either propensity or the improbability of coincidence. The analysis anticipated Pfennig v The Queen. The focus of the analysis remained on the singularity of the propensity. Reflecting this thinking, in the draft Evidence Bill appended to its final report the ALRC conditioned the admission of tendency evidence on proof of substantial and relevant similarity. [23] The legislative history of Pt 3.6 of the Evidence Act as enacted is traced in Spigelman CJ’s judgment in R v Ellis. It suffices to observe that among the differences between the ALRC’s draft and s 97, as enacted, is the omission of any requirement of similarity. The legislature’s choice to reject the ALRC’s recommendation in this respect is unexplained, but, as Spigelman CJ observed, it is a choice which makes the ALRC’s reports less useful on this subject than on other subjects. …

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[39] Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence. [40] In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.” The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. [41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two inter-related but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved, it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. [42] Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether “the court thinks” that the probative value of the evidence is “significant” means that it is inevitable that reasonable minds might reach different conclusions. This means that

Part 3 — Admissibility of Evidence

Hughes v The Queen cont. in marginal cases it might be difficult to know whether an appellate court might take a different view of the significance of the tendency evidence from a trial judge. This might result in the setting aside of any conviction and an order for a retrial. There may also be other risks for the prosecution. The admissibility of the tendency evidence is assessed based upon the evidence that witnesses are expected to give. In this case, the evidence given by the witnesses did not differ materially from their anticipated evidence. But in cases where the admissibility of tendency evidence is borderline, there may be risks if the actual evidence does not accord with the evidence as anticipated. Again, this could have consequences for any conviction. One intermediate appellate court has recently observed that the potential consequence of a new trial in cases where a conviction is overturned due to the wrongful admission of tendency evidence which was borderline should be a matter taken into account by the prosecution in assessing, perhaps conservatively, what tendency evidence it will rely upon. In any event, the open-textured, evaluative task remains one for the court to undertake by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant Ground one [43] This ground challenges the conclusion that the tendency evidence adduced at the appellant’s trial possessed significant probative value. At the outset it is to be noted that the prosecution did not seek to rely on the improbability of the complainants falsely making allegations of sexual impropriety against the appellant, so the appeal does not invite consideration of any overlap between tendency and coincidence reasoning.

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The evidence [44] Counts one and two charged offences against JP of sexual intercourse without consent, knowing that JP was not consenting. The offences were alleged to have occurred when JP was aged 14 or 15 years on occasions when the appellant and his wife were dinner guests at JP’s home. The first count charged an occasion when the appellant entered JP’s bedroom while she was asleep. JP was sharing a bed with the appellant’s daughter. JP woke to find the appellant’s hand inside her pyjama pants. He digitally penetrated her vagina. She pushed his hand away and he licked her cheek and left the room. The second count occurred a month or so later when the appellant again entered JP’s bedroom. On this occasion JP was asleep on her own. She woke to find the appellant’s hand inside her pyjama pants; he again digitally penetrated her vagina and he touched her clitoris for around 10 minutes. JP also said there were other occasions when the appellant entered her bedroom and touched her on the vagina. [45] The third, fourth, fifth and sixth counts charged indecent assaults on SH, which occurred on occasions when she was aged six, seven or eight years. The offences arose out of two incidents that occurred when SH was staying overnight at the appellant’s home. On each occasion the appellant went into the bedroom where SH and the appellant’s daughter were sleeping, wakened SH, and made her masturbate him. On each occasion he ejaculated and rubbed semen over the mound of SH’s vagina with his penis. SH gave evidence of similar incidents that had occurred on other occasions. [46] The seventh, eighth and ninth counts charged aggravated indecent assaults against AK, which took place when she was aged nine years. The seventh and eighth counts charged offences that occurred on an occasion when the appellant took AK and his daughter on an outing to the beach. The appellant suggested that the girls swim between his legs. On both occasions when AK did so, the appellant pinned her between his legs, exposing his penis to her. The ninth count charged an incident that occurred on an occasion when AK was staying overnight at the appellant’s home. AK had an ear infection and she lay on the appellant’s lap while he put drops in her ears. AK felt the appellant’s erect penis rubbing against her cheekbone as he moved her head to position it in the light. When she swapped sides so that the appellant could put drops in her other ear, AK again felt his erect penis against her face. AK gave evidence of another occasion on which she had sat on the appellant’s lap and felt his penis “digging into her buttock” as he moved her legs from side to side. She said that on other occasions the appellant had exposed his penis and testicles to her.

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Hughes v The Queen cont. [47] The 10th count charged the appellant with inciting EE to commit an act of indecency with him. EE was 15 years old at the time. She had come to know the appellant when she was doing a work experience placement with his wife. The offence was alleged to have occurred on an occasion when the appellant had driven EE to her home. EE said that as they walked down the driveway at her home they had starting kissing and that she had moved her hand onto the appellant’s erect penis over his clothing. EE gave evidence of another occasion in a park when she had sat leaning against the appellant and felt his erect penis against the small of her back. They had kissed and the appellant had touched her nipples and vulva through her clothing. [48] The 11th count charged the appellant with committing an act of indecency towards SM when SM was 12 or 13 years old. The appellant and SM were both appearing in a television series called Hey Dad..!. The appellant came out of his dressing room, stood in front of a mirror in SM’s view and undid his belt, letting his pants and underpants drop to his ankles. He wiggled his hips back and forth exposing his penis as he looked at SM in the mirror. SM also gave evidence of occasions when she had sat on the appellant’s lap while publicity photographs were taken. On these occasions SM said the appellant had put his hand underneath her and touched her on the chest, making her feel uncomfortable. [49] AA, a member of the appellant’s extended family, gave evidence of an occasion when she was aged between 10 and 14 years when the appellant touched her on the breast and between her legs as she was swimming. AA also gave evidence of seeing the appellant in her bedroom touching his genitals while he stood naked in front of a mirror with the bedroom door open. On another occasion, AA said the appellant had touched her breasts shortly after his daughter left the room.

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[50] BB, another member of the appellant’s extended family, gave evidence of an incident that occurred when she was 11 years old. She was at a birthday party at the appellant’s home when he touched her breasts under her shirt and put his hand underneath the elastic of her jeans. [51] VOD stayed overnight with SH at the appellant’s home on occasions when she was aged between seven and nine years. She gave evidence that the appellant had come into the bedroom which she was sharing with SH and walked around the room naked and that she had seen his genitals. [52] The workplace tendency witnesses all worked in the costume department of Hey Dad..!. LJ was about 24 years old at the time. She said that the appellant often slept in his dressing room during breaks and that she had to wake him. On occasions she would find him naked and uncovered. On other occasions LJ said that the appellant had made her feel uncomfortable by trying to grab her breast when hugging her and brushing past her, rubbing his genitals against her back or bottom. [53] CS was about 19 or 20 years old when she worked on Hey Dad..!. She said the appellant had made her feel uncomfortable by, when brushing past her, making contact with her bottom or breast with his genitals or hands. On one occasion, while in his dressing room, the appellant exposed his penis to CS. [54] VR was 18 years old when she worked on Hey Dad..!. On a couple of occasions the appellant had touched her near her breast. After the third occasion, VR determined that the touching had not been accidental. She had to take clothes into the appellant’s dressing room and sometimes she woke him from a nap. On one occasion the appellant was naked and she pulled up a sheet to cover him. After the third occasion when she found the appellant lying naked on his bed, VR reported the matter to her supervisor. The appellant’s submissions [55] In this Court the appellant acknowledges that the evidence of JP was admissible as tendency evidence on the trial of the counts involving SH and vice versa because each involved the surreptitious sexual molestation of a child in bed notwithstanding that another child was close by. He is critical of the trial judge and the Court of Criminal Appeal for the failure to articulate how the remaining tendency evidence gained its significant probative force. He asks how satisfaction that he exposed his penis to a nine-year-old child swimming between his legs makes it more probable that he encouraged EE, a 15-year-old girl, to put her hand over his penis as they kissed.

Part 3 — Admissibility of Evidence

Hughes v The Queen cont. Conclusion

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[56] The focus of the appellant’s submission on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove. The particular stated in the tendency notice, that the conduct occurred in the vicinity of another adult, served to highlight the appellant’s willingness to act on his sexual interest in underage girls despite the evident danger of detection. It would have been more accurate to particularise the conduct as occurring in the vicinity of another person, since on some occasions it was another child who was in the vicinity. In EE’s case, there was no evidence that any person was in the vicinity. Nonetheless, the evidence in support of that count was that the appellant encouraged EE to stimulate his penis as they stood kissing in the driveway of her family home, in circumstances in which EE was fearful that they would be seen. The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection. [57] An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a “pattern of conduct” or a “modus operandi” which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question. [58] Given the complainants’ ages, consent was not an issue in any of the counts. It was the defence case on each count that the complainant had fabricated her account. That the tendency evidence did more than prove a disposition to commit crimes of the kind in question, and was actually of significant value as proof of his guilt of the offences charged, can be illustrated by hypothesising separate trials in respect of each complainant with the only evidence against the appellant being the evidence of the complainant. In each such case, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults. [59] Considered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP’s home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised. [60] The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.

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Hughes v The Queen cont. [61] As explained earlier, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered “by itself”. In the words of s 97(1), the evidence of either “conduct” or “a tendency” can be used to determine the tendency relied upon by “having regard to other evidence adduced or to be adduced”. In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence. [62] This point can be illustrated by reference to an example given by the appellant in oral submissions, which was that there was a “world of difference” between the evidence concerning EE (count 10), who was 15 years old and whom the appellant encouraged to commit indecent acts in a park and in a driveway, and the evidence concerning SH (counts 3-6), which involved intrusive acts in a darkened bedroom, in her bed, when she was only six, seven or eight”. One problem with this comparison is that it ignores the fact that in relation to, for example, count 4, involving SH, the evidence of EE needed to be considered together with the evidence involving (i) counts 1-3 and counts 5-11, (ii) uncharged acts relating to the complainants SH, JP, AK and SM, and (iii) uncharged acts relating to the tendency witnesses VOD, AA and BB. Indeed, one of the appellant’s concessions on this appeal was that the tendency evidence from counts 1-2 (JP) and 3-6 (SH) was cross-admissible. This evidence, which was conceded to be admissible, reinforced the other tendency evidence. When considered together, all the tendency evidence provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.

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[63] The probative value of the evidence of each complainant and of AA, BB and VOD lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value. [64] The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment. [65] It will be recalled that the evidence of the workplace tendency witnesses was confined to proof of the offence charged in count 11. Relevantly, the trial judge assessed that the evidence of the workplace tendency witnesses was capable of establishing the appellant’s tendency to expose his genitalia to females. His Honour considered that the workplace tendency witnesses’ evidence had significant probative value to the determination of whether the appellant had acted as SM alleged by exposing his genitals to her. In circumstances in which SM’s evidence was said to have been fabricated, this conclusion did not involve error. As earlier noted, the Court of Criminal Appeal’s conclusions (i) that the probative value of the tendency evidence was not substantially outweighed by any prejudicial effect it may have on the appellant, and (ii) that the directions concerning the confined use to be made of the workplace tendency witnesses’ evidence were sufficient, are not the subject of the appeal in this Court. Orders [66] For these reasons there should be the following order. Appeal dismissed.



Part 3 — Admissibility of Evidence

R v GM [10.40] R v GM [2016] NSWCCA 78 Facts [JM, CM, SM and HM are sisters. Their uncle, GM, the respondent, and his wife lived on a neighbouring farm. During regular visits to their uncle’s farm as children, each of the four sisters described sexually inappropriate behaviour by the respondent. An unrelated complainant, JC, also experienced sexually inappropriate behaviour by the respondent whilst visiting his farm. The sisters spoke to each other individually about various aspects of their interactions with the respondent, but consistently denied speaking to each other as a group. This is with the exception that they had spoken about things the respondent did in front of them, when all four sisters were present. JC only spoke to one of the sisters, CM, and they both denied that any details had been exchanged. The Crown sought to rely upon the evidence of each complainant as tendency evidence in relation to charges concerning the others. The trial judge refused to admit the tendency evidence and the Crown appealed.] Judgment Hoeben CJ at CL (with whom Hall and Button JJ agreed). The current state of the law [84] As a starting point it is necessary to keep the provisions of ss 97 and 101 clearly in mind. These provisions have changed what was traditionally the common law approach to questions of tendency evidence and the effect on it of the risk of concoction and contamination. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

… [87] A question then arises as to where in that process of reasoning consideration should be given to evidence of a risk of concoction or contamination and when that is determined, how that evidence should be treated. [88] Again, guidance is provided by recent case law. While these cases set out relevant principle, each was dependent largely on its particular facts. … [95] On 14 April 2016 the High Court by a majority (French CJ, Kiefel, Bell and Keane JJ) gave judgment in IMM v The Queen [2016] HCA 14. The effect of that judgment was to uphold the interpretation of s 97 of the Act in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. In that regard the plurality said: [35] The issue here concerning a trial judge’s assessment of the probative value of the evidence in question arises in the context of a statute that was intended to make substantial changes to the common law rules of evidence. The statute’s language is the primary source, not the pre-existing common law. ... [44] The assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as “significant”. ... [52] Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness

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R v GM cont. giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply. They are both subsumed in the jury’s acceptance of the evidence.

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[96] Unfortunately in the context of this case, there was no occasion for the plurality to consider the application of s 101. Some guidance, albeit slight, can be taken from the following observations: [57] In R v XY, Basten JA spoke of reliability being taken into account, but this was in the context of an assessment of the risk of prejudice under s 137, not as part of the assessment of the probative value of the evidence, which is the other side of the “weighing” exercise. In R v Shamouil, Spigelman CJ ventured that there may be some limited circumstances in which credibility and reliability will be taken into account in determining probative value. His Honour referred in this regard to what had been said by Simpson J in R v Cook. Her Honour there suggested that evidence that was obviously “preposterous” might be withheld from the jury. [58] It would not seem to be necessary to resort to an assessment of the reliability of evidence of this quality for it to be excluded under s 137. For the reasons already given, evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance. If it were necessary, the court could also resort to the general discretion under which evidence which would cause or result in an undue waste of time may be rejected. [59] Before turning to the application of ss 97(1) and 137 to the facts in this case, there should be reference to the appellant’s submission concerning the risk of joint concoction to the determination of admissibility of coincidence evidence. The premise for the appellant’s submission – that it is “well-established” that under the identical test in s 98(1)(b) the possibility of joint concoction may deprive evidence of probative value consistently with the approach to similar fact evidence stated in Hoch v The Queen – should not be accepted. Section 101(2) places a further restriction on the admission of tendency and coincidence evidence. That restriction does not import the “rational view ... inconsistent with the guilt of the accused” test found in Hoch v The Queen. The significance of the risk of joint concoction to the application of the s 101(2) test should be left to an occasion when it is raised in a concrete factual setting. Consideration [97] No issue was raised as to the application of ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912. Quite clearly, the ruling by her Honour would significantly weaken the Crown case. The contrary was not submitted. It is also clear that her Honour’s decision to sever the hearing of the counts on the indictment flowed directly from her Honour’s refusal to allow the Crown to rely upon the tendency evidence. The issue here is not the Crown’s power to bring the appeal but whether it has established that the appeal should succeed. [98] I have concluded that there are a number of errors in her Honour’s approach to the admissibility of the tendency evidence, such as would require the intervention of this Court. In that regard, it should be noted that no challenge was made in this Court to the contents of the tendency notice. It should also be noted that the material before her Honour comprised statements and a transcript of the evidence given in earlier committal proceedings so that when considering the evidence, this Court was in as good a position as her Honour. [99] As was pointed out in Hughes v The Queen there is an issue as to whether the possibility of concoction or contamination is a relevant consideration in determining whether evidence has significant probative value. In BJS v The Queen [2011] NSWCCA 239 and in Jones v The Queen and DJW v The

Part 3 — Admissibility of Evidence

R v GM cont. Queen, this was a consideration in determining significant probative value under s 97. The observations of Basten JA in McIntosh v The Queen, however, suggest otherwise. [100] If (which I believe is correct) the possibility of concoction or contamination where it arises in evidence is a relevant consideration when determining whether evidence has significant probative value under s 97, her Honour was in error in not taking that matter into account when considering whether the tendency evidence had significant probative value. Moreover, as was pointed out in DJW v R by RA Hulme J, the process followed by her Honour of determining the issue of concoction or contamination quite separately from the issue of whether the tendency evidence had significant probative value gave rise to an approach which was more akin to that in Hoch v The Queen. There RA Hulme J said: [43] The primary judge in the present case was in error ... in determining the issue of concoction or contamination quite separately from the issue of whether the evidence had significant probative value. Whilst her Honour acknowledged what was said by Basten JA in BJS v R [2011] NSWCCA 239 in criticism of BP v R; R v BP, the separate treatment by her of the concoction/contamination issue, and finding that it was determinative by itself in respect of the trials concerning RW and CW, indicated an approach which was more akin to the Hoch approach. The Crown submitted, and I respectfully agree, that this resulted in her Honour adopting an approach that was unduly favourable to the applicant. [101] Another error in her Honour’s judgment was her approach to s 101 of the Act in which she implicitly, if not expressly, applied the Hoch test and a “no rational view” test when considering the possibility of concoction or contamination. The error in this approach was made clear by the plurality in IMM v The Queen at [59] (see [96] hereof).

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102. At 19 her Honour said: The position at common law, it has been said that tendency evidence, that is “reasonably capable of explanation on the basis of concoction” will lack the necessary probative value. When considering whether concoction is a reasonable possibility it is relevant to examine the relationship, opportunity and motive of the witnesses – Hoch v R (1988) 165 CLR 222 at 297. That formulation has been adopted in relation to s 101 of the Evidence Act. In BP v R [2010] NSW CCA 303 at 110 Hodgson JA observed that the risk of concoction or contamination “powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect”. If concoction and/or contamination may be the explanation for apparent similarities, the tendency evidence is deprived of force. It has often been noted that the chance of concoction must be a real chance, not merely a speculative chance – see R v Colby [1999] NSW CCA 261 at para [111], referred to in BP at para [110]. The Crown bears the onus of negating any “real chance” of concoction – R v OGD [2000] NSW CCA 404 at 74 and BP at 110. [103] Such an approach was specifically disapproved in McIntosh where Basten JA said: [36] In his written submissions, the applicant contended that tendency evidence is “not admissible where the prosecution has failed to exclude the reasonable possibility of concoction and/or contamination”. That proposition was derived from the pre-Evidence Act case of Hoch v The Queen. In the course of oral submissions, counsel for the applicant conceded that this proposition is not consistent with the language of the Evidence Act. The statutory scheme now in force was explained by Spigelman CJ in R v Ellis. [104] Her Honour’s reasoning on this issue appears to have relied upon cases which predated R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[96]. Her Honour was clearly in error in adopting the Hoch approach as applied in BP v The Queen; R v BP, (BJS v The Queen per Basten JA at [24], [26], RS Hulme J at [42]; Jones v The Queen at [75]). It follows that her Honour applied the incorrect test for the admission of tendency evidence under the Act.

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R v GM cont. [105] Her Honour also erred in making assessments of credibility and reliability when determining the admissibility of the tendency evidence. This is clear from IMM v The Queen at [52]. Statements of principle to this effect are set out in DSJ v The Queen. When carrying out that exercise “it is no part of the court’s task to engage in a fact finding exercise to determine the reliability or credibility of the evidence or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value” (Bathurst CJ at [9]) and “It is his or her [the judge] task to assess the capacity of the evidence in the manner described by Whealy JA, not to assess what a jury will do” (Allsop P at [11]). [106] This is clearly what her Honour did when concluding that:

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... a close examination of the statements and the evidence at committal raises a real doubt in my mind as to the true extent of the discussions between RM and her daughters and their partners which gives rise to a suggestion of concoction. ... their evidence does contain material which is remarkably similar as to unusual detail of which those who were not present could not have known about unless the matter had been the subject of discussion at some length (Judgment 22.5) ... but they maintain no detail was discussed. With respect I find that somewhat incredulous given the content of the statements and the evidence at committal. I find there is a distinct risk that the witnesses have developed their evidence as time has gone by, subconsciously or unintentionally through influence and discussion. ... it is apparent that they had a close discussion sufficient for them to both state at the time that they were not strong enough to go to the police. It defies credulity that there would not have been some greater in depth discussion than is suggested by them in light of the fact that they went to the effort of meeting to discuss what the accused had allegedly done to each of them. (Judgment 23) [107] In making those findings which were pivotal to her Honour’s conclusion that the tendency evidence should be rejected, her Honour did precisely that which the case law enjoined her not to do; that is, she made an assessment of the credibility and reliability of the evidence of the witnesses. As was made clear in Jones v The Queen at [88]: [88] Those parts of the judgments in DSJ and XY set out above support the conclusion that in assessing probative value of tendency evidence for the purposes of ss 97 and 101, it is no part of the function of the Court to assess, and make its own findings as to, the weight of the evidence, or to determine the likely acceptance or rejection of the evidence by a jury. However, they also support the conclusion that in assessing such probative value the Court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence. [108] The abovementioned errors are such that her Honour’s conclusion that the tendency evidence should not be admitted cannot stand. That, of course, does not end the matter. It is necessary for this Court to examine the evidence, apply the correct test and reach its own conclusion. [109] The question of what is the correct test under s 101 is not without difficulty. The concluding sentence in the observation from Jones v The Queen just set out provides some guidance. This was clarified in DJW v The Queen where RA Hulme J said: [41] In Jones v R, Bellew J (Gleeson JA and Schmidt J agreeing) considered (at [87]) that the primary judge had gone too far in holding that R v Shamouil prohibited, under any circumstances, consideration of issues of credibility. He referred to some of the judgments in DSJ v R; NS v R and R v XY and said (at [88]) that they supported the conclusion that in assessing probative value a court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence. Whether that may extend to allowing a court to take into account concoction and contamination was said (at

Part 3 — Admissibility of Evidence

R v GM cont. [89]) to be a separate question which would depend largely upon the evidence. His Honour allowed (at [90]) for the possibility that evidence of concoction and contamination may give rise to competing inferences that may be relevant to a determination of the probative value of the evidence. The reference to “competing inferences” is, of course, a reference to the statements of principle in DSJ v The Queen. [110] In McIntosh, Basten JA postulated the test somewhat differently: [44 ]In the discussion which followed in XY, I considered the extent to which reliability and credibility could be involved in the exercise to be undertaken by the judge under s 137. In particular, that discussion noted that the term “credibility” can be used to refer to plausibility, objectively considered. On the other hand, it may refer to an assessment of the truthfulness of the witness. The term “reliability” can have similar nuances of meaning. ... [47] Whilst, in determining probative value as a question of capability to affect the assessment of a fact in issue, the court is not required to disregard inherent implausibility, on the other hand, contestable questions of credibility and reliability are not for the trial judge, but for the jury. Accordingly, the suggestion that the possibility of concoction is a factor which must be taken into account in determining whether particular evidence has significant probative value should not be accepted.

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[111] Does the evidence in this matter amount to a real risk of contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value. Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible? In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded. [112] There is no doubt that the two sister complainants and the two sister tendency witnesses spoke to each other about various aspects of their interaction with the respondent. Consistently, however, they denied speaking to each other as a group. Such discussions, as they had, occurred on an individual basis. The exception to that was the evidence of the sisters that they had spoken about things that the respondent did in front of them but “none of us have ever spoken about the things that he did to us”. This was a reference to occasions when all four sisters were present, that is, the penis between the legs occasions and the touching in the farm ute. The cross-examination at the committal hearing was of a general kind and did not extend to a testing of what was actually said in any of those one-on-one conversations between the sisters. [113] JC only spoke to one of the sisters, CM. That conversation occurred when JC had visited CM at her home at West Wyalong. Both JC and CM denied that they had exchanged any detail about what the respondent had done to them. When one looks at their statements and evidence, that is clearly correct. The evidence of JC is quantitatively and qualitatively different to that of CM. The offences against JC are different and more serious. Their evidence to the effect that they did not feel strong enough to go to the police does not indicate that they were talking about the detail of what the respondent had done to them, but rather what (if anything) they should do about it. It should be noted that JC did not speak to any of the other sisters. [114] The reliability and credit findings made by her Honour were contrary to the evidence of the sisters and JC and would clearly be contested issues in any trial. In those circumstances, I do not see how it could be said, on the material before her Honour, that there was an inherent implausibility in what those witnesses said at the committal. I do not see how the evidence of the sisters and JC could give rise to a competing inference sufficient to deprive their evidence as to tendency of its significant probative value. [115] To the extent that the common law factors of relationship, opportunity and motive remain relevant, they do not give rise to any inherent implausibility or powerful competing inference in this

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R v GM cont. matter. Just because four of the tendency witnesses are sisters, and as such had the opportunity of discussing these matters with each other, is not enough. This is particularly so when they have denied any detailed discussions as to what the respondent did to each of them, and they were not crossexamined as to the detail of those conversations. The evidence of motive is thin and does not apply to JC. In any event the accusations against the respondent had been made well before 2009 when CM made her suicide attempt. [116] I have particular difficulty with her Honour’s finding that “All the various witnesses denied discussing details yet their evidence does contain material which is remarkably similar as to unusual detail of which those who were not present could not have known about unless the matter had been the subject of discussion at some length”. The only unusual detail which I can identify is the respondent’s conduct after a shower of positioning his penis behind his legs. Since the evidence of all of the sisters is that they were present together on at least one occasion when this occurred and that it was a regular occurrence, it is not surprising that the description of what the respondent did in that regard was similar. That criticism could not apply to JC.

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[117] Her Honour’s finding (at 24.1) that if the tendency evidence were allowed to be given, the respondent’s capacity to properly defend himself might be impeded because evidence might emerge of the rumours which were extant in the local community does not withstand scrutiny. The rumours to which reference was made in the evidence related to the four sisters and JC. This was particularly so in relation to the physical assault by JC’s former boyfriend on the respondent. It is difficult to see how the respondent would be unfairly disadvantaged in that circumstance since these were the very matters which he was required to meet in the Crown case. There is no suggestion anywhere in the evidence that there were any rumours concerning LL, which is not surprising since the alleged offences against her occurred well before these offences. [118] If anything, the evidence suggested that contamination and concoction were unlikely. This can be inferred from the evidence of JM that her sister SM had told her about an incident with the respondent which occurred at the holiday home at Malua Bay. Despite SM having told her about it, JM was still unable to remember the incident and did not say or suggest that she had in some fashion recovered that memory. This is the very antithesis of concoction and contamination. [119] In the course of the hearing in this Court, Hall J put forward a scenario which is to be contrasted with the evidence in this matter and which could give rise to inherent implausibility or a competing scenario which might substantially erode the significant probative value of any tendency evidence (Appeal transcript 5.33). The scenario put forward by Hall J was that of an allegation of sexual misconduct by a former teacher against a group of former pupils. In that scenario the former pupils, now adults, formed a victims’ group and used to meet on a regular basis to discuss what had happened to each of them with this teacher. [120] In such a scenario there would be no issue as to the occurrence of the meetings, or as to what was discussed at the meetings. Depending on the level of detail discussed and the actual evidence, that may well be a scenario where a denial of contamination would be regarded as inherently implausible or where the very facts themselves might give rise to a competing inference which would substantially erode the significant probative value of any tendency evidence. The contrast between that scenario and the issues raised in this matter is stark. [121] On my reading of the evidence of the four sisters and JC I am satisfied, for the purposes of s 97 and s 101 of the Act, that it has significant probative value. I am satisfied that significant probative value has not been eroded by inherent implausibility, nor is there a competing inference sufficient to deprive the tendency evidence of its significant probative value. There is certainly material in the evidence which would enable cross-examination at trial as to the possibility of contamination or concoction. Those, however, are matters for the jury not for a trial judge ruling as to the admissibility of evidence at the commencement of the trial. This is particularly so when such a ruling of necessity would involve the making of findings as to the credibility and reliability of that evidence.

Part 3 — Admissibility of Evidence

R v GM cont. [122] Section 101(2) of the Act provides that tendency evidence cannot be used against a defendant in a criminal trial unless its probative value substantially outweighs its prejudicial effect on the defendant. In carrying out that balancing exercise, I am satisfied that the probative value of the tendency evidence does substantially outweigh any prejudicial effect on the respondent. Just because four of the tendency witnesses are sisters, had the opportunity to talk about the actions of the respondent and did in fact talk about them, does not create unfairness of the type envisaged by the section. This is particularly so when that evidence can be tested at trial. [123] It also needs to be kept in mind when considering s 101 that in a case such as this clear directions by the trial judge would substantially remove any potential unfairness. The factual scenario in this trial is relatively straightforward and such directions as would be required to be made by the trial judge would not be complex and would be readily understood by the jury.

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[124] It has long been recognised that appropriate trial directions need to be provided so that a jury is properly instructed in the evaluation required of evidence in the nature of tendency evidence where it is contended at trial that the evidence is affected by contamination. This issue was addressed in R v Glennon (No 2) [2001] VSCA 17. Although the court was there addressing the concept of similar fact evidence, the observations are of equal importance in relation to a Crown case in which tendency evidence is relied upon. In Glennon, Callaway JA (with whose reasons Winneke P and Ormiston JA agreed) observed: [155] “Collusion” does not have a special meaning which includes unconscious influence or innocent infection. The point is rather that, just as collusion deprives disputed similar fact evidence of its probative value, the same may be true of unconscious influence or innocent infection from media publicity. The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants’ accounts without there being any dishonest fabrication. Where that is an issue at trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies. [125] Although in that case the question of unconscious influence or contamination was argued on the basis of media publicity, the approach to be taken with respect to jury directions applies equally to a case of contamination arising in other circumstances. Callaway JA in Glennon (No 2), referred to the following observations from R v Best [1998] 102 A Crim R 56 at [64] per Callaway JA (with whom Phillips CJ agreed): In addition, quite apart from any such comment, there is a direction that the judge should give at trial where collusion is raised as an issue. The jury should be told, with the full authority of the judge’s office, that they must be satisfied that there was no collusion before they use disputed similar fact evidence as part of their reasoning. (The same applies to any other factor, such as unconscious influence or contamination by media publicity, that would affect the argument which gives such evidence its probative force.) Cases on the standard of proof of circumstantial evidence are referred to later in this judgment, but it will usually be wise to tell the jury that they must be so satisfied beyond reasonable doubt. That accords with the practice in England (see R v H [1995] 2 App Cas 596 at 602B) and is obviously conducive to justice. The observations there made as to trial directions would, in my opinion, apply equally to an issue of contamination as raised in the present proceedings. [126] The orders which I propose are: (2)

That the orders of English DCJ of 18 March 2015 be quashed.

(4)

That the Crown be at liberty to adduce as tendency evidence in that trial the evidence of JM, CM, SM, HM and JC.



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DSJ v The Queen [10.50] DSJ v The Queen (2012) 84 NSWLR 758; 215 A Crim R 349; [2012] NSWCCA 9 Facts [DSJ and NS were charged with insider trading and they appealed against a pre-trial order made by Hall J dismissing their application to have a number of the charges in the indictment presented against them tried separately. It was the Crown’s intention to lead coincidence evidence at the trial on the basis that the evidence relating to each individual count in the indictment should be admitted and available as evidence in respect of each other count.] Judgment BATHURST CJ: [1] I agree with the orders proposed by Whealy JA and with his Honour’s reasons, and make the following additional comments. [2] Subsection s 98(1) of the Evidence Act 1995 (NSW) provides as follows:

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98(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. [3] Whilst probative value is defined in the dictionary to the Act in the following terms: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. [4] I have set out the relevant provisions of the Act because the issues raised in the appeal depend upon the application of its requirements: compare Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [37]. [5] There are a number of matters that should be noted about s 98(1). [6] First, its provisions will only fall for consideration if the evidence in question is relevant. That is in terms of s 55 of the Act it could rationally affect the probability of the existence of a fact in issue. [7] Second, it requires the Court to form a view, “think”, that the evidence had significant probative value, that is, that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. [8] Third, it follows from the use of the word could in the definition of significant probative value that what the Court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: compare R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 226 at [59]-[67]. [9] Fourth, the matters to which the Court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no

Part 3 — Admissibility of Evidence

DSJ v The Queen cont. part of the Court’s task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value. [10] However, as Whealy JA has pointed out (at [78]-[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury. ALLSOP P: [11] I have read the reasons of Whealy JA. Subject to the following, I agree with his reasons. I agree with the orders proposed. I appreciate the reasons for, and importance of, the reconciliation of my reasons in DAO v R ([2011] NSWCCA 63; (2011) 278 ALR 765) with those of Simpson J in R v Zhang [2005] NSWCCA 437, 158 A Crim R 504. I accept his reconciliation of our views. It is important, as Whealy JA recognises, that there be no misunderstanding about the task of the judge. It is his or her task to assess the capacity of the evidence in the manner described by Whealy JA, not to assess what a jury will do. I also agree with the additional comments of the Chief Justice.

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WHEALY JA: [12] On 9 September 2011, the Court of Criminal Appeal (Allsop P, Kirby and McCallum JJ) granted leave to appeal to DSJ and NS against a pre-trial order made by Hall J on 23 August 2011 dismissing their application to have a number of the charges in the indictment presented against them tried separately. [13] The two men had been charged with insider trading offences under the Corporations Act 2001 (Cth) (the Act). DSJ was charged with 10 counts pursuant to s 1043A(1)(d) of the Act. NS was charged with 10 counts pursuant to s 1043A(1)(c). In essence, the charges against DSJ alleged that he was an insider, that he possessed inside information, and that, contrary to the legislation, he procured NS to apply for, acquire or dispose of relevant products being shares or securities. The charges against NS allege that he had possession of the insider information given him by DSJ and that he intentionally acquired the financial products particularised in the indictment. The products were either shares or activity in relation to seven listed companies. [14] In shorthand terms, the Crown case was described in its early submissions as follows: There was a scheme in place whereby NSJ would obtain inside or confidential information through the opportunity afforded by his employment at Moody’s. He would then pass it on to his trusted friend NS, whom he had recruited to purchase shares – securities in the circumstances pleaded. Each of the counts in the indictment represents an instance of the scheme in action. The fact that 10 separate charges have been laid against each accused ought not to distract from what is the central allegation of the Crown and that is that there was a scheme in place whereby NSJ would pass the relevant information onto his recruit, NS, in the circumstances alleged in the charges. The Crown case is circumstantial. It is the Crown case that taken together, each pair of charges represents the scheme in action. [15] It was the Crown’s intention to lead coincidence evidence at the trial. It sought to do so on the basis that the evidence relating to each individual count in the indictment should be admitted and available as evidence in respect of each other count. The Crown had served a notice of coincidence evidence on 25 February 2011. This expressly stated that the evidence was to be adduced for the

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DSJ v The Queen cont. purpose of establishing that each of the accused did the acts alleged against him in the indictment and that each had the required state of mind on the basis that, having regard to the similarity of the events, it was improbable that the events occurred coincidently. This course was necessary because of the coincidence rule provisions in s 98 of the Evidence Act 1995 (NSW). [16] Each accused filed a notice of motion on 11 March 2011 seeking, in effect, orders that the question of admissibility of the Crown’s coincidence evidence be determined in advance of the trial, and that an order be made that it ought not be admitted. Further, an order was sought pursuant to s 21 of the Criminal Procedure Act 1986 (NSW), that the charges in the indictment (other than charges 6-9) be tried separately. [17] It was accepted during the pre-trial hearing that the separate trial issue was interdependent upon the coincidence evidence issue. In other words, it was accepted that the question of the severance of the counts essentially turned upon whether the Crown should be permitted, in relation to each individual count, to rely upon the evidence it sought to tender in proof of each other count and vice versa. This, in turn, depended on whether the coincidence evidence was admissible. The applicants sought to fragment the trial in the sense that they sought orders that there should be a joint trial of the two accused but limited to the counts relating to each of the individual entities in which securities were traded. For example, counts 1 and 11, it was submitted, should be heard separately from counts 2 and 12 and so on.

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[18] In its original submissions before Hall J, the purpose of the coincidence notice (in relation to DSJ) was stated by the Crown to be as follows: The evidence of the two or more related events is to be tendered to prove DSJ did the particular acts alleged in each of counts 1-10 in the indictment, namely, that he procured NS to acquire the relevant ... financial products identified in each count in the indictment. The evidence of the two or more related events is also to be tendered to prove that DSJ had a particular state of mind, namely, that at the time he procured NS to acquire the relevant ... financial products ... he acted intentionally and was in possession of the inside information as particularised ... Conversely, the Crown submits that the evidence will rebut any suggestion that the contacts between DSJ and NS were merely coincidental. [19] A similar submission was made in relation to NS, his acts being the acquisition of the relevant financial products, and his state of mind being that he acted intentionally and was in possession of the inside information. Once again the Crown submitted that, in each case against NS, the evidence would rebut any suggestion that the contact between the two men was merely coincidental. [20] The substance of the coincidence evidence against each accused was set out in a document described as “Table A” of the Crown’s Coincidence Notice. The combined course of conduct, alleged to have been an intended course of conduct, was compartmentalised into seven “events” as follows: (1)

The receipt by Moody’s of information from or concerning seven corporate entities the subject of the charges, being “inside information”.

(2)

DSJ’s direct receipt of inside information in some instances and indirect receipt of information in others.

(3)

Telephone communications between DSJ and NS by which the Crown alleged that the former communicated inside information to the latter, thereby procuring NS to trade while in possession of the inside information.

(4)

NS’s acquisition of the financial products in the seven entities whilst in possession of the inside information.

(5)

An announcement made to the market or an event occurred that pre-empted the transaction.

(6)

NS’s trading out of his position in the seven entities.

(7)

DSJ’s significant surveillance of the share price in the entities traded in by NS, usually on

Part 3 — Admissibility of Evidence

DSJ v The Queen cont. CommSec, throughout the material time. Submissions on appeal [25] The written submissions in this Court are, as they were before the trial Judge, very lengthy. Moreover, Mr McHugh SC for DSJ and Mr Odgers SC for NS have markedly different approaches to the interpretation of s 98. There is, of course, an element of overlap, but Mr Odgers’ submissions suggest a more radical approach to the interpretation of s 98. The submissions, however, may be substantially distilled into a number of discrete propositions. I shall turn to Mr Odgers’ submissions first.

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[26] Mr Odgers argued that the trial Judge had made the following errors of principle: (a)

The trial Judge erred in following the holding of Simpson J (Buddin J agreeing) in R v Zhang [2005] NSWCCA 437, 158 A Crim R 504 at [139] that a trial Judge, in applying the test of significant probative value in s 98 is “to evaluate in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457) probative value”.

(b)

The trial Judge erred at [64] in holding that there is no requirement for the purpose of a ruling on admissibility under s 98 “to determine the existence and weight to be given to inferences that may be considered as alternative or inconsistent with those relied upon by the Crown by analysing parts or segments of evidence in a circumstantial evidence case”.

(c)

The trial Judge erred at [206] in rejecting a submission made on behalf of NS that a determination whether coincidence evidence has “significant probative value” for the purpose of s 98(1) (b) requires the Court to “evaluate whether it could rationally be concluded that the probability of the inference the Crown seeks to draw is significantly greater than the probability of an inference inconsistent with that fact”.

[27] Mr McHugh, as I have indicated, pursued a more conservative approach. Mr McHugh’s first submission was that the trial Judge, in making the assessment required under s 98, ought to have taken into account the possibility of alternative inferences arising from the evidence. This proposition suggested that the Court’s task, if Zhang were correctly decided, was to take the evidence at its highest and then form its own view about the strength of the probative value of the evidence. Secondly, Mr McHugh took this proposition a step further by suggesting that the task required of the Court was to make its own comparative assessment of the probabilities or, put differently, to determine the relative strength of the alternative theories to assess whether the Crown theory had significant value. In this regard, it was necessary to take into account the availability and strength of inferences to be found in the Crown evidence other than those sought to be relied on by the Crown. Senior counsel submitted that the trial Judge had fallen into error in that he eschewed altogether any consideration or proper assessment of the probability of alternative theories. He had to weigh up the Crown’s theory, examine the alternative theories, and ask himself – what are the probabilities? He had erroneously determined that this last step was unnecessary. [28] Subject to one qualification, Mr McHugh did not submit that Zhang was wrongly decided but rather that Hall J had not appropriately applied it to the circumstances of the present case. The qualification was this: if Simpson J’s decision, when correctly construed, abrogated the obligation of the Judge to make the relevant assessment in favour of the jury, it was to that extent incorrect. ... Resolution ... [43] It is necessary, I think, to make a preliminary observation about s 98 in the context of the present trial. It can be seen from the history of the matter that the Crown wished to adduce the relevant

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DSJ v The Queen cont. body of evidence in the trial as coincidence evidence. The “events” referred to in the notice related to the conduct and state of mind of each of the appellants. It was the Crown’s purpose in relying upon the coincidence notice to overcome the coincidence rule. If achieved, this would enable the Crown to argue, upon the admission of the evidence at trial, that it was improbable that the events relied upon had “occurred coincidentally”. It would also enable the Crown to meet a defence based on coincidence. These were, no doubt, the primary objects of the exercise. There was, however, an undoubted secondary purpose. Success in the application would secure for the Crown the ability to have the evidence in each count available for use on each of the other counts. That, in turn, would have provided a proper basis for the continuance of a joint trial in the broadest sense. [44] Equally, from the defence point of view, it was clearly imperative, if it could be achieved, to prevent the Crown from relying on the coincidence evidence. In that sense, it was also important, if possible, to succeed in severing the counts. A separate trial on the counts in the indictment was no doubt perceived to be a perfectly legitimate tactic in fragmenting the broader aspects of the Crown case and thereby limited the prospect of forensic damage. Hence the motion before the trial Judge.

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[45] Against this background, I turn to discuss s 98 itself. This section (together with s 101) may be seen as the statutory replacement of the common law treatment of similar fact evidence. At common law, evidence of other criminal conduct of an accused was admissible if the objective improbability of its having an innocent explanation was such that there was no reasonable view of it other than as supporting an inference that the accused was guilty of the offence charged: Pfennig v R (1995) 182 CLR 461; 127 ALR 99. In that case it was held that “striking similarity”, “underlying unity” and such other descriptions used to explain relevant similar facts were not essential to the admission of such evidence, although usually the evidence would lack the requisite probative force if it did not possess those characteristics. [46] In Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, the High Court of Australia, in discussion concerning provisions of the Queensland Criminal Code and the Evidence Act 1977 (Qld) referred to certain aspects of the common law tests for the admission of similar fact evidence. At 320-321 [54] the Court made reference to a number of authorities which suggested that there was a fundamental requirement for similar fact evidence to possess a particular level of probative quality. Reference was made, for example, to the Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce, approved in Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 117 where the admission of similar fact evidence was said to be “exceptional and requires a strong degree of probative force”. Reference was also made to Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 294-295 where the criterion of admissibility for similar fact evidence was said to be “the strength of its probative force”. In Boardman, the House of Lords had adopted, as a guiding principle to determine the admissibility of similar fact evidence, to test whether the prejudice to the accused was outweighed by the probative force of the evidence. [47] The present s 98 (as with s 97 dealing with tendency evidence) took its current form as a result of recent amendments to the Evidence Act (Act No 46 of 2007 s 3 and Sch 1). This Act came into operation on 1 January 2009. It refers to “coincidence evidence” as defined in the Dictionary to the Evidence Act. Coincidence evidence means evidence of a kind referred to in s 98(1) that a party seeks to have adduced for the purpose referred to in that sub-section. It relates to evidence that is sought to be adduced in both criminal and civil proceedings. It relates to evidence that is sought to be adduced by any party to the proceedings. [48] In its terms, the purpose of the coincidence rule is to render inadmissible similar fact evidence unless prior notice of the use of such evidence has been given, and unless the Court thinks that the evidence either by itself or having regard to other evidence to be adduced by the party seeking to adduce the evidence will have significant probative value.

Part 3 — Admissibility of Evidence

DSJ v The Queen cont. [49] In criminal proceedings, s 101, as has been seen, imposes an additional hurdle to the admission or use of coincidence evidence. The probative value of the evidence must substantially outweigh any prejudicial effect it may have on the defendant. [50] An important cornerstone in the structure of the Evidence Act 1995 is s 55. This deals with the topic of relevant evidence. The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. [51] Another key section is s 56(1) which provides that, except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in a proceeding. Sub-section (2) provides that evidence that is not relevant in the proceeding is not admissible. [52] I have earlier set out the definition of probative value – the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue.

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[53] As is recognised and stated by the High Court in Smith v The Queen (2001) 206 CLR 650, the first question to be asked when an issue of the present kind arises is whether the evidence is relevant. In the present matter, that the evidence is relevant would hardly be thought to be a matter of contention. However, Mr Odgers SC has queried in his submissions this primary matter. As Gleeson CJ observed in Smith v The Queen, although questions of relevance may raise “nice questions of judgment”, no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant material may not be received. This is a proposition that is fundamental to the law of evidence and well settled. [54] In determining the basic issue of relevance in a criminal trial, it is especially important to identify the ultimate issues. These will ordinarily be expressed in terms of the element of the offence with which the accused stands charged in light of the defence, if known. However, behind these ultimate issues, there will often be many issues about facts that are relevant to facts in issue (Smith v The Queen at 654; Papakosmas v The Queen (1999) 196 CLR 297 at 307: especially at 312 and 321-322). [55] In my opinion, it is plain that s 98, in its terms, poses this simple question: whether the evidence being considered is capable, to a significant degree, of rationally affecting the assessment (ultimately by a jury) of the probability of the existence of a fact in issue. Again, in its terms, it requires the trial judge to assess whether the evidence has capacity to that extent and for that purpose. In R v Shamouil Spigelman CJ, in examining s 137 of the Evidence Act, pointed out that, by reason of the terminology of the Dictionary definition of “probative value”, the focus is on the capacity of the evidence to have the effect mentioned. As the Chief Justice said, “It does not direct attention to what a tribunal of fact is likely to conclude”. [56] Assessment of the probative value of the evidence, whether for the purposes of ss 97, 98, 101 or 137 of the Evidence Act, does not, generally speaking, depend on any assessment of its credibility or reliability: Shamouil at 237 [60]. Nor does it depend upon any prediction of the likelihood that a jury will in fact accept it. The trial Judge considering probative value has to make his own estimate or assessment of probative value predicated upon the assumption that the jury will accept the evidence. See also Lodhi v R [2007] NSWCCA 360 at [174]-[177]; R v Mundine [2008] NSWCCA 55 at [33] where this Court said: “probative value” is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact – or the contribution it might, if accepted, make to that resolution. ... to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.

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DSJ v The Queen cont. [57] A case that is often cited in relation to the requirement that a judge determine whether evidence has “significant probative value” is R v Lockyer (1996) 89 A Crim R 457. This was a decision of Hunt CJ at CL, made in the course of a criminal trial in which he was the presiding Judge. The accused had been charged with the murder of his young daughter. There was no dispute that the child had been seriously physically assaulted and that this had led to her death. The issue in the trial was whether it was the accused who had “bashed” the child. There were only two adults in the premises where the incident occurred at the relevant time. One was the accused and the other was his de facto, Ms Dolan. It was agreed by the Crown that there were only two possible suspects – the accused and Ms Dolan. The defence case was that there was a reasonable possibility that it was Ms Dolan who had injured the child.

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[58] Unusually, it was the accused who sought to lead tendency evidence under s 97 of the Evidence Act. The proposed tendency evidence was that both the deceased and one of her brothers had previously received injuries in circumstances from which an inference could be drawn that there was a reasonable possibility that Ms Dolan had been responsible for inflicting those injuries. The provisions of s 97 in force at the time provided that such evidence would be inadmissible to prove that a person acted in a particular way if the Court “thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value”. At 459 Hunt CJ at CL said: The “probative value” of evidence is defined as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the particular fact in issue. The terms of that definition are thus substantially similar to those of the definition of relevance in s 56 ... In other words, the probative value of evidence is the degree of its relevance to the particular fact in issue. There is no definition of “significant” probative value as that phrase is used in s 97. In its context as I have outlined it, however, “significant” probative value must mean something more than mere relevance but something less than a “substantial” degree of relevance. ... One of the primary meanings of the adjective “significant” is “important”, or “of consequence”. In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact. [59] His Honour held that the evidence was not excluded by either s 97 or s 135 of the Act and therefore ruled it admissible. [60] It has long been accepted that the approach by Hunt CJ at CL in Lockyer is correct both in relation to s 97 and s 98 (there was no submission made in the present appeal to suggest that Hunt CJ at CL erred in his approach to the construction of the phrase “significant probative value” in s 97. Indeed, counsel for the appellants placed reliance upon it). [61] I turn now to the decision of this Court in R v Zhang. In that case, as will be seen, Simpson J (and the other members of the Court, Basten JA and Buddin J) applied Hunt CJ at CL’s reasoning in Lockyer. [62] It appears that Simpson J had earlier analysed the processes by which the tender of tendency evidence under s 97 of the Act was to be determined: R v Fletcher (2005) 156 A Crim R 308 at [32]-[35]. In Zhang, having referred to the earlier decision, her Honour (at [139]; p 573) said: The analysis is no different in the case of evidence tendered under s 98. The principles are these: (i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value;

Part 3 — Admissibility of Evidence

DSJ v The Queen cont. (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact – here, the jury; (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted.

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[63] (It should be noted that at the time the Court considered s 98 in Zhang, the section had been expressed in the terms mentioned in para 58 earlier. There were other differences as well. Nothing, however, turns on that in relation to the present point under consideration.) [64] Buddin J agreed with Simpson J. Basten JA, however, differed from Simpson J in two respects. These were, first, that in examining the decision made by the trial Judge, the appellate Court was obliged to evaluate the evidence on the basis identified in Warren v Coombes (1979) 142 CLR 531 rather than by applying the principles established in House v The King (1936) 55 CLR 499 at 505. Secondly, his Honour took issue with Simpson J’s fifth point (“the task of the Judge in determining whether to admit evidence tendered as coincidence evidence etc”). His Honour said: The decision under s 98 is then said to be a two stage process by which the trial Judge first identifies whether evidence is “capable of” rationally affecting the probability of a fact in issue, and, secondly evaluating the likelihood that the jury would assign the evidence significant probative value. I do not agree with that approach nor do I think it is supported by the judgment of Hunt CJ in CL in Lockyer. ... Evidence has significant probative value if it could have such an effect, to a significant extent. The trial Judge is not required to second-guess the jury: the Judge must make his or her own assessment of probative value for the purposes of s 98. [65] There is no need to say anything further about the first point of disagreement. It is not relevant to this matter and has, in any event, been settled by the decision of this Court (a five Court bench in DAO [2011] NSWCCA 63; (2011) 278 ALR 765; special leave refused in the High Court: DAO [2011] HCATrans 298). [66] As to the second matter, I have reached the conclusion that, broadly speaking, the formulation of the process by Simpson J at [139] does not demonstrate error. In my opinion there is no justification for overruling Zhang or departing in any significant way from the approach advocated by her Honour in relation to s 98. There are, however, some qualifications that need to be stated in that regard. [67] First, it needs to be recalled, as I have mentioned earlier, that s 98 is now expressed in somewhat different terms to the provisions considered by her Honour. The differences need to be factored in, although I do not consider that they impinge on the principal arguments advanced in this appeal. Similarly, it must be borne in mind that Simpson J, no doubt for the benefit of those presiding over trials where tendency and coincidence evidence is likely to arise, was endeavouring to explain in a practical way the process to be undertaken by a trial Judge. Her Honour’s formulation of the process was not intended to supplant or replace the language of the section. Thirdly, I accept that the substance

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DSJ v The Queen cont. of Simpson J’s formulation (at [139]) is in truth focused on the evaluation to be performed by the trial Judge, although her language, on one view, might be thought to suggest otherwise. [68] This third point is critical to the debate as to whether Zhang is correctly decided. I shall briefly explain why I have reached the conclusion that the submissions of both Mr Odgers and Mr McHugh in this regard are not to be accepted. [69] Mr Odgers focuses upon her Honour’s statement: Whether the jury would be likely to assign the evidence significant probative value. ... [72] As I perceive it, the point being made by her Honour is simply this: if a hypothetical jury would think it unlikely that the evidence were important in relation to the facts in issue, then the trial Judge might more readily conclude that the evidence lacks the capacity required for admissibility. Simpson J’s formulation recognises that the trial Judge has no part to play in the evaluation of the actual weight to be given to any of the evidence or to its ultimate assessment. The substance of her Honour’s formulation is that the trial Judge is required to take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue. In undertaking that task, the statute also requires, as her Honour recognised, that the evidence may be examined on its own account, or by having regard to other evidence adduced or to be adduced by the tendering party. As I have said, the trial Judge does not make any evaluation of the actual weight of the evidence nor does he or she make any prediction about the weight that will actually be assigned to the evidence by the jury in the trial. As stated in Mundine, what must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact – its capacity to contribute to that resolution. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

... The contested interpretations of s 98 [78] In this appeal the Crown has conceded that, in performing the task under s 98, a trial Judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial Judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge’s view, rob the evidence of its otherwise cogent capacity to prove the Crown’s case? If it does not, the trial judge may safely conclude that the evidence has significant probative value. [79] In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial Judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole. [80] Secondly, the trial Judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial Judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side.

Part 3 — Admissibility of Evidence

DSJ v The Queen cont. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt. [81] The Crown, in making its concession, however, stressed that at no stage in this process was the trial Judge required or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities of any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial Judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained. [82] I agree with the Crown’s concession and with the important qualification attached to it by the Crown in it submissions. This brings me to the reason why I consider that the contested interpretations advanced by Mr Odgers and Mr McHugh are not correct and cannot be accepted. This is because, in my opinion, they require the trial Judge to embark on a task that is entrusted solely to the jury. This is the task of fact finding. It is the task of assigning weight to the evidence; of accepting facts that are considered of value, and rejecting those that are not. It is ultimately the task of determining whether the Crown has proved its case beyond reasonable doubt. In a circumstantial case, it is the task of deciding whether, having regard to the whole of the evidence, there is an explanation consistent with innocence. If the jury decide that is the situation, the Crown will have failed to prove its case beyond reasonable doubt. The trial Judge can play no part in any of these matters. [83] Of course, senior counsel for the appellants have insisted that their respective formulations do not require that the Judge trespass into this forbidden territory. A careful examination of their respective positions, however, shows that this insistence is misplaced. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

... [93] These submissions, based as they are on Mr McHugh’s contested interpretation of s 98, demonstrate clearly that he is inviting the Trial Court to accept the submissions he has made in relation to the weight to be given to factual matters and the inferences to be drawn from those factual matters. It is not possible to make an assessment of the probabilities without doing so. Counsel is inviting the Trial Court to come to a conclusion of fact in those regards before making a determination in relation to s 98. This suggested construction of s 98 plainly falls foul of the prohibition against the Judge entering into the factual arena. [94] It needs to be recalled that detailed arguments of this kind, each requiring a “factual analysis” and evaluation, in relation to every trade by NS in the relevant period were placed before the trial Judge in the context of s 98 arguments. Hall J was right to recognise that the s 98 exercise did not require him to resolve these detailed and complex factual arguments. They were matters for a jury at the conclusion of the trial when the actual evidence had been assembled in its totality. [95] It must also follow that Mr Odgers’ submissions, based as they are on a more radical proposition than Mr McHugh, equally fall foul of this prohibition. In fairness to Mr Odgers, he did not descend, in his submissions, to the level of factual analysis enunciated by Mr McHugh. Indeed, his principal “alternative theory”, based on the admitted evidence of his client’s trading, suggested a hypothetical possibility that NS may have been operating on the basis of “tips” he received from DSJ rather than being in actual receipt of inside information. This possibility was said to arise, not from any positive evidence, but from an absence of evidence as to the detail of the communications between the two men. [96] In that situation, how could the trial Judge “evaluate whether it could rationally be concluded that the probability of the inference the Crown seeks to draw is significantly greater than the probability of an inference inconsistent with that fact”? In practical terms, the trial Judge could not do so without evaluating the weight of the evidence. At par 57 of his written submissions, Mr Odgers referred to a number of other alternative inferences that might be available in his client’s case. These included:

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DSJ v The Queen cont. (a)

the possibility that NS and DSJ talked about companies or investment trading in general but did not discuss anything to do with the specific companies involved;

(b)

the two men discussed the industry or even specific companies at particular times but DSJ neither provided information nor tips.

[97] In view of the forceful findings made by Hall J in relation to the cogency of the coincidence evidence, it seems hardly likely that any of these inferences, even if they could be said to arise on the evidence, had the capacity to disturb the trial Judge’s conclusions. Mr Odgers’ suggested construction of the s 98 process, in any event, required some level of weighting of the inferences akin to the task entrusted to the jury. Did the trial Judge fall into error? [98] The narrow point in issue here is whether the trial Judge fell into error by rejecting altogether that, in determining the extent to which the evidence could be significant in establishing the facts in issue, regard should be had to an alternative explanation for the conduct said to have the capacity to point to towards guilt. If that was the conclusion reached by the trial Judge, then, on the basis of the concession made by the Crown in this appeal, an error will have been established. The difficult question is determining, on a fair reading of the comprehensive and detailed judgment, whether that was his Honour’s conclusion or not. ... The trial Judge’s decision

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... [130] I have concluded, not without some considerable hesitation, that the trial Judge did fall into the error of rejecting altogether the need to recognise, in the evaluation process, the existence of alternative inferences inconsistent with guilt arising from the Crown evidence. This was as a consequence of the Crown argument that was advanced to him, his reliance on the passage in Samadi, and arising from his overall concern that it was not his task to intrude into the fact-finding area which included the weighing and assessment of inferences. [131] In relation to the last matter, his Honour was quite correct. His Honour was also correct in accepting that it is the task of the jury to undertake this weighing task at the point where all the evidence in the trial had been assembled and concluded. None of this, in my opinion, means, however, that the trial Judge in assessing s 98, and making the evaluation required under that section, must ignore and put to one side altogether an alternative explanation that properly arises on the evidence inconsistent with guilt. Of course, it is not for the trial Judge to weigh and assess that alternative explanation, as a jury would do. Nor is the trial Judge required, in that regard, to examine and weigh parts of the evidence only in isolation from the whole body of the evidence. [132] However, in the present matter, the trial Judge was required to ask himself whether, for example, the possibility that NS had been “tipped off” about the corporate entities without receiving inside information might otherwise substantially alter the capacity for cogency he thought the coincidence evidence possessed. Similarly, in the case of DSJ, his Honour was required to ask whether, for example, this mass of phone calls and other communications between the two men might mean no more than that they were engaging in social and recreational communications, without reference to stock market trading. If that were a possibility, did it substantially alter his view as to the otherwise significant capacity of the Crown evidence to establish the facts in issue? He had to ask whether the fact that Moody’s had information about a vast number of corporate entities, and that, in some cases, there was no direct evidence that DSJ had acquired inside information, substantially altered the high cogency of the coincidence evidence, as he saw it, to prove the facts in issue. In each case, did the possibility deprive the coincidence evidence, taken with the other evidence, of its capacity to prove significantly the Crown case? His Honour, in considering these alternative inferences, may well have taken the view that none of these possibilities had the capacity to diminish the otherwise strong

Part 3 — Admissibility of Evidence

DSJ v The Queen cont. probative value of the Crown evidence. However, in my opinion, they had to be recognised and taken into account in the limited manner I have suggested, and it was an error not to do so. [133] For these reasons, I have concluded that error has been demonstrated. The order refusing severance of the counts should be set aside and that issue should be sent back to the trial Judge for reconsideration. It may well be that his Honour will, after applying the approach I have suggested is the correct one, reach precisely the same conclusion both as to the admissibility of the evidence and the need for the counts to be tried together. Those matters will be entirely within his province as trial Judge. (Appeal allowed. Order made by Hall J on 23 August 2011 dismissing the applications that the charges in the indictment, other than charges 6-9, be tried separately, be set aside. The motions are referred back to the trial Judge for reconsideration in the light of this Court’s rulings. McClellan CJ at CL and McCallum J agreed with Whealey JA.)



TENDENCY AND COINCIDENCE EVIDENCE IN CIVIL PROCEEDINGS [10.60] Similar issues can arise in civil proceedings.

Jacara Pty Ltd v Perpetual Trustees WA Ltd [10.70] Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51

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Facts [This appeal concerned the primary judge’s exclusion of tendency evidence in a claim that Perpetual Trustees engaged in misleading or deceptive conduct.] Judgment SACKVILLE J (Whitlam J and Mansfield J agreeing): ... [2] The principal issue on this appeal is whether the primary Judge erred in excluding so-called “similar fact evidence”. The evidence was tendered on behalf of the first appellant (“Jacara”) in support of its claim that the respondent (“Perpetual”) engaged in misleading or deceptive conduct by misrepresenting the attributes of the Parkmore Shopping Centre (“the Centre”), of which Perpetual was the proprietor. The excluded evidence concerned representations allegedly made by Perpetual’s agent, Ms Philippa Kelly, not to Jacara’s representatives, but to other persons contemplating entering into leases of shops within the Centre. A related question is whether the primary Judge erred in refusing to allow Jacara’s counsel to cross-examine Ms Kelly about the representations she is said to have made to the other prospective tenants. … [48] Relevant evidence is excluded only if one of the exclusionary rules applies or if the court exercises a discretionary power to exclude evidence. The tendency rule in s 97(1) of the Evidence Act is what might be described as a contingent exclusionary rule. It provides that evidence of: • the character, reputation or conduct of a person; or • a tendency that a person has or had, is not admissible to prove that a person has or had • a tendency to act in a particular way; or • to have a particular state of mind

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Jacara Pty Ltd v Perpetual Trustees WA Ltd cont. if • the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. The rule is contingent in the sense that the tendency evidence is excluded only if the court forms the view that the evidence would not have significant probative value. [49] Section 97(1) applies to both civil and criminal proceedings. Further restrictions on tendency evidence apply in criminal proceedings by virtue of s 101. In particular, tendency evidence cannot be used against a defendant in criminal proceedings unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant: s 101(2). In addition, a general discretion to exclude evidence in both civil and criminal proceedings is conferred by s 135, if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time. [50] In construing this statutory scheme it is to be borne in mind that the Evidence Act 1995 is not intended to be a mere codification of the common law rules of evidence. As Gleeson CJ and Hayne J said in relation to the substantially equivalent New South Wales legislation (Papakosmas v The Queen, at 302): It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence …

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The reference to the legislative history includes the fact that many of the provisions of the Evidence Act stem from recommendations made by the Commission in its report on Evidence, Report No 38 (1987) (“Final Report”), which in turn was largely based on the Interim Report. [51] In the case of the tendency rule in s 97(1) of the Evidence Act, however, some care must be exercised before relying on the Commission’s Final Report as a reliable guide in construction. The first part of s 97(1), which states the general exclusionary rule relating to tendency evidence, follows precisely the language proposed by the Commission: Final Report, Appendix A: Draft Legislation, cl 86. But in other respects s 97(1) departs from the Commission’s recommendations. [52] The Commission’s principal recommendation was that evidence of specific conduct should not be admissible to prove a person’s tendencies unless the court is satisfied that the person actually did the act concerned and that the conduct and circumstances to which the evidence relates, and the conduct and circumstances in issue, are substantially and relevantly similar: Final Report, par 175; Interim Report, vol 1, pars 784 ff. The Commission also recommended that conduct evidence should not be admissible in criminal proceedings against the accused person unless the evidence had “substantial probative value”. The Commission made no such recommendation in relation to civil proceedings … [55] In the absence of any argument to the contrary, the primary Judge proceeded on the basis that the evidence to be given by the prospective tenants was tendered for the purpose identified in s 97(1). That is, his Honour implicitly accepted that the deponents would give evidence that Ms Kelly had engaged in conduct (the making of representations about pedestrian traffic, likely turnover and profitability of the tenants’ business) in order to prove that she had a tendency to act in a particular way (to make similar representations to other prospective tenants), thereby making it more likely that she made one or more of the alleged representations on those topics to Mr Williams in her conversations with him. [56] The appellants distinguished between tendency evidence, which is caught by s 97(1), and circumstantial evidence probative of the fact that Ms Kelly made the alleged representations to Mr Williams, which (so they argued) is not. Mr Moshinsky [counsel for the applicant] contended that the evidence of the five tenants went beyond mere tendency or propensity evidence and bore directly

Part 3 — Admissibility of Evidence

Jacara Pty Ltd v Perpetual Trustees WA Ltd cont. on the fact in issue. It was therefore, so he argued, admissible without the need to satisfy the requirements of s 97(1). [57] The distinction drawn by the appellants seems to me to be unsound. In Hoch v The Queen (1988) 165 CLR 292, Mason CJ, Wilson and Gaudron JJ pointed out (at 296) that “[s]imilar fact evidence is circumstantial evidence”. (In that case, the evidence was of indecent acts allegedly committed on three boys in circumstances said to be strikingly similar.) In D F Lyons Pty Ltd v Commonwealth Bank (a case involving similar fact evidence of representations made on behalf of a bank to borrowers other than the applicant), Gummow J said (at 603) that whilst evidence of a tendency or propensity to conduct of the kind alleged and in issue may be relevant and admissible as such, it is circumstantial evidence of a dangerous kind, particularly in a criminal case, because of the prejudice it engenders. See also Harriman v The Queen (1989) 167 CLR 590, at 602, per Dawson J. In other words, merely to label evidence of previous conduct as circumstantial evidence does not demonstrate that it is tendered for a purpose other than to prove that a person had a tendency to act in a particular way. Any evidence to which s 97(1) applies is likely to be circumstantial evidence. …

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[63] In my opinion, it is clear in the present case that the evidence tendered by Jacara was relevant (if at all) to the fact in issue (whether Ms Kelly had made any of the representations alleged to Mr Williams) only because it tended to establish a propensity on her part to act in a particular way (to make representations of a particular kind to prospective tenants of the Centre). The tendered evidence was therefore within s 97(1) of the Evidence Act. Assuming it satisfied the relevance requirement of s 56 of the Evidence Act, it was not admissible if the primary Judge formed the view that the evidence would not have significant probative value. [64] In reaching this conclusion I recognise that it may be difficult in any given case to determine whether the evidence of conduct is relevant “via propensity” and in no other way. Mr Moshinsky [counsel for the applicant] suggested that, in drawing the line, it is necessary to distinguish between evidence that attempts to prove the terms of representations by relying on the striking similarity of other instances of representations and evidence which tends to prove that a system was in fact in existence that allowed or encouraged such representations. He pointed out that just such a distinction had been drawn in cases involving alleged misrepresentations to prospective tenants, although none had involved s 97(1) of the Evidence Act: see, for example, Turner v Jenolan Investments Pty Ltd [1985] ATPR 40-571, at 46,635, per Beaumont J; Dayteck Pty Ltd v Glen Centre, (unreported, S Ct Vic, Eames J, 8 May 1995). Mr Moshinsky submitted that the evidence of the five tenants in this case was relevant because it suggested that Perpetual or Ms Kelly had a system or business practice in place involving the making of representations to prospective tenants. [65] In my view, evidence of conduct does not become relevant for a purpose other than proving that a person had a tendency to act in a particular way merely by asserting that the evidence tends to establish a system or business practice. Whether it is relevant for another purpose depends on whether or not proof of the tendency of a person to act in a particular way is a necessary link in the reasoning making the evidence relevant to a fact in issue. [66] In the present case, the evidence of the five tenants was relevant only to the fact in issue because it tended to show that Ms Kelly had a tendency to make representations to prospective tenants of the kind alleged by Mr Williams. In the absence of an assumption that Ms Kelly had such a propensity, the evidence of the five tenants could not establish a system or business practice whereby such representations were made by or on behalf of Perpetual. The tendency of their evidence to establish propensity on the part of Ms Kelly was a necessary link in the reasoning leading to the conclusion that Ms Kelly made the alleged representations during her meeting with Mr Williams. [67] By contrast, there will be cases where evidence of conduct is relevant to a fact in issue independently of its tendency to show that a person had a propensity to act in a particular way. If, for example, the evidence in a shopping centre misrepresentation case shows that the lessor’s agent

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Jacara Pty Ltd v Perpetual Trustees WA Ltd cont. gave instructions that particular representations should be communicated to prospective tenants, that evidence would be admissible independently of s 97(1) of the Evidence Act. The evidence, if accepted, would go beyond proving that the agent had a propensity to make representations of the kind alleged. Rather, it would establish that the agent had set in place a system which, if implemented in the particular case, would have resulted in the representation being made to the applicant. The existence of the system, in the absence of evidence to the contrary, readily supports an inference that it was implemented in the particular case. The evidence of the system makes it more likely that the fact in issue (the making of the representation to the applicant) occurred, independently of the agent’s propensity to act in a particular way. [68] The common law rules governing the admissibility of similar fact evidence have been heavily influenced by the special dangers that such evidence is thought to present in criminal cases. In particular, evidence that shows that an accused charged with an offence has been guilty of criminal behaviour on other occasions showing a criminal disposition has ordinarily been regarded as inadmissible … the general law the admissibility of similar fact evidence in criminal cases, including similar fact evidence via propensity, is not dependent solely on its relevance to the fact in issue. Thus evidence that the accused has committed other offences of the same or similar character is inadmissible unless the probative force of the evidence clearly transcends the merely prejudicial effect of showing that the accused has committed other offences: Harriman v The Queen, at 593-594, per Brennan J …

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[70] The admissibility of similar fact evidence in civil cases developed by analogy with the criminal law. However, the tide turned in Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119, where Lord Denning MR said this (at 127): In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it. Some later authorities adopted the view that the admissibility of similar fact evidence in civil cases depended simply on its relevance to the fact in issue: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23, at 28, per Northrop J; Gates v City Mutual Life Assurance Society Ltd (1982) 68 FLR 74, at 88, per Ellicott J; compare Aroutsidis v Illawara Nominees Pty Ltd (1990) 50 FCR 500, at 508509, per Hill J; D F Lyons Pty Ltd v Commonwealth Bank, at 603-607, per Gummow J. [71] In Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97 (FC), Bollen J, with whom Prior J agreed, in the course of a careful review of the authorities, expressed the view (at 145) that the safeguards required in criminal proceedings are not required in civil proceedings. He concluded, accordingly, that evidence of “similar facts” in civil cases should be admitted “where it is logically probative of a fact in issue”. Sheldon has subsequently been applied in South Australia: Grivas v Brooks (1997) 69 SASR 532 (FC). [72] The tendency rule stated in s 97(1) of the Evidence Act departs from the common law position enunciated in Sheldon. The fact that tendency evidence is relevant to a fact in issue is not enough to make it admissible. Even if relevant, it will not be admissible if the Court thinks that the evidence would not have “significant probative value”. As Lehane J pointed out in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, at 175-176: What is clearly required, if [tendency] evidence is to be admissible, is that it could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance. …

Part 3 — Admissibility of Evidence

Jacara Pty Ltd v Perpetual Trustees WA Ltd cont. [74] I doubt that it is useful to attempt any more precise reformulation of the terms of s 97(1) of the Evidence Act. The statutory language provides the standard that is to be applied and judicial statements as to the construction of the legislation cannot supplant that language: Ogden Industries Pty Ltd v Lucas [1970] AC 113 (PC), at 127, quoted in Brennan v Comcare (1994) 50 FCR 555, at 572, per Gummow J. Moreover, the statutory language incorporates a test which, although it will normally be applied before facts have been found, involves “a degree and value judgment” having regard both to the evidence to be adduced and other evidence adduced or to be adduced: s 97(1)(b); Fleming v Hutchinson (1991) 66 ALJR 211. Indeed the tendency rule is framed in terms of whether the court “thinks” that the evidence would not have significant probative value.

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[75] Doubtless it was for these reasons that the appellant accepted that an appellate court reviewing a decision to exclude evidence under s 97(1) of the Evidence Act is to be exercised in accordance with the principles applicable to a discretionary judgment: Norbis v Norbis (1986) 161 CLR 513, at 518519, per Mason and Deane JJ; House v The King (1936) 55 CLR 499. These principles reflect important policy considerations. Appellate courts should exercise caution before overturning judgments in civil cases on the basis of decisions concerning the admissibility of evidence. Such decisions, of necessity, usually have to be made before all the evidence has been heard and often must be made under stringent time pressures. Deference should be paid to a trial Judge’s assessment of the issues in the case and of the significance to those issues of the tendered evidence. [76] Perhaps the only additional point that should be made is that the probative value of the evidence must derive from its tendency to prove (in the words of s 97(1)) that a person has or had a tendency to act in a particular way. As has already been noted, if the evidence has probative value for some other reason, it will not be rendered inadmissible by s 97(1), at least to the extent that it is tendered for a purpose other than its value as tendency evidence. The probative value of the evidence as tendency evidence must depend on the circumstances of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred: compare JD Heydon, Cross on Evidence (6th Aust ed, 2000) at pars [21095], [21100], [21105]. [77] The primary Judge in the present case asked himself the correct question, namely whether the evidence of the five tenants, individually or collectively, had significant probative value on the fact in issue, that is whether Ms Kelly had made any of the alleged representations to Mr Williams. He referred to observations in reported cases, including Zaknic, to assist him in that task. None of this discloses any error of principle on his Honour’s part and, indeed, Mr Moshinsky did not contend otherwise. [78] Mr Moshinsky’s criticism of the judgment focused on his Honour’s assessment of the probative value of the evidence relied on by Jacara. It will be recalled that his Honour placed particular emphasis on the differences among the accounts given by the five deponents and the differences between their various accounts and those given by Mr Williams. I see no error in this approach to assessing the probative value of the evidence. [79] One of the representations allegedly made by Ms Kelly was a prediction that there would be an increase of at least 50-60 percent in the number of customers after the redevelopment of the Centre. Of the four deponents who prepared affidavits in narrative form, two said that Ms Kelly had spoken only of a “substantial increase” in the number of customers, without mentioning any percentages. A third deponent said that Ms Kelly had referred to an increase in the numbers of customers, again without reference to any percentages. The fourth said that Ms Kelly had referred to a 40 percent increase, to between 150,000 and 170,000 customers per week, figures not mentioned by any other deponent. [80] The differences in the accounts of the deponents were even more marked in relation to the representations allegedly made by Ms Kelly concerning the turnover and profitability of the proposed Cookie Man franchise. Mr Williams’ account was that Ms Kelly had said that he could expect takings

Tendency and Coincidence

CHAPTER 10

Jacara Pty Ltd v Perpetual Trustees WA Ltd cont. of $3,000 per week and a gross profit margin of 45 percent. One of the deponents, in somewhat ambiguous language, alleged that Ms Kelly had told him that his shop would take $7,000 per week initially, but without any reference to a profit margin. A second deponent said that he had prepared his own cash flow forecasts of takings of between $8,000 and $10,000 per week, and Ms Kelly had “confirmed” that these were achievable. A third made no reference to any representations relating to turnover or profitability. The fourth recalled that Ms Kelly had said that his business would be “highly profitable”. [81] In my view, it was well open to the primary Judge to conclude that the various accounts differed among themselves and from Mr Williams’ version to such an extent that the evidence could not be said to have significant probative value on the facts and issues. This conclusion is reinforced by the fact that the conversations with the five tenants are said to have occurred some 4-12 months after the dealings with Mr Williams and Ms Kelly. Some of the representations were therefore made after stage 2 of the development had been completed. It follows that not only were the alleged representations not contemporaneous with those alleged to have been made by Ms Kelly, but some at least were made after the second of the three stages of the Centre’s development had been completed. [82] None of this is to suggest that the only basis for the admissibility of tendency evidence under s 97(1) of the Evidence Act is if the evidence, to use the language in Hoch v The Queen, reveals “striking similarities” or “unusual features”. The conclusion I have reached merely reflects the fact that the Judge was entitled to take the view, in the circumstances of the present case, that the evidence lacked significant probative value for the purposes of s 97(1).

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

Questions

[10.80]

1.

What does Pt 3.6 of the Evidence Act 1995 apply to?

2.

What sort of evidence does Pt 3.6 apply to?

3.

What is s 97 used to prove?

4.

Can you provide an example of such evidence?

5.

What is s 98 used to prove?

6.

Can you provide an example of such evidence?

7.

Fill in the table below concerning the requirements the parties must satisfy in order to be allowed to bring in evidence of tendency or coincidence evidence. Defence evidence

Must satisfy “significant probative value” Must provide notice Must show evidence “substantially outweighs prejudice”: s 101 Might s 135 apply? Might ss 95, 136 apply?

Prosecution evidence

Civil case

Part 3 — Admissibility of Evidence

8. Henry has been charged with the sexual assault of his stepdaughter, Sandra, aged 14. She claims that on 25 November 1998 the accused took her to the basement of an unfinished house adjacent to their home and forced her to have sexual intercourse with him. The prosecution intends to introduce the following evidence: (a) Sandra’s claim that during the year prior to 25 November 1998 Henry had come into her bedroom at night on seven separate occasions when she was in bed and had indecently assaulted her on each occasion. (b) Sandra’s 12-year-old sister, Mary, claims that on three occasions in the previous year Henry had come into her bedroom at night and indecently assaulted her. She was in bed on each occasion. (c) Sandra’s 10-year-old brother, Bruce, claims that in August 1994, when he was in the bath, Henry had come into the bathroom and indecently assaulted him. You act for Henry, who denies the offence. He says that he has had to discipline Sandra frequently for her unruly behaviour and did so on the afternoon of 25 November 1998. He claims her story is fabricated and she has put her brother and sister up to telling lies about him. Advise him about whether the evidence will be admitted in court. 9. Jane Juice is charged with murder and robbery. The robbery of the Hornsby branch of the Big Bank occurred at 4.15pm on 20 June 2003. The robber wore a Hulk costume and used a silver pistol to shoot and kill a security guard.

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The prosecution call many witnesses, including Barry Bat. Barry has signed a document, a copy of which has been made available to the defence, which contains a statement in the following terms: I committed a robbery of the Broadway Branch of the Great Bros department store on 9 July 2003 with Jane Juice. Jane wore a Hulk costume and pistol she always wears when doing a job. Jack drove the getaway car as usual. During the robbery Joe was shot and killed but Jane and I escaped. I was not personally involved in the robbery on 20 June, but Joe told me about it. Signed by Barry Bat on 10/9/2003 Could the defence have successfully objected to the admission of Barry’s evidence? If so, how? 10. On 21 December 2003, two women, Thelma and Louise, were admitted to a small country hospital in New South Wales in labour. The two women were placed in the same room, with a screen separating them. They gave birth within a minute of each other. Thelma claims the babies were mixed up. She is now seeking an order to compel Louise to give her the baby Louise took home from the hospital. It is part of Thelma’s case that the mix-up of the two babies arose from the fact that Nurse Laura (who was one nurse present at the births) carried the two babies in her arms in one trip from the ward to the nursery. The doctor present and other nurses on duty deny that this occurred or can’t remember that this occurred. Thelma wishes to call Nurse Miranda, who has worked at the hospital for five years and would testify that the practice followed in the hospital was for one of the nurses who attends the birth to carry the baby from the ward to the nursery, and that on occasions more than one child would

Tendency and Coincidence

CHAPTER 10

be carried by one nurse. Nurse Miranda was not working on the night of December 21. Is this evidence admissible? 11. Further to the facts in problem 7 in Chapter 7 (at [7.300]). George has a previous conviction for assault caused by stabbing. In 1999, George stabbed a rival gang member in the chest while dancing at a nightclub. George also has several convictions for firearm offences. George gives evidence and states “I have never murdered anyone, nor stolen anything”. George also gives evidence that “Detective Green framed me”. This allegation was not put to Detective Green when the detective gave evidence. The trial judge allows the Crown prosecutor to cross-examine George on his criminal record. The trial judge states “I will not give the jury any direction about this evidence, it is a matter of common sense”. The trial judge asks “Should I allow the Crown to re-open its case?”

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12. Refer to R v Eagle in Chapter 20. In what way can the accused’s past actions be used under s 97 and/or s 98? Can any evidence concerning the deceased’s behaviour also be admissible under s 97 and/or s 98?

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CHAPTER 11

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Credibility [11.10]

OVERVIEW ................................................................................................................ 481

[11.20]

THE CREDIBILITY RULE .............................................................................................. 482 [11.30] Palmer v The Queen ................................................................. 483

[11.40]

ATTACKING CREDIBILITY ........................................................................................... 486 [11.50] State Rail Authority of NSW v Brown ............................................ 487

[11.60]

FURTHER LIMITATIONS ON ATTACKING CREDIBILITY ............................................... 490

[11.70]

REBUTTING DENIALS WITH OTHER EVIDENCE .......................................................... 490 [11.80] Col v The Queen ...................................................................... 490

[11.90]

SUPPORTING CREDIBILITY ........................................................................................ 494 [11.100] R v Ngo ................................................................................. 494 [11.110] R v Whitmore .......................................................................... 496 [11.120] Nikolaidis v The Queen .............................................................. 497

[11.130]

EXPERT OPINION ...................................................................................................... 499 [11.130] Dupas v The Queen .................................................................. 499 [11.140] MA v The Queen ...................................................................... 504 [11.150] De Silva v The Queen ................................................................ 509

[11.160]

ASSESSMENTS OF CREDIBILITY ................................................................................. 510 [11.170] Hargraves v The Queen; Stoten v The Queen .................................. 511

OVERVIEW [11.10] Part 3.7 of the UEL deals with “credibility evidence”, defined in s 101A in terms of

“evidence relevant to the credibility of [a] witness or person”. The term “credibility of a witness” is defined in the Dictionary: credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

Evidence will affect the assessment of the credibility of a witness whether the evidence tends to support the credibility of the witness or tends to discredit the witness. It is clear that the concept applies to evidence which bears on the reliability of a witness generally as well as evidence which bears on the reliability of particular testimony of the witness. Matters bearing on the credibility of a witness thus include truthfulness or veracity, intelligence, bias or motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, any special circumstances affecting competency, prior statements consistent or inconsistent with testimony, internal inconsistencies and ambiguities in testimony, and direct contradiction of testimony.

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Part 3 — Admissibility of Evidence

Section 102 creates the “credibility rule” that “credibility evidence about a witness is not admissible”. However, s 108C creates an exception for expert evidence concerning the credibility of a witness. In addition, s 103 provides that credibility evidence may be adduced in cross-examination of a witness if the evidence “could substantially affect the assessment of the credibility of the witness”. Where evidence has the potential to have a real, persuasive, bearing on the reliability of a witness, or the reliability of particular testimony of the witness, the test should be regarded as being satisfied. Cross-examination may well be permitted regarding such matters as bias or motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, prior statements inconsistent with testimony, internal inconsistencies and ambiguities in testimony and direct contradiction of testimony. An example of cross-examination that would usually not satisfy the test would be in relation to matters to the general “discredit” of a witness in some moral sense (“did you use drugs when you were younger?”) which had little impact on the question of whether the witness ought to be relied upon. Section 104 imposes further restrictions on cross-examination of a defendant in criminal proceedings about a matter that is relevant only to the defendant’s credibility. Section 106 deals with the situation where the witness denies, or does not admit, what is put in cross-examination under s 103 (and, where applicable, s 104) and provides that the credibility rule will not prevent evidence being adduced to prove it if the court gives leave under s 106(1). Relevant matters would include the importance of the witness, the potential significance of the rebuttal evidence and the nature of the proceedings. Leave is not required if the evidence falls into one of the listed categories in s 106(2). Section 108 regulates credibility evidence adduced by the party calling the witness for the purpose of re-establishing the credibility of the witness (although credibility evidence intended to support the credibility of a witness may also be admissible under s 108C and s 110). If the credibility of the witness is attacked by another party, the party calling the witness may have admitted credit evidence which rebuts the attack so long as the requirements of this provision are satisfied. Evidence that is relevant only to the credibility of a witness may be admitted in re-examination of that witness, subject to the requirements of re-examination imposed by s 39. Under s 108(3)(a), if evidence of a “prior inconsistent statement” of a witness has been admitted, leave may be granted to adduce evidence of a contrary prior consistent statement. Alternatively, even if evidence of a prior inconsistent statement has not been admitted, s 108(3)(b) permits (with the leave of the court) evidence of a prior consistent statement to be admitted if it is or will be suggested either expressly or by implication that evidence given by the witness has been fabricated, reconstructed, or is the result of suggestion. In Div 3, s 108A deals with the less common situation of the credibility of persons who are not witnesses but who made an out-of-court representation that has been admitted into evidence and provides that “credibility evidence” about such a person is inadmissible “unless the evidence could substantially affect the assessment of the person’s credibility”. Section 108B imposes further restrictions on admission of such evidence where the person who made the representation is a defendant in criminal proceedings.

THE CREDIBILITY RULE [11.20] Section 102 creates the “credibility rule”:  “credibility evidence about a witness is

not admissible”. Various exceptions to this rule are found in Pt 3.7. The term “credibility

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Credibility

CHAPTER 11

evidence” is defined in s 101A. It was inserted in the Act to overcome the decision of the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57. In Adam v The Queen, the High Court gave a literal interpretation to the former s 102 (which provided that “evidence that is relevant only to a witness’s credibility is not admissible”). This literal interpretation meant that if evidence was relevant to credibility and another purpose (eg a hearsay use), then s 102 did not apply to exclude the evidence, even if the evidence was inadmissible for the other use. If s 102 did not apply, the evidence would be admissible as bearing on the witness’s credibility (pursuant to s 56), subject to the court’s general discretion to exclude or limit the use of evidence. Section 101A ensures that the requirements of Pt 3.7 in respect of “credibility evidence” do not apply where the evidence is relevant not only because it affects the credibility of a witness or person but also because it is relevant and admissible for another purpose. In such a situation, the evidence may (subject to the possible application of the discretion to limit use in s 136) also be used to affect the credibility of that witness or person even if it would not satisfy the requirements of Pt 3.7 if those requirements applied to it. Section 101A(a) refers to evidence that is relevant only because it affects the assessment of the credibility of a witness or person. Thus, if the evidence is relevant evidence under s 55 for some other reason, it will not be caught by this definition of credibility evidence. Subject to s 101A(b), where the evidence is relevant in another way, Pt 3.7 has no application. Thus, for example, where evidence of the defendant’s prior conviction for embezzlement has been admitted in a criminal trial on the basis that it satisfies the requirements of Pt 3.6, the evidence may, despite the provisions of Pt 3.7, be used in respect of the credibility of the defendant as a witness (subject to the operation of the discretions in Pt 3.11). However, there may be considerable difficulty in deciding whether an item of evidence is relevant only to credibility (McHugh J discusses and develops this idea in Palmer v The Queen). Section 101A(b) refers to evidence that is relevant “(i) because it affects the assessment of the credibility of the witness or person, and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6”. Evidence that is relevant both to credibility and a fact in issue, but not admissible for the latter purpose, will be subject to the same rules as other credibility evidence.

Palmer v The Queen [11.30] Palmer v The Queen (1998) 193 CLR 1 Facts [Palmer was convicted of several sexual offences against a 14-year-old girl. One of the issues on which Palmer appealed related to questions asked in cross-examination. Palmer’s counsel had previously suggested to the complainant in cross-examination that she had accused Palmer to “pay back on him” for not giving her enough attention. Palmer was asked in cross-examination to suggest a motive for the complainant’s accusation and he was unable to do this. The court considered the propriety of this line of cross-examination. The trial took place prior to the commencement of the Evidence Act 1995.] Judgment (footnotes omitted) BRENNAN CJ, GAUDRON and GUMMOW JJ: ...

Part 3 — Admissibility of Evidence

Palmer v The Queen cont. [7] It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts. [8] If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is “oath against oath”. In such a case, to ask an accused the question “Why would the complainant lie?” is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused … McHUGH J: ...

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The relevance of questions addressed to an accused person about knowledge of a complainant’s motivations for fabrication [47] Central to this appeal is the issue that was raised when the complainant was cross-examined about a potential motive for fabrication. She denied that she had made a false complaint because she wanted to “payback” the appellant for an unreciprocated “crush”. The courses which were open to the Crown and the appellant to support or refute this denial necessarily depended on the proper characterisation of the question and answer dealing with the complainant’s motivation for fabricating her allegations. If evidence concerning this issue is properly regarded as going solely to the credit of the complainant, two evidentiary rules would come into play. [48] First, the well-established finality rule would apply. That rule stipulates that answers given by a party or witness in cross-examination regarding collateral facts such as credit must be regarded as final. If that rule applied, neither the appellant nor any other witness could give evidence of facts that would rebut the complainant’s denial that she had fabricated the complainant. However, there are exceptions to the finality rule. Probably the best known is that, if a witness denies in cross-examination that he or she has been convicted of an offence, the opposite party may tender evidence of the conviction. Similarly, where the credibility of the witness is affected by a mental or medical condition, evidence as to that condition may be tendered. Another exception is where the veracity of a witness has been attacked in cross-examination. In that case, evidence may be led concerning the witness’s general reputation for veracity. Conversely, where a suggestion of bias on the part of a party or witness is denied by that party or witness in cross-examination, evidence may be led to establish the bias. [49] Second, the “bolster rule” would apply. That rule stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked. Applied to this case, the bolster rule would prevent cross-examination of the appellant as to his absence of any knowledge of the complainant’s motives for fabricating the charges. [50] Accordingly, if the issue of the complainant’s motivation for fabricating her complaint is regarded as going merely to credit, her answer would be regarded as final under the traditional rules of evidence. It could not be contested by the appellant’s counsel (the finality rule) or supported by her own counsel (the prohibition on bolstering). However, in my view evidence concerning the motive or lack of motive in the complainant for falsifying her complaint is admissible not only in relation to her credit but also in relation to the facts in issue in the case.

Credibility

CHAPTER 11

Palmer v The Queen cont. [51] The line between evidence relevant to credit and evidence relevant to a fact in issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts in issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts in issue, particularly where, as in the present case, the witness is a participant in the very facts in issue or the only eyewitness to them. [52] The rationale behind the credit and facts in issue distinction does not depend on logic. It “is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness”. It is rooted in the need for “case management” rules. The distinction is regarded as necessary to prevent the trial of a case being burdened with the side issues that would arise if parties could investigate matters whose only real probative value was that “they tended to show the veracity or falsity of the witness who was giving evidence which was relevant to the issue”. It is for that reason, as Lord Pearce pointed out in Toohey v Metropolitan Police Commissioner that “[m]any controversies which might … obliquely throw some light on the issues must in practice be discarded because there is not an infinity of time, money and mental comprehension available to make use of them”.

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[53] That being so, the evidentiary rules based on the distinction between issues of credit and facts in issue should not be regarded as hard and fast rules of law but should instead be seen “as a wellestablished guide to the exercise of judicial regulation of the litigation process” … [55] No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness’s denials on matters going to credibility is not ordinarily admissible. In this, as in other areas of the law of evidence, a distinction exists between what is relevant and what is admissible. In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of a relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof. If evidence going to credibility has real probative value with respect to the facts in issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts in issue. [56] The rigid distinction between credit and facts in issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts in issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts in issue … [58] In this case, the complainant’s motivation or lack of it for fabricating her allegations could fairly influence the belief of the jury as to the probability of the occurrence of the alleged offences. When a serious allegation is made against a person, one of the first inquiries most persons make in testing the truth of the allegation is to ask whether the person making the allegation has any motive for fabricating it. Any facts that suggest a motive are regarded as throwing light on the probability of the allegation being untrue. Conversely, where no facts suggesting a motive are known, the probability of the allegation being true is frequently enhanced. This is particularly so when the case depends, as it so often does in cases concerning sexual charges, on the complainant’s word against the word of the accused.

Part 3 — Admissibility of Evidence

Palmer v The Queen cont. [59] In the ordinary course of events, people do not invent serious allegations against other persons. Even less frequently do they invent a serious allegation against a person and then perjure themselves in a court of law to support the allegation. Experience teaches of course that some people will concoct charges against other persons. But most people do not. Consequently, facts which show motivation for fabrication or the lack of it go to the probability of an issue. The fact that a person had or did not have a motive is relevant in many criminal prosecutions. That is because motive or its absence throws light on the probability of whether an event occurred or was committed by the accused. Similarly, motive or its absence is often relevant as to whether the evidence of a witness is true … [62] The fact that an accused knows of no facts suggesting a motive for fabricating a charge does not mean that there is no motive or that the evidence of the complainant is true. As the learned trial judge carefully explained to the jury in this case, a person may give false evidence for many reasons. But the accused is ordinarily the person in the best position to know whether any such facts exist. If the accused can give no evidence as to such facts, it increases the probability that there is no motive unless one accepts the view – which I do not think a court can act upon in the absence of empirical evidence – that most firsthand evidence involving a serious complaint against an accused person is concocted.

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[63] It must be acknowledged, however, that there are dangers in allowing the accused to be crossexamined as to his or her knowledge of facts suggesting motive. If the accused cannot suggest a reason, it may influence the tribunal of fact, consciously or unconsciously, to reverse the onus of proof. That is to say, it may lead the tribunal of fact to conclude that the inability of the accused to point to facts suggesting a motive for concocting the allegation suggests that he or she must be guilty – at all events in those cases where the accused cannot point to evidence contradicting the allegation except his or her denial … [71] In my opinion, the Crown was entitled to cross-examine the accused as to whether he knew of any facts that would explain the complainant’s allegation. It was entitled to do so because his failure to reveal any facts that would provide a reason for the complainant concocting her complaint might assist the jury to find that her evidence was true. The jury could more readily conclude that, in the absence of any suggested motive for concocting the charges, the evidence of the complainant should be accepted. Furthermore, the very full and fair directions of the trial judge ensured that the jury understood that inability of the appellant to suggest such a motive was far from conclusive evidence that the complainant’s evidence was true. [72] The learned trial judge was therefore correct in permitting cross-examination of the accused on this issue. Moreover, his directions dealt fully and fairly with the problems that can ensue from allowing such cross-examination. His Honour’s directions overcame any danger that the jury might reverse the onus of proof. The learned judge made many references to the possibility of fabrication by complainants in sexual offences cases as well as to an array of possible motivations which might have influenced the complainant. In addition, his Honour carefully instructed the jury concerning the onus of proof in criminal cases. The jury could not have believed that the appellant was required to point to a motive for fabrication of the complaint or that he had to prove his innocence because he was unable to suggest a motive for fabrication of the complaint … (Appeal allowed. Convictions quashed and verdicts of acquittal entered.)



ATTACKING CREDIBILITY [11.40] Section 103 creates an exception to the credibility rule where the evidence is adduced in

cross-examination (whether cross-examination of an opponent’s witness or cross-examination of an “unfavourable” witness under s 38) and the evidence “could substantially affect the

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assessment of the credibility of the witness”. Comments made in State Rail Authority of NSW v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 are also apposite to the current test.

State Rail Authority of NSW v Brown [11.50] State Rail Authority of NSW v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 Facts [State Rail Authority appealed against a decision of the District Court awarding damages to Mr Brown, who suffered injuries when the train in which he was travelling collided with a derailed coal train. The appellants accepted liability before trial and the only issue in dispute was the assessment of damages. The trial judge found that Mr Brown sustained injuries to his neck, shoulder, back and a relatively minor level of psychological injury from the accident. One issue argued in the Court of Appeal was whether the trial judge erred in stopping cross-examination which State Rail Authority submitted could have affected the respondent’s credit.] Judgment BASTEN JA: ... [72] Counsel for the defendants cross-examined the plaintiff at trial with respect to problems he had had with his teeth, including the extraction of a number of teeth at the end of 2002, about five or six months after the train accident: Tcpt, p 45 (25 May 2005). He then asked Mr Brown: Q. During the course of this case, you’ve attempted have you not, to suggest that the damage to your teeth occurred in the train accident?

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That question was objected to, rejected and discussion followed. [73] Counsel for the defendants explained that he was seeking to show that in fact this claim fell into the same category as other aspects of the injuries alleged to have followed from the train accident. He continued (Tcpt, p 46): Your Honour, I don’t propose to take a great deal of time on it other than to simply identify the fact that the plaintiff gave histories to doctors, clearly inconsistent with contemporary evidence. … And his abandonment of the claim is effectively a concession. Her Honour responded: HER HONOUR: Yes, I note what you say Mr Kelly [defendant’s counsel]. I mean the fact is there was that allegation made. Mr Hewitt [plaintiff’s counsel] says that it’s not pressed because there was insufficient support. I mean the fact that the claim has been made, it’s there, it’s in the particulars. … But I can’t see what view I may form about the teeth could be relevant to the other matters in the case. Counsel then responded (Tcpt, p 47): KELLY: Because if Your Honour finds or accepts that the plaintiff is at best wrong in his recollection, or potentially at worst, has deliberately made it up, it may be relevant to whether Your Honour accepts his complaints otherwise about the continuity of symptoms in other parts of his body. HER HONOUR: Yes, yes. KELLY: Because Your Honour, he makes similar complaints, in my submission, now about the other injuries he alleges. Your Honour in my respectful submission, that makes it entirely relevant. The fact that my learned friend isn’t making a claim in respect of it doesn’t mean it’s not an appropriate matter for cross-examination.

Part 3 — Admissibility of Evidence

State Rail Authority of NSW v Brown cont. HER HONOUR: I note what you say Mr Kelly, my previous ruling stands. [74] The proposed cross-examination no doubt had two forensic purposes: one was to seek to break down the plaintiff’s account of his own injuries (namely, those which he still pursued) as being caused by the accident; the second was to permit the defendants to make submissions as to the plaintiff’s credit, relying in part on the claim made with respect to his teeth. Without putting the matter to the plaintiff, the latter course might have been seen to be precluded by Browne v Dunn and Precision Plastics. However, the latter submission was made. During addresses (Tcpt, 26 May 2005, pp 31-32) counsel for the defendants submitted: There’s a complaint about teeth to Dr Chandler some months after the event and, Your Honour, the evidence would establish again that the plaintiff simply didn’t hit his face and damage his teeth in the accident but he subsequently goes and tells doctors, with a view to obtaining money in this case, that he did and says, “I hit my face and broke my teeth and they had to get replaced”.

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There followed a debate as to what may have been said, based primarily on what was to be found in the medical reports. [75] The plaintiff’s credit was challenged on a number of bases, including, just prior to the attempt to cross-examine as to his claim in relation to his teeth, by a suggestion that he had sought to obtain social security payments to which he was not entitled. His evidence in relation to work undertaken between the first accident and the train accident was also explored. No doubt each of these matters was relevant to the plaintiff’s credit. However, in relation to the possible damage to his teeth, evidence about what he had said after the accident, and the fact that no complaint was recorded in the ambulance report or the hospital records of his admission, was in each case available from the documentary material. The extent to which cross-examination was to be permitted on such an issue was very much a question within the discretion of the trial judge. A claim had been made and abandoned, no doubt because there was inadequate medical evidence to support a connection with the accident. If the line of cross-examination was to be effective, in showing that the claim was a fabrication, her Honour would have been required to make a determination, not as to whether there was a causal connection between the accident and damage to the plaintiff’s teeth, but whether there was any basis upon which he could reasonably have believed that such a connection existed. It would then have been necessary to consider whether, if the plaintiff were shown not to have a bona fide belief in the truth of such a claim, that fact cast doubt upon the claims which he was pursuing, and in what way. [76] Objection to the question was taken and ruled upon, presumably without full argument, because none is recorded in the transcript. However, her Honour allowed counsel for the defendants to canvas his objection to the ruling. There is no reason to think she did not have a full appreciation of the basis upon which the questioning was being pursued. [77] This Court should not be astute to reconsider rulings as to the scope of cross-examination to be permitted in relation to matters of credit, at least where there is no basis for thinking that the trial judge did not understand the purpose and nature of the questioning proposed. There is no reason to think that her Honour ignored or misunderstood relevant principles to be applied in making the ruling. This ground of challenge should be rejected. ... GILES JA: ... [16] As I understand the judge’s ruling, she rejected the question and the line of questioning because any view she might form about the teeth was not relevant to the other matters in the case. A finding

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State Rail Authority of NSW v Brown cont. that the respondent did, or did not, suffer damage to his teeth in the accident would not bring, or fail to bring, damages for injury in that respect. But the line of questioning was relevant to whether the respondent obtained damages for injury in other respects. There was considerable contest over the extent of injury suffered in the accident, not only as to injury to the respondent’s neck. [17] By s 55(1) of the Evidence Act 1995 evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, and by s 55(2) it is not irrelevant because it relates only to the credibility of a witness. Although by the credibility rule in s 102 evidence that is relevant only to a witness’s credibility is not admissible, by s 103(1) the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. [18] The relevance as put to the judge went to the respondent’s credibility, to show that his recollection was unreliable or he was being deliberately untruthful as to damage to his teeth, so the judge should not accept what he said about injury in other respects. Whether evidence is relevant only to credibility, or also to the existence of a fact in issue can be difficult, and although required by the Evidence Act the distinction is artificial (see Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [51]-[57] per McHugh J). Given the way it was put to the judge, I assume relevance only to the respondent’s credibility, but even then evidence produced by the line of questioning was admissible if it had substantial probative value. If it could produce evidence of substantial probative value, albeit relating only to credibility, the line of questioning should have been permitted. The judge did not engage with that question, and in my respectful opinion erred in her consideration of relevance.

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[19] That, however, is not an end to the matter. Wrongful rejection of evidence would ordinarily mean a new trial, but a new trial must not be ordered unless it appears to this Court “that some substantial wrong or miscarriage has been thereby occasioned”: Supreme Court Rules, Pt 51 r 23(1). [20] Evidence produced by the line of questioning could have had the probative value, at its height, of concession by the respondent that he had not suffered damage to his teeth in the accident, but had lied to his solicitors and Drs Millons and Wilcox in order to pass on the problems with his teeth as accident-related and falsely get damages for injury in that respect. That could have led to other concessions; cross-examination can be a powerful weapon, to the extent that “[s]ome of the most effective cross-examinations have begun by securing a witness’s assent to a proposition of seeming irrelevance” (Wakeley v The Queen [1990] HCA 23; (1990) 93 ALR 79 at 86). [21] It is difficult to conclude that, had the judge addressed the question with which she should have engaged, she would have maintained her ruling. The appellants would be bound by the respondent’s answers on a question of credit, and perhaps success in cross-examination to the extent of the above concession is unlikely. But the judge could not readily have excluded the possibility of that success, and as was said of a similar situation in R v Beattie (1996) 40 NSWLR 155 at 163, “the fact that the witness might have been unlikely to make any such admission did not affect the admissibility of the questions”. Deception as to damage to his teeth in the accident would have had substantial probative value on the respondent to injury to the respondent’s credibility. The appellants were entitled to seek to impugn the respondent’s credibility by the line of questioning, and the judge should have permitted it at least until the respondent’s answers showed that substantial probative value would not emerge. [However, Giles JA was not persuaded that inability to pursue the line of questioning occasioned substantial wrong or miscarriage. Santow JA agreed with both Basten JA and “the additional reasons of Giles JA”. Appeal dismissed. Note that the report in NSWLR does not contain the above paragraphs.]



Part 3 — Admissibility of Evidence

FURTHER LIMITATIONS ON ATTACKING CREDIBILITY [11.60] A similar limitation is placed on evidence as to the credibility of a person who made

a previous representation and is not a witness: s 108A. Section 104 imposes limitations on cross-examination of the defendant about matters relevant only to his or her credibility.

REBUTTING DENIALS WITH OTHER EVIDENCE [11.70] Section 106 deals with the situation where the witness denies, or does not admit,

what is put in cross-examination under s 103 (and, where applicable, s 104) and provides that the credibility rule will not prevent evidence being adduced to prove it if the court gives leave under s 106(1). Leave is not required if the evidence falls into one of the following listed categories in s 106(2): the witness: (a) is biased or has a motive for being untruthful; (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

See Palmer v The Queen at [11.30].

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Col v The Queen [11.80] Col v The Queen [2013] NSWCCA 302 Facts [Col was convicted of causing grievous bodily harm with intent to cause grievous bodily harm.] Judgment LATHAM J (Rothman and Davies JJ agreeing): The Crown case [2] At the time of the offence, the appellant was 40 years of age and lived with his de facto partner, Maryanne Scott, who was the victim of the offence. The circumstances of the offence summarised derives substantially from a statement provided by the victim to police but retracted shortly before the appellant’s trial. [3] On 7 August 2009, the appellant attended an evening barbeque. At around 8.30pm the victim called the appellant on his mobile phone, becoming upset because she had expected the appellant to be home by that time. Later on, the appellant tried to call the victim several times but the victim did not answer the phone. [4] The appellant returned home at approximately 10pm. The victim accused him of lying about the presence of women at the barbeque. The appellant became angry that the victim had not answered her phone. The victim went upstairs, put on her pyjamas and got into bed. The appellant came into the bedroom, told her she could not sleep, and dragged her from the bed by her pyjama pants, tearing the drawstring of her pyjama pants. [5] The appellant dragged the victim down the hallway and partially down the stairs. The victim told the appellant to stop as he was hurting her and he did so. She returned to the en suite bathroom in the bedroom and took off her pyjama pants.

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Col v The Queen cont. [6] The appellant followed her with her mobile phone in his hand and proceeded to smash it. He hit the victim in the face with the back of his hand and she went back to bed. The victim heard the appellant making noise downstairs in what sounded like the opening and closing of cupboards. [7] The appellant came upstairs and said to the victim that he would burn the bed or the house or “it all down”. The victim felt liquid being splashed across her and the bed. She recognised the smell as being methylated spirits. The victim jumped up and knelt on the bed, facing the appellant and said to him, “What are you doing?” She heard him flicking a cigarette lighter a couple of times, causing the methylated spirits to ignite. [8] The victim saw flames all over her and heard the appellant say, “Oh, fuck”. The victim ran into the spare bedroom whilst trying to remove her jumper. She threw the burning jumper onto the floor of the spare room and ran back towards the shower. The appellant grabbed her and carried her to the shower in the main bathroom where she stayed until the flames were extinguished. The victim cried for the appellant to get help. [9] At 11.55pm, the appellant called “000”, telling the operator, “Methylated spirits, got ah, ignited and we got burnt”. At midnight on 8 August 2009, the appellant called “000” again. The appellant is recorded as saying, “Don’t tell them … Don’t tell the cops please …” Later during the call, the victim is heard saying, “I won’t say anything” to which the appellant replies, “Do not say what happened”. The victim says to the appellant, “You’re too good to me”. Circumstances following the offence

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[10] When the ambulance arrived, an ambulance officer, Kiri Muller, asked the victim what had happened. The victim claimed that there had been an accident. [11] A senior ambulance officer, Jacqueline Christian, treated the victim in the ambulance. Ms Christian asked the victim, “Did he do this to you?” The victim replied, “Yes”. The victim said that she had been trying to get away from the male in the bed and he had poured “metho” on the bed and set it alight with a cigarette lighter. [12] Ms Muller was driving the ambulance back to the hospital when she heard Ms Christian say to the victim, “So he did this to you”. Ms Muller did not hear the victim’s reply but saw the victim nodding when she looked in the rear-view mirror. As a result of this, Ms Muller decided to contact the police. [13] The victim underwent two surgical procedures and remained in the intensive care unit at Concord Hospital. She later underwent a third procedure. The victim’s accounts to family and friends [14] The victim’s sister, Leanne Scott, visited the victim on the night of 8 August 2009. The victim was unable to speak as there were breathing tubes going down her throat. She communicated with Ms Scott by writing on three pieces of A4 paper. The victim wrote, “We had a fight, he had a lighter, he flick it and my clothes went up”. She also wrote “I’m not charging him” and “He didn’t mean it”. [15] The following day, the victim was able to speak. She told Ms Scott that she had been lying in bed when the appellant kicked and punched her, and the next minute he had flicked the lighter and she was on fire. On 10 August 2009, Ms Scott attended the police station and handed over the three A4 pages with handwriting. The A4 pages were dated and signed by Ms Scott on 10 August 2009. [16] A friend of the victim, Vicky Faulds, visited the victim on 9 August 2009. The victim told Ms Faulds that she had argued with the appellant about women being present at the barbeque, as the appellant had informed her that it was a male-only event. She also told Ms Faulds that the appellant had been angry with her for refusing to answer the phone and that the appellant had taken her mobile phone and smashed it. The victim said that the appellant dragged her downstairs and pushed her against a wall and hit her. After the victim went back to bed, she said the appellant came into the bedroom and threw some “metho” at the quilt. The appellant had a lighter in his hand, and when

Part 3 — Admissibility of Evidence

Col v The Queen cont. the methylated spirits ignited the victim ran out of the bedroom and ripped off her pyjama top. The victim said that she raced to the shower whilst the appellant was trying to put out the fire in a pile of clothes that had caught alight in the spare room when the victim had thrown her burning pyjama top onto it. [17] The victim asked Ms Faulds not to say anything about what she had told her. When Ms Faulds asked the victim whether the appellant had thrown the methylated spirits at her, the victim replied “no” and said it was thrown on the quilt and that he had not meant it. However, the victim said later that there had been a fight in which the appellant had thrown the methylated spirits at her and had teased her with the lighter while standing at the foot of the bed. [18] Another friend of the victim, Michelle Brown, first visited the victim on 8 August 2009, thereafter visiting her around three times a week. During one of her visits, the victim told Ms Brown that the appellant had caused her injuries, asking, “Why would he do this?” The victim told Ms Brown that there had been a fight during which the appellant had said that if the victim did not get out of bed he would douse her with “methyl” and that he was “flickering the light, and then it just went up”. The victim also told Ms Brown that the appellant had told the victim to tell the ambulance officers that it had been an accident. [19] The victim’s son, Ryan Coyne, first visited the victim on 8 August 2009, thereafter visiting her daily until 30 October 2009 when she was discharged. In a conversation that took place about two weeks after the first visit, the victim told Mr Coyne that the appellant had thrown methylated spirits on her and had set her on fire.

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[20] A friend of the victim, Leah Tasker, visited the victim on 9 August 2009. On that day, she entered the room on her own to find that the victim’s sister Ms Scott was also in the room. The victim told Ms Tasker and Ms Scott that she and the appellant had been arguing, that he was punching her when she asked him to stop and that she had wanted to sleep. The victim’s statement to police and its retraction [21] On three separate occasions on 24 and 27 August and 3 September 2009, a police officer, plainclothes Constable Heffernan, visited the victim for the purposes of obtaining a statement. Constable Heffernan brought with him the three A4 pages that the victim had written and that Ms Scott had brought in to the police station. Constable Heffernan also had pictures of a broken mobile phone. In the statement she provided to police, the victim gave a detailed account of the events of the night which was consistent with the accounts already provided to her family and friends, and confirmed that she recognised some of the writing on three A4 pages as being her handwriting. She also stated that three photos of a broken mobile phone shown to her were those of her phone that had been smashed on the night. The statement was dated 24 August 2009 and the bottom of each page was signed by the victim. [22] On 28 July 2011, the victim faxed a handwritten statement to the Office of the Director of Public Prosecutions and to the legal representatives of the appellant. The victim claimed that she had been heavily sedated and not fully conscious at the hospital when her friends and family had “told [her] what they thought had happened on the night”. She also wrote that her statement to police was “not the truth” and that she had no recollection of the events described upon reading it again. [23] During the trial the victim was cross-examined by the prosecution as an unfavourable witness pursuant to s 38 of the Evidence Act 1995. She maintained that the appellant did not douse her with methylated spirits and set her on fire and that the version in the police statement was not the truth even though she believed it was when she provided the statement. The victim was cross-examined on the contents of her statement and versions of events she had given to the ambulance officer, family and friends. The defence case [24] The appellant’s case at trial was that after returning home from the barbeque, he lit a cigar and went upstairs to smoke the cigar on the balcony. On reaching the balcony door, the appellant found

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Col v The Queen cont. that he could not open it and returned to the bedroom where the victim was sleeping. The appellant leant over the bed to give the victim a kiss before returning downstairs to finish the cigar. As the appellant walked back up the stairs, he smelt smoke coming from the bedroom and when he reached the bedroom he saw smoke coming out of the bed in which the victim was asleep. The appellant saw a bottle on the tallboy and, thinking it was water, poured it on the bed. The methylated spirits caught alight and the appellant tried to pat the flame down, causing burns to his hand. He then grabbed the victim and put her in the shower. He accidentally stood on the mobile phone as he went to search for burning clothes in the spare room. Grounds of appeal [25] The appellant appeals on the following grounds: (1)

The judge erred in admitting into evidence the victim’s statement to investigating police.

(2)

A miscarriage of justice occurred as a result of the use made of the victim’s statement to investigating police.

(3)

A miscarriage of justice occurred as a result of the use made of evidence disclosing a consciousness of guilt.

(4)

The verdict is unreasonable or cannot be supported having regard to the evidence.

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Grounds one and two – error in admitting into evidence the victim’s statement to police and miscarriage of justice arising from its use [26] It is convenient to deal with these two grounds together. Ground one complains of error in admitting the physical document as an exhibit. During the hearing of the appeal, contrary to what the appellant appeared to be submitting in writing, the appellant acknowledged that the contents of the statement were relevant and admissible in cross-examination as a prior inconsistent statement. However, it was submitted that the jury would have given disproportionate weight to the victim’s statement in the circumstances of the trial and that a miscarriage of justice thereby arose (Ground two). [27] The handwritten notes compiled in the hospital were admitted (without objection) as Exhibit A. The victim’s police statement and the victim’s statement of retraction were tendered by the Crown and became Exhibits O and P respectively. The decision to admit the police statement over objection was made on the basis of the High Court’s decision in Adam v The Queen [2001] HCA 57. Consideration was not given to the effect of the amendment of the Evidence Act 1995 (the Act) by the Evidence Amendment Act 2007. [28] At the time of the trial, s 101A of the Evidence Act relevantly provided: [section extracted] [29] The appellant submitted that the victim’s police statement was “credibility evidence” as defined in s 101A(b) of the Act because it affected the credibility of the victim and was relevant for an inadmissible purpose, namely a hearsay purpose. The appellant maintained that the statement did not fall within an exception to the hearsay rule. In particular, it did not fall within the exception where the maker of the representations was available to give evidence (s 66), because the representations were made for the purpose of indicating the evidence the person would be able to give: s 66(3). [30] The appellant conceded that the representations contained in the statement were admissible as an exception to the credibility rule, since the statement fell within the exception contained in s 103. It was adduced in cross-examination of the victim by the Crown Prosecutor pursuant to the leave granted under s 38. It could not be seriously contested that the evidence substantially affected the assessment of the credibility of the victim. [31] In addition, the contents of the statement were admissible pursuant to s 106 as a prior inconsistent statement. The Crown Prosecutor complied with the requirements of s 106(1) and the victim denied the substance of the evidence, that is, whilst agreeing that she had received burns after she had been doused with methylated spirits which was ignited, she denied any knowledge of how that

Part 3 — Admissibility of Evidence

Col v The Queen cont. occurred and that the conduct of the appellant was deliberate: see R v Michael Anthony Ryan (No 7) [2012] NSWSC 1160; 218 A Crim R 384. [32] Once the contents of the statement were admissible for a non-hearsay purpose, the representations constituted evidence of the facts: s 60. (Appeal dismissed.)



SUPPORTING CREDIBILITY [11.90] Section 108 creates exceptions to the credibility rule for evidence adduced to support

the credibility of a witness. The Supreme Court decision of R v Ngo considers the applicability of s 108. R v Whitmore discusses complaint evidence which is also discussed in the High Court’s decisions of Graham v The Queen and Papakosmas v The Queen.

R v Ngo [11.100] R v Ngo (2001) 122 A Crim R 467

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Facts [Ngo, with others, was charged with the murder of Newman. The Crown wished to lead evidence from two accomplice witnesses, TVT and TDN, who had been given indemnities. In particular, the Crown wished to adduce evidence as to when they first went to the authorities, why they did so, and why they did not at that stage disclose all material information. At voir dire it was objected that this was prohibited under s 102 of the Evidence Act 1995 as going only to credit.] Judgment DUNFORD J: ... [21] The evidence is objected to on the grounds that it is forbidden by s 102 of the Act, the credibility rule. That section at the beginning of Part 3.7 is as follows: Evidence that is relevant only to a witness’s credibility is not admissible. There follows a number of exceptions including cross-examination as to credibility (s 103) and re-establishing credibility (s 108). [22] It has often been considered good advocacy for counsel who has a problem witness to confront the problem head-on as early as possible, and if there are going to be questions raised about previous inconsistent statements, to lead evidence as to the reasons or excuses for such inconsistent statements during the evidence-in-chief, rather than wait for an attack to be made on the witness in cross-examination. However, it would appear that such evidence, strictly speaking, would not be admissible in evidence-in-chief at common law, and that the position would appear to be reinforced by the provisions of the Act. [23] Credibility of a witness is defined in the Dictionary as meaning, “the credibility of any part or all of the evidence of a witness …”. Although in my experience such evidence has in the past not infrequently been led in these circumstances, the words of the section appear to be clear, and this view is confirmed by the learned authors of Cross on Evidence, Australian edition at par [19005] who state:

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R v Ngo cont. The Cth Evidence Act 1995 and NSW Evidence Act 1995 provide that evidence that is relevant only to a witness’s credibility is not admissible: s 102. There are exceptions for crossexamination (ss 103-104), for rebuttal of certain denials by a witness (s 106) and for evidence re-establishing credibility (s 108), but there are no exceptions in relation to evidence in chief, save s 110(1) permits an accused person who is testifying to give evidence of good character. [24] The evidence to which objection is taken falls squarely within the definition and therefore cannot be led except pursuant to the exceptions referred to. Mr Nicholson SC referred to the need for leave under s 108(3) to lead such evidence, even in re-examination; but s 108(1) is in my view quite separate from s 108(3) and if the credit of a witness is attacked, evidence from that witness relating to his credit is admissible in re-examination under s 108(1) without leave. [25] The Crown referred me to the judgment of McHugh J in Palmer v The Queen (1998) 151 ALR 616, but that case is distinguishable for two main reasons: firstly, the case was not concerned with leading evidence relating to credibility as evidence-in-chief but with the cross-examination of an accused as to whether a complainant in the sexual assault case had a motive to lie or fabricate allegations, and secondly, the discussion by his Honour concerning the distinction between evidence relating to facts in issue and evidence only going to credibility was concerned mainly with the finality rule by which other evidence cannot be led to contradict evidence going only to issues of credit, and was concerned with the difficulty in defining the boundary between the two. In any event, his Honour dissented on the relevant issues in the case, and his comments are only dicta.

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[26] I am therefore satisfied that the two witnesses can give evidence-in-chief that they were charged and at a later stage went to the authorities and were later given indemnities or undertakings, but their reasons or motives for going to the police and their previous inconsistent or incomplete statements cannot, or their reasons for such discrepancies cannot, be led as part of their evidence-in-chief but only in re-examination, provided the anticipated attack on their credit is made. [27] The learned Crown Prosecutor therefore then submits that he would seek to refer to these matters in his opening address. Mr Nicholson SC, supported by Mr Cusack SC for the accused Dao, objects and submits that they are not proper matters for an opening and will take away the “thunder” of the defence attack. I can see no valid objection to the course proposed by the Crown. The object of the opening is to outline the Crown case to the jury so that they will understand the Crown case as individual witnesses are called. [28] It is clearly proper for the Crown to tell the jury that they are alleged accomplices, that the jury will be warned that their evidence may be unreliable and the reasons why it may be unreliable in that context. I cannot see any reason why the Crown cannot say that their credibility will be attacked and that one of the anticipated grounds of the attack will be that initially they only told the authorities part of their current evidence, but that they will give reasons for that and for later going further and what those reasons were. [29] Evidence intended to be led by the Crown in re-examination (to rebut a telegraphed attack on the credibility of an intended witness) is just as much evidence to be led by the Crown as evidence intended to be led from the witnesses in chief. There is no principle of which I am aware, and I have not been referred to any authority, to the effect that the defence is entitled to the tactical advantage or “thunder” of first raising the issue of credibility of a witness. The issue of their credibility will be raised by the need for a warning concerning their evidence under s 165, and the evidence will all be before the jury at some stage. However, I am also satisfied that the Crown should deal with these matters only in general terms and not proceed too far into the specifics of the differences in the various statements, but merely that there were differences, and it is anticipated that they will give explanations for such discrepancies in due course. ...



Part 3 — Admissibility of Evidence

R v Whitmore [11.110] R v Whitmore (1999) 109 A Crim R 51 Facts [Whitmore was convicted on one charge of indecent assault and one charge of sexual assault of a child. The alleged offences occurred at Christmas 1992 and the child made an initial complaint to her aunt in December 1995. The case against Whitmore relied entirely upon the evidence of the complainant. Objection was made to the aunt’s evidence of complaint on the basis that it was not a recent complaint. The trial judge ruled that the complaint evidence was admissible, albeit requiring direction as to specific prior opportunity to complain. No reference was made to ss 60, 66 or 108. Whitmore appealed against his convictions on a number of grounds including that the complaint evidence was wrongly admitted.] Judgment GREG JAMES J (Newman and Sperling JJ agreeing): ...

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[36] … [It] is to be noted that the trial occurred in the same month as the High Court handed down the decision in Graham v The Queen (1998) 157 ALR 404 but before that decision was handed down and that here, as there, the debate at trial on admissibility of the complaint evidence had taken place as though the Evidence Act provisions on the topic had not been in force. [37] Whether the complaints answered the common law requirements for admissibility or not, as was urged by defence counsel at trial, they clearly did not satisfy the requirement that they be made at a time when the occurrence of the facts asserted in them were fresh in the memory as that concept was explained by the High Court in Graham ([3]-[4]). Here, there was objection, but it was not on the precise basis referred to in Graham. Nonetheless, there has been in this court a line of authority to which I will later refer that on appeal that decision will be applied in respect of such questions as here arise at least in cases decided prior to the handing down of that decision. [38] The complaint evidence was inadmissible as an exception to the hearsay rule. Leave was not sought to have it admitted, nor was the question of leave to have it admitted on credibility considered. Notwithstanding the Crown submissions, such leave was not inevitably to be granted. There were real issues as to whether reconstruction, fabrication and suggestion were being suggested, that is, as to whether the condition precedent to the grant of leave existed and whether on the issue of whether leave should be granted, matters relevant to the grant of leave existed. As to these latter, the matters referred to in s 192 and those matters raised at trial by counsel for the appellant and here by the Crown, would need to be evaluated in the context of the policy of the Act setting its face against evidence relevant on credibility alone unless made relevant by some course, consciously chosen by the accused. Some guidance as to the application of appropriate principles is given in Graham ([6]-[10], [33]); Regina v Cassar (No 12) [1999] NSWSC 352; Regina v BD (1997) 94 A Crim R 131, Regina v DJT [1999] NSWCCA 22, Regina v JGW [1999] NSWCCA 116; Regina v RPS (CCA, unreported 13 August 1997, per Hunt CJ at CL at 10). To what has already been said on the topic, for myself I add that I do not find the argument attractive that unless there is agreement with what is asserted or silence there is an attack on credibility. To hold that every express denial of the events the subject of the charge would provide a basis for the admission of credibility evidence would in my view extend the ambit of the section beyond its true construction. [39] In my view the denial of the events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion. Even if it did, on the issue of whether leave would be granted, the restraint from attacking credibility by going no further would be a most material matter mitigating against the grant of leave.

Credibility

CHAPTER 11

R v Whitmore cont. [40] At common law, a strenuous denial of a fact alleged by the prosecution was not necessarily to cast imputations upon the character of the witness who asserted such a proposition so as to raise the accused’s character or permit cross-examination by the prosecution: see Dixon CJ in Dawson v The Queen (1962) 106 CLR 1 at 10 and Curwood v The King (1944) 69 CLR 561; and the discussion in the judgments of Herron CJ and O’Brien J in Regina v Heydon (1966) 1 NSWLR 708. When such an imputation was raised, the exercise of discretion still needed to be considered (Regina v Domini (1972) 178 CLR 144). Those principles and those applicable to the admission of evidence rebutting recent invention (see Nominal Defendant v Clements (1960) 104 CLR 476) offer valuable guidance to the context in which the question of permitting the adducing of evidence relevant only on credibility, a matter generally prohibited by the policy of the Act might be resolved in an instant case. [41] However, I need go no further than to hold, that in accord with that line of authority to which I have already referred, consequent upon the decision of the High Court in Graham, in which similar issues have been examined, exemplified by the decisions of this court in Regina v Gillard [1999] NSWCCA 21; Regina v Dwyer [1999] NSWCCA 47; Regina v RNS [1999] NSWCCA 122, I would allow the appeal on this ground.



Nikolaidis v The Queen [11.120] Nikolaidis v The Queen (2008) 191 A Crim R 556; [2008] NSWCCA 323

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Facts [Nikolaidis, a partner/solicitor, was convicted for an offence of making a false instrument. One ground of appeal was that the Crown failed to obtain leave pursuant to s 108(3) regarding the adducing of complaint evidence by Ms Moffatt (the appellant’s secretary from 1994 to 2001) to Ms Middleton (a salaried partner in the appellant’s firm).] Judgment SIMPSON J: … [208] Between 1998 and 1999 Ms Middleton was a salaried partner in the appellant’s firm. She gave evidence of a conversation with Ms Moffatt that, she said, took place in November 1998. Her evidence was that Ms Moffatt approached her in her office, with tears in her eyes, and asked what would happen to her if she were told to create a document and backdate it – and said that she had in fact done so. [209] Ms Middleton was not cross-examined. [210] This was evidence relevant only to the credibility of Ms Moffatt. It was therefore inadmissible under the credibility rule contained in s 102 of the Evidence Act, unless it came within one of the exceptions to that rule. It could only have been admissible under s 108(3). S 108 appears under the heading: “Exception: re-establishing credibility”. Sub-s (3) provides: [s 108(3) extracted]. [211] It will be seen that the tender of evidence such as this requires leave. Before leave is given, one of the foundations for the admission under s 108(3) must be established: either that evidence of a prior inconsistent statement by the witness has been admitted; or that it has been or will be suggested that the evidence given by the witness has been fabricated or reconstructed or is the result of a suggestion. [212] Once the foundation is laid, whether leave is given is to be determined after consideration of the matters set out in s 192 of the Evidence Act.

Part 3 — Admissibility of Evidence

Nikolaidis v The Queen cont. [213] It does not appear that leave was sought or granted. No objection was taken to the evidence. There has been no suggestion that defence counsel was not provided with a copy of Ms Middleton’s statement, or an outline of the evidence she was called to give, or was in any way taken by surprise by the calling of Ms Middleton. [214] Whether the foundation for admission of the evidence has been established depends upon analysis of the cross-examination directed to Ms Moffatt. [215] It was put directly to Ms Moffatt that she had not been required by the appellant to create the letter. She answered that she was requested, indeed instructed to do so. [216] The cross-examination then proceeded, in unmistakeable terms, to suggest that Ms Moffatt had fabricated the evidence. It was put to her, and accepted by her, that her financial circumstances were precarious and she was in need of money. It was put to her that on her leaving the employment of the appellant, she had unsuccessfully sought from him certain payments; and that, on a specified date in October 2001, she had telephoned the appellant with a request that he pay or give her $100,000; that this was accompanied by a scarcely veiled threat to provide information damaging to the appellant to Mr Preston – information sufficiently damaging to see the appellant imprisoned. It was put to her that, on another occasion, she had had a conversation with George Voulgaropoulos, an employee of the appellant’s firm, in which she had made detailed reference to the wealth of the appellant and his family; and that, in another conversation with Mr Voulgaropoulos, she had insinuated that she might benefit financially, in a substantial way, from the Preston dispute.

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[217] The only possible import of this cross-examination was a suggestion that Ms Moffatt had fabricated her evidence about the creation of the document. One clear suggestion was that her disaffection for the appellant stemmed from her perception of the way she had been treated by him on leaving the firm – that she believed that she had not been paid her “entitlements”. It was suggested that this provided her motive to fabricate evidence against the appellant. [218] Ms Moffatt left the firm in the middle of 2001. Any statement she had made prior to that date, consistent with her evidence about the creation of Exhibit 1A, was therefore capable of rebutting the suggestion of fabrication. Ms Middleton’s evidence was that the conversation with her took place in 1999. [219] In these circumstances, the foundation under s 108(3)(b) for the admission of the evidence was laid. [220] It is true that, in the absence of any consideration of leave, the trial judge did not directly turn his attention to the provisions of s 192. Section 192 requires the court to take into account the following: [s 192 extracted]. [221] There is not one of these which would militate against the grant of leave to the Crown to adduce Ms Middleton’s evidence. Of course, the Crown ought to have sought leave. But it was open to defence counsel to object to the evidence when leave had not been sought. He did not do so. As can be seen from the transcript, her evidence was very short indeed; it occupies only one page of transcript. Given the nature of the cross-examination of Ms Moffatt, it could hardly be said to be unfair to the appellant to permit evidence that re-established, or tended to re-establish, Ms Moffatt’s credibility – evidence that, prior to the date of her asserted disaffection, she had made a statement, or acted in a way, consistent with the evidence said to have been fabricated. The evidence was important in the overall context of the trial which was a criminal prosecution of a serious charge. No question of adjournment arose. [222] Had leave been sought, inevitably, it would have been granted. The failure of the Crown to seek, and of the judge to grant, leave did not occasion any miscarriage of justice. (Appeal dismissed.)

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Credibility

CHAPTER 11

EXPERT OPINION Dupas v The Queen [11.130] Dupas v The Queen (2012) 218 A Crim R 507; [2012] VSCA 328 Facts [See facts in Chapter 6.] Judgment (some footnotes omitted) WARREN CJ, MAXWELL P, NETTLE JA, REDLICH JA, BONGIORNO JA: …

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[243] Ground 3 contended that the trial judge erred in: (a)

ruling part of the proposed evidence of Dr Richard Kemp to be inadmissible and confining his opinions to the general aspects of identification evidence and not the specific identification witnesses;

(b)

restricting the scope of the opinion evidence sought to be adduced by the applicant so as to preclude evidence about the applicability of the media misinformation effect; and

(c)

ruling inadmissible opinion evidence on the displacement effect of the relevant witnesses’ identification evidence.

[244] For the reasons which follow, we agree with the submission for the applicant that, under the Act, “credibility” encompasses reliability. The trial judge and both parties were therefore in error in dealing with the question of reliability as if it were an issue to which s 79 was applicable. The admissibility of the expert evidence of Dr Kemp was governed by s 108C, which was enacted specifically to deal with opinion evidence going to the assessment of credibility. The evidence in question could only have been admitted – if at all – by leave of the trial judge, which was not sought. As will be seen, however, in dealing with the problem under s 79 the judge in effect took into account all of the considerations mandated by s 108C, and reached a conclusion with which we respectfully agree. [245] It will be recalled that, at trial, the defence sought to lead evidence from Dr Kemp about identification evidence, delay and post-event information resulting in a displacement effect. The risk of displacement effect was referred to in the course of discussing identification evidence under Ground 1. The misinformation effect describes the phenomenon of post-event information affecting the accuracy of witnesses’ recall without them being aware that their memory has been so compromised. [246] In his first report, Dr Kemp had proffered his opinion as to the likelihood that the memories of the witnesses Burman, Melnik and Weller had in fact been contaminated or otherwise affected by post-event information. Prior to the empanelment of the jury, Dr Kemp gave evidence on a voir dire. The applicant then obtained a second report from Dr Kemp. No further reliance was placed on the first report. After the jury had been empanelled, Dr Kemp gave further extensive evidence on a voir dire. That evidence was followed by substantial submissions. [247] The applicant sought to lead general evidence from Dr Kemp about the weaknesses of identification evidence, the displacement effect and the media misinformation effect. As part of his general evidence, he explained by means of general examples how each of these factors could affect reliability. The applicant also sought to lead specific evidence relating to the identification witnesses Burman, Weller and Melnik. Initially, the applicant sought leave to adduce both the general and the specific evidence under s 108C of the Evidence Act but, in oral submissions, abandoned reliance on s 108C and sought to adduce the evidence under s 79. …

Part 3 — Admissibility of Evidence

Dupas v The Queen cont. [257] The evidence which the applicant wished to adduce related to the reliability of the evidence of identification. This was credibility evidence which, by virtue of the credibility rule, was inadmissible unless it met the preconditions for admissibility in s 108C. [258] The statutory framework for the admissibility of expert opinion requires that the opinion must first be relevant; that is, if it were accepted, [the opinion] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. [259] The opinion rule, found in s 76 of the Act, prevents evidence of an opinion being admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 provides an exception to the “opinion rule”. It permits opinion evidence to be admitted: [i]f a person has specialised knowledge based on the person’s training, study or experience [and the opinion] is wholly or substantially based on that knowledge.

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[260] The parties and the trial judge proceeded on the erroneous basis that s 108C was irrelevant because the expert’s evidence was concerned with reliability and not the “credibility” of the witnesses. As this Court very recently stated in ISJ v The Queen [2012] VSCA 321, [67], however, whatever the gateway by which the evidence is sought to be admitted, once it is plain that the sole use of the evidence is directed to the credit of the witness, the preconditions to admissibility laid down under Div 1 of Pt 3.7 of the Act must be satisfied. [261] As we have said in dealing with Ground 1, it was the usual practice of courts applying the common law to distinguish between the “credibility” (or truthfulness) and the “reliability” of a witness, the latter being the ability to accurately discern and relay the truth as to an event [See eg Douglass v The Queen [2012] HCA 34]. At first, s 102 was thought to relate to “evidence which bears generally on the reliability of a witness, as well as ... evidence that bears on the reliability of particular testimony of that witness” [R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284, [332] (Mason P, Wood CJ and Sully J)]. But subsequent consideration of the credibility rule in Peacock v The Queen [2008] NSWCCA 264; (2008) 190 A Crim R 454 (“Peacock”), followed in RGM v The Queen [2012] NSWCA 89, [73][74] led to the view that it related only to evidence concerning the truthfulness of a witness, and not to reliability. [262] In Peacock, Simpson J (with whom McClellan CJ at CL agreed) considered there to be a distinction between evidence going to the credibility of a witness, and evidence going to the credibility of the evidence given by that witness (Peacock v The Queen [2008] NSWCCA 264; (2008) 190 A Crim R 454, 465 [57]). It was the latter to which the description “reliability” could appropriately be applied. On that basis, it was held, s 102 prohibits evidence going only to the credibility (truthfulness) of the witness and so does not prohibit evidence going only to the credibility (reliability) of the evidence given by that witness. Simpson J concluded that “the reliability of evidence given by a witness might be challenged by evidence contradicting all, or part, of that witness’s evidence” and that such contradictory evidence was not rendered inadmissible by s 102. These observations were quoted without criticism by Fullerton J (with whom McClellan CJ at CL and Johnson J agreed) in RGM v R [2012] NSWCCA 89, [72]-[73]. [263] We are, with great respect, unable to accept that distinction. It is not possible to reconcile the view of the majority in Peacock with the definitions in the Dictionary of the Act. “Credibility” is specifically defined as follows: credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation; credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence; [373]

Credibility

CHAPTER 11

Dupas v The Queen cont. credibility evidence is defined in section 101A; credibility rule means section 102; [264] And s 101A defines “credibility evidence” as follows: Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that— (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant— (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

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[265] Thus, the credibility of a witness expressly includes the credibility of the evidence of the witness. And the express reference to a person’s “ability to observe or remember facts and events” can only be a reference to reliability. In short, “credibility” imports notions of both truthfulness and reliability. Section 102 provides that credibility evidence about a witness is not admissible. Thus, prima facie, evidence relevant to the reliability of a witness is not admissible. (See Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005), [12.3]; Stephen Odgers, Uniform Evidence Law (Lawbook Co., 6th ed, 2004), [1.3.7640].) [266] Adam v The Queen established that the credibility rule was only engaged where the evidence was relevant solely to a witness’s credibility; it was not engaged where it might additionally be relevant for proof of a fact in issue, or for some other purpose. To similar effect, McHugh J had earlier observed in Palmer v The Queen: “the credibility of evidence is locked to the credibility of its deponent”. Section 101A(a) was introduced as a direct response to Adam’s case. As was observed in R v Rivkin, the width of the definition makes plain – as was confirmed in R v Milat – that the section applies both to evidence which bears generally on the reliability of a witness and to evidence that bears on the reliability of particular testimony of that witness. Thus, for the purpose of the credibility rule, the Act has removed any distinction between credibility and reliability, in relation both to the witness and to the witness’s evidence. [267] There are a number of statutory exceptions to the credibility rule. They are mostly concerned with material that would tend to discredit a witness. They include evidence that is adduced in cross-examination (ss 103 and 104) and evidence in rebuttal of denials (s 106). The exceptions which permit evidence to be called to support the credit of a witness include evidence adduced in order to re-establish credibility (s 108), and in relation to character (s 110). The prohibition against asking an expert for an opinion about an ultimate issue has been abolished by s 80 of the Evidence Act. [268] Section 108C provides a further exception to s 102. Section 108C permits the leading of evidence relevant to credibility from persons with specialised knowledge. That section relevantly states: [s 108C extracted]. [269] Section 108C was part of the Victorian Evidence Act from the time of its enactment. It was, however, added by amendment to the Commonwealth and NSW Evidence Acts. The Explanatory Notes to the amending NSW Act explained that s 108C implemented recommendation 12-7 of the Uniform Evidence Law: Report and recommendation 57 of the Criminal Justice Sexual Offences Taskforce Report entitled “Responding to sexual assault: the way forward” (2005). The Explanatory Notes stated that the section was intended: to enable the admission of expert opinion evidence that is relevant to the fact-finding process (for example, to prevent misinterpretation of the behaviour of a witness with an intellectual disability or cognitive impairment, or inappropriate inferences from such behaviour).

Part 3 — Admissibility of Evidence

Dupas v The Queen cont. [270] A very similar statement is found in the Explanatory Memorandum to the amending Commonwealth Act. In the discussion preceding the Uniform Evidence Law: Report recommendation, primary focus was given to evidence relating to witnesses who suffered from some sort of cognitive impairment, psychological, psychiatric or neurological considerations, mental illness and child development and behaviour. The Report also discussed recommendations to limit the scope of an exception to the credibility rule. Ultimately, however, it was recommended that the scope of the exception not be limited except in the ways now provided by s 108C. This recommendation was expressly adopted by the NSW Act and the Uniform Act and impliedly by the Commonwealth Act.

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[271] The exception as enacted is thus directed to expert testimony of substantial probative value, relevant to the assessment of the reliability of a witness to facts in issue. It deals with the capacity of a witness to give credible evidence, having regard to some behavioural or other factor which may have affected that witness’s capacity to give accurate evidence. The exception permits expert evidence to be called as to behavioural factors – environmental, cognitive or otherwise – which would assist the Court’s understanding of the capacity of a witness to give credible evidence (Erwin v Vergara [2012] FCA 1240 [8] (Bromberg J); Harris v Bellemore [2009] NSWSC 1496, [12]-[13]; Australia Bank v Caporale [2012] NSWSC 509, [12] (Schmidt J)). Examples of specialised knowledge of that kind are given in s 108C(2). [272] In CMG v The Queen [2011] VSCA 416 Harper JA (with whom Ashley and Weinberg JJA agreed) alluded to the possibility of leave being granted to an expert (who met the criteria set out in s 108C) to testify as to aspects of children’s behaviour – such as that of child victims of sexual assault – which are not a matter of ordinary knowledge. Sub-section (2) expressly contemplates evidence being given about child development and child behaviour (including the impact of sexual abuse on children, and their development and behaviour during and following abuse) once the conditions prescribed by the Evidence Act have been met. Again, expert evidence might be led of the effect of a personality disorder, where there was a rational basis for that disorder to undermine a witness’s credibility (R v WR [2010] ACTSC 89, [30]-[33] (Refshauge J)), or as to the power of suggestion in the case of a child being interviewed by a person in authority (DPP (NSW) v JG [2010] NSWCCA 222, [124] (Basten JA) [160] (RS Hulme J)). [273] Counsel for the applicant submitted at trial that s 79 provided the gateway for the admission of the opinion evidence. As has been seen, counsel eschewed reliance on s 108C. Section 79 required, as does s 108C, the specialised knowledge to be based on training, study or experience and the opinion to be wholly or substantially based on that specialised knowledge. But s 108C contains additional preconditions. It must be shown that the opinion “could substantially affect the assessment of the credibility of the witness”, and the court must give leave. [274] On appeal, the applicant sought to revive the abandoned argument that s 108C was applicable to Dr Kemp’s evidence on the basis that, by virtue of the Dictionary definition, credibility encompasses notions of reliability. Ordinarily, however, a party will be bound by the manner in which the case is conducted at first instance (see Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954, 973 [114]), and no submission was made as to why the applicant should not be bound by the course followed at trial. Nor was any submission made as to how the applicant could have been advantaged had the application been made under s 108C, or as to how such additional evidence as Dr Kemp could have given could have “substantially affected” the assessment of the credibility of the witnesses. [275] The applicant made no submission concerning the factors the trial judge would have been required under s 192(2) to consider before leave could have been granted, nor as to the basis on which s 108C could be invoked on appeal when leave had not been sought at the trial. Whether the applicant eschewed reliance upon s 108C in order to avoid having to comply with those preconditions is unknown, as no explanation was provided on the appeal for the course that was followed. [276] Although the trial judge admitted the “general” evidence of Dr Kemp under s 79 rather than s 108C, her conclusion (albeit based upon her consideration of s 79) was in effect that the general evidence met all of the criteria of s 108C. By contrast, her Honour concluded that the specific evidence

Credibility

CHAPTER 11

Dupas v The Queen cont. could not satisfy the criteria in s 79. The position regarding the more stringent conditions of s 108C would have been a fortiori. [277] As we have pointed out, the applicant did not seek at trial to adduce evidence from Dr Kemp as to the reliability of the identification by each witness, or the degree to which that witness’s evidence might be unreliable. Dr Kemp had explicitly stated during the course of the voir dire that he could not give such evidence. Accordingly, there was no factual foundation for the argument that Dr Kemp should have been permitted to give evidence as to his opinion as to the reliability of the particular identification evidence. Nor was the nature of his evidence on that subject such as could have substantially affected the assessment of the credibility of the witnesses, within the meaning of s 108C(1)(b)(ii). The general evidence having been admitted, the jury were as well placed as Dr Kemp to assess whether and to what extent the general propositions bore on the credibility of the individual witnesses. [278] In the course of her ruling, the trial judge referred to R v Smith [2000] NSWCCA 388; (2000) 116 A Crim R 1. In that case, expert evidence as to the dangers of identification was said to be prima facie admissible under s 79. In a passage quoted by her Honour, Smart AJ said:

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The report of Professor Thomson does not capture the strength of the complainant’s evidence and his purported application of stated general research conclusions to her and her evidence goes further than is permissible. He would, however, be able to state the results of his research and the general state of learning and answer questions based on assumptions. It would be for the tribunal of fact to decide whether they applied in the present case. That is upon the assumption that his evidence was not otherwise excluded. [279] The trial judge made clear to the applicant’s counsel, both during the lengthy submissions on the point and in her ruling, that the applicant was entitled to put hypothetical situations to the expert to amplify each of the dangers developed in the expert’s general evidence. The risk factors of displacement, post-event information, subconscious transference and the increased susceptibility of error with delay were all matters that could be cogently illustrated without the expert commenting upon the precise circumstances of each witness’s identification. [280] In the event, defence counsel was able in final address to the jury to draw upon that evidence, amplified by hypothetical examples, to support the contention that such circumstances were also to be found in the identifications by the witnesses. And it was acknowledged in argument on the appeal that defence counsel had pointed out to the jury how the factors affecting identification, which Dr Kemp had discussed in his general evidence, were present in the case of each identifying witness. [281] The judge excluded Dr Kemp’s specific evidence because he could not express an opinion as to the reliability of the individual identifications. He had not been provided with all of the detail of how those identifications occurred, nor had he interviewed or observed any of the witnesses. As he acknowledged in the case of each witness, he could not express an opinion about the reliability of that witness’s identification, nor could he assess the likelihood of the identification being unreliable. [282] The judge therefore concluded – correctly, in our view – that for Dr Kemp to have commented upon the precise circumstances pertaining to each identification, or to have expressed a view as to whether those circumstances gave rise to the risk of unreliability, would have been tantamount to him expressing the opinion that the individual identifications were unreliable. As we have said, the necessary foundation did not exist for him to extrapolate from the research to the circumstances of each identification (about which he was not fully informed) or to the individual witnesses (about whom he knew very little). [283] An opinion about the circumstances would have gone outside the scope of his specialised knowledge. An opinion about the reliability of the identifications would necessarily have rested on a combination of speculation, inference and personal views (see HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, [41] (Gleeson CJ)). At the same time, such an opinion would have been

Part 3 — Admissibility of Evidence

Dupas v The Queen cont. invested with a spurious appearance of authority, and would have subverted the legitimate processes of fact-finding. [284] In the result, Ground 3 is not made out. …



MA v The Queen [11.140] MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20 Judgment (some footnotes omitted) OSBORN JA (Redlich and Whelan JA agreeing): [2] On 30 August 2011, the appellant was convicted of seven charges arising out of sexual abuse of his daughter. In the course of his trial, a psychiatrist, Dr Daniel Sullivan, gave expert evidence on behalf of the Crown with respect to the behavioural framework within which the evidence of the complainant’s reactions to the alleged abuse should be assessed and understood.

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[3] More particularly, Dr Sullivan gave evidence that: (a)

the failure of the complainant to cry out during the sexual assaults when other members of the family were in the vicinity was not an unusual behavioural reaction;

(b)

the failure of the complainant’s mother to accept the truth of a complaint made to her by her teenage daughter concerning sexual abuse by her father was not an unusual behavioural reaction and could be regarded as relevant to the complainant’s behaviour thereafter; and

(c)

the fact that the complainant maintained an ongoing relationship with her father for many years after the alleged abuse, despite both its occurrence and the failure of her mother to accept her complaint, was not demonstrative of an unusual behavioural reaction.

[4] On 8 March 2012, Harper JA gave leave to appeal on the ground that it was reasonably arguable that Dr Sullivan did not possess the relevant expertise to give the evidence complained of. [5] On the hearing of the appeal, leave was granted to the appellant to further challenge the admissibility of Dr Sullivan’s evidence on the grounds that it was: (a)

irrelevant in that it was incapable of rationally affecting any matter in issue in the trial (in accordance with s 55 of the Evidence Act 2008 (“the Evidence Act”));

(b)

so unfairly prejudicial as to require exclusion pursuant to s 135 or 137 of the Evidence Act; and

(c)

likely to have unfairly prejudiced consideration of the case by the jury.

[6] For the reasons I shall explain I have concluded that: (a)

Dr Sullivan’s evidence was relevant within the meaning of s 55 of the Evidence Act;

(b)

it was evidence which he was qualified by his expertise to give; and

(c)

it was not so unfair or prejudicial that it should have been excluded.

[7] In accordance with the scheme of the Evidence Act, I will deal with the threshold matters of relevance and of Dr Sullivan’s expertise before turning to the considerations relating to unfair prejudice. The alleged offending [8] The complainant was born in December 1974 and is the appellant’s daughter. The offences were alleged to have occurred when the complainant was between 11 and 14 years of age and

Credibility

CHAPTER 11

MA v The Queen cont. the appellant was between 46 and 50 years of age. By the date of his conviction, the appellant was 71 years of age. The Crown case was that the offences were constituted by the following conduct of which the complainant gave evidence. [9] When she was about 12 years old, the appellant approached the complainant while she was watching television at home. He pulled down his pants and attempted to push his penis into her mouth through her closed lips. He then placed his other hand behind her head and worked his penis into her mouth. He made thrusting motions with his hips before removing his penis and walking away (count 2 – incest). [10] When the complainant was about 13 years old and using the toilet, the appellant entered and asked to see her vagina. He told her that he would not leave until she showed him. The complainant pulled up her T-shirt while she was sitting on the toilet and the appellant looked at her (count 3 – gross indecency).

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[11] When she was about 13 years old, the complainant had taken $50 out of the appellant’s wallet when he was not looking and hidden it in her room. When she was later watching television with her brother, the appellant walked into the lounge room and asked her whether she had taken the money. She denied it. Her father left the room and came back with the $50. He hit her across the face, causing her to fall to the floor. He picked her up by her arm and took her to his bedroom. He then closed the door, leaned over the bed, pulled her pants and underpants and anally penetrated her with his penis (count 4 – incest). She told him to stop and he responded by saying “this is what you get for taking my money”. He moved his body with a back and forward motion for a minute or so before removing his penis and leaving the room. [12] When the complainant was about 13 years old and watching television at home the appellant came out of the shower and entered the lounge room. Nobody else was home. He hit her across the face. She landed on the floor. He then got on top of her and tried to pull her dress up. She struggled with him. He held her down with one hand moved her underwear to the side and placed his penis in her vagina (count 5 – incest). She asked him what he was doing and he responded by saying “it’s your fault that I’m doing this. It’s the way you dress”. He then left the room. [13] On three occasions between 1 May 1988 and 10 December 1989, the appellant entered the bed of the complainant at night when her mother was in the shower. On each occasion, the complainant was awoken by the appellant getting on top of her. On each occasion, she struggled with the appellant as he tried to insert his penis into her vagina. He would cover her mouth with one hand and use the other hand to try to push her knees aside (counts 7, 8 and 10 – attempted incest). On the last occasion, which occurred when she was about 14, she fell out of bed and went to the corner of her room. The appellant told her to get back in the bed and she yelled “No” at him. The complainant heard the shower stop running and the appellant left the bed and went to the door. He told her “I’ll get you tomorrow” and then left her bedroom. [14] The morning after this incident, the complainant rode her bicycle to the train station and took a train to her mother’s workplace. The complainant told her mother that her father had been having sex with her. The complainant’s mother returned home with her and questioned the appellant. He strongly denied having sex with the complainant. Her brother also participated in the discussion. The complainant’s mother believed the appellant and her complaints were not discussed further. [15] The complainant first reported the offending to police about a month after speaking to a pastor in her church in 2008. She gave evidence that she also complained to her school friends and a boyfriend. When interviewed in July 2008 the appellant denied the allegations. Relevance [16] The defence case was that the offending had not occurred. [17] In turn, the defence relied on the fact that, after making complaint to her mother when she was around 14 years of age, the complainant continued to reside in the family home with the appellant until she was 18. The complainant then moved out of home but returned voluntarily the same year

Part 3 — Admissibility of Evidence

MA v The Queen cont. and continued to reside with the appellant and her mother, until moving out again at 23 years of age when she married. The complainant maintained a family relationship with the appellant and following the appellant’s separation from the complainant’s mother was the last of the family members to still have involvement with the appellant. The complainant ceased contact with the appellant in March or April 2008 following being “born again” and becoming actively involved in her church. The defence put that her behaviour was not consistent with that of someone who had suffered the abuse which she alleged. [18] A large part of the questioning during the complainant’s cross-examination at the committal focused on behaviour which was said to be inconsistent with the truth of the complainant’s evidence. The topics raised at the committal included the failure to yell out or scream at the time of sexual assaults; failures to tell her mother or brother of their occurrence; the fact the complainant remained living at home after the alleged assaults and then, having left home, maintained contact with her father; the fact that such contact included inviting him to her wedding and to the christening of her daughter and extended to a series of family functions at which, amongst other things, photographs were taken of the two together and gifts were exchanged between them. [19] As his Honour Judge Tinney, the trial judge, noted, the written defence response to the Crown case stated: The accused will rely inter alia upon the following matters in defence of the allegations: (a) the fanciful nature and detail of the claims;

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(b) the complainant’s behaviour towards the accused in the years following the period covered by the allegations. [20] In turn, counsel for the appellant confirmed at the trial that he intended to go to the same areas of evidence as were raised in cross-examination at the committal and would contend that the complainant’s behaviour was inconsistent with the behaviour one would expect if the complainant was abused in the way she described. [21] The Crown sought to rebut the defence case as to counterintuitive behaviour by calling expert evidence from Dr Sullivan that the complainant’s behaviour was neither necessarily inconsistent with the allegations she made nor an abnormal response to offending of the type she described. [22] Such evidence could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns of behaviour as asserted by the defence. In this sense, it could establish that the counterintuitive behaviour complained of was of neutral significance. It could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred as alleged. [23] As the New Zealand Law Reform Commission said in respect of the rationale for the admission of such evidence: (New Zealand Law Reform Commission, Evidence: Evidence Code and Commentary, Report No 55 (1999) vol 2, 67 [C110]-[C111]) Rather, the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and therefore be better able to evaluate it. Part of that purpose is to correct erroneous beliefs that juries may otherwise hold intuitively. That is why such evidence is sometimes called “counter-intuitive evidence”: it is offered to show that behaviour a jury might think is inconsistent with claims of sexual abuse is not or may not be so; that children who have been sexually abused have behaved in ways similar to that described of the complainant; and that therefore the complainant’s behaviour neither proves nor disproves that he or she has been sexually abused. The purpose of such evidence is to restore a complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. This is similar to the use of expert evidence to dispel myths and misconceptions about the behaviour of battered women. (emphasis in original)

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MA v The Queen cont. [24] As the judge’s ruling on the admissibility of Dr Sullivan’s evidence records, counsel for the appellant at trial did not submit that the evidence proposed to be called from Dr Sullivan was irrelevant. Rather, counsel sought to challenge Dr Sullivan’s qualifications to give the evidence and to exclude the evidence on this basis. [25] The provisions of the Evidence Act themselves explicitly recognise that, in some circumstances, opinion evidence may be adduced which is based upon specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse and goes to issues of credibility. [26] Section 55 of the Evidence Act provides: [section extracted] [27] Section 55 of the Evidence Act expressly contemplates that relevant evidence may be evidence which indirectly affects the assessment of the probability of the existence of a fact in issue in the proceedings. In particular, it will not be irrelevant only because it relates to the credibility of a witness. [28] Section 101A defines credibility evidence to include evidence which is relevant only because it affects the assessment of credibility of a witness or person. [29] Section 102 provides the general exclusionary rule that credibility evidence is not admissible (“the credibility rule”). [30] The Crown in the present case relies upon s 108C, which provides an exception to the credibility rule: (1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if— (a) the person has specialised knowledge based on the person’s training, study or experience; and Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(b) the evidence is evidence of an opinion of the person that— (i) is wholly or substantially based on that knowledge; and (ii) could substantially affect the assessment of the credibility of the witness; and (c) the court gives leave to adduce the evidence. (2) To avoid doubt, and without limiting subsection (1)— (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following— (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. [31] As the High Court observed in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 602 [31] the opinion rule contained in s 76 of the Evidence Act directs attention to why the party tendering the evidence says it is relevant and, in particular, directs attention to the finding which the tendering party will ask the tribunal of fact to make. The same principles apply to the credibility rule and the operation of s 108C(1), which is relevantly in like terms to the exception to the opinion rule contained in s 79(1). [32] As both ss 79(2) and 108C(2) make clear, evidence as to the range of behaviours typical of victims reacting to sexual abuse might fall under these sub-sections. In the present case, the evidence which was permitted to be led from Dr Sullivan did not go to matters directly in issue such as whether,

Part 3 — Admissibility of Evidence

MA v The Queen cont. when and by whom the complainant was abused. The evidence was led to rebut an argument that the complainant’s behaviour was harmful to her credit (cf Bellemore v Tasmania [2006] TASSC 111; (2006) 170 A Crim R 1 (Crawford J, 20 [52]; Blow J, 63 [204])). The evidence was not of the contentious nature put forward in HG v The Queen, although it should be noted that in that case Gleeson CJ expressly contemplated that expert evidence might be led as to consistency of a complainant’s behaviour with the occurrence of sexual abuse (HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, 428 [41] (see also Gaudron J, 432-433 [51]-[65])). In CMG v The Queen, Harper JA, with whom Ashley and Weinberg JJA agreed, again contemplated the potential admission of evidence of the type here in issue: (CMG v The Queen [2011] VSCA 416, [17]): On the other hand, there are aspects of children’s behaviour – such as that of child victims of sexual assault – that are not a matter of ordinary knowledge. Opinion evidence may therefore be given about child development and child behaviour (including the impact of sexual abuse on children, and their development and behaviour during and following abuse) once the conditions prescribed by the Evidence Act 2008, and in particular s 79 of that Act, have been met. I also note that, by s 108C, the credibility rule (which is found in s 102, and provides that credibility evidence about a witness is not admissible) does not apply to evidence given by a person concerning the credibility of another witness if the first (expert) witness meets the criteria set out in s 108C, and the court gives leave to adduce the evidence.

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[33] In giving his ruling as to the admissibility of the evidence, the trial judge said: The dynamics of sexual abuse, the dynamics of incest are not matters of common knowledge to a jury. If they were, stances as demonstrated in the frequency of this style of crossexamination would be less common. The defence in this case seek to attack the credibility of [the complainant] by pointing to her behaviour, her behaviour said to be inconsistent. Well, of course, they are free to do so, but the experience of the courts is that conduct such as that, that is staying in the home or not calling out, and the various other conduct that is raised in the course of the cross-examination of the witness is neither consistent nor inconsistent with the happening of the event which, as I understand it, is the effect of the evidence sought to be led. There is a range, a broad range, of responses and the dynamics are not as simple as might be suggested. The prosecution by the introduction of this evidence are seeking to neutralise what are said to be these erroneously held assumptions so that an assessment of the credibility of the complainant can proceed from a neutral position. [34] For present purposes, it is sufficient to say that Dr Sullivan’s evidence as to patterns of victims’ behaviour was relevant to rebut the defence case as to counterintuitive behaviour on the complainant’s behalf. The evidence bore upon the complainant’s credibility as contemplated by s 55 in the specific manner contemplated by s 108C(2). It was capable of substantially affecting the assessment of the complainant’s credibility as required by s 108C(1). [35] On the other hand, it is less obvious that evidence as to patterns of behaviour of a complainant’s parent could substantially affect the credibility of a complainant, and hence fall within s 108C(1). It could not fall within the matters included for the avoidance of doubt in sub-s (2) unless it was interrelated with and of direct contextual relevance to evidence concerning the behaviour of child victims. Nor, it is important to note, could evidence as to the reasons for patterns of parental behaviour ordinarily be relevant to the credibility of a child complainant. … [45] It can be seen that Dr Sullivan’s evidence as to the behavioural responses of victims of sexual abuse referred to contextual considerations relating to the behavioural responses of the victim’s mother in two ways. First, the evidence indicated that the response of the mother was, in itself, a significant factor affecting the victim’s response and, secondly, a victim’s reaction to sexual abuse may be affected in the same way as a parent to whom disclosure is made by the investment they otherwise have in the family relationship.

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MA v The Queen cont. [46] Dr Sullivan went on to answer a series of questions about the significance to the victim’s reactions of the fact that the abuser may be a parent. He described the significance of conflicted emotions and cognitive dissonance. [47] He was then asked whether it was a common or uncommon feature for persons who have been sexually abused by a parent to continue a relationship with the parent after abuse. He said this depended on developmental age and individual resourcefulness. [48] Dr Sullivan was also asked what effect the fact that a report of abuse was ignored and not believed by the other parent would have on a victim’s likelihood of continuing in a relationship with the abusing parent. Dr Sullivan said: Once more, it depends upon the social circumstances. If a child is quite isolated and doesn’t have other people to rely upon, then sometimes that’s where a disclosure might finish. If the disclosure is disbelieved, the child becomes – feels helpless to effect any change in their life. If you recollect your own development, you’ll know that there is a stage of which you cease to look at your parents as the main objects in your universe and you start to look at your peer group. So again, at the developmental age of which abuse occurs, some children will rely upon their parents as being omnipotent, that is all powerful and able to – they will say that if my parent won’t do anything, then nothing can be done and in other circumstances, a child with different resilience, different individual strengths and a different sense of being supported, would go elsewhere and make other disclosures. They would say, well if my parent won't listen to me, I’ll tell the school counsellor or tell the priest, I will tell my next door neighbour. It is very dependent upon those range of individual circumstances.

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[49] Dr Sullivan then went on to give evidence about repressed memory and the lack of effect either of the condition of scleroderma or cortisone medication upon memory. [50] Following this evidence-in-chief, Dr Sullivan was cross-examined about the last-mentioned aspects of his evidence and about notes he took from the complainant concerning the history of the events in issue. He was not, however, cross-examined about his evidence concerning behavioural responses to sexual abuse. [51] In my view, the evidence relating to parental response and, in particular, maternal response to complaints by a child of sexual abuse was sufficiently interrelated with and directly relevant to the evidence of potential responses by a victim of sexual abuse as to fall within s 108C of the Evidence Act and s 388 of the Criminal Procedure Act. [52] Accordingly, the judgment of trial counsel was correct and the evidence of Dr Sullivan (including the matters referred to at [26] of his report) did not fall to be excluded on the grounds of relevance. It was evidence which, in terms of s 108C, could substantially affect the assessment of credibility of the complainant in respect of matters which the defence put squarely in issue. … (Appeal dismissed.)



De Silva v The Queen [11.150] De Silva v The Queen (2013) 236 A Crim R 214; [2013] VSCA 339 Facts [Following a trial, on 11 September 2012, De Silva was found guilty by a jury of two charges of sexual penetration of a child under 16 (charges 1 and 9), and five charges of indecent act with or in the presence of a child under 16 (charges 2, 5, 10, 11 and 13). All verdicts, save for that on charge 13,

Part 3 — Admissibility of Evidence

De Silva v The Queen cont. were by a majority. Directed verdicts of acquittal were entered on six charges (charges 12, 14, 17-20). The jury were unable to reach verdicts on 14 charges (charges 3, 4, 6-8, 15, 16 and 21-27). A Notice of Discontinuance with respect to those charges was filed on 17 September 2012.] Judgment PRIEST JA, COGHLAN JA AND LASRY AJA: … [6] The offences were alleged to have occurred on various occasions between 16 December 1997 and 31 January 2000. ML, the complainant, was aged between 9 and 12 years during that period, and the appellant was aged 44-46. The appellant was a friend of ML’s father. They had regular contact through their work and through mutual membership of a suburban cricket club. Their two families often socialised. They were both of Sri Lankan origin and were of the Catholic faith. ML referred to the appellant as “uncle”, which she said was a mark of respect for an elder in her culture. There was an arrangement between the families where ML’s father, the appellant, and the appellant’s wife would take turns collecting the children from school. ML went to school with the appellant’s son, who was one grade above her. She claimed that sometimes the appellant collected his son and ML and took them to a suburban cricket ground so that his son could attend cricket practice. There was also ongoing contact between the appellant and ML at the cricket club during training and matches. Apart from the evidence going to the charged offences, evidence was led of many uncharged acts (for the purposes of both context and tendency). …

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[25] As we have said, evidence was called from a consulting adolescent and child psychiatrist, Dr Teresa Flower, in an endeavour to explain why ML’s VATE conducted in 2000 did not contain many of the serious allegations later levelled at the appellant. [26] Pursuant to s 108C of the Evidence Act 2008, evidence is admissible from a person with “specialised knowledge” with respect to “child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse)” (see also s 79). The purpose of such evidence is “educative”, so as to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and so as therefore to be better able to evaluate it (MA v The Queen [2013] VSCA 20, [23]). Such evidence bears on the credibility of the complainant. [27] In this case, however, the evidence of Dr Flower strayed – without objection – into areas in which it had not been shown that she was qualified to express an opinion. Those areas included the tenets of the Catholic faith (and its possible effects on non-disclosure), and aspects of Sri Lankan culture. Moreover, despite the fact that she had not interviewed ML, Dr Flower was permitted to speculate about what may have been behind ML’s non-disclosure. As the Crown acknowledged in written submissions, “[t]he evidence of Dr Flower went beyond the general educative role of explaining why a complainant might not provide a complete account when she first disclosed her abuse”. Further, the respondent conceded that the appellant could have objected successfully to parts of Dr Flower’s evidence; and, had he done so, her evidence would have been restricted to an “educative” role. (Appeal allowed, convictions quashed and new trial ordered.)



ASSESSMENTS OF CREDIBILITY [11.160] Assessments of credibility can be significant in a trial. An appellate court will only

overturn a judge’s finding on credit if it is “inconsistent with facts incontrovertibly established

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by the evidence”. In Devries v Australian National Railways Commission [1992] HCA 41, Brennan, Gaudron and McHugh JJ stated at [10]: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. (footnotes omitted)

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However, such assessments are not objective. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306; [1999] HCA 3, Kirby J observed (at [88]): There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. … Apart from all else, demeanour is, in part, driven by culture. Studies suggest that evaluation of the evidence of women may sometimes be affected by stereotypes held by the decisionmaker. This is doubtless also true in the case of evidence given by members of minority groups, whether racial, sexual or otherwise. Distaste or prejudice can cloud evaluation. Further, in a society such as Australia's, the capacity of the judiciary to respond to every cultural variety of communication is limited … The studies of experimental psychologists since that time have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations.

In Hargraves v The Queen; Stoten v The Queen, the High Court stated that it is not permissible for the trial judge to direct the jury to assess the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused’s evidence should be scrutinised more carefully than the evidence of other witnesses.

Hargraves v The Queen; Stoten v The Queen [11.170] Hargraves v The Queen; Stoten v The Queen (2011) 245 CLR 257; 85 ALJR 1254; 282 ALR 214; [2011] HCA 44 Facts [The appellants were convicted of charges arising from a tax avoidance scheme. The appellant’s dishonesty was the only issue at trial. The prosecution called the appellant’s accountant (Mr Feddema) as a witness and he was cross-examined that he had tailored his evidence to avoid prosecution. The appellants gave evidence. The trial judge directed the jury, with the aid of PowerPoint slides, as to “the process of assessing evidence and assessing credibility”. Of the subject described as “interest” he said: Does the witness have an interest in the subject matter of the evidence? For example, friendship, self-protection, protection of the witness’s own ego. There are any number of personal

Part 3 — Admissibility of Evidence

Hargraves v The Queen; Stoten v The Queen cont. interests which people have and which they sometimes try to protect in giving evidence. (emphasis added) Counsel for the appellants sought that the jury be discharged on the basis that the direction invited the jury to test the appellants’ evidence according to the appellants’ interest in the outcome of the trial and contravened Robinson v The Queen (1991) 180 CLR 531. The trial judge rejected the application saying that the direction did not refer to any interest in the outcome of the case and that it was a direction about the evidence of a witness. In Robinson v The Queen, the trial judge (at 532) directed the jury that: Another test [by which to assess the credibility of witnesses] was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witnesses’ evidence closely. You might think – it is a matter solely for you – that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely. In Robinson, the High Court concluded that the directions the trial judge had given “had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused” (at 535).] Judgment FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ:

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... [37] Later decisions of intermediate courts generally treated (see eg R v Brotherton (1992) 29 NSWLR 95; R v Asquith (1994) 72 A Crim R 250; R v Brown [1995] 1 Qd R 287; R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593; Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325; cf R v McMahon (2004) 8 VR 101) Robinson as standing “for a rigorous principle to be faithfully applied” (R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593 at 598 per Callaway JA). But the “principle” for which Robinson was treated as standing was usually stated negatively: a trial judge should not direct a jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the case. Such a negative statement does not identify the content or source of the relevant principle in a way that permits its application except by some mechanical comparison between those forms of words that have passed muster and those that have not. [38] This is not a satisfactory form of “rule” or “principle”. And Robinson did not establish or apply any new or distinct rule or principle that is to be expressed in the negative terms identified. Rather, the decision in Robinson depended upon a more basic principle which, examination will show, stems from the fundamental features of a criminal trial. Examination will also show that this more basic principle is the foundation for several decisions which are sometimes treated as if they establish separate and distinct rules governing what may or may not be said in instructing a jury. To identify that principle it is necessary to begin by recognising what was the question at issue in Robinson and what is the question at issue in these matters. [39] In both Robinson and the present case the immediate question was and is whether on any ground whatsoever there was a miscarriage of justice at the trial. The appellants’ allegation in this case that there was a misdirection was not an allegation of any of the other grounds of appeal identified in the common form criminal appeal statute. It was not an allegation that the verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence; it was not an allegation of the wrong decision, at trial, of any question of law.

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Hargraves v The Queen; Stoten v The Queen cont. [40] The governing principle applied by the Court in Robinson was not identified as being new. Rather, the Court directed (Robinson [1991] HCA 38; (1991) 180 CLR 531 at 536) attention to whether the directions that were given at trial constituted a miscarriage of justice because they affected the fairness of the trial and, in particular, did so by undermining “the benefit” which the “presumption [of innocence] gives to an accused person”. That is, the Court determined whether there was on any other ground whatsoever a miscarriage of justice by applying a principle which, when stripped of the rhetorical overtones that may be sounded by reference to “the presumption of innocence”, directed attention to the fundamental features of a criminal trial.

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[41] The plurality in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 630 [22]; [2000] HCA 3 described those features as being that “a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt” (emphasis added). Or, as the Court put the same point in Robinson [1991] HCA 38; (1991) 180 CLR 531 at 535-536, “the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts” (emphasis added). These being the fundamental features of a criminal trial, it follows that the judge’s instructions to the jury must accord with them and departure from them would be a miscarriage of justice. [42] As has been repeatedly pointed out … the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case (RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [42]). The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law (see eg Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13; Jenkins v The Queen [2004] HCA 57; (2004) 79 ALJR 252; 211 ALR 116) or statute (see eg Evidence Act 1995 (Cth), s 165) may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty. [43] The cases demonstrate that a jury’s attention can be deflected from its fundamental task in different ways. RPS concerned distraction of a jury from its task by the trial judge’s commenting on the failure of an accused to give evidence. The plurality held (RPS [2000] HCA 3; (2000) 199 CLR 620 at 630-636 [22]-[39]) in RPS that in an accusatorial process in which the prosecution has the onus of proving the guilt of the accused beyond reasonable doubt, it will seldom (cf Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65) be reasonable to expect that the accused will give evidence and that it therefore follows that it will seldom be right to draw any inference (of the kind dealt with in Jones v Dunkel [(1959) 101 CLR 298; [1959] HCA 8]) from the accused’s failure to do so. Thus a direction to the jury that it may have been reasonable to expect some denial or contradiction from the accused, if such a denial or contradiction were available, was held (RPS [2000] HCA 3; (2000) 199 CLR 620 at 634 [32]) to be contrary to fundamental features of a criminal trial: that the prosecution must prove its case beyond reasonable doubt. Those features of a criminal trial entail (RPS [2000] HCA 3; (2000) 199 CLR 620 at 633 [28]) that the accused is not bound to give evidence. [44] In Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 9; [1998] HCA 2, the plurality held that to ask a person accused of sexual offences, in cross-examination, whether that person could offer any reason or motive for the complainant to lie diminished the standard of proof by strengthening the complainant’s credibility. As the plurality in Palmer pointed out, absence of proof of a motive for the complainant to lie about the incident in issue “is entirely neutral” (Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 9) and, as a result, the fact that the accused can point to no reason for

Part 3 — Admissibility of Evidence

Hargraves v The Queen; Stoten v The Queen cont. the complainant to lie is “generally irrelevant” (Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 7). To introduce an inquiry into why would the complainant lie would focus the jury’s attention on irrelevancies by inviting the jury to accept the complainant’s evidence unless there were some demonstrated motive to lie. That would deny that the trial is an accusatorial process in which the prosecution bears the onus of proving the offence beyond reasonable doubt. [45] Robinson, too, is to be seen as a particular application of this more general principle. Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused’s evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.

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[46] The principle that is identified is expressed at a high level of abstraction: Did the judge’s instructions deflect the jury from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt? Directions given by a trial judge can often be assessed against that principle by observing no more than that the judge has so instructed the jury that it would be open to the jury to evaluate an accused’s evidence on the basis of the accused’s interest in the outcome of the trial. It is to be emphasised that trial judges must not instruct juries in that way: whether as a direction of law or as a judicial comment on the facts of the case. And it should also be emphasised that nothing that is said in these reasons should be understood as diminishing the need for intermediate courts of appeal to insist upon the observance of this requirement. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge’s charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge’s instructions to the jury deflected the jury from its proper task. Misdirection? [47] In this matter there was a real and lively issue about whether Mr Feddema’s evidence of what he knew about the scheme and what he had told the appellants about the scheme was full and frank. As noted earlier, it was suggested to Mr Feddema, in cross-examination, that his evidence was neither full nor frank and that he had a distinct and pressing interest not to give evidence that would show that he had known how the scheme would work or that he had given a truthful explanation to either of the appellants or to Mr Glenn Hargraves of how the scheme would work. And in their closing addresses, trial counsel for each appellant laid emphasis on these matters. [48] Taken in the context of the whole of the instructions from the trial judge, both the oral directions given about using the possible interest of witnesses in assessing their credibility, and the PowerPoint slides on that subject that were given to the jury, would have been understood by the jury as directed to the evidence of Mr Feddema. It may be accepted that those directions could have been understood as capable of application to the evidence given by the appellants. But the trial judge referred to two kinds of interest: friendship and self-protection. At no point did the trial judge refer to the outcome of the case as a matter in which a witness could have an interest. As Muir JA rightly concluded (R v Hargraves [2010] QCA 328 at [128] (footnote omitted)), the direction was unlikely to have been given much prominence by jurors and “would not have been understood by the jury ‘as meaning that the evidence of [each] appellant had to be scrutinised more carefully [than] that of any other witness’ ”. The impugned direction differed in both its form and its effect from that considered in Robinson. Almost immediately after giving the impugned direction the trial judge told the jury that “[a] lie by an accused person does not prove guilt” and that “[t]he Crown always carries the onus of proving the case even against a liar”. [49] Read as a whole, the instructions which the judge gave were not such as would deflect the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt.

Credibility

CHAPTER 11

Hargraves v The Queen; Stoten v The Queen cont. There was not, therefore, a miscarriage of justice occasioned by the trial judge giving the impugned directions. [50] It follows that the Court of Appeal was right to dismiss the appellants’ appeals against conviction but should have done so on the footing that the appellants had not established that on any ground whatsoever there was a miscarriage of justice. Each appeal to this Court should be dismissed. (Appeal dismissed. Heydon J gave reasons and also dismissed the appeal.)



[11.180]

Questions

Credibility evidence 1. What is “credibility”? What is “credibility evidence”?

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2. Why is credibility evidence relevant? 3. Do the following matters bear on the credibility of a witness: • truthfulness and honesty; • character; • intelligence; • bias; • motive to be untruthful; • capacity for accurate observation; • relationship with the accused or a party to the litigation; • prior inconsistent statements of a witness; • conviction for perjury; • age or gender of a witness; • reasons for recollection or belief; • powers of perception and memory; • factors affecting competency; • factors affecting compellability; • any past criminal convictions; • inconsistencies in evidence; • contradiction of testimony with other evidence? 4. Is credibility evidence relevant because it affects the probability that a witness is telling the truth about a fact in issue, or is such evidence relevant to proving the existence of the truth of facts in a party’s case? 5. Explain the distinction between evidence relevant to credit and evidence relevant to a fact in issue. 6. What is the rationale for restricting the admission of credibility evidence?

Part 3 — Admissibility of Evidence

7. When does s 102 apply? What are the exceptions which may admit the evidence? 8. Where the evidence is relevant in a way other than credit, does s 102 apply to exclude the evidence? 9. Can the following factors influence a trier of facts assessment of the credibility of a witness: • demeanour; • the time taken by the witness to answer a question in cross-examination; • appearance of the witness? 10. Consider the extract at [11.30] from Palmer v The Queen (1998) 193 CLR 1 and answer the following questions. (a) McHugh J refers in [48] to the common law’s “well established finality rule” and its exceptions. What sections in the Act now replace this common law rule? (b) McHugh J refers in [49] to the common law “bolster rule”. What section in the Act now replaces this common law rule? (c) Why was it relevant to determine whether the cross-examination of the complainant (about whether she fabricated the sexual assault) was relevant for a credit purpose or to prove the “facts in issue” (namely that the sexual assault occurred)?

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(d) How did McHugh J characterise the cross-examination of the complainant? 11. Exercise. Gilbert Adam is charged with stabbing to death a police officer on 18 April 1997. Thaier Sako was present at the scene of the murder and was questioned by the police. Assume you are the Crown prosecutor and you have the transcript of his ERISP interview as stated here. Sako is called by you as a witness. How would you examine Sako to adduce the evidence as detailed further (especially par 4)? What would you do if Sako gave evidence that did not accord with the transcript (eg he testified that he did not actually see anything happen to the police officer)? TRANSCRIPT OF ERISP WITH Thaier Sako on 18 July 1997 1. On 18 April 1997, while I  was leaving the Karaoke bar, I  saw Edward Esho and Gilbert Adam speaking to and pushing a police officer. 2. I approached, and was pushed back by the police officer. 3. I recovered, only to be pushed over once more, this time by Gilbert Adam and Edward Esho. 4. I saw that Gilbert Adam and Edward Esho were punching the police officer and blood was spitting or sprinkling out. 5. During the punching, I saw that Gilbert Adam had something in his hand. 6. Esho did not have anything in his hand. Dated 18 July 1997 Attacking an opponent’s witness 1. Complete the following table which considers the sections relevant when a party is crossexamining an opponent’s witness:

Credibility

Section

What are the requirements in the section that must be satisfied?

CHAPTER 11

Civil and/or criminal cases?

43 44 103 106 104(2) 104(3) 104(4) 104(6) 192

2. What are the exceptions to s 102 which permit a party to attack the credibility of their opponent’s witness? 3. Does cross-examination pursuant to s 103 permit other evidence to be admitted under s 106 if such evidence rebuts a denial of a witness? 4. If a prior inconsistent statement is admitted under s 106, can the evidence be used for a hearsay purpose pursuant to s 60? Attacking own witness

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1. Do you need leave to cross-examine your own witness? 2. What factors does the court take into account in making a decision to permit crossexamination of a party’s own witness (see ss 38(6), 192)? 3. What may you cross-examine your own witness about (s 38(1), (3))? 4. When, in the course of the witness being questioned by both sides, would you crossexamine your own witness (see s 38(4), (5))? 5. How would you adduce evidence of your own witness’s written prior inconsistent statement (consider all sections of the Act)? 6. What are the exceptions to s 102 which permit a party to attack the credibility of their own witness? 7. What is the effect of s 60 if evidence is admitted under s 106? Supporting your own witness’s credibility 1. When does the credibility rule not apply to evidence given by your own witness? Refer to s 108(1), 108(3)(a) and 108(3)(b) of the Evidence Act 1995. 2. Papakosmas v The Queen is an example of the multiple use of evidence. The complaint evidence was relevant in two distinct ways. It was relevant to proving the facts asserted by the complainant, that is, to prove the absence of consent, and it was relevant to supporting the credibility of the complainant. The trial judge directed the jury to use the complaint evidence to prove the truth of the facts asserted in the complainant’s previous representations (pursuant to s 66(2)). Papakosmas v The Queen appealed to the High Court on the basis that the complaint evidence was relevant only to the credibility of

Part 3 — Admissibility of Evidence

the complainant and therefore the trial judge erred in directing the jury that it was relevant to the issue of consent. In support of this submission, the appellant argued that the Evidence Act 1995 should be read in light of the common law. (a) Did the High Court uphold the appellant’s argument? (b) Explain the basis of admissibility for the complaint evidence at common law. (c) Explain the basis of admissibility for the complaint evidence under the Evidence Act 1995. (d) In what circumstances can evidence of a prior consistent statement be adduced? (e) Explain the way in which a trial judge can exercise discretion on the use of complaint evidence? Problems 1. Refer to Strom v Council for the Shire of Cremorne in Chapter 20 and the statement by Mr Samuel Ross. Assume that when Mr Ross was called by the plaintiff to testify he said he could not remember what happened on 16 December because he has a hopeless memory. He was shown his statement and said “well, that may be right, but who can tell?”. At the time of the trial, he was romantically involved with a council ranger at the Council for the Shire of Cremorne. Counsel for the plaintiff asked permission to crossexamine Mr Ross. The judge refused. (a) On what basis would the plaintiff seek permission to cross-examine the witness? Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(b) Was the judge correct in disallowing this? (c) Could Mr Ross’s written statement have been used for any purpose? 2. Refer to R v Eagle in Chapter 20. Read all of the witness statements and identify any credit issue that may arise in the trial. Further, consider the situation if Jeremy Eagle does not testify in accordance with his signed statement to police. 3. Tran is suing Brown for personal injuries arising from a collision between their cars which occurred on a highway. Immediately after the collision, Tran told his passenger: “That car went through a red light.” At the hearing, Tran testifies that Brown’s car went through a red light. Counsel for Brown then cross-examines Tran and asks the following questions: You have concocted this story today, haven’t you, because you are actually the driver who went through the red light?

Tran answers “No”. (a) What should Tran’s counsel do? Should Tran’s counsel call the passenger? Green arrived at the scene straight after the collision and gave first aid to both drivers. Green helped pull Brown out of his car, and told the police officer who attended at the scene the following: As I dragged Brown from his car, he said to me, “I am really sorry, I must have dozed off, and when I woke up I was on the wrong side of the road and I hit the other car”.

Credibility

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Tran’s solicitor issued a subpoena on Green to give evidence at the hearing. Green is called as a witness and testifies that “I cannot remember any conversation between myself and Brown”. (b) What should Tran’s counsel do? What application may be necessary? Brown then gives evidence for his case. Brown states that “I stopped at the red light and then drove when it was green”. Tran’s counsel has a police notebook entry that records an interview with Brown. In this interview, Brown states “I can’t remember the traffic light”.

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(c) From the evidence, how should Tran’s counsel cross-examine Brown?

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CHAPTER 12

Character [12.10]

OVERVIEW ................................................................................................................ 521

[12.20]

EVIDENCE ABOUT CHARACTER OF AN ACCUSED PERSON ....................................... 522 [12.30] R v Zurita ............................................................................... 522 [12.40] Braysich v The Queen ................................................................ 524

[12.50]

DIRECTIONS ON CHARACTER EVIDENCE .................................................................. 525 [12.60] Melbourne v The Queen ............................................................ 526 [12.70] DPP v Newman (a Pseudonym) ................................................... 532

[12.80]

EVIDENCE ABOUT CHARACTER OF CO-ACCUSED ..................................................... 537

[12.90]

CROSS-EXAMINATION OF THE ACCUSED ................................................................. 537 [12.100] Stanoevski v The Queen............................................................. 538

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OVERVIEW [12.10] Part 3.8 deals with evidence of “character”. Section 110 permits the defence in criminal proceedings to adduce evidence to prove the defendant’s good character, either generally or in a particular respect. If such evidence is admitted, the prosecution may adduce rebuttal evidence. Where the defence has only had admitted evidence to prove that the defendant is a person of good character in a particular respect, rebuttal evidence must be limited to that particular respect. Thus, if a defendant charged with assault adduces evidence to show he is not a violent person, a prior conviction for a fraud offence would not be admissible in rebuttal. It has been held that evidence from the defendant that is “no more than [an] emphatic denial of guilt” (eg “I would not do that sort of thing”) would not permit rebuttal because it is not evidence “adduced to prove (directly or by implication) that a defendant” is a person of good character. More generally, it has been held that there must be a subjective intention on the part of the defendant to adduce evidence of good character for the purpose of supporting an inference that he or she is not guilty of the crime charged and/or supportive of the defendant’s credibility. If the defendant is being cross-examined, for example, it may not be possible for the defendant to give a responsive and truthful answer which does not appear to raise good character, so that it could not reasonably be inferred that the defendant did intend to raise good character. Section 111 permits a defendant in criminal proceedings to adduce expert opinion evidence relevant to the character of another defendant in the proceedings. If such evidence is admitted, the other defendant may adduce rebuttal evidence. Leave of the court must be obtained for any cross-examination of a defendant under this Part (s 112). Considerations of “fairness” will no doubt play an important role (see s 192(2) (b)), as will a balancing of probative value and dangers of unfair prejudice (s 137). The High Court has held in Melbourne v The Queen (1999) 198 CLR 1 that, under the common law, the trial judge retains “a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both: (a) the accused’s

Part 3 — Admissibility of Evidence

propensity to commit the crime charged; and (b) the accused’s credibility”. Nevertheless, even if there is no obligation on a trial judge, it would be generally desirable to assist the jury regarding the potential significance of evidence of a defendant’s character. Given that evidence of good character (and rebuttal evidence) may be limited under the Act to a “particular respect” of the defendant’s character, it is clear that any judicial direction to the jury will be limited to that particular respect.

EVIDENCE ABOUT CHARACTER OF AN ACCUSED PERSON [12.20] Part 3.8 of the Evidence Act 1995 creates an exception to the hearsay rule, the opin-

ion rule, the tendency rule and the credibility rule for evidence of the good character of a defendant in a criminal proceeding and for prosecution rebuttal evidence. In R v Zurita the court considered the raising of character in a “particular respect”. In Braysich v The Queen, the majority of the High Court held that evidence of good character was relevant to proving a defence and to establish that it was improbable that the appellant acted with a dishonest purpose.

R v Zurita [12.30] R v Zurita [2002] NSWCCA 22

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Facts [Zurita was convicted of aggravated sexual assault. At trial, before evidence commenced, defence counsel raised the issue of the defendant’s character, wishing to adduce evidence of no prior convictions for sexual offences while excluding the ability of the prosecution to consequently adduce evidence of Zurita’s prior convictions for theft and assault. The trial judge refused, saying “It seems to me that … When it comes to good character it’s all or nothing”. Zurita appealed his conviction on the basis that character evidence was wrongly excluded.] Judgment HOWIE J: ... [13] Unfortunately throughout this exchange between counsel and his Honour, no reference was made to s 110 of the Evidence Act. … [14] It is clear that the effect of s 110(1) was to vary the common law attitude to character, which was, as the trial judge expressed it, “all or nothing”. The section permits an accused person to put forward that he or she is “either generally or in a particular respect” a person of good character. Defence counsel was seeking a ruling as to the consequence of the appellant raising his character either generally or in a particular respect, that being that he was not known to the police in respect of child sexual assault offences. [15] The course adopted by defence counsel finds support in the judgment of this Court in R v PKS (CCANSW, 1 October 1998). In that case, unlike the present, the issue of the accused’s character was raised at the conclusion of the Crown case. In the context of the circumstances in that case, this Court indicated what is needed to be done in connection with the issue of good character in the following series of propositions (pp 8-10): 1.

The first thing that had to be decided by the accused and his legal representatives was whether, his good character not having been put in issue in the Crown case, it should be raised as an issue in his own case.

Character

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R v Zurita cont. 2.

That decision needed to be taken in the light of the provisions of Part 3.8 of the Evidence Act 1995 (NSW), and in particular the provisions of ss 110 and 112 of that Act.

3.

Section 110(1) gave the accused a clear choice. He could put in issue the proposition that he was “generally a person of good character”. Alternatively, he could put in issue the proposition that he was “in a particular respect a person of good character”.

4.

In the event that he decided to put in issue that he was “generally a person of good character”, the accused was vulnerable to an application by the Crown, and made pursuant to s 112 of the Evidence Act 1995, to cross-examine him so as to elicit that he had, in fact, prior convictions, albeit old ones, for offences of dishonesty.

5.

If he decided to put in issue that he was “in a particular respect a person of good character”, namely in respect of sexual misconduct with young children, whether his own children or the children of others, then the accused was not so vulnerable to cross-examination upon his old convictions for dishonesty. That was so because of the terms of s 110(3) of the Evidence Act. Such a construction of s 110(3) was adopted by Higgins J, of the Federal Court of Australia, in Gabriel v The Queen (unreported: Federal Court of Australia: Full Court, 25 June 1997).

The Court then went on: In the light of what is stated in the foregoing propositions, counsel for the accused was entitled, in our opinion, to apply to the trial Judge for rulings on the questions:

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(a)

whether, if the accused gave evidence that he was “generally a person of good character”, his Honour would refuse to permit cross-examination upon the previous offences of dishonesty, so refusing either by the method of refusing leave pursuant to s 112 of the Evidence Act; or by the method of excluding such cross-examination in the exercise of the discretion conferred in that behalf by s 137 of the Evidence Act;

and (b)

whether, if the accused gave evidence that he was “in a particular respect a person of good character”, namely in respect of sexual misconduct with young children, his Honour would uphold a submission that s 110(3) of the Evidence Act 1995 did not permit cross-examination upon the previous offences of dishonesty.

[16] In that case defence counsel did no more than seek that the trial judge give a “good character direction” without providing particulars of what evidence of character would be placed before the jury or to indicate what ruling he was seeking from the trial judge in respect of the issue of the accused’s character. As a result, the ground of appeal, which asserted an erroneous ruling by the trial judge on the issue of character, failed. [17] In the present case, although no reference was made either to s 110 or the decision in PKS, it is clear that defence counsel was seeking a ruling as to whether he would be permitted to raise the issue of the appellant’s character without leave being granted to the Crown to raise the appellant’s criminal antecedents. The ruling was sought in respect of good character both generally and in a particular respect. Defence counsel even went so far as to indicate the nature of the evidence he sought to adduce in cross-examination of the police officer. In my opinion no more was required of him to raise the issue appropriately before the trial judge. [18] However, as a result of his Honour’s indication that character was indivisible and that, if good character were raised in any form, the appellant was at risk of his criminal antecedents being placed before the jury, defence counsel accepted that a ruling had been made to the disadvantage of the appellant. As a consequence counsel determined not to raise the issue in the Crown’s case. [19] Although strictly speaking his Honour made no ruling on the issue of character, defence counsel was entitled to accept that his Honour held the firm view that the appellant could not raise part of his character. It is clear that in this regard the trial judge was in error and as a consequence the appellant

Part 3 — Admissibility of Evidence

R v Zurita cont. was effectively deprived of placing evidence before the jury that he had no antecedents for offences of child sexual assault. In fact, had the matter been properly considered, that aspect of his character might have been widened to encompass a lack of antecedents for sexual offences generally. (Appeal allowed.)



Braysich v The Queen [12.40] Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 Facts [The appellant was a stockbroker who was convicted of 25 counts of creating a false or misleading appearance of active trading in securities on the stock market in contravention of ss 998(1) and 1311(1) of the Corporations Act 2001 (Cth). At the trial, the appellant wished to rely on a statutory defence under s 998(6) which was that the purpose or purposes for which he caused the sales to take place did not include the purpose of creating a false or misleading appearance of active trading. The trial judge withdrew the statutory defence from the jury.] Judgment FRENCH CJ, CRENNAN AND KIEFEL JJ: ... Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[16] Six character witnesses were called on behalf of the appellant. They all deposed to his honesty. [17] The Crown case against the appellant appears to have been a strong one. However, as explained further, in determining whether the statutory defence should be left to the jury, it was necessary for the trial judge to take the evidence at its most favourable to the appellant and to consider whether it would be open to the jury, in respect of each of the charges, to be satisfied on the balance of probabilities that the appellant did not have the purpose of creating a false or misleading appearance of active trading in the securities. Questions of the weight to be accorded to the evidence and the credibility of the appellant were matters for the jury. … [39] Section 998(6) imposed a legal burden on the appellant to negative, on the balance of probabilities, a dishonest purpose. The appellant called extensive evidence going to his honesty. The question arises – how should such evidence have been used? In this case, the answer is not difficult. [40] In Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 at 359; [1960] HCA 15, the Court said: The expression “good character” has ... a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. Their Honours quoted with approval the observation of Cockburn CJ in R v Rowton (1865) Le & Ca 520 at 530 [1865] EngR 53; [169 ER 1497 at 1502]: The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried. The statement in Attwood and the quotation from the judgment of Cockburn CJ were reiterated in Simic v The Queen (1865) Le & Ca 520 at 530 [1865] EngR 53; [169 ER 1497 at 1502], albeit with the

Character

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Braysich v The Queen cont. qualification, apparently directed to the statement by Cockburn CJ, that it “did not purport to be a full statement of the law on the subject”. [41] The admission and use of evidence of good character has a long history. It dates back, as Gummow J pointed out in Melbourne v The Queen[1999] HCA 32; (1999) 198 CLR 1 at 26 [68]; [1999] HCA 32, to a time before the accused became a competent witness when there was generally no question of a jury using such evidence in an assessment of the accused’s testimonial credit. Its history has been characterised by conceptual confusion between reputation and actual disposition. As McHugh J said in Melbourne, character refers to the inherent moral qualities or disposition of a person. It is to be contrasted with reputation, which refers to the public estimation or repute of a person irrespective of that person’s inherent qualities. In Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at 15 [33], the evidence in the present case went to the actual disposition of the appellant. The witnesses called on his behalf testified to their dealings with him, and knowledge of him, as an honest person. [42] In the end, as Gummow J said in Melbourne [1999] HCA 32; (1999) 198 CLR 1 at 28 [72] (footnote omitted): The issues in the particular case and the nature of the evidence of “good character” which is proffered will guide the process of reasoning of the tribunal of fact on the path to providing an answer to the ultimate question of whether the accused is guilty beyond reasonable doubt.

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The same proposition applies to the use of evidence of good character in support of the statutory defence in this case. [43] In discussing what is required of a judge directing a jury where evidence of good character has been called, Hayne J, in Melbourne, referred to the common example of an accused of previous undoubted honesty in money matters being tried for an offence of fraudulently obtaining financial advantage. In such a case, as his Honour observed in Melbourne [1999] HCA 32; (1999) 198 CLR 1 at 57 [156]: the judge may think it appropriate to draw the attention of the jury to the fact that prior good character may be thought, by them, to make it less likely that the accused acted with dishonest intent. His Honour added the caveat that on those bare facts there is no requirement that the judge give such a direction. But his observation recognised the potential relevance of evidence of honesty to the likelihood that an accused person has acted dishonestly. [44] The statutory defence in s 998(6) raises an issue of honesty. The purpose of creating a false or misleading appearance of active trading is a dishonest purpose. Evidence of the appellant’s honesty was capable of supporting a submission that it was improbable that he acted with that dishonest purpose. The Court of Appeal’s dismissal of the evidence of the appellant’s good character as evidence which “does not address his subjective purpose or purposes” (Braysich v The Queen [2009] WASCA 178; (2009) 260 ALR 719 at 751 [125](g)) was an error. The Court failed to consider the relevance of the evidence to the question whether the appellant was unlikely to have had the proscribed dishonest purpose. ... (Appeal allowed. New trial ordered.)



DIRECTIONS ON CHARACTER EVIDENCE [12.50] Careful directions to a jury will usually be required in relation to character evidence

which is admitted in the trial. Read the extract from the High Court’s judgment in Melbourne

Part 3 — Admissibility of Evidence

v The Queen regarding the contents of a direction in relation to good character evidence that is admitted in the trial. The trial judge has discretion on whether or not to give a good character direction. In deciding whether to give a good character direction, the trial judge will need to evaluate the probative value of good character evidence in relation to both the accused’s propensity to commit the crime charged and the accused’s credibility. The case of DPP v Newman (a Pseudonym) [2015] VSCA 25 provides an example of a case where a trial judge misapplied the discretion and refused to give a good character direction.

Melbourne v The Queen [12.60] Melbourne v The Queen (1999) 198 CLR 1 Facts [Melbourne was tried and convicted of murder in the Supreme Court of the Northern Territory. At trial, Melbourne did not deny that he had stabbed the deceased, but sought a conviction for manslaughter on the basis of diminished responsibility. A finding of diminished responsibility depended on the credibility of a number of statements made by Melbourne to police and to experts who were later called to give evidence for him. Melbourne adduced evidence of his good character. The trial judge instructed the jury as to the relevance of this character evidence to the improbability of the appellant having committed the offence, but made no direction as to the relevance of the good character evidence to the jury’s assessment of Melbourne’s credibility. While this was not objected to at the time, it was the basis of the appeal against conviction. The issue in the appeal was whether the trial judge’s direction was sufficient.]

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Judgment McHUGH J: ... [15] In support of his claim that he was a person of good character, the accused adduced evidence that he had no previous convictions for a criminal offence other than a conviction for drink-driving in 1975, and evidence that he was not “adversely known to the police”. He also adduced evidence of his character and personality from those who knew him. It will later be necessary to refer to this character evidence in more detail. The trial judge’s direction to the jury on good character [16] In this court, the argument of counsel for the accused assumed that counsel at the trial had asked her Honour to direct the jury that the evidence of good character was relevant to both: • (a)the improbability of the accused having committed the instant offence, or, as counsel for the accused put it, the improbability that the accused is a person “who will make a deliberate choice to kill in a rational state”; • (b)assessing the credibility of the accused in making the assertions and answers which were the basis of the opinions of his expert witnesses. [17] However, the remarks of counsel in seeking directions and in his closing address suggest that he placed little reliance on the character evidence to support the credibility of the answers and assertions that were the basis of the expert opinions. In the course of his submissions for re-directions, counsel said: [I]t would be my submission that the aspect of the improbability of committing the instant offence, having a history of good character for 60-odd years, is of considerable significance. The aspect of his credibility is probably of lesser significance, having regard to the nature of the interview itself that has been severely criticised by me as showing a lack of credibility,

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Melbourne v The Queen cont. but, in any event, it is the primary aspect of the evidence … that should be brought to the jury’s attention and one which … as a matter of law, he is entitled to. I thought the most convenient repository of the law in relation to this is a decision of R v Murphy. The situation in Murphy’s case, obviously, was that it’s the aspect of credibility which was the most significant. In my submission, in this case it’s the reverse; it’s the aspect of probability or inherent probability of the commission of the offence. [emphasis added] [18] In reply to counsel for the Crown, counsel for the accused said: [T]he aspect of credibility, while I say it [is] not the primary consideration, nonetheless, is also significant, in terms of considering his explanation, not just to Mr Newman but to the others. [19] The learned trial judge adjourned for a short time after hearing those submissions. On her return to court, her Honour said that she would “give the direction as sought by the defence”. However, her Honour failed to give a direction as to how the jury might use the character evidence in assessing the accused’s credibility. Her Honour said: [W]hen you consider that evidence as to good character … you are entitled to consider the improbability of Roy Melbourne committing the instant offence, having a history of good character of some 61 years, and that this is of considerable significance. [20] Counsel for the accused did not seek any further direction on credibility … [21] … The issue is whether the trial judge erred by failing to direct the jury that the accused’s character was relevant in assessing his credibility and, if so, whether, in all the circumstances of the case, there has been a miscarriage of justice.

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Directions on good character evidence in Australia [22] Hitherto, Australian trial judges have had a discretion as to the directions that they should give to the jury concerning the use to be made of good character evidence. In Simic v The Queen, this court held that no miscarriage of justice had occurred when the trial judge had failed to direct the jury as to the manner in which they could use evidence that the accused was a person of good character. In a joint judgment, Gibbs, Stephen, Mason, Murphy and Wilson JJ said: There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used … No doubt, speaking generally, it is right to add … that if such a direction is asked for it would be wise to give it. In the present case no direction as to the evidence of the applicant’s good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. [23] Counsel for the accused has submitted that this court should no longer regard the giving of directions as to character as a matter for the discretionary judgment of the trial judge. Instead, counsel submitted that the court should follow the appellate courts in England and New Zealand and hold that there is now a rule of practice that such a direction should be given. … The preferable position [30] In my opinion, … this court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused’s good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both: (a)

the accused’s propensity to commit the crime charged; and

(b)

the accused’s credibility.

Part 3 — Admissibility of Evidence

Melbourne v The Queen cont. [31] The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character. [32] Two considerations lead me to this conclusion. First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Secondly, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and, in cases like R v Anderson and R v Aziz, such a direction may even confuse the jury. Character evidence in general

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[33] In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called “disposition – which is something more intrinsic to the individual in question”. It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person. As the last of the above passages from R v Falealili demonstrates, however, the common law courts have not always drawn a distinction between character and reputation in a criminal context. The confusion can be traced to R v Rowton where a majority of the Full Court of the Crown Cases Reserved held that in a criminal trial the evidence for or against a person’s good character must be confined to his or her general reputation. This is the established rule although, as this court pointed out in Attwood v The Queen, the limitations inherent in the rule are not observed in practice. In New South Wales, the legislature long ago reversed the common law rule. [34] In the criminal field, the common law has also tended to treat people as one-dimensional personalities who have either good or bad characters or dispositions. This tendency has been checked in the field of defamation, where the issue is reputation and not character and where the plaintiff obtains damages for the injury to reputation in the particular sector of the plaintiff’s life to which the libel refers. But the tendency continues to prevail in the criminal law, where a person is regarded as having either a good character or a bad character. In the absence of a statutory provision to the contrary, for example, a convicted sex offender will be treated as a person of bad character in a trial for embezzlement although there is overwhelming evidence of that person’s honesty. Conversely, in England a person without convictions may be entitled to a good character direction although his or her general conduct suggests the contrary. [35] What Lord Radcliffe said in Plato Films Ltd v Speidel concerning evidence of general reputation in defamation cases seems equally applicable to evidence of good and bad character in criminal cases. His Lordship said: The difficulty is that “general evidence of reputation” does not convey an idea of any content. Life not being a morality play or a Victorian melodrama, men do not enjoy reputations for being bad or good simpliciter: nor, if they did, would the proof of such generalities throw any light upon the loss of reputation suffered from a particular libel. Similarly, in many criminal cases, evidence that a person is of good character in the general sense recognised by the common law throws little, if any, light upon the probability whether he or she committed the crime in question. Treatment of evidence of bad character or criminal propensity [36] For more than a century, the common law has drawn a distinction between the admissibility of evidence of good character and the admissibility of evidence of bad character in a criminal trial.

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Melbourne v The Queen cont. Evidence of good character is readily admitted because it is regarded as tending to prove that the accused is unlikely to have committed the crime in question. Evidence of bad character is admitted only in exceptional circumstances even where the courts regard it as tending to prove that the accused is likely to have committed the crime in question. [37] The common law has developed strict rules for the admissibility of evidence designed to prove that, by reason of his or her character or propensities, the accused is likely to have committed the crime with which he or she is charged. In Makin v Attorney-General (NSW), Lord Herschell said that the prosecution cannot: adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

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[38] In Maxwell v Director of Public Prosecutions, this statement was said to give effect to “one of the most deeply rooted and jealously guarded principles of our criminal law”. In this court, its status as a fundamental principle has been confirmed in numerous cases. [39] As the passage from Makin v Attorney-General (NSW) demonstrates, evidence disclosing the bad character of the accused is sometimes admissible. However, courts, including this court, have consistently held that evidence of the bad character of the accused or the propensity of the accused to commit criminal acts is only admissible if strict conditions are fulfilled. In Pfennig v The Queen, Mason CJ, Deane and Dawson JJ held that propensity evidence is admissible only if it possesses a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In Hoch v The Queen, the court said that the probative force of such evidence when admitted: lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution. This statement was approved by the majority in Pfennig. [40] The “no other reasonable explanation” test requires the judge to come to a view as to the guilt of the accused before the evidence in question is admitted. If, at the stage of determining whether the evidence is admissible, the judge decides that there is no “reasonable explanation” for the evidence other than inculpation of the accused, the evidence will be admitted. The judge has then, in effect, determined that the accused is guilty of the charges although, of course, it is for the jury to determine the ultimate question of the guilt or innocence of the accused on the whole of the evidence. Where the trial is by a judge without a jury, he or she must also examine the whole of the evidence before finding the accused guilty, notwithstanding that he or she has already decided that there is no reasonable explanation for the disputed evidence other than the accused’s guilt. [41] In Perry v The Queen, Gibbs CJ explained the rationale for the rule excluding evidence of bad character or propensity as follows: Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused.

Part 3 — Admissibility of Evidence

Melbourne v The Queen cont. [42] The rationale of the common law rule has greatly influenced the approach of courts to statutory provisions that enable bad character evidence to be tendered in evidence. Dawson v The Queen, where this court considered s 399(e) of the Crimes Act 1958 (Vic), is a good example. That sub-section relevantly stated that an accused person appearing as a witness: shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless: … (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution.

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[43] In Dawson, the prosecution relied on a verbal admission by the accused that a record of interview accurately recorded admissions that he was involved in a breaking and entering offence. One issue at the trial was whether, by denying making the admission, the accused had rendered himself liable to cross-examination on his past convictions and bad character under s 399. Dixon CJ concluded that the section did not cover “inferences, logical implications or consequential deductions which may spell imputations against the character of witnesses”, and that imputations on the prosecution witnesses must be “an element or ingredient in the defence or what arises from the manner in which the defence is conducted” for the accused to be exposed to cross-examination on past convictions and character. In support of his conclusion, Dixon CJ said: It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused. Relevance to good character evidence [44] The explanation by Gibbs CJ of the rationale of the rule concerning bad character evidence demonstrates that, in determining the admissibility of such evidence, the courts have accepted, consciously or unconsciously, that character evidence is likely to divert the tribunal of fact from the true issues in the case. It is likely to divert the jury from properly evaluating the strength or weakness of evidence that more directly bears on whether or not the accused committed the crime in question. [45] In the field of similar fact evidence, Mr Rajiv Nair has drawn a distinction between the “moral” and “descriptive” elements of such evidence. He contends that similar fact evidence contains a “descriptive” element in the sense that it describes a feature associated with an accused person or his circumstances which exists independently of the circumstances surrounding the commission of the alleged offence and which is relevant to the offence charged. It also contains a “moral” element in the sense that it carries connotations as to the moral desirability or otherwise of possessing certain qualities. In Mr Nair’s view, the “prejudicial effect” of similar fact evidence arises primarily out of its moral quality while the probative force arises out of its descriptive quality. [46] The opportunity for prejudice arising out of this moral element of character evidence was reduced by the course taken in Pfennig to apply a restrictive test for the admissibility of similar fact evidence and the course taken in Dawson to read the statutory exception narrowly. In both cases, the court was concerned to ensure that evidence upon which a moral judgment concerning the accused can be made is not admitted unless it is also rationally connected with “the parts and details of the transaction amounting to the crime”. Unless such a connection exists, the moral element of the character evidence is likely to be used to make an irrational connection between the person’s character and his or her guilt. If the descriptive element of the character evidence shows an irresistible rational

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Melbourne v The Queen cont. connection with the “parts and details of the transaction amounting to the crime”, however, bad character or propensity evidence will be admitted. Its admissibility can be justified because, where the rational connection is sufficiently strong, the moral element of such evidence is unlikely to divert the jury or other tribunal of fact from its proper function. [47] Given the common law’s acceptance of the diversionary effect of bad character evidence, the manner in which it allows good character evidence to be used in a criminal trial is anomalous. Good character evidence is not subject to the stringent evaluation of its probative force that is applied to evidence of bad character. It is admitted condition free. Yet there is no logical or legal reason for drawing a distinction between the conditions for admitting bad character evidence and the conditions for admitting good character evidence. Furthermore, as Kirby J points out in his judgment, empirical psychological studies now deny that character is as accurate a predictive tool as earlier generations so confidently believed. The unconditional right of an accused person to tender good character evidence must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons. The basis of the rule for admitting evidence of good character is not logic but the “policy and humanity” of the common law.

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[48] It would be anomalous if before evidence of bad character or criminal propensity is even admitted it is subject to a rigorous evaluation of its probative significance, and yet good character evidence of dubious probative value is not only admitted, but is required to be the subject of a mandatory direction favourable to the accused even if the trial judge considers that the direction is not warranted in the circumstances of the case. [49] In my opinion, the distinction between “moral” elements and “descriptive” elements formulated by Mr Nair can be generalised from similar fact evidence to character evidence in general. That being so, if the law of evidence was a logically coherent body of doctrine, good character evidence would not be admitted unless as a minimum it tended to negative some part or detail “of the transaction amounting to the crime”. But it is too late in the day to hold that good character testimony must meet such conditions to be admissible. That does not mean, however, that in defiance of logic and modern psychological opinion it should automatically be treated as if it did negative the parts or details of the transaction. [50] The dissent of Thomas J in R v Falealili recognises the necessity for good character evidence to have probative value before the judge should give the jury a direction as to the manner of using it. His Honour said: Consequently, if the evidence of the accused’s good character is both probative and relevant the judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so. If, on the other hand, the purported character evidence is lacking in probative force and of remote relevance to the charge in issue, the judge may decide that a good character direction is not warranted. Or the judge may consider that it would be prudent to proffer a good character direction, but then to qualify it in order to put it in perspective having regard to the circumstances of the case. To proscribe that, whenever character evidence is adduced or elicited, a good character direction should be given and that it must generally embrace both the credibility and propensity limbs of the direction is an unnecessary fetter on that discretion. [51] The majority judges in Falealili also recognised the importance of the probative effect of good character evidence. Although in that case their Honours stated that a character direction “should be given”, they also said that the need for a direction “will arise where evidence relating to character has been adduced which, if accepted by the jury, could properly be relevant or probative in determining whether guilt has been proved”. In doing so, the court has recognised the importance of the probative value of the evidence. Consequently, although in form the New Zealand Court of Appeal appears to have adopted a mandatory rule, its formulation allows the trial judge to determine when the threshold of “good character” has been met, and thus when the mandatory direction is required, by reference to the probative value of the evidence.

Part 3 — Admissibility of Evidence

Melbourne v The Queen cont. [52] There are other advantages in not having a mandatory direction. It avoids the need to attempt to define in advance what is “good character” and thus the circumstances in which the mandatory directions will be invoked. Defining the absence of a criminal record as equivalent to good character required the House of Lords in R v Aziz to create a “residual discretion” to avoid the absurdities which resulted from such a definition. Application of these principles to the accused’s case

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[53] In my opinion, the character evidence relating to Mr Melbourne was not of such probative significance in relation to his credibility as to require the trial judge to give a direction that the evidence bore favourably upon Mr Melbourne’s credibility. The evidence was that the accused had no previous convictions other than a conviction for drink-driving in 1975 and was not “adversely known to the police”. Various descriptions of his character and personality were given by those who knew him, such as: (a)

evidence from Mr Gooch that the accused was a “quiet man”, a man who was “always gentle”, and who, apart from this occasion, had “never” been “aggressive”;

(b)

evidence from Mrs Barnes that the accused was “very quiet”;

(c)

evidence from Mr Daniels that the accused was “a very amiable sort of person”;

(d)

evidence from Mrs Hinde that the accused was “a very quiet, well-behaved gentleman”.

[54] None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the offence charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it. [55] In my opinion, the appeal should be dismissed.



DPP v Newman (a Pseudonym) [12.70] DPP v Newman (a Pseudonym) [2015] VSCA 25 Facts [In a trial of sexual offences which had commenced in the County Court, both the prosecution and defence agreed that the accused should have been entitled to lead evidence of good character, and, once having done so, should reap the benefit of a direction on good character. The trial judge refused to give a good character direction favourable to the accused. The DPP sought leave to appeal against the trial judge’s decision to ensure that the trial did not miscarry as a result.] Judgment PRIEST and BEACH JJA [22] In the course of the impugned ruling, the trial judge recognised that “good character evidence in a case of sexual offending against a child and in a word against word case can be powerful evidence and is a factor that might well swing the balance in favour of the accused”; and that, if an accused is entitled to a good character direction in such a case, “he should receive it and in its full force”. The judge then, however, referred to a passage from the judgment of McHugh J in TKWJ. Purporting “to

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DPP v Newman (a Pseudonym) cont. adopt the language of McHugh J in TKWJ”, her Honour quoted McHugh J as saying that “it is contrary to the public interest to let an accused go to the jury as a man of good character when there is evidence which, if accepted, would show he was not a person of good character”. It is thus necessary to examine the context in which McHugh J made the remarks adverted to.

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[23] TKWJ was a case where separate trials were to be conducted in relation to alleged sexual offending against two complainants, C and K, who were respectively the son and daughter of a woman with whom the accused lived at the time of the offences. In the trial relating to the allegations made by C, defence counsel informed the prosecution that he intended to adduce evidence of the accused’s good character. The prosecutor responded that, should defence counsel adopt that course, he would apply to call K to give evidence about the allegations relating to her. Such evidence would be led in rebuttal of good character. In the event, defence counsel did not adduce evidence that the accused was of good character. The High Court was called upon to consider defence counsel’s competence, and whether justice had miscarried as a result of his failure to call evidence of good character. It was in those circumstances that McHugh J said in the relevant passage of his judgment: Without seeing or hearing K give evidence and being cross-examined on a voir dire, it is impossible to determine whether the trial judge might have excluded her evidence as a matter of discretion. On what we know of K’s evidence, however, I would not have excluded her evidence, if I had been the trial judge, no matter how cogent the good character evidence appeared to be. In exercising the discretion the judge would not be required to weigh K’s evidence against the good character evidence but only against any prejudice that it might create. In a case that turned on the complainant’s word against the appellant’s, the good character of the appellant was a factor that might well swing the balance in his favour. To let the appellant go to the jury as a man of good character when K’s evidence, if believed, showed the opposite would be contrary to the public interest unless the judge was satisfied that it gave rise to prejudice that outweighed the probative value of the evidence. K’s evidence therefore went to a vital issue in the case and, if believed, was cogent evidence concerning that issue. Its probative value was very high. That her evidence damaged even seriously damaged the appellant’s case did not make it prejudicial. In this context, prejudice means diverting the jury’s attention from the issues to be determined in the case to the detriment of the accused. The most likely risk of prejudice in this case was that the jury might think that, if the appellant had sexually assaulted K, he was the sort of person who was likely to assault the complainant. In my opinion, K’s evidence would give rise to this risk of prejudice, a risk that almost always arises when evidence is admitted to rebut evidence of good character. But if the evidence of bad character is cogent, it is a risk that must usually be taken unless the accused is to have an advantage that he or she is not entitled to have. In the vast majority of cases, the risk will be eliminated by a strong direction to the jury that the rebuttal evidence can only be used on the issue of good character. Even if the judge thinks that such a direction may not eliminate the risk of prejudice, the probative value of the evidence on the character issue may still require its admission. It will do so if its probative value outweighs any prejudice that it creates. In this case, the judge would have been bound to direct the jury that K’s evidence was relevant only in determining whether the appellant was a person of good character or not. Such a direction should have been sufficient to eliminate the risk. [emphasis original] [24] In TKWJ, the prosecutor – contrary to the course proposed in the present case – proposed to call evidence of the second complainant, K, in rebuttal of good character. In this case, the prosecution has said repeatedly – and has made it abundantly clear – that it does not propose to call evidence from the complainant on the second indictment to rebut good character, in the event that evidence of the respondent’s good character is adduced. There will thus be no evidence before the jury from the fourth complainant which, if believed, might impinge on the respondent’s character. Further, as McHugh J made clear in the case before him, had the prosecution sought to lead evidence from K in rebuttal, it was not a foregone conclusion that the trial judge would have permitted its reception.

Part 3 — Admissibility of Evidence

DPP v Newman (a Pseudonym) cont. The judge would still, as McHugh J observed, have had a discretion to refuse to admit the evidence. McHugh J went on to say: Nevertheless, if the trial judge had seen and heard K give evidence on the voir dire, it is conceivable that he might have excluded her evidence. There is the chance that something may have occurred that would induce the judge to exclude the evidence. However, the existence of this theoretical possibility does not assist the appellant. The onus is on the appellant to prove a material irregularity in the trial. The appellant does not discharge that onus by showing that there is a theoretical possibility that the judge might have excluded the evidence.

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[25] It is unthinkable that the trial judge could ever, in circumstances such as the present (or, indeed, any circumstances), of her own motion call a witness, or introduce evidence, in defiance of the adversaries’ positions, so as to rebut evidence of the accused’s good character. Thus, as the position stands, there is no evidence before the court rebutting the respondent’s good character, and, given that the prosecution has said repeatedly that it is not intended to lead evidence in rebuttal, there will be none (unless, in unlikely and unforeseen circumstances, that position changes). It is trite that, the mere fact that a person has been charged with an offence cannot be evidence of bad character. The mere fact that a person has been charged is no evidence that he or she has committed the offence. It is thus irrelevant. Moreover, the mere fact that a person has been charged with an offence cannot bear upon his or her credit. [26] We are thus at a loss to see how it is that the trial judge thought that she was entitled to have regard to the unproven allegations relating to the second indictment to rule that the respondent should be shut out from a direction as to good character. Having again referred to the judgment of McHugh J in TKWJ, the judge went on to observe that, by reference to the written prosecution opening for the trial on the second indictment, “some similarities in the circumstances of the offences charged on both indictments” are revealed. Her Honour then proceeded to discuss those perceived similarities, which she regarded as “significant”. The judge then, having cited from Saw Wah, and having made a brief reference to Bishop, returned to TKWJ. Her Honour set out passages from the judgment of McHugh J – including that to which we earlier made reference – and she observed: I accept that in this case I do not have to concern myself with a consideration of the admissibility of rebuttal evidence or whether such evidence, although admissible, ought to be excluded under s 135 or 137 [of the Evidence Act 2008], or with a direction that the evidence is relevant only to the issue of character. The prosecution has made its position clear. It will not seek to lead evidence of the other charges on the second indictment. As I understood the position, that is in part due to the pragmatic decision [the Crown prosecutor] told me the Crown had taken in this case to err on the side of caution because it was a retrial, and in part because the Crown did not want to put the child, that is the fourth complainant, through the ordeal of giving evidence at the trial on the first indictment and again on the trial on the second indictment. It should be noted that this child’s evidence-in-chief is proposed to be adduced by the playing of two VAREs conducted shortly after her complaint but there has not yet been a special hearing, that is, she has not been cross-examined for trial. My concern is about the misleading impression a jury would be left with, that the accused is a man of unblemished character and the giving of a direction that he is entitled to have that called in aid, when considering the likelihood that he committed the offences charged. Of course, as [defence counsel] said and correctly, the allegations on which the second indictment is based are just that, allegations. I am not presuming guilt, or denying the accused the benefit of the presumption of innocence. But it is not and never has been the law, that the only evidence able to be called in rebuttal of good character is evidence of previous convictions. Indeed, the very circumstances canvassed by the High Court in TKWJ demonstrate that pending charges can be properly the subject of rebuttal evidence if character is put in issue.

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DPP v Newman (a Pseudonym) cont. I do not consider that a good character direction should be given where an accused is facing like charges. I do not consider that the authorities to which I have referred, justify the giving of either part of the good character direction in those circumstances. This is a case that turns on the complainant’s [sic, complainants’] word against that of the appellant’s [sic]. It is clearly therefore a case where the good character of the appellant [sic] is a factor that might well swing the balance in his favour. In my view, it is a case where to let the appellant [sic] go to the jury as a man of good character when the fourth child’s evidence, if believed, shows the opposite, would be contrary to the public interest unless I were satisfied that it gave rise to a prejudice that outweighed the probative value of the evidence. The other child’s evidence goes to a vital issue in the case and if believed, is cogent evidence concerning that very issue; its probative value is or is potentially, very high. I acknowledge that her evidence if available could damage, even seriously damage, the appellant’s case but following the reasoning of McHugh J it is not that which makes it prejudicial. I accept that in this context, prejudice means diverting the jury’s attention from the issues to be determined in the case to the detriment of the accused. In my view, to allow a direction for good character to be given in the circumstances where this other evidence exists, is to give the accused an advantage that he is not entitled to have. … In my view, it would seriously mislead the jury to assert that the accused is a man of unblemished character when on the materials before the court, other evidence exists – evidence sufficiently cogent for a decision to have been made to present the accused for trial. It is not to the point in my view that the Crown does not seek to call the evidence about the pending charges. There are often cases where relevant evidence is withheld from a jury’s consideration. Sometimes that is as a result of agreement between the parties, sometimes as a result of a ruling under s 137 or 135 or some other provision of the Evidence Act, which requires consideration of the weight of the evidence, its probative value and the risk of unfair prejudice to an accused. Often, the consequence of exclusion of otherwise relevant evidence from the jury’s consideration is simply that; it is removed from the jury’s consideration — but it does not follow that the decision not to put otherwise relevant evidence before the jury (and, as the court held in TKWJ, potentially highly probative evidence) requires a trial judge to pretend such evidence does not exist. A decision or agreement to exclude evidence is often conditional upon the accused not, by the conduct of the defence, opening up the issue and so justifying its admission in rebuttal or, by not seeking a direction premised on the assumption there is no such evidence. The position is more starkly defined in this case as the accused does have some previous convictions. As I have said, they are irrelevant to the charges before me but the fact that he can, and is entitled, to treat character as divisible and separate out the cruelty to animal charges from his general character, leaves open the implication that his character in all other respect [sic] is unblemished. That in my view is frankly misleading. Even if the accused did not have any previous convictions, the clear implication from adducing evidence of good character generally is that the accused has a good reputation is [sic] in all respects and that is simply not so. That is abundantly clear, in my view, from the reasoning of all of the members of the court in TKWJ. This reasoning bears directly on the reputational part of the character direction but it also, in my view, applies equally to the credibility part of the character direction. For these reasons, I rule that I will not give the character direction sought. [emphasis original] [27] There are, with respect, multiple errors in her Honour’s reasons which vitiate her ruling. [28] First, notwithstanding that the prosecution had “made its position clear”, and “will not seek to lead evidence of the other charges on the second indictment”, and thus that the judge did “not have to concern [herself] with a consideration of the admissibility of rebuttal evidence” or discretionary rejection, the judge has proceeded on the premise that there is “other evidence” available in the current trial to cast doubt on his good character. The simple fact is, unless and until the prosecution sought to introduce the evidence of the fourth complainant in the current trial as rebuttal evidence,

Part 3 — Admissibility of Evidence

DPP v Newman (a Pseudonym) cont. there is no “other evidence” available. (We are also left to wonder how – if the charges on the second indictment were tried with those on the first – the respondent could in those circumstances have been denied a direction on good character.) [29] Secondly, and allied with the first matter, her Honour has equated unproven and untested allegations from the fourth complainant as evidence available in the current trial. With respect, while it might be correct to say that it is not only evidence of previous convictions that is “able to be called in rebuttal of good character”, it is not correct to say that “pending charges can properly be the subject of rebuttal evidence”. Evidence which may support other pending or possible charges might be available as rebuttal evidence, but only if the prosecution seeks to introduce such evidence in rebuttal.

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[30] Thirdly, and again allied to the above, in so far as the judge thought that “the fourth child’s evidence, if believed, shows the opposite” of good character, and it “would be contrary to the public interest” for the respondent to “go to the jury as a man of good character” (unless she were satisfied that the evidence “gave rise to a prejudice that outweighed the probative value of the evidence”) and that the “other child’s evidence goes to a vital issue in the case and if believed, is cogent evidence concerning that very issue”, its probative value being potentially “very high”, that evidence simply is not evidence in the current trial. We note in this regard that if – contrary to its entrenched and oftrepeated attitude – the prosecution had sought to introduce the evidence of the fourth complainant in the trial of the first indictment, the judge would have been required properly to assess its admissibility, and, consonantly with the observations of McHugh J in TKWJ, to make the kind of evaluation required by s 135 and s 137 of the Evidence Act 2008. Adequate evaluation of the evidence may have required the putative evidence being received and tested on a voir dire. That, of course, has not happened. There have been two VAREs, but no special hearing. Thus the evidence has not been tested by the defence. [31] Fourthly, the judge did “not consider that a good character direction should be given where an accused is facing like charges”. Her Honour cited no authority for that proposition. We know of no authority which establishes any such proposition or principle. With respect, the judge misdirected herself. [32] Fifthly – and this theme permeates her ruling – the judge thought it would mislead the jury to assert that the respondent is of good character “where, on the materials before the court, other evidence exists”, such evidence being “sufficiently cogent” to have resulted in the respondent’s committal for trial. At the risk of repetition, the evidence does not “exist” unless led by a party. Her Honour’s observation that it is “not to the point” that “the Crown does not seek to call evidence about the pending charges” cannot be sustained. For reasons that we have been at some pains to illustrate, it is very much to the point. [33] Sixthly, the judge is not being asked “to pretend the evidence does not exist”. The evidence simply does not exist until it is led in the trial. As Barwick CJ observed of the nature of a criminal trial in Ratten: It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. [34] Seventhly, having initially understood that the old animal cruelty conviction was irrelevant to any issue in the trial, late in her ruling the judge seems to have adopted a wholly inconsistent position, and, to that extent, misdirected herself. Having repeated that the earlier convictions “are irrelevant to

Character

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DPP v Newman (a Pseudonym) cont. the charges before me”, the judge said that the fact that the respondent “can, and is entitled, to treat character as divisible and separate out the cruelty to animal charges from his general character, leaves open the implication that his character in all other respect (sic) is unblemished”, which is a view that the judge regarded as “frankly misleading”, since “the clear implication from adducing evidence of good character generally is that the accused has a good reputation … in all respects and that is simply not so”. What her Honour was endeavouring to convey by these remarks is far from perspicuous. But in so far as the judge seemed to think that the prior convictions for irrelevant and unrelated matters justified the refusal refusing a good character direction, she erred. [35] As was made clear in Bishop, s 110 of the Evidence Act 2008 permits evidence to be adduced that the accused is, either generally or in a particular respect, a person of good character; and that, where the accused elects to lead only evidence of good character in a particular respect, the prosecution will be confined to rebutting evidence in that particular respect. Moreover, as was said in that case:

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Evidence of good character is admissible touching not only on the unlikelihood of guilt, but it may also be used as to the credibility of an accused who denies his guilt. Section 110 of the Act does not alter this position. Prior to Melbourne – and, indeed, the introduction of the Act – the practise in Victoria was as described in Warasta: In this State, for many years, good character evidence has almost without exception been followed by an appropriate direction as to the use which the jury might properly make of that evidence. … In our opinion, generally speaking, such a direction should be given. It would be only in a rare case, where the accused gives evidence on oath, and his credibility is of crucial importance, that an omission to give such a direction could be justified. The practise acknowledged in Warasta should, in my view, continue to provide guidance to trial judges. [emphasis original] [36] For these reasons the trial judge was wrong to refuse to give a direction concerning the respondent’s good character, that went both to the credibility of his explanation and the unlikelihood of guilt. Her decision cannot stand. The application for leave to appeal the judge’s interlocutory ruling must accordingly be granted and the appeal allowed.



EVIDENCE ABOUT CHARACTER OF CO-ACCUSED [12.80] Section 111 deals with evidence about the character of a co-defendant in criminal

proceedings.

CROSS-EXAMINATION OF THE ACCUSED [12.90] Section 112 imposes limitations on cross-examination of the defendant in criminal

proceedings about character. Section 104 imposes limitations on cross-examination of the defendant about matters relevant only to his or her credibility. Stanoevski v The Queen considers the meaning and application of s 192 to the adducing of, and cross-examination on, character evidence.

Part 3 — Admissibility of Evidence

Stanoevski v The Queen [12.100] Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 Facts [The appellant was convicted in the District Court of New South Wales of conspiring with two other persons to cheat and defraud NRMA Insurance Limited of a sum of money. The appellant was a practising solicitor. She put herself forward as a person of good character. The prosecution asserted that the appellant was not a person of good character and, to prove that that was so, was permitted by the trial judge to cross-examine her on matters contained in a report prepared by a Law Society investigator. The report was of an investigation of an allegation made by Ms Wailes that the appellant had forged the signatures of a client which she had then witnessed on documents in unrelated proceedings in the Family Court of Australia. The report contained opinion from a handwriting expert that the writer of the appellant’s signature “cannot be eliminated from having produced” the forged signature. Ms Wailes had been working as the appellant’s secretary.] Judgment GAUDRON, KIRBY AND CALLINAN JJ:

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Failure to advert to a statutory discretion [41] Section 192 applies to this case, and in particular to the exercise by the trial judge of his or her discretion under s 112 of the Act. It should be noted that the leave required under s 112 is not leave to adduce evidence, but to cross-examine about the character of a defendant. In addition to matters which may be relevant in a particular case, in all cases the court must take into account the matters prescribed by s 192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably have been relevant to the way in which his discretion ought to be exercised had he adverted to them. [42] Paragraphs (a), (b) and (c) were of importance here. As to par (a) a great deal of time was in fact taken up by the pursuit of a collateral issue, not just in cross-examination, but also in chief, addresses and the judge’s summing-up. Whether its pursuit added unduly to the length of the hearing was a matter to be taken into account and might well have affected his Honour’s decision. [43] The cross-examination on the report raised a very grave possibility of unfairness to the appellant within the meaning of s 192(2)(b). By giving permission for that cross-examination to take place the trial judge was allowing the undertaking of an extensive collateral inquiry by the prosecutor. That inquiry necessarily raised a contest of credibility between the appellant and her co-conspirator, Ms Wailes, on a matter on which the latter had not been cross-examined and upon which evidence neither in chief nor in cross-examination should have been led. The risk, in our opinion, indeed the certainty of unfairness, was compounded by the repeated references to signatures and some of the contents of documents which could not be admitted into evidence, were rightly rejected by the trial judge, and were not seen by the jury. An unfortunate example is a recitation by the prosecutor of the effect of part of the statutory declaration made by Ms Wailes and contained in the report. The repeated invitations to the appellant to speculate about Ms Wailes’ actions and motivations in relation to the documents were similarly unfair. They also provide an example of the extent to which an attenuated attempt to rebut evidence of good character can be distracting from the main issues with which the jury should be concerned. [44] Section 192 is not exhaustive as to the matters to be taken into account. Plainly the weight to be accorded to the evidence sought to be adduced, whether in cross-examination or otherwise, is a matter of considerable relevance. The trial judge quoted the expert’s opinion in the report but yet does not seem to have taken into account how little, if any value it had, that is to say, its featherweight.

Character

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Stanoevski v The Queen cont. [45] The reasons and statutory basis for the report were not referred to in argument. It probably came into existence pursuant to Div 5 of Pt 10 of the Legal Profession Act 1987 (NSW) which does not require an investigator, or the Council of the Law Society of New South Wales or the Commissioner to do more than be satisfied of a reasonable likelihood of improper illegal conduct [s 155]. It does not require an investigator to reach a firm conclusion that the subject of the investigation is in fact guilty. [46] The opinion of the handwriting expert was, as we have already pointed out, at best, equivocal, and a person merely reading the statutory declarations of Ms Wailes, the alleged co-conspirator, as the author of the report did, without the benefit of cross-examination on them, could hardly have been in a position to form any sound opinion of their reliability and to prefer claims made in them to the denials of the appellant. The author of the report nonetheless purported to be able to do this. Because the report and the material contained in it could be accorded little or no weight, we do not think that it was a proper platform from which to attack the appellant’s character in cross-examination. Another way of putting this is to say that the report was not important enough to be the subject of cross-examination within the meaning of s 192(2). That, coupled with the singularity of the event with which it dealt, and its remoteness in time and difference in nature from the very serious charge levelled at the appellant also tended in our opinion to diminish the importance of the evidence that any cross-examination upon it might produce.

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Conclusion: error and miscarriage of justice [47] It follows that matters of the kind which s 192(2) provides should be considered were of relevance to this case and to the trial judge’s decision to permit the prosecutor to cross-examine as he did. In not taking properly these, and matters of weight and relevance into account, and in not therefore exercising his discretion in accordance with s 192 of the Act, the trial judge fell into error. There was, in our opinion, a further error in the trial judge’s ruling. The possession by the prosecution of information of the kind contained in the report did not, as the trial judge held, “oblige” the prosecutor to put the subject-matter of it to the appellant. Whether to use the material in the report was a matter for the prosecutor’s own personal decision (see Richardson v The Queen (1974) 131 CLR 116 at 119, per Barwick CJ, McTiernan and Mason JJ; Whitehorn v The Queen (1983) 152 CLR 657 at 674, per Dawson J). Not to seek to use it, for the reasons we have stated, would have been an entirely proper one. The prosecutor however acted quite properly in seeking permission in advance here of the course he might take, and in subsequently acting in the way in which the trial judge said he was “obliged” to act. [48] Nothing turns in this case upon the fact that the appellant’s counsel adduced some evidence about matters referred to in the report. That course was effectively forced upon the defence by reason of the ruling that the trial judge had earlier made. [49] The respondent was asked on the hearing of this appeal to justify his submission that even if errors of the kind which have been identified did occur there had been no substantial miscarriage of justice. In response the respondent submitted that the case was a strong one, and that the trial judge’s directions could be regarded as having dealt adequately with the character evidence, albeit that the respondent conceded that character was an important aspect of the appellant’s case. [50] The respondent has failed, in our opinion, to discharge the onus of showing that no substantial miscarriage of justice has occurred. The appellant was entitled to a trial according to law. She has not had that. It cannot be said that the appellant has not lost a real chance of an acquittal (see eg Mraz v The Queen (1955) 93 CLR 493; M v The Queen (1994) 181 CLR 487; BRS v The Queen (1997) 191 CLR 275). Forensically, the issues in respect of which the trial miscarried were very important issues. We do not share the view propounded by the respondent that the case was necessarily a strong one. ...

Part 3 — Admissibility of Evidence

Stanoevski v The Queen cont. McHUGH J: ... [54] By reason of s 112 of the Evidence Act 1995 (“the Act”), the prosecution needed the leave of the trial judge to cross-examine the appellant on matters in the report which suggested that she was not of good character. In the course of the Crown case, the learned judge gave a preliminary ruling on the issue of leave. He said that, if the appellant adduced evidence of good character, he would grant leave to the prosecution to cross-examine the appellant on the matters in the report “unless some other matter arises that would cause me to hold a different view”. Later, after the appellant had given evidence of good character, the judge gave the prosecution leave to cross-examine her on the matters in the report. [55] Section 192 of the Act directed the judge to have regard to certain matters in determining whether leave to cross-examine should be granted. However, his Honour, over the objection of the appellant’s counsel, gave leave without considering these matters – indeed without being referred to them. Because that is so, the appellant was cross-examined in breach of the Act. Her trial was flawed by a “wrong decision of any question of law” within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW). Her conviction cannot stand unless the prosecution can establish that her conviction has not resulted in a miscarriage of justice.

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[56] Two ways are open to the prosecution to show that no miscarriage of justice occurred. First, no miscarriage of justice occurred if the trial judge could not reasonably have refused to grant the prosecution leave to cross-examine the appellant on her claim of good character. Second, no miscarriage of justice occurred if the appellant would have been convicted even if leave to cross-examine had been refused. [57] I think that it is likely that, if the judge had been referred to the matters in s 192, he would still have given leave to cross-examine the appellant on the matters in the report. But if he had refused to give leave, no one could say that his decision was unreasonable. Accordingly, the first ground for contending that no miscarriage occurred must fail. If the judge had been referred to s 192, he may or may not have granted leave to cross-examine on the matters in the investigator’s report. [58] The second ground for contending that no miscarriage of justice occurred must also be rejected. As counsel for the prosecution conceded in this Court, the appellant’s good character was at the forefront of the case. The character evidence was more important than in many criminal cases because her case depended essentially on a denial of the evidence of an accomplice who had pleaded guilty to the same conspiracy with which the appellant was charged. The appellant’s credibility was at the heart of her case. Any undermining of the evidence tending to establish that the appellant was of good character – evidence which the prosecution conceded was “formidable” – was likely to affect the jury’s determination as to whether the prosecution had proved its case beyond reasonable doubt. [59] As a result of the leave that the judge gave, the appellant conceded in cross-examination that, while acting in a Family Law matter, she may have purported to witness a signature on an affidavit when the signatory was not there. Indeed, prosecuting counsel put to her that she had forged the signature, an assertion that the appellant denied. The learned judge directed the jury that there was no evidence that the appellant had forged the signature. But he also directed the jury that, if they found that the appellant had purported to witness a signature when she had not done so, that could “affect your assessment of her claim to be of good fame and character”. [60] The cross-examination concerning the Family Law matter makes it impossible to find that the grant of leave to cross-examine on character did not result in a miscarriage of justice. There is a real chance that her credibility was undermined as the result of her concession about witnessing the affidavit, a concession that was obtained in breach of the Act … (Appeal allowed. New trial ordered.)



Character

[12.110]

1.

CHAPTER 12

Questions

Which of the following is correct:

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(a) s 109 applies only to civil/criminal cases; (b) s 110 provides that a defendant may adduce evidence-in-chief to show she/he is of good/ bad character; (c) there is no provision in the Evidence Act 1995 that deals with the admissibility of the character of witnesses other than the accused?

2.

When (ie in what circumstances) can the prosecution adduce evidence of the accused’s bad character?

3.

When can the prosecutor cross-examine the accused to attack his/her credit?

4.

How can the prosecutor adduce bad character of the accused? What sections of the Evidence Act must be satisfied?

5.

What are the restrictions placed on admitting character evidence of a witness (other than the accused)?

6.

What rules apply to the admissibility of character evidence of the plaintiff in a civil case?

7.

Refer to R v Eagle in Chapter 20. What evidence of the accused’s character is admissible?

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CHAPTER 13

Identification Evidence [13.10]

OVERIEW................................................................................................................... 543

[13.20]

VISUAL IDENTIFICATION EVIDENCE .......................................................................... 545 [13.30] R v Tahere .............................................................................. 545

[13.40]

PHOTOGRAPHIC AND PICTURE IDENTIFICATION ..................................................... 548 [13.50] Alexander v The Queen.............................................................. 548 [13.60] Peterson (a Pseudonym) v The Queen ........................................... 550 [13.70] MA v The Queen ...................................................................... 553 [13.80] Pace (a Pseudonym) v The Queen ................................................ 555

OVERVIEW

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[13.10] Part  3.9, dealing with identification evidence, applies only in criminal proceedings

(s 113). Section 114 provides that “visual identification evidence” of a defendant is not admissible when adduced by the prosecution unless an identification parade was utilised by the police (or “it would not have been reasonable to have held such a parade”) and the identification of the defendant was made without any intentional influence on the witness to identify the defendant. “Identification evidence” is broadly defined in the Dictionary to the Act to mean an assertion (based wholly or partly on what the person making the assertion saw, heard or otherwise perceived) that the defendant is, or resembles, a person present “at or about the time” the crime (or connected act) in question was committed. The resemblance may be visual, aural, “or otherwise”. However, “visual identification evidence” limits this definition in two significant ways: (a)

the “identification evidence” must be “based wholly or partly on what a person saw”; and

(b)

the term does not include “picture identification evidence” – which is defined in s 115 to mean “identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers” (a “picture” includes a photograph).

The term “identification parade” used in s 114 is not defined in the Act. Broadly interpreted, it would mean any group of people (including the person who subsequently became the defendant) utilised for the purpose of a witness attempting to identify someone involved in a crime. The Commonwealth Crimes Act 1914 sets out requirements and procedures for holding identification parades in relation to Commonwealth offences. In the absence of such legislative prescription, the courts interpret the term in such a way as to ensure a minimum level of fairness and evidentiary reliability. Section 114(3) lists a number of factors to be considered in deciding whether it was “reasonable” not to have used an identification parade (rather than, say, photographic identification). Such circumstances would include where the suspect/defendant refuses to take part in a parade, where the identifying witness “recognised” the suspect/

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Part 3 — Admissibility of Evidence

defendant when the crime was committed, where identification is not seriously in issue, where the crime involved is relatively minor, or where it is practically very difficult to conduct a proper parade. Section 115 provides that “picture identification evidence” (including photographic identification) adduced by the prosecution is not admissible in a number of situations. For example, it is not admissible if the defendant was in police custody when the pictures were examined, and the picture of the defendant was made before he or she was taken into police custody unless (in general) the defendant’s appearance had changed significantly from when the offence was committed or it was not reasonably practicable to make a picture of the defendant after he or she was taken into custody. The pictures used must not “suggest” that they are pictures of persons in police custody (to avoid consequent unfair prejudice to the defendant). If identification evidence is not rendered inadmissible by s 114 or s 115, it may still be excluded under the court’s discretionary powers. An important issue in this context is the application of the term “probative value”, found in ss 135, 137 and 138, and defined in the Dictionary to the Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. That issue has been considered in Chapter 6. The prevailing view is that factors relevant to an assessment of the probative value of identification evidence would include any prior familiarity with the subject; the characteristics of the subject; the circumstances of the perception of the subject (eg lighting conditions, distance from subject); relevant characteristics of the witness (eg eyesight, hearing, memory); the nature of any description given by the witness of the subject (and the length of time between the initial perception and the giving of the description); the length of time between the initial perception and the identification; the mode of, and procedures adopted in respect of, the first identification and any subsequent identifications (such modes including identification parades, photographic identification, “showings” and in-court identification) and, in particular, the existence of any suggestion, implicit or explicit, that the person subsequently identified is the subject or is the person suspected; what record, if any, was made of the process of identification; any risk of displacement (eg displacement may occur between the memory of the offender and image first identified); the confidence of the witness; and the existence of other evidence supporting the identification (although it is clear that even several people may be equally mistaken in an identification. Factors relevant to an assessment of the danger of unfair prejudice to the defendant and the danger that the evidence might be “misleading or confusing” include prejudice (particularly that involved in an inference that the defendant has a criminal record or is adversely known to the police) arising from the mode of identification adopted; the danger of overestimation by a jury of the probative value of the identification evidence; any disadvantage faced by the defence in being able to test the reliability of the identification evidence; and the likely effect of any judicial warnings directions to the tribunal of fact in relation to the identification evidence. In addition, s 138 may provide a basis for discretionary exclusion of identification evidence on the basis that it was illegally or “improperly” obtained. If identification evidence is admitted, and the reliability of the identification evidence is disputed, s 116 in the Act (except in Victoria) requires a judge to inform the jury that there is a special need for caution before accepting such evidence and of the reasons for that need for caution. A warning must be given with the authority of the judge, with reference to considerations relevant to an assessment of probative value in the circumstances of the particular case. Warnings may also be required under s 165 (again, except in Victoria). In Victoria, the Jury

Identification Evidence

CHAPTER 13

Directions Act 2015 deals comprehensively with warnings to juries in criminal proceedings. Division 4 deals with “identification evidence”, defined in s 35 in a way that is significantly broader than the definition of “identification evidence” in the Dictionary to the UEL. The prosecution or defence may request a direction pursuant to s 12: s 36(1). The party making a request for a direction “must specify … the significant matters that may make the evidence unreliable”: s 36(2). Section 36(3) provides: In giving a direction referred to in subsection (1), the trial judge must— (a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and (b) inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and (c) inform the jury that—

(i) a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and (ii) the mistaken evidence of a witness may be convincing; and (d) if relevant, inform the jury that a number of witnesses may all be mistaken; and

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(e) if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.

While s 36(3) uses the term “must”, this only relates to the contents of a direction if the trial judge accedes to the request by a party for a direction. Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so”. Section 6 provides that “[i]n giving a direction to the jury, the trial judge need not use any particular form of words”.

VISUAL IDENTIFICATION EVIDENCE [13.20] Part  3.9 of the Evidence Act 1995 applies only in criminal proceedings (s 113).

Section 114 excludes “visual identification evidence” adduced by the prosecution unless an identification parade including the defendant was held or there were good reasons for failing to hold it. R v Tahere provides an example of the application of s 114.

R v Tahere [13.30] R v Tahere [1999] NSWCCA 170 Facts [Tahere was involved in a car chase with the police, and he reversed his car into the pursuing police car causing it damage. He was charged with using an offensive instrument (the car) with intent to prevent lawful apprehension. The only issue at the trial was whether Tahere was the driver of the car, as after the crash three people ran from the car.] Judgment SPIGELMAN CJ (with whom Studdert and Adams JJ agreed): ... [5] The two police officers who had been engaged in the vehicle chase were Senior Constable Coleman and Senior Constable Savage. Senior Constable Coleman said that he saw the driver of the vehicle – a silver Honda sedan – whom he described as a male person with long black hair. He later said that

Part 3 — Admissibility of Evidence

R v Tahere cont. when the three persons were running from the vehicle he noticed that one male, relevantly the driver, was wearing a dark top and jeans and had shoulder-length black hair and dark skin. … [12] Mrs Hitchcock, another nearby resident of Compton Street, which is to the north of the place at which the car was abandoned and to the west of Parkhill Parade, said she had a conversation with someone who had jumped over the fence from her backyard into her front yard. She described the person as having dark skin and very long hair down to his shoulders. She was shown an identification video of 17 faces, but she did not recognise a face. [13] Her husband also provided a description. He identified the appellant during the course of his evidence in court. The evidence of Mr Matthew Hitchcock was as follows: Q. Are you referring to a particular man who you saw on that day? A. Yes. Q. Can you see him in this Court? A. Yes I can. OBJECTION Q. Mr Hitchcock, you see the gentleman who was in your front yard here in this Court room? A. Yes I do. Q. Where is he? A. Where, sitting over there. Q. You’re referring to the accused in the dock? A. Yes. [14] Mr Hitchcock went on to describe the person he had seen on the night as wearing a grey shirt and either dark grey or black jeans, being of medium build, medium height, with dark skin colour and black long hair and described the person as “possibly an Islander”.

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[15] Mr Hitchcock was cross-examined to the effect that he had been shown a video of some 17 faces and had not been able to identify the appellant from that video. [16] Other evidence linking the appellant to the car involved fingerprints in the vehicle which were identified as those of the appellant. [17] Detective Senior Constable [Cox] gave evidence. He had conducted certain police investigations following the car chase. The appellant had agreed to blood and urine samples being taken from him at the John Hunter Hospital on that day. Furthermore, the appellant had agreed to participate in an identification parade. Detective Senior Constable Cox gave the following evidence: Q. … You were concerned about an ability to obtain a number of persons of sufficiently similar appearance? A. Yes. Q. To conduct a line-up that was fair? A. Yes, it would not have been fair to place the accused in a lineup at that time. We couldn’t find a sufficient amount of persons similar to himself so that he wouldn’t stand out in any line-up or in an identification parade. Q. What’s the normal procedure in relation to gathering people to participate – or what do the police do? A. Depending – it always goes on time. It always goes on the time of day as well. It can be more beneficial to be evening rather than day time but the police basically check local hotels, local areas where there may be people gathering and things along those lines in an attempt to obtain some people that are willing to come along and go into an identification parade. That was done but unfortunately we just couldn’t obtain similar people. [18] An electronic record of interview was conducted by Detective Senior Constable Cox with the appellant. That interview was tendered in evidence. The appellant admitted some knowledge of the vehicle. He said he knew it was owned by a person with whom he was acquainted. He also said he had been in the car that morning for a short period. That evidence could explain the presence of his fingerprints. He also said that he had been dropped off in an area which he described as Christo Road, and that seems to be an area somewhat to the south or south-east of Leonora Parade, where he was eventually apprehended.

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R v Tahere cont. [19] The person who fled from the car and was apprehended by the police, Ricky O’Brien, gave evidence. Originally, in a statement to the police, he had identified the appellant as the driver of the car. He withdrew this assertion in his evidence. He asserted the driver was a Mr Paul Ho. He was cross-examined by the Crown on the basis of his prior inconsistent statement and he was also cross-examined by counsel for the appellant. His Honour made several remarks about the weight of this in his summing-up, but it is not necessary to refer to it in full. However, during the course of his summing-up his Honour Judge Job emphasised that the jury had to be satisfied beyond reasonable doubt that the appellant was the driver of the vehicle. … [25] The first two grounds of appeal concern the in-court identification by Mr Hitchcock. The appellant put, alternatively, that his Honour erred in admitting the in-court identification or, alternatively, he erred in not discharging the jury after the in-court identification. [26] The appellant relied on s 114 of the Evidence Act … [27] The issue argued before this Court was whether or not (b) was satisfied: Was it reasonable not to hold that identification parade? This Court has held that s 114 applies to an in-court identification (Taufua, unreported, NSW CCA, 11 November 1996 at 6-8). [28] Sub-sections (3), (4) and (6) of s 114 are also material …

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[29] I have outlined earlier the evidence of Detective Senior Constable Cox that it was impracticable to obtain enough people of similar appearance to permit a fair identification parade to have been conducted on the evening of the offence. At a subsequent point in his evidence, he also indicated he had had some similar difficulty some 16 days after that evening. [30] It would have been open for the trial judge to have found, on the basis of the evidence of Detective Senior Constable Cox, that it would have been unfair to the appellant to hold an identification parade at that time and accordingly that the conclusive presumption found in s 114(4) applied. However, this was not the relevant question. [31] The issue of visual identification evidence arose during the course of the trial. There was no evidence before the Court that the particular circumstances of unfairness present on the night of the offence, or any other basis for a finding of unreasonableness, were also present at a time reasonably proximate to the trial. [32] Counsel for the appellant submitted that it did not appear that his Honour turned his mind to the question of whether or not it was reasonable to hold an identification parade. There is no transcript before this Court of the submissions made when the objection was taken to the in-court identification. Nor is there a separate judgment on this matter. On the basis of the material before this Court, the Crown has not established that at the time of the trial or at a time reasonably proximate to the time of the trial: “It would not have been reasonable to have held” an identification parade. On that basis, s 114(2) operates in accordance with its terms and the visual identification evidence was not admissible. [33] The only issue in the case was the identification of the appellant as the driver. The evidence on this matter was disparate. None of it had the force and clarity of the in-court identification by Mr Hitchcock. Notwithstanding his Honour’s direction that the jury would give it “little weight”, in my opinion a miscarriage of justice occurred. [34] Ground 3 of the appeal was that a conviction could not be sustained on the evidence and accordingly that this Court should exercise its discretion and direct a verdict of acquittal. [35] In my opinion, the cumulative effect of the various aspects of identification are such as could be accepted by a jury to establish beyond reasonable doubt that the appellant was the driver of the vehicle. Even without direct identification evidence, there is a circumstantial case which could be accepted. There is evidence of similarity of appearance, a connection with the car, and physical proximity to the site at the relevant time.

Part 3 — Admissibility of Evidence

R v Tahere cont. [36] The appellant has served 12 months of an 18 months minimum term. That is a matter which is sometimes taken into account in exercising the discretion as to whether or not there should be a new trial. However, in my opinion, whether or not this appellant should be tried again is a matter that should be left to the prosecution authorities. This is not a case in which the Court should direct a verdict of acquittal. [37] Accordingly, the orders I propose are appeal allowed. Order a new trial.



PHOTOGRAPHIC AND PICTURE IDENTIFICATION [13.40] Section 115 deals with photographic and picture identification.

Discretionary exclusion of otherwise admissible identification evidence is possible under s 137 or s 138: for further reference, see Chapter 6. Alexander v The Queen, which was decided under the common law, reveals the dangers of using police photographs in police investigations which still exist under the UEL.

Alexander v The Queen [13.50] Alexander v The Queen (1981) 145 CLR 395

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Facts [Identification was the key issue in Alexander’s trial for trespassing with intent to steal. Several witnesses gave evidence identifying Alexander as the person they saw in circumstances connecting him with the crime. Each of the witnesses had first identified him by looking at a folder containing about a dozen photographs. No identification parades were conducted. One witness recalled selecting a particular photograph when asked by police but could not recall which. A police officer then gave evidence that the photograph selected by the witness had been of Alexander.] Judgment GIBBS CJ (at 399): ... [3] Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v The King (1937) 57 CLR 170, at pp 181-182. In particular there is the danger that the witness will too readily come to believe, without any true recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognised the danger of acting upon evidence of identification made in those circumstances. It has accordingly become established practice for a witness to be asked to identify the accused at the earliest possible opportunity after the event, and for evidence to be given of that act of identification. Such evidence is, in practice, given not only by the person who made the identification but also by persons who saw it made. [4] In theory the manner in which an accused was identified out of court goes to the weight rather than to the admissibility of the evidence. However, the objections to the evidence of an identification made of an accused person when he is in the dock are almost equally open to evidence of the

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Alexander v The Queen cont. identification of an accused person which is given by a witness who has been shown the accused alone and as a suspect, and in Davies and Cody v The King (1937) 57 CLR 170 it was held that a conviction based on evidence of such a witness should be quashed as unsafe unless the identity of the accused was further proved by other evidence. The Court went on to say Davies and Cody v The King (1937) 57 CLR, at p 182:

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Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe. [5] The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the [at 400] witness to pick out from a group the person whom he saw on the occasion relevant to the crime. If an identification parade is held for that purpose, it goes without saying that precautions must be taken to ensure that no prompting, suggestion or hint is given to the witness that any particular member of the group is the suspect. For example, it would be unfair and improper to show to a witness, before the identification parade was held, a single photograph of a person who was said to be the suspect, and it would be unsafe to act on evidence of identification given in those circumstances: R v Russell (1977) 2 NZLR 20, at p 27. Indeed, where a suspect had been arrested, and it was intended to ask a witness to attempt to identify him at an identification parade, it would be unfair to show the witness, before the parade, a number of photographs including that of the suspect: R v Goss (1923) 17 Cr App R 196; R v Haslam (1925) 19 Cr App R 59. On the other hand [sic] it may be necessary for a police officer to show a number of photographs to a witness in an attempt to obtain information as to the identity of an offender; if such witness did identify the offender from a photograph, it would not necessarily be unfair for that witness later to be asked to select the offender from a group at an identification parade, but the fact that the witness had seen the photograph might affect the value of the later identification at the parade: see R v Dwyer and Ferguson (1925) 2 KB 799M (at p 399). [6] The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held. As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned. There are, however, two grounds of objection to the proof of identification by means of police photographs. In the first place, the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of [at 401] photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question. [7] For these reasons, it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender.

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Part 3 — Admissibility of Evidence

Peterson (a Pseudonym) v The Queen [13.60] Peterson (a Pseudonym) v The Queen [2014] VSCA 111 Facts [On 24 July 2012 CB was attacked by two men (JD and Peterson), one of whom stabbed him. CB rang police sometime in the days following the making of his first statement to advise him that he had been able to identify the man who had stabbed him from the profile photograph on the Facebook page of a man named “[the applicant’s name]”. CB later attended the police station on 3 August 2012 and made a sworn statement to that effect. The trial judge concluded that, notwithstanding that there are deficiencies in the identification evidence, the probative value of the evidence remains significant. The evidence, if accepted, goes directly to proving the real fact in issue in this case, namely the identity of the man who stabbed the victim. The judge found that any danger of unfair prejudice – namely the risk that the jury may give the victim’s evidence describing the unknown offender and then subsequently identifying him as the assailant undue weight – that danger could, the judge found, be sufficiently ameliorated by judicial direction “and through properly focused addresses from counsel, particularly defence counsel”. The judge had “no reason to doubt that jury will be well equipped and able to comprehend the risk of unreliability in the evidence and to deal with it accordingly”. Peterson sought a review that the trial judge “erred in determining under s 137 of the Evidence Act 2008 that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused, and admitting evidence of identification by the complainant through inquiries made on Facebook”.] Judgment PRIEST AND BEACH JJA

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… [27] As we have said, CB was stabbed by someone whom he did not know. Whilst he was recovering from his injuries in hospital, CB was visited by a number of people, one of whom told him something that aroused his suspicions in relation to the identity of the man who had stabbed him. The victim claims to have been told that earlier on the day of the stabbing, a man named [the applicant’s name] had contacted another man, “SO”, and made enquiries about him. As it turns out, at the time SO was a friend of both the victim and the applicant. [28] That information created a suspicion in the victim that the man named [the applicant’s name] may be the man who had stabbed him. His suspicions were further aroused when he later accessed the applicant’s Facebook page, since he noticed that both JD and SO were listed among the applicant’s Facebook friends. [29] On the voir dire, both CB and his female friend, “Courtney”, gave evidence to the effect that CB made an immediate and confident identification from the profile photograph on the Facebook page. CB made specific reference to the man’s eyes, in much the same way as he had done when he gave the physical description of the man who stabbed him to the police in his first statement. … [46] Part 3.9 (ss 113 to 116) of the Evidence Act 2008 deals with identification evidence. Section 115 deals with picture identification evidence, and is limited to identification made by a person “examining pictures kept for the use of police officers”; and s 116 sets out the directions that a judge must give to a jury once identification evidence has been admitted. By reason of s 114 (2), visual identification evidence – defined in s 114 (1) to mean “identification evidence relating to an identification based wholly or partly on what the person saw but does not include picture identification evidence” – is not admissible unless an identification parade was utilised by the police or “it would not have been reasonable to have held such a parade”, and the identification of the accused was made without any intentional influence on the witness to identify the accused. [47] By the time that the victim came to make his statement to police on 3 August 2012, claiming that it was the applicant who had stabbed him, he had already viewed the applicant’s image on

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Peterson (a Pseudonym) v The Queen cont. Facebook. As we have earlier observed, following CB’s nomination of the applicant as the assailant with the knife, police made no attempt to have CB attempt to formally identify his attacker by means of a photoboard or an identification parade. One of the reasons given by the informant was that he was concerned about the possibility of a “displacement effect”. In other words, any identification from a photoboard or identification parade would be open to the criticism that it was polluted by the antecedent viewing of the photograph on Facebook. [48] In our opinion, the fact that CB had previously viewed a photograph provided a sound reason for the police not conducting an identification parade. To use the language of s 114 (2) (b), “it would not have been reasonable to have held such a parade”. Any later identification after viewing the photograph on the Facebook page would have been open to the criticism that it was tainted by the displacement effect. As Stephen J said in Alexander: Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting. [49] For these reasons, the provisions of s 114(2) were not engaged.

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[50] Relying on s 137 of the Act, counsel for the applicant contended, both before the trial judge and in this Court, that the probative value of the evidence of CB’s identification of the applicant from the photograph on Facebook was outweighed by the danger of unfair prejudice. Section 137 has been characterised as a statutory embodiment of the Christie (R v Christie [1914] AC 545) discretion at common law (Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, 524 [63], 525 [65]-[67]). It provides: [s 137 extracted]. [51] When a trial judge is asked to exclude evidence pursuant to s 137, in assessing probative value he or she must evaluate the weight that the jury rationally could attach to the impugned evidence. In so doing the judge is not required to assume that its reliability will be accepted. Resolution of the capacity of the evidence rationally to affect the determination of a fact in issue requires the judge to make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it be contended that the quality – or the frailties – of the evidence would result in the jury attaching more weight to the evidence than it deserves, the trial judge is required to assess the extent of the risk. But the trial judge is not required to gauge the weight that the jury will or would give to the evidence. Instead, the judge is obliged to assess what probative value the jury could give to the evidence, and balance against it the risk that the jury will give it disproportionate weight (Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507, 524-5 [63]). [52] In Strauss (Strauss v Police (2013) 115 SASR 90), Peek J warned against the use of Facebook for identification purposes. His Honour made a number of observations which are pertinent to the present application, and which are pressed upon us by the applicant: Strauss v Police (2013) 115 SASR 103-4 [35]-[37] It is undeniable that this new phenomenon may lead to the acquisition of suspects that police might not have obtained themselves. But what also must be stressed is that the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law. Such problems are likely to arise when a victim of a crime, or a witness to it, searches Facebook looking for the offender using what information they have, or think they have, about the offender. This is, of course, what occurred in the present case. ... So called “Facebook identifications” have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police. Purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely

Part 3 — Admissibility of Evidence

Peterson (a Pseudonym) v The Queen cont. involve a group of people each having similar features to the accused; they suffer from “foil bias” as discussed above. Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed “Facebook chat” and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified. Once again, there is the real danger that this is exactly what occurred in the present case … Of course, the position is made even worse when, as occurred in the case of the present victim, a person is actually given the name of the man asserted by others to be the offender and then locates in Facebook a photograph of a group of people, one of whom is tagged with that name. If the appearance of that tagged man is not obviously inconsistent with a memory the person actually has of the actual offender, a “Facebook identification” is highly likely to follow. That likelihood can only be increased in the circumstances of the present case where the victim had been drunk at the time of the assault and, at the time of the so called Facebook identification, was in the throes of a distracting hangover and pain resulting from his injuries and was harbouring a visceral (and justified) grievance against his attacker.

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[53] It cannot sensibly be argued that the impugned evidence is other than probative. Having looked at a photograph, the victim asserts that the photograph is a depiction of the man who stabbed him. The photograph depicts the applicant. Thus the evidence could rationally affect the assessment of the probability of a fact in issue, the fact in issue being the identity of the man who stabbed the victim. [54] There are several matters upon which the applicant’s counsel rely to try and make good the proposition that the undoubted probative value of the evidence is outweighed by the danger of unfair prejudice. Thus, among the criticisms made of the evidence, it is argued that the circumstances of the victim’s initial observation of the knife-wielding attacker were less than ideal, and his initial description to police was limited (save that he described the person as having distinctive eyes). Importantly, so it was argued, this was not a case of spontaneous recognition, but a case where there was a significant element of suggestion and suggestibility. [55] In our opinion, the frailties in the evidence, and the criticisms made of it, are matters which the jury are capable of evaluating with the benefit of proper judicial direction. It will be remembered that both CB and his friend, Courtney, gave evidence to the effect that CB made an immediate and confident identification from the profile photograph on the Facebook page, CB making specific reference to the man’s eyes. The victim had made specific reference to his attacker’s eyes in his initial police statement of 29 July 2012. In that statement he described the man as follows: He was wearing a hoody with the hood on his head. He was shorter than me, and stocky. He was clean shaven and between 30 and 40 years of age. His eyes were really distinctive, they are really piercing. [56] There is, in our view, no real prospect that the probative value of the evidence will be outweighed by any danger of unfair prejudice. The reliability of CB’s identification from the Facebook page is pre-eminently a jury question. Properly instructed, we have no doubt that the jury will be capable of making an assessment of the credibility and reliability of the victim’s identification, after adequately scrutinising the suggested shortcomings in the evidence (including the suggested lack of safeguards identified in Strauss). With the benefit of appropriate judicial direction, it is unlikely that the jury will give the evidence undue weight (see MA v The Queen [2011] VSCA 13; (2011) 31 VR 203, 209-10 [25]). [57] The judge’s ruling refusing to exclude the identification evidence is not attended by doubt. (Appeal dismissed.)

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Identification Evidence

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MA v The Queen [13.70] MA v The Queen (2011) 31 VR 203; [2011] VSCA 13 Facts [This was an application for leave to appeal against a trial judge’s refusal to exclude certain “picture identification evidence”.] Judgment REDLICH JA (Weinberg and Bongiorno JJA agreeing) …

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[14] I turn then to the issue of the admissibility of the identification evidence. The facts may be briefly stated. The identification witness was working at a service station when an armed robbery occurred on Monday 13 July 2009. She provided an account of what happened and a description of the offender and made a statement the following day. She told the informant that she recognised the robber as someone she had recently served. The robber wore a beanie and his hair could not be observed. He had a distinguishing feature, namely a dint in the middle of his nose. [15] On 23 July 2009 the witness was shown a photobook containing 87 photos which did not include the applicant. She did not identify anyone in the book. According to the informant on the voir dire, the witness said that she was confident she could identify the robber if she saw him again. The witness had been absent from work for over two months and had returned only for shifts on Friday the 10 and Saturday 11 July before the robbery. She said that she believed she had served the robber on one of those shifts. Following this conversation, the witness, either same or the next day, reviewed the CCTV footage of the service station for the Friday shift of 10 July and identified the applicant when she saw him on the screen. She said that the person shown in that footage was the person who subsequently robbed her. Financial records obtained by police regarding the transactions from 10 July 2009 establish that the applicant is the customer identified by the complainant in the 10 July footage. The applicant does not dispute that he is the person shown in that footage. He appears as having a closely shaved head. [16] On 24 July the witness provided the CCTV footage from 10 July to the informant, and told him she recalled serving the robber on that Friday. No statement was made by the witness or the informant concerning their conversations of 23 and 24 July until 23 October 2009. Subsequent to the robbery and these conversations, on 18 September the witness recognised the applicant walking down the street. She did so, she said, because of his gait, his bald head and the indentation on his nose. [17] At the commencement of the appeal, counsel for the applicant informed the Court that in the light of the decision of R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302, it was conceded that the identification evidence was “highly probative” and that such a concession should have been made before the trial judge. This acknowledgment appeared to rest on what Simpson J described in Mundine as the “prevailing wisdom” that it is not open to the trial judge, in assessing probative value for the purpose of s 137, to take into account the reliability or credibility of the witness (R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 309). That is to say, the probative value of the evidence is to be determined on the assumption that the evidence is accepted by the jury (R v Shamouil [2006] NSWCCA 112; [2006] 66 NSWLR 228, 235-238 (Spigelman CJ); R v Shamouil [2006] NSWCCA 112; [2006] 66 NSWLR 228, 235-238). Thus in the case of identification evidence, the potential unreliability of that evidence is not to be taken into account in assessing its probative value. I would leave open the question of whether the question of probative value must always be approached in so confined a way in cases where reliability is a real issue. [18] Counsel for the applicant focused upon what he submitted was the unfairly prejudicial aspects of the evidence, if it was admitted. Dealing first with the identification of the applicant on 10 July, the applicant contended that the manner, timing and circumstances in which the identification by the witness had occurred from the CCTV footage on 10 July ought have led to the conclusion that there was a risk of unfair prejudice to the accused, in that a jury might give it more weight than it deserves (Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 602-3 (Gleeson CJ)).

Part 3 — Admissibility of Evidence

MA v The Queen cont. [19] The witness’s identification is usually to be described as recognition evidence, as discussed in R v Spero [2006] VSCA 58; (2006) 13 VR 225. The evidence in issue is a recording of the circumstances in which the witness previously observed the applicant. Both parties therefore have an opportunity, not usually available, to examine that occasion as well as the CCTV footage of the robbery itself. [20] It was before the 10 July footage was viewed that the witness had told the police that she had served the applicant on one of two shifts she had worked on the Friday 10 or Saturday 11 July. She had given the description of the applicant to the police immediately following the robbery, and well prior to viewing the footage describing the indentation on the robber’s nose. This characteristic is not visible from the footage of 10 July. The probative value of this identification is strengthened by the evidence that the applicant does possess the distinctive indentation as initially described by the witness to police. [21] The learned trial judge had the benefit of hearing the evidence of the identifying witness and the informant in a very extensive cross-examination on the voir dire. The trial judge also had the opportunity of viewing the video footage from 10 July and the offending conduct on 13 July.

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[22] Counsel for the applicant, in his attractive argument, submitted that the unfair prejudice requiring the exclusion of this evidence was said to derive from three matters. First, he submitted the witness did not view the 10 July footage in a controlled environment where her observations and reactions could be recorded by investigating police. Second, the witness did not look at the entirety of the footage of both 10 and 11 July before selecting that part of the footage that involved the applicant. Third, the informant had failed to take a contemporaneous statement from the witness at crucial stages of the identification process and did not himself make a statement as to those matters. This added to the unfair prejudice to the applicant. [23] In my view the first two of these matters are without any substance. The witness was entitled to review the footage and to cease doing so when she came to the portion of it that she was satisfied showed the customer that she alleges subsequently robbed her. The review was conducted in the presence of her employer. She would have followed a similar process had she been in the presence of the informant. She would not have been obliged to look at other footage once she came to the passage of the video that she was looking for. As to the third matter, the informant in his evidence on the voir dire acknowledged that he ought to have taken a statement from the identifying witness on 24 July concerning her viewing of and selection of the relevant footage. He should also, he said, have made a statement concerning his conversation with her on 24 July when the footage was brought to him by the witness. But it was not suggested that these deficiencies were anything more than oversight. The fact that the witness viewed CCTV footage with her employer, that there was no record made by the informant of the witness’s account of the process she followed, or the fact that the informant did not make a statement himself setting out these events does not, in my view, give rise to any substantial prejudice to the applicant. [24] Both at trial and on appeal the applicant sought to make much of the fact that the witness probably did not tell the informant until after she had viewed the CCTV footage of 10 July that the recent occasion she had seen the applicant was the Friday before the robbery. But that is not a criticism of any moment. Such criticism as could be made of the identification of the applicant as the person who she served on 10 July are matters properly the subject of cross-examination, argument in closing address and judicial direction. The evaluation of this evidence is a matter for the jury. [25] Deficiencies in identification evidence other than those that are the subject of specific provision in the Evidence Act 2008 (see ss 113-116) will ordinarily be addressed by appropriate cautionary directions being given by the trial judge. The need to exclude such evidence would generally only arise when the trial judge concludes that no directions can adequately remove a danger that the evidence will be given undue weight or will be impermissibly used. [26] The decision of the trial judge to admit this evidence was plainly correct. The probative value of the CCTV footage of the applicant who entered the service station on 10 July 2009 is not in doubt. It is significant evidence which rationally affects the assessment of the probability of the existence of the fact in issue [this is the definition of “probative value” provided by the Dictionary including in the

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MA v The Queen cont. Evidence Act 2008], namely whether it was the applicant who robbed the service station. It was clearly open to the learned trial judge to find that any risk of unfair prejudice did not outweigh the probative value of this evidence. To have excluded such evidence would have been perverse. No error has been disclosed in the decision to admit the evidence of 10 July footage. [27] Counsel also submitted that the evidence of the witness identification of the accused on 18 September 2009 ought be excluded because the demonstrable “displacement effect” created irreparable prejudice. As a consequence there is a risk of unfair prejudice to the accused. Counsel informed the Court that the applicant would not, however, seek to have this evidence excluded at trial if the 10 July footage was admitted into evidence.

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[28] The applicant referred to passages from the judgments in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 409 (Stephen J); R v Moody (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 1 April 1997) 11 (Hidden J); and Pitkin v The Queen [1995] HCA 30; (1995) 80 A Crim R 302, but the circumstances of displacement in those cases and its potential effect on the identifying witness do not call for the exclusion of the evidence in the present case. [29] As the trial judge recognised, the identification of the applicant on the street on 18 September had probative value, but there was a potential for prejudice arising from the fact that the witness had by then reviewed the CCTV footage of the applicant on 10 July. Her Honour recognised that a risk of “displacement” arose as at least one of the features which the witness recognised on 18 September was the applicant’s bald head. Recognition of this feature is likely to have come from her viewing of the footage of the applicant on 10 July. The person who robbed the shop three days later was wearing a beanie and his hair could not be observed. There may also be a displacement effect concerning the applicant’s gait which, it was submitted, was discernible from the 10 July footage and which the witness had said was a reason why she recognised the applicant on 18 September. These displacement effects on the identification of 18 September 2009 are somewhat diminished by the fact that the indentation to the applicant’s nose was a feature which the witness recognised on 18 September and which counsel for the applicant conceded before us was not observable in the footage of 10 July. [30] The identification of the applicant on 18 September was spontaneous and has probative value. It has not been shown, at this stage, that the likelihood of displacement will produce unfair prejudice of such an order as to require that the evidence should be excluded in the exercise of the trial judge’s discretion. As Weinberg JA observed during oral argument, prejudice arising from possible displacement would ordinarily be addressed by an appropriate cautionary direction by the trial judge to the jury. The complainant’s reference to the applicant’s bald head and his gait as points of reference, and the risk that this was a result of the displacement from viewing the footage from 10 July, can readily be dealt with by judicial direction. [31] I would refuse leave to appeal because the trial is to be a short one. I would also refuse leave because her Honour’s ruling is an evidentiary ruling involving the exercise of a discretion which has not been demonstrated to be attended by error. (Leave to appeal refused.)



Pace (a Pseudonym) v The Queen [13.80] Pace (a Pseudonym) v The Queen [2014] VSCA 317 Facts [This was an application for leave to appeal against a trial judge’s refusal to exclude certain “picture identification evidence”.]

Part 3 — Admissibility of Evidence

Pace (a Pseudonym) v The Queen cont. Judgment PRIEST AND BEACH JJA … [5] Each of the applicants is charged, together with “JGE”, with one charge of intentionally causing serious injury to “MA” in circumstances of gross violence (charge 1), and, alternatively, one charge of recklessly causing serious injury to MA in circumstances of gross violence (charge 2). The “circumstances of gross violence” pleaded in the indictment are said to be that each of them “in a joint criminal enterprise with two or more other persons caused the serious injury”. [6] The trial judge refused to exclude evidence of identification of each applicant as two of three men who assaulted the complainant on the basis that the evidence was inadmissible — or otherwise subject to exclusion – under ss 115, 135, 137 and 138 of the Evidence Act 2008 (“the Act”). Each applicant submitted that the “picture identification evidence” was inadmissible because the pictures examined by MA suggest that they are pictures of persons in police custody. Further, each applicant relied on a variety of factors said to enliven ss 135, 137 and 138 of the Act, so as to justify the exclusion of the evidence.

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… [11] The informant first spoke to the complainant on 17 August 2013 at 12.50pm at the Alfred Hospital, and formed the opinion that he was not in a fit state to make a statement. MA did, however, provide some details, which the informant noted: “Living room, electrical cord, egg flip, scissors, wood, fan. The informant’s notes record that “3 males” were named by MA: ‘ “1. [JGE] 2. [Collins] 3. ‘Killer’.” The informant’s opinion was, at that stage, that he did not have enough information to identify either Collins or “Killer”, although MA had indicated that each man was known to him. Indeed, when asked in cross-examination whether he’s made any inquiries about Collins between 17 and 20 August 2013, the informant said: “There’s no doubt that [Collins] to me could have been a number of three or four people that I was familiar with, by either first name, last name. I didn’t know that was his last name. It could have been his first name.” [12] The informant returned to the Alfred Hospital the next day, but again MA was not in a fit state to make a statement. [13] On 19 August 2013, the informant again visited MA at the Alfred Hospital. On that occasion he was able to obtain a statement. MA asserted that he had been assaulted by Collins, JGE and “Killer”. At the end of the assault each of his attackers had urinated on him. He said that he had known JGE since the time that they had been refugees in Kenya, and that he had met Collins and “Killer” in Australia for the first time about a year previously. The trial judge noted that it is not in dispute that JGE is well known to MA, but that “the level of acquaintanceship between [MA] and [Collins] ... was not tested in any meaningful way at committal”, and MA’s level of familiarity with “Killer” is “unclear”. [14] Once the narrative part of his statement had been completed, the informant showed MA a book of photographs. The book was referred to as “Footscray – Photobook – Dark Skinned and African Males”. It was 55 pages in length, and had six photographs on each page. The Victoria Police “logo” was on the front cover. At the bottom of each page were the words “Footscray – Confidential”. Each photograph appeared within a border and as part of that border, and within the border at the bottom of each photograph was an eight- or nine-digit number. The judge “loosely described” the photographs as “passport type photographs being close-up photographs of each person’s face, neck and a portion of their shoulders”. [15] The evidence revealed that the photobook was compiled by detectives from the Footscray Criminal Investigation Unit. It contained photographs of “persons of interest” to those detectives. All of the photographs contained within the book were of men in police custody. At the relevant time, the photobook was used as an investigatory tool by detectives from Footscray, and was updated by those detectives from time to time on an ad hoc basis.

Identification Evidence

CHAPTER 13

Pace (a Pseudonym) v The Queen cont. [16] MA selected three photographs as depicting his attackers. He said of one of the photographs on page 3, photo number 611349823, “this male is known to me as Killer, I am certain of this”. As to a photo on page 24, number 268639390, he said, “this male is known to me as [JGE], I am certain of this”. And as to photographs on page 28, bearing number 493495666; on page 34 with number 580937466; and on page 41 with number 580937466; MA said, “[Collins] is in all these photographs, I am certain of this”. (There is no dispute that the three photographs did indeed depict Collins.) [17] The judge identified nine photographs that did not meet the general description of “passport type photographs being close-up photographs of each person’s face, neck and a portion of their shoulders”, because “the background of each of them is not plain”. The judge accurately noted that some of the photographs have, as part of the background, “portions of a structure that could be consistent with a cell”; and other photographs “have a door, what appears to be an architrave, brickwork and vertical blinds in the background”. One seemed to show a height scale. Grounds of appeal [18] Pace’s two grounds of appeal claim that the trial judge “was wrong in finding that s 115(2) of the Evidence Act did not apply”, and “in finding no discretionary exclusions under s 135, s 137 and s 138 of the Evidence Act did not (sic) apply”. Collins’ six grounds are: 1. It was not reasonably open to the trial judge to find that the pictures were not suggestive of the persons being in police custody having regard to the following facts: a. each photograph in the book is marked with a nine digit “Master Number Index”; b. the words “Footscray – Confidential” appear on the bottom of each page; c. the book of photos bears the Victoria Police Logo on the front cover;

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d. one image shows a height scale in the background; e. a number of the images show people with cell doors in the background; f. one of the images shows a man without a shirt; g. at least one of the images shows a man who is injured or otherwise traumatised. 2. The trial judge erred in his finding that the cover of the photo book was irrelevant to his consideration of whether the pictures were suggestive of persons in police custody. 3. Further or in the alternative the decision of R v Batty … is incorrect and should not be followed by this court. 4. The trial judge erred in finding that the conduct of the investigators was not inconsistent with the minimum standards of acceptable police conduct and the photobook was therefore not inadmissible pursuant to s 138 in circumstances where: a. the applicant’s photo appeared three times in the photo book; b. the investigator moved to using photo identification before undertaking the required investigatory steps that were readily available to him. 5. The learned trial judge erred in finding that there was no unfair prejudice to the applicant in circumstances where the applicant’s photo appeared three times in two different images in the photo book. 6. The trial judge erred in not excluding the photobook as unfairly prejudicial having regard to the cumulative effect of grounds 1-5 above. Submissions concerning s 115 of the Evidence Act 2008 [19] Counsel for the applicants submitted to the trial judge that the photographs contained in the photobook were pictures kept for the use of police. They submitted that the numbers appearing at the foot of the photographs were indicative of photographs of persons in police custody. Counsel

Part 3 — Admissibility of Evidence

Pace (a Pseudonym) v The Queen cont. relied on the backgrounds in the nine photographs referred to, and submitted the background of one of the photographs showed a height scale, which was indicative of a person in police custody. It was also submitted that the words “Footscray – Confidential” suggest that the photographs are pictures of persons in police custody. Finally, counsel relied upon the “uniformity” of the photographs to make the same point. [20] In this Court, counsel for the applicant Collins addressed the Court on the nature of appellate review under s 297 of the CPA. (Counsel cited Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 and PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146.) Counsel repeated the main submissions made to the trial judge, but also emphasised several other aspects. First, counsel submitted that “it seems highly probable” that various of the males depicted in the photographs are drug and alcohol affected, and carry injuries, suggestive of police custody rather than some other form of custody. Secondly, the males depicted are attired in a variety of clothing, suggesting police custody rather than some alterative form of custody. Thirdly, there is a twofold “rogues gallery”, one upon the identifying witness and the other upon the jury. Fourthly, counsel submitted that the trial judge’s finding that the pictures do not “suggest” that they are of persons in police custody simply was not open. The evidence is not inadmissible under s 115 [21] Section 115 of the Act is, as has been observed, “concerned largely with what are colloquially known as ‘mug shots’ ”. So far as relevant, it provides: [section extracted].

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[22] There is no dispute that the impugned evidence is “picture identification evidence” [the Dictionary defines “identification evidence”]. It is evidence of an identification made by MA “examining pictures kept for the use of police officers”. The essential question is whether the relevant pictures “suggest that they are pictures of persons in police custody”. [23] For picture identification evidence to be inadmissible under s 115(2), the “pictures examined” must “suggest” that they are “pictures of persons in custody”. In ordinary parlance, to “suggest” is to insinuate, create or evoke an impression, or to call up or bring something to mind. Thus, in our view, there must be something in the nature of the photographs themselves which might create the impression in the mind that they are of persons in police custody (see R v Batty (Unreported, 6 August 1997, NSW, CCA), McInerney J, Abadee and Bruce JJ agreeing; see also R v Atkinson (Unreported, 24 March 1997, ACTSC, Higgins J)). [24] In our opinion, the trial judge was correct to observe that – save for the nine photographs referred to – all of the pictures are “consistent with the photographs taken for driving, boating and shooter’s licences”, or “identification photographs required by many employees who work in all manner of working environments”. Moreover, we agree with his Honour’s view that it is “mere speculation” as to what the eight or nine digit numbers at the bottom of each photograph refer to, or what their function is. The words, “Footscray – Photobook – Dark Skinned and African Males”, and “Footscray – Confidential”, do nothing to add to any impression beyond what the photographs themselves suggest. The Victoria Police logo on the front of the booklet does not, in our opinion, detract from that view (and, in any event, any sensitivity about the jury viewing the logo might be eliminated by the simple expedient of exhibiting a copy of the photobook with the front page removed). [25] As to the nine photographs which, it is submitted, might independently suggest that they are of persons in police custody, we agree with the trial judge’s observations. There is nothing in the background of those photographs – the suggested height scale, presence of security mesh, the appearance of a secure door with substantial hinges, or the like – which suggests objectively that the males depicted in the photos are in police custody. [26] Further, even viewing the photographs with a cynical eye, we see nothing in them which demonstrates that “it seems highly probable” that various of the males depicted in the photographs are drug and alcohol affected, and carry injuries, suggestive of police custody. Nor do we see any significance in the fact that the males depicted are attired in a variety of clothing.

Identification Evidence

CHAPTER 13

Pace (a Pseudonym) v The Queen cont. [27] As his Honour said of the nine photographs, “[n]either individually nor in combination can the pictures referred to … show that the pictures examined by [MA] suggest that they are pictures of persons in police custody”. [28] Rather than the trial judge’s ruling under s 115(2) being plainly wrong, in our view it was plainly correct. That makes it unnecessary to ponder the principles which guide the nature of appellate review under s 297 of the CPA (see DPP v MD [2010] VSCA 233; (2010) 29 VR 434; MA v The Queen [2011] VSCA 13; (2011) 31 VR 203; DPP v Marijancevic [2011] VSCA 355; (2011) 33 VR 440; DPP v DJC [2012] VSCA 132; (2012) 36 VR 33). (Leave to appeal refused.)



[13.90]

Questions

Read ss 113-116 of the Evidence Act 1995 and the material in this chapter and answer the following questions. 1. Does Pt 3.9 Identification Evidence apply to civil or criminal cases? 2. What does “visual identification evidence” mean in s 114? 3. When will visual identification evidence be admissible according to s 114? 4. What does an “identification parade” include? Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

5. Refer to R v Tahere. Was the identification evidence admissible? Why/why not? 6. When might identification evidence be excluded under the discretions in ss 135 and 137? 7. Refer to Alexander v The Queen. What was the evidence involved? Was it admissible? Why/why not? 8. What does s 115 provide? 9. What is “picture identification evidence”? 10. What is the difference between s 114 and s 115? 11. Which discretions might operate to exclude evidence otherwise admissible under s 115? 12. What directions must be given to the jury in relation to identification evidence under s 116? 13. Which type of identification must be attempted first – visual or photographic? 14. Is voice identification dealt with in the Evidence Act 1995? If so, where? 15. Chad is brought to trial charged with the rape and murder of a 16-year-old boy named James. The prosecution, over objection from the defence, is allowed to lead testimony from a witness, Bill, of an encounter between Chad and James which he observed before James disappeared. The encounter took place on a dark street corner. Bill identifies Chad in court and states that he had earlier identified him from a picture at the police station. The prosecution informs the trial judge that Chad refused to take part in an identification parade so the police used photographs. Is Bill’s identification evidence admissible?

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CHAPTER 14

Privilege [14.10]

OVERVIEW ................................................................................................................ 561

[14.20]

CLIENT LEGAL PRIVILEGE .......................................................................................... 564 [14.30] Esso Australia Resources Ltd v Federal Commissioner of Taxation ......... 565 [14.40] Southland Coal Pty Ltd .............................................................. 568 [14.60]

Loss of client legal privilege .................................................................... 570 [14.70] Mann v Carnell ........................................................................ 570 [14.80]

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[14.90] [14.100] [14.110]

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd ����������������������������������������������������573 Divall v Mifsud ........................................................................ 578 DPP (Cth) v Galloway (a Pseudonym) ........................................... 580 Kang v Kwan........................................................................... 586

[14.120]

PROFESSIONAL CONFIDENTIAL RELATIONSHIP PRIVILEGE ........................................ 590 [14.130] Director-General, Dept of Community Services v D ........................... 590

[14.140]

JOURNALIST PRIVILEGE ............................................................................................. 592

[14.150]

SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE..................................................... 595

[14.160]

RELIGIOUS CONFESSIONS PRIVILEGE........................................................................ 595

[14.170]

PRIVILEGE AGAINST SELF-INCRIMINATION ............................................................... 595 [14.180]

[14.190]

PUBLIC INTEREST IMMUNITY .................................................................................... 606 [14.190] [14.200]

[14.250]

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner ������������������������������595

Judicial decisions..................................................................................... 606 Matters of state ...................................................................................... 606 [14.210] Sankey v Whitlam .................................................................... 607 [14.220] New South Wales v Public Transport Ticketing Corporation ................ 612 [14.230] Derbas v The Queen ................................................................. 621 [14.240] Attorney-General v Kaddour & Turkmani ....................................... 626

EVIDENCE OF SETTLEMENT NEGOTIATIONS ............................................................ 629 [14.260] Field v Commissioner for Railways for NSW .................................... 629 [14.270] Rush & Tompkins Ltd v Greater London Council .............................. 631 [14.280] State Rail Authority of New South Wales v Smith ............................. 633

OVERVIEW [14.10] Privileged communications are excluded because their disclosure would harm a fun-

damental principle or relationship that society deems worthy of preserving at the expense of litigants having all relevant material for litigation. Part 3.10 of the UEL creates a number of privileges which have the effect that evidence protected by the privilege is not to be adduced at all in a proceeding.

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Part 3 — Admissibility of Evidence

Division 1, Client legal privilege, creates a privilege for, in general terms, confidential communications made, and confidential documents prepared, for the “dominant purpose” of a lawyer providing legal advice (s 118) or providing legal services relating to litigation (s 119). “Legal advice” is construed to mean independent advice given professionally as to what should prudently and sensibly be done in the relevant legal context. In respect of litigation, it is enough if this is “anticipated”. The authorities indicate that proceedings are “anticipated” where they are actually contemplated – a mere apprehension of possible litigation is not sufficient. There must be a real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not. Section 120 extends the privilege to unrepresented parties to legal proceedings. It is the purpose in existence at the time of the making of the communication or the preparation of the document which is determinative. The High Court has adopted the same test of “dominant purpose” for the common law privilege: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. One view of that test is that the question is whether the communication would have been made or the document prepared even if the suggested dominant purpose had not existed. If the answer is “yes”, the test is not satisfied. If the answer is “no”, the test will be satisfied notwithstanding that some ancillary use or purpose was contemplated at that time. However, while such a “but for” test offers desirable clarity of analysis, it cannot be said with any certainty that it is the proper approach to resolving the issue of dominant purpose. It is important to note that particular communications made at the same time may have different purposes. Equally, different parts of a document may have different purposes (a reference to a document is defined in Pt 2 of the Dictionary to include a reference to “any part of the document”). Sections 121-126 provide for various ways in which client legal privilege may be lost. For example, s 122 results in loss of one or other of the privileges created by ss 118-120 where, in general terms, the client (under ss 118-119) or party (under s 120) waives the privilege, either expressly or impliedly. “Consent”, express or implied, may be given to the evidence being adduced (s 122(1)). Privilege may be lost “if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence” (s 122(2)). In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 the High Court held that the principles recognised in Mann v Carnell (1999) 201 CLR 1; 168 ALR 86; [1999] HCA 66, “articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by” this provision. Subject to qualifications, the client or party may have knowingly and voluntarily disclosed to another person “the substance of the evidence” or the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person (s 122(3)). Under s 122(5), disclosure will not result in loss of client legal privilege in a number of situations, including where it was “made under compulsion of law”, where it was made by a client to “another person” if it concerns a matter in respect of which they are joint clients of the same lawyer or the client and the other person share a “common interest” in current or anticipated legal proceedings. Section 123 provides that one or other of the privileges created by ss 118-120 is lost if the evidence (of a communication or document) is adduced by a defendant in criminal proceedings (unless the evidence derives from an “associated defendant”). Section 125 results in loss of one or other of the privileges created by ss 118120 if a communication or document either:

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Privilege

CHAPTER 14

(a)

was made or prepared by a client, lawyer or party in furtherance of a fraud, an offence or an act that renders a person liable to a civil penalty; or

(b)

was known, or should reasonably have been known, by the client, lawyer or party, to have been made or prepared in furtherance of a deliberate abuse of a statutory power.

Division 1A in the New South Wales Act only permits a court to direct that evidence not be adduced in a proceeding if it would disclose certain protected confidences. A court must give such a direction if it is satisfied that “it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced” and “the nature and extent of the harm outweighs the desirability of the evidence being given” (s 126B(3)). Division 1B in the New South Wales Act only provides that evidence found to be privileged in a criminal proceeding under Div 2 of Pt 5 of Ch 6 of the Criminal Procedure Act 1986 (NSW) may not be adduced in a civil proceeding in which substantially the same acts are in issue (s 126H). Division 2 of Pt 5 of Ch 6 of the Criminal Procedure Act 1986 creates a privilege in relation to certain protected confidences in sexual assault prosecutions. Division 1C was added to the Evidence Act 1995 (NSW) in 2011 to protect the identity and sources of information to journalists (ss 126J-126L). The Victorian Act has similar provisions, as does the Commonwealth Act (ss 126G – 126H). Section 127 creates a privilege in relation to religious confessions. Section 128 provides that, where a witness “objects” to giving evidence on the basis of self-incrimination (the evidence “may tend to prove that the witness has committed an offence against or arising under an Australian law or a law of a foreign country or is liable to a civil penalty”), and the court finds that there are reasonable grounds for this objection, the court is not to require the witness to give that evidence. However, if the witness does choose to give the evidence, he or she will be given a certificate which ensures that the evidence (and anything obtained as a consequence of the evidence) “cannot be used against” the witness – except in a criminal proceeding relating to alleged falsity of the evidence (eg a perjury prosecution). Further, if the court considers that “the interests of justice require that the witness give the evidence”, the witness may be compelled to give the evidence (but with the protection of a certificate). In a criminal proceeding, s 128 does not apply in relation to the giving of evidence by a defendant, where the evidence is (in effect) that the defendant committed the crime charged. It follows that the defendant may not object under s 128 to answering questions in cross-examination regarding the offence charged (and other facts in issue). Section 129 provides that, in general, evidence of the reasons for decision of judges, juries and arbitrators are privileged. Section 130 creates a “privilege” (or public interest immunity) for information or a document that relates to “matters of state” and requires a court to balance the public interest in admitting the evidence against “the public interest in preserving secrecy or confidentiality in relation to the information or document” (s 130(1)). Section 130(4) lists a number of circumstances in which information or a document is taken to relate to matters of state (eg “(a) prejudice the security, defence or international relations of Australia”, “(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State”). Section 130(5) lists a number of matters that the court is to take into account for the purposes of s 130(1), including the

Part 3 — Admissibility of Evidence

importance of the information or the document in the proceeding and the likely effect of adducing evidence of the information or document (and the means available to limit its publication). Section 131 provides that evidence is not to be adduced of a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute or a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. Section 131(2) provides for a number of specified exceptions. Section 134 provides that evidence that must not be adduced or given in a proceeding is not admissible in the proceeding. Under s 132, if it appears that a witness or party may have grounds to claim privilege, the court must ensure the witness or party is aware of the applicable provision in the Act. Section 133 permits a court to inspect a document if an issue involving privilege arises in relation to it. Section 131B extends the application of the privileges in Pt 3.10 (other than the provisions of s 123 and s 128) to pre-trial stages of civil and criminal proceedings – thereby overcoming authority that the privileges in Pt 3.10 apply only to the adducing of evidence in a trial.

CLIENT LEGAL PRIVILEGE

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[14.20] Sections 118 and 119 provide that evidence disclosing legal advice or confidential

communications protected by client legal privilege is not to be adduced. A number of applicable terms are defined in s 117. Section 120 extends the privilege to unrepresented parties. In Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 Spigelman CJ summarised the law concerning the dominant purpose test, which was discussed in detail in the Esso Australia Resources Ltd v Federal Commissioner of Taxation (see further): [6] It was common ground on the appeal that the test of what is a “dominant purpose” was an objective test, but that the subjective intention of the person responsible for the document coming into existence was entitled to weight. The Claimant relied on the observations of Callinan J in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, at 107 [172]: Whether a purpose is a dominant purpose is, in my view, a matter to be objectively determined but the subjective purpose will always be relevant and often decisive. [7] The test of “dominant purpose” has been expressed in terms of “clear paramountcy” (see Waugh v British Railways Board [1980] AC 521, at 543; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, at 336-337 [10]). As the High Court said in a different context: In its ordinary meaning, dominant indicates the purpose which was the ruling, prevailing, or most influential purpose. [Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ)]

In Southland Coal Pty Ltd (rec and mgrs apptd) (in liq), Re Southland Coal Pty Ltd, Austin J sets out “uncontested principles” concerning client legal privilege. Work by lawyers working “in house” in businesses can also be protected by privilege as Spigelman CJ pointed out in Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47.

Privilege

CHAPTER 14

Esso Australia Resources Ltd v Federal Commissioner of Taxation [14.30] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Facts [Esso challenged the assessments of income tax issued by the Federal Commissioner of Taxation. General Orders for discovery were made. Esso claimed client legal privilege in respect of a number of documents on the basis that they had been prepared for the dominant purpose of giving or receiving legal advice. The Federal Commissioner for Taxation sought discovery of all documents except for those prepared for the sole purpose of legal advice. Foster J set out the two questions of law as: (a)

Whether the correct test for claiming legal professional privilege in relation to the production of discovered documents is the “sole purpose” test as formulated by the High Court in Grant v Downs (1976) 135 CLR 674; 11 ALR 577 or the “dominant purpose” test as set out in s 118 and s 119 of the Evidence Act 1995 (Cth).

(b)

Whether the court has power pursuant to O 15, r 15 of the Federal Court Rules to make an order excluding from production discovered documents on the basis that such documents meet the “dominant purpose” test as set out in s 118 and s 119 of the Evidence Act 1995 (Cth).

Foster J held that the test for claiming client legal privilege was the sole purpose test as formulated by Grant v Downs. This was upheld by the Full Court. Esso was granted leave to appeal to the High Court to present various arguments in support of its contention that the correct test was the dominant purpose test.] Judgment (footnotes omitted)

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GLEESON CJ, GAUDRON and GUMMOW JJ: [1] The central issue in this appeal concerns the test for determining whether what is usually called legal professional privilege (an expression which might suggest erroneously that the privilege is that of the lawyer), or what is called in the Evidence Act 1995 (Cth) client legal privilege, applies in relation to discovery and inspection of confidential written communications between lawyer and client. [2] The test in the Evidence Act is whether the communication was made, or the document was prepared, for the dominant purpose of the lawyer providing legal advice or legal services. The dominant purpose test accords with the common law test now adopted in England, New Zealand, Ireland, and most Canadian Provinces. It was favoured by Barwick CJ in the leading Australian case on the subject, Grant v Downs. However, a majority in that case (Stephen, Mason and Murphy JJ) preferred a sole purpose test. Hence, since 1976, courts in Australia have applied the common law of legal professional privilege on the basis that privilege will only attach to a confidential communication, oral or in writing, made for the sole purpose of obtaining or giving legal advice or assistance or of use in legal proceedings. [3] The difference between the Evidence Act test and what has, since Grant v Downs, been accepted in Australia as the common law test has given rise to a number of problems. The Evidence Act only applies in proceedings in a federal court or an Australian Capital Territory court. New South Wales has enacted legislation in the same terms for that State, but no other jurisdiction has done so. Moreover, even in a jurisdiction where the Evidence Act applies, the relevant provisions relate only to the adducing of evidence. The reason for this was explained in the report of the Australian Law Reform Commission which proposed the legislation, and which said: “The Terms of Reference limit the Commission to considering the application of the privilege in the courtroom where evidence is sought to be given.” [4] As was pointed out in Mann v Carnell, the circumstances in which legal professional privilege may apply are not limited to the adducing of evidence. As in the present case, the privilege may be invoked

Part 3 — Admissibility of Evidence

Esso Australia Resources Ltd v Federal Commissioner of Taxation cont� in other circumstances, such as discovery and inspection of documents. Documents may be discoverable, or the subject of a demand for inspection, even though they are not admissible in evidence. They may be significant, for example, because they open up a line of inquiry. Furthermore, in this country, the application of the privilege is not confined to judicial or quasi-judicial proceedings. On any view, the ambit of the common law doctrine of legal professional privilege in Australia exceeds that of the relevant provisions of the Evidence Act. Given the specific and limited heads of legislative power in s 51 of the Constitution, there also may be questions as to the extent of the legislative power of the Parliament to deal with the privilege, apart from its operation in relation to judicial proceedings under Ch III. [5] The Australian Law Reform Commission was aware of the problem, and adverted to it in its report. After referring to the limitation in its terms of reference, the Commission said: Situations may arise where a party obtains access to documents outside the courtroom which are protected in the courtroom by the proposed privilege. Under the proposal, the privilege will still apply in the courtroom unless the client voluntarily disclosed the document. Having wider access on discovery or under a search warrant is usual. Access is not determined by the rules of admissibility such as relevance and hearsay. It is not unreasonable to have wider access in the investigative stage. ...

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The common law of legal professional privilege [35] Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. This Court is now asked to reconsider the balance that was struck in Grant v Downs. … [57] The search is for a test which strikes an appropriate balance between two competing considerations: the public policy reflected in the privilege itself, and the public policy that, in the administration of justice and investigative procedures, there should be unfettered access to relevant information. Additionally, whatever test is adopted must be capable of being applied in practice with reasonable certainty and without undue delay and expense in resolving disputed claims. [58] At first sight, sole purpose appears to be a bright-line test, easily understood and capable of ready application. Many disputes as to its application could be resolved simply by examining the documents in question. However, there is reason to believe that the position is not quite as it appears. The main

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Esso Australia Resources Ltd v Federal Commissioner of Taxation cont�

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objection to the test is what was described in the Court of Appeal in New Zealand as its extraordinary narrowness. If it is to be taken literally, one other purpose in addition to the legal purpose, regardless of how relatively unimportant it may be, and even though, without the legal purpose, the document would never have come into existence, will defeat the privilege. This has led some judges to apply the Grant v Downs test in a manner which might suggest that it is not to be taken literally. For example, in Waterford v The Commonwealth, Deane J said the test of whether a document is to be protected is whether “the cause of its existence, in the sense of both causans and sine qua non, must be the seeking or provision of professional legal advice”. That may be closer to dominant purpose than sole purpose. At the least, it seems to involve a reformulation aimed at avoiding the use of “purpose” and also at avoiding the conclusion that the existence of any purpose in addition to the legal purpose, albeit minor and subsidiary, will mean that no privilege attaches. In argument in the present case, counsel for the respondent endeavoured to explain the meaning of the sole purpose test in a manner that equated it with the test expounded by Jacobs J in Grant v Downs. Whilst seeking to uphold a sole purpose test, they submitted that “if a document is created for the purpose of seeking legal advice, but the maker has in mind to use it also for a subsidiary purpose which would not, by itself, have been sufficient to give rise to the creation of the document, the existence of that subsidiary purpose will not result in the loss of privilege”. That appears close to a dominant purpose test. If the only way to avoid the apparently extreme consequences of the sole purpose test is to say that it should not be taken literally, then it loses its supposed virtue of clarity. [59] One of the considerations prompting rejection of the pre-existing test was that it was unduly protective of written communications within corporations and bureaucracies. The sole purpose test goes to the other extreme. Such organisations necessarily conduct a large proportion of their internal communications in writing. If the circumstance that a document primarily directed to lawyers is incidentally directed to someone else as well means that privilege does not attach, the result seems to alter the balance too far the other way. This may be the kind of result Deane J was intending to avoid in his reformulation of the privilege, but it seems to follow unless one puts a gloss upon the sole purpose test. [60] A dominant purpose test was sufficient to defeat the claims for privilege in Grant v Downs and Waugh [v British Railways Board]. The reason why Barwick CJ, the House of Lords, and the New Zealand Court of Appeal preferred that test was that they were unable to accept, as either necessary or desirable, the apparent absoluteness and rigidity of a sole purpose test. If the only way to avoid that absoluteness and rigidity is to water down the sole purpose test so that, in its practical application, it becomes more like the dominant purpose test, then it should be abandoned. Either the test is too strict, or it lacks the clarity which the respondent claims for it. [61] It would be possible to seek to formulate a new test, such as that adopted by Jacobs J in Grant v Downs, or Deane J in Waterford, in a further attempt to adjust the necessary balance of competing policies. To do so, however, would produce only confusion. As a practical matter, the choice presently confronting this Court is between sole purpose and dominant purpose. The dominant purpose test should be preferred. It strikes a just balance, it suffices to rule out claims of the kind considered in Grant v Downs and Waugh, and it brings the common law of Australia into conformity with other common law jurisdictions. Conclusion [62] … The questions of law raised for decision by Foster J should be answered: (a)

The correct test is the dominant purpose test, which is the common law test for claiming legal professional privilege.

(b)

Does not arise.

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Part 3 — Admissibility of Evidence

Southland Coal Pty Ltd [14.40] Re Southland Coal Pty Ltd (rec and mgrs apptd) (in liq) (2006) 203 FLR 1; [2006] NSWSC 899 Facts [In a large ongoing dispute, issues concerning the request for production of documents were raised. One argument against production was that the documents were privileged.] Judgment AUSTIN J: ... [14] A formulation of the uncontested principles about client legal privilege which the parties drew to my attention, adequate for present purposes, is set out in pars (a)-(k) here.

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(a) Rule of substantive law – “Legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice and the provision of legal services, including representation in legal proceedings” (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ). The “rule of substantive law” is, of course, affected by the terms of the Evidence Act where the Act applies. (b) Two-stage process – Assessing a claim for privilege under s 118 or s 119 is a two-stage process. The first step is for the court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out in s 118 or s 119 or both sections. The second step is for the court to be satisfied that the production of the document or the unredacted part of it would result in the disclosure of a confidential communication or the confidential contents of a document. (c) Onus – The party claiming privilege bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege (Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 at 337; ASIC v Rich [2004] NSWSC 1089 at [2]; In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 at [24]). The party claiming privilege must establish the facts from which the court can determine that the privilege is capable of being asserted (National Crime Authority v S (1991) 100 ALR 151 at 159). The facts are to be proved on the balance of probabilities (Evidence Act s 142). (d) Legal advice – Section 118 protects certain confidential communications and the contents of confidential documents made or prepared for the dominant purpose of a lawyer providing legal advice to a client. In this context, “legal advice” is understood in a pragmatic sense. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [77] to [78], McColl JA quoted, evidently with approval, the observation of Taylor LJ in Balabel v Air India [1988] Ch 317, at 330, that “legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context”. This assumes, of course, that the advice is professional advice given by a lawyer in his or her capacity as such. Taylor LJ’s dictum was applied in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610, at 648 per Lord Scott of Foscote, 657 per Lord Rodger of Earlsferry, and 678 per Lord Carswell. There the House of Lords held that the Bank was entitled to claim legal professional privilege in respect of communications with its solicitors not only concerning its legal rights and obligations, but also concerning the presentation of its evidence to an inquiry so as to minimise criticism. See also DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151; AWB Ltd v Cole [2006] FCA 571.

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Southland Coal Pty Ltd cont� (e) Whether disclosure would result from adducing the evidence – Under both s 118 and s 119 the evidence is not to be adduced if adducing evidence would result in disclosure of certain confidential communications or the contents of certain confidential documents. The question is whether what is disclosed by adducing the evidence explicitly reveals the confidential communication or the contents of the confidential document, or supports an inference of fact as to the content of the confidential communication or document, which has a definite and reasonable foundation. Disclosure does not occur if what is adduced in evidence merely causes the reader to “wonder or speculate whether legal advice has been obtained and what was the substance of that advice” (AWB Ltd v Cole at [133], per Young J). (f) Communications between third party and client – Communications by a third party with a client, not directed to the client’s lawyers, may be protected by legal advice privilege, if the function of the communications is to enable the client to obtain legal advice and the third party is so implicated in communications made by the client to its legal adviser as to bring the third party’s work product within the rationale of the privilege (Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, at [41] per Finn J and [105] per Stone J).

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(g) Purpose is a question of fact – The purpose for which a communication is made or a document is created is a question of fact (Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54; Bauhaus at [24]). Purpose and intended use must be determined objectively, having regard to all of the evidence (AWB Ltd v Cole at [122]). Purpose cannot be proved by mere assertion by a third party. Normally (but not always) the relevant purpose is that of the maker of the communication for which privilege is sought. (h) Dominant purpose – The dominant purpose of the communication must be determined objectively, having regard to all the circumstances in which the communication was made and its nature (Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689, per Stephen, Mason and Murphy JJ; Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2006) 225 ALR 266, at [30] per Kenny J; AWB Ltd v Cole [2006] FCA 571 at [110], per Young J). What is required is an objective view of all of the evidence, taking into account the evidence not only of the author of the communication but of the person or authority under whose direction the document was prepared. If the document would have been prepared irrespective of the intention to obtain professional legal services, it will not satisfy the test (Grant v Downs, at 688, per Stephen, Mason and Murphy JJ). The existence of an ancillary purpose is not fatal to a claim for privilege, but if there are two purposes of equal weight, it is unlikely that one would dominate the other – Stephen Odgers, Uniform Evidence Law, 6th ed at [1.3.10500] to [1.3.10520]. (i) A claim for privilege will not succeed if all that emerges is that the document is a commercial document or has been brought into existence in the ordinary course of business – In these circumstances, unless the court is satisfied that the dominant purpose is that identified in ss 118 or 119, no privilege applies. It is necessary to distinguish between documents brought into existence to communicate legal advice, and documents brought into existence to allow the party seeking to maintain privilege to invite comment on commercial alternatives available to it or to allow it to make a decision in the ordinary course of its insurance business as to whether or not to grant indemnity. The former may be privileged, but the latter is not, as it does not satisfy the dominant purpose test (see Seven Network Ltd v News Ltd [2005] FCA 1342 at [27]). The nature or character of the documents may illuminate the purpose (Seven Network at [38]). Passages from Sutton's Insurance Law in Australia (3rd ed, LBC, 1999 at [15.98]) were cited with approval in Re Southland Coal Pty Ltd [2005] NSWSC 259 at [70] and [71], per Young CJ

Part 3 — Admissibility of Evidence

Southland Coal Pty Ltd cont� in Eq, as follows: “Documents created so that the insurer can be informed generally and can in the ordinary course of business investigate any claim that might be made before deciding what to do ... are not privileged in contrast to the situation where the reports are prepared at a time when litigation is either likely or anticipated.” (See also Vardas v South British Insurance Company Ltd [1984] 2 NSWLR 652, 656.) (j) Failure to call relevant witnesses – If the party asserting privilege over a communication has the capacity to call direct evidence on the issue of purpose, but does not do so, the tribunal of fact is entitled to infer that this evidence would not have assisted the person’s case (Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at 576; Hawksford v Hawksford [2005] NSWSC 796 at [19], per Campbell J). (k) Inspection by the court – The court has the power to inspect the document itself to determine a claim for privilege, especially where differing kinds of claim about the basis of privilege are made (Grant v Downs (976) 135 CLR 679 at 689; Hawksford v Hawksford [2005] NSWSC 796 at [21], per Campbell J). It should not be hesitant to exercise that power (Esso Australia Resources Ltd v FCT [1999] HCA 67; (1999) 201 CLR 49 at 70, per Gleeson CJ, Gaudron and Gummow JJ). That is especially the case where the judge hearing the application relating to privilege is not the trial judge.



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[14.50] In Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 at [24] Spigelman CJ stated: An in-house solicitor is, by reason of his or her position, more likely to act for purposes unrelated to legal proceedings than an external solicitor who, in the normal course, has no relevant function other than that involving legal proceedings and/or legal advice. An in-house solicitor may very well have other functions. Accordingly, in determining whether or not a document was bought into existence for a purpose which was both privileged and dominant, the status of the legal practitioner is not irrelevant.

LOSS OF CLIENT LEGAL PRIVILEGE [14.60] Sections 121-126 provide that client legal privilege is lost in certain situations. Section

122 deals with the waiver of privilege and focuses on whether the client has “knowingly and voluntarily disclosed” the substance of the evidence. Mann v Carnell (1999) 201 CLR 1 considers the common law in respect of the waiver of privilege as s 122 does not apply to the “adducing of evidence” and therefore the common law applies to pre-trial production. Divall v Mifsud [2005] NSWCA 447 considers waiver of privilege when counsel fails to object to cross-examination of a witness. Kang v Kwan [2001] NSWSC 698 considers the loss of privilege pursuant to s 125.

Mann v Carnell [14.70] Mann v Carnell (1999) 201 CLR 1 Facts [Mann was a surgeon who commenced legal proceedings for breach of contract and defamation against the ACT Board of Health. These settled for $400,000. Following settlement Mann wrote to his local member (an independent member of the Legislative Assembly of the ACT) describing the

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Mann v Carnell cont� litigation as “a monumental waste of public funds”. The independent member wrote to Carnell in her capacity as Chief Minister for the Territory seeking her response to this letter. Carnell in answer included a copy of legal advices from barristers engaged to represent the Territory in the matter. There was evidence that this was established practice when such enquiries were made by members. The independent member was told that the advices were the subject of confidentiality and thus returned the material without copying it. Mann became aware of this correspondence and applied for preliminary discovery of the legal advices on the basis that he believed they contained or repeated defamatory imputations and that he had a cause of action against Carnell for publishing them to the independent member. Carnell claimed privilege over these advices. A single judge in the ACT Supreme Court ruled that legal professional privilege did not apply. On appeal by Carnell, the Full Court held that privilege applied and was not lost by the disclosure to the independent member. Mann was granted leave to appeal to the High Court. The Full Court had also held that the Evidence Act applied derivatively to discovery, another issue the High Court was to deal with.] Judgment GLEESON CJ, GAUDRON, GUMMOW and CALLINAN JJ: ...

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The applicable law [25] There have been differences of judicial opinion as to the precise legal significance of ss 118 and 122, in those jurisdictions where they apply, in relation to issues such as have arisen in the present case at a pre-trial stage of litigation, before questions of adducing evidence have arisen. At the time of the proceedings before the Full Court of the Federal Court, the prevailing, although not uncontroversial, view in the Federal Court was that expressed in Adelaide Steamship Co Ltd v Spalvins. In brief, the view was that, when a question arises at a pre-trial stage as to privilege, or loss of privilege, although ss 118 and 122 have no direct application, and the common law is to be applied, the common law must adapt itself to the statute, which thereby is applied derivatively. That approach was followed by the Court of Appeal of New South Wales in Akins v Abigroup Ltd. Later, a specially constituted Full Court of the Federal Court, in Esso Australia Resources Ltd v FCT, held that Adelaide Steamship was wrongly decided. That decision has been the subject of an appeal to this court, and judgment is delivered on the same day as this judgment. [26] The Full Court of the Federal Court in this case, following Adelaide Steamship, approached the matter on the basis that the central issue was to be resolved by reference to ss 118 and 122 of the Evidence Act. They concluded that the confidential disclosure to Mr Moore of the contents of the privileged communications from the legal advisers of the Australian Capital Territory did not result in loss of the privilege. They held that the case fell within s 122(2)(a), and that s 122(4), which they said applied to disclosures by someone other than the client or an agent or employee of the client, did not operate. [27] Consistently with this court’s decision in Northern Territory of Australia v GPAO and its reasoning in relation to the appeal in Esso, it must be concluded that the Full Court in the present case erred in deciding that the applicable law was to be found (derivatively) in the Evidence Act. In that respect, it may be noted that no argument was advanced, either before Miles CJ, or in the Full Court, or in this court, in support of an argument that could possibly have given the Evidence Act significance in another way. Bearing in mind the nature of the proceedings before Miles CJ, it might have been arguable that, if, when it came to adducing evidence in any substantive proceedings brought by Dr Mann against the Chief Minister, the Evidence Act would make it impossible to prove the contents of the four documents in question, that would constitute a discretionary reason for not making the orders

Part 3 — Admissibility of Evidence

Mann v Carnell cont� sought from Miles CJ. However, since no such argument was advanced, it is unnecessary to pursue that line of reasoning. Waiver of privilege at common law

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[28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received. [29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. [30] In Goldberg v Ng this court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to reopen Goldberg or any of the earlier authorities on the subject. In Goldberg, reference was made to the statement of Jordan CJ in Thomason v Campbelltown Municipal Council: The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client. [31] His Honour’s reference to intention must be read subject to what has been said earlier. [32] Reference was also made to British Coal Corp v Dennis Rye Ltd (No 2) and Goldman v Hesper, in which the English Court of Appeal held that, in the circumstances of those cases, disclosure to a third party for a limited and specific purpose did not lead to a loss of the privilege as against a person opposed in litigation. To like effect is the recent decision in Gotha City v Sotheby’s. [33] It does less than justice to the respondent’s position to describe what occurred in the present case as disclosure to a third party. The privilege was that of the body politic, the Australian Capital Territory. The head of the Territory’s Executive, the Chief Minister, in response to a question raised by a

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Mann v Carnell cont� member of the Territory’s Legislative Assembly as to the reasonableness of the conduct of the Territory in relation to certain litigation, gave the member, confidentially, access to legal advice that had been given to the Territory, and on the basis of which it had acted. Although “disclosure to a third party” may be a convenient rubric under which to discuss many problems of this nature, it represents, at the least, an oversimplification of the circumstances of the present case. [34] The purpose of the privilege was to enable the Australian Capital Territory to seek and obtain legal advice, in relation to the litigation which Dr Mann had instituted, without the apprehension of being prejudiced by subsequent disclosure of that advice. That included, and perhaps included above all, subsequent disclosure to Dr Mann. If Mr Moore had been given copies of the legal report and advice given to the Territory in relation to the proceedings brought by the appellant upon the basis that he was at liberty to show them to the appellant (even if to nobody else), that would have waived the privilege, because it would have been inconsistent with the confidentiality protected by the privilege. It is not difficult to imagine other circumstances in which the basis on which the communications were made available to Mr Moore, even though limited, would have been inconsistent with the purpose of the privilege and thus would have resulted in waiver. Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg illustrates this.

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[35] The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation. [36] The conclusion of the Full Court of the Federal Court, that privilege was not lost, was correct. [37] The appeal should be dismissed with costs.



Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [14.80] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Facts [Armstrong commenced proceedings against Expense Reduction for damages for loss as a result of Expense Reduction’s conduct, performance and termination of agreements. Armstrong was represented by Marque Lawyers, Expense Reduction was represented by Norton Rose. Expense Reduction was ordered to provide discovery of documents to Armstrong which involved discovery of 60,000 documents. The documents were provided on disks. During the discovery process, Norton Rose inadvertently disclosed 13 documents on the disks which they claimed were privileged. The appeal to the High Court was about the inadvertent disclosure of documents subject to client legal privilege.] Judgement (some footnotes omitted) FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ …

Part 3 — Admissibility of Evidence

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd cont� [4] After Norton Rose served its clients’ verified Lists of Documents and disks on Marque Lawyers, some correspondence was exchanged between the two firms. The upshot of this correspondence was a claim by Norton Rose that a number of documents, the subject of client legal privilege, had inadvertently been disclosed contrary to its clients’ instructions. Marque Lawyers declined to return the documents and to give the undertaking which Norton Rose sought, not because it disputed the assertion of inadvertence, but because of its view that any privilege attaching to the documents had been waived. [5] The matter came before Bergin CJ in Eq on a motion by the ERA parties for injunctive and other relief. By the time of her Honour’s decision, 13 documents remained in dispute. Her Honour found that nine of the documents were disclosed inadvertently. The effect of certain of the orders made by her Honour was that the disks were to be returned by Marque Lawyers and replaced by Norton Rose, after removal of those nine documents from the disks. The Court of Appeal allowed the Armstrong parties’ appeal on the basis that the mistakes in disclosure of the documents in the discovery process would not have been obvious to a reasonable solicitor and dismissed the ERA parties’ cross-summons seeking leave to cross-appeal with costs.

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[6] The proceedings concerning the 13 documents were substantial. The hearing before the primary judge extended over some three days, during which evidence was given by the solicitors involved and those at Norton Rose responsible for discovery. The appeal resulted in lengthy reasons for judgment by the Court of Appeal. [7] Proceedings of this kind and length concerning a tangential issue should have been averted. There was no need to resort to an action in the equitable jurisdiction of the Supreme Court to obtain relief. That Court has all the powers necessary to deal with an issue relating to discovery and which required, essentially, that a party be permitted to correct a mistake. Those powers exist by virtue of the Court’s role in the supervision of the process of discovery and the express powers given by Pt 6 of the CPA to ensure the “just, quick and cheap resolution of the real issues in the dispute or proceedings” [Civil Procedure Act 2005 (NSW), s 56(1)]. Those powers should have been exercised in relation to each of the 13 privileged documents for the reasons which follow. … [11] Marque Lawyers received the disks which contained the privileged documents in question on 19 October 2011. It did not immediately inspect them, but forwarded them to the third respondent, Mr Armstrong, the following day. On 25 November 2011, Ms Hannah Marshall, a Senior Associate of Marque Lawyers, commenced the process of inspection of the documents. From looking at annotations made by Mr Armstrong, she was able to observe that a number of the documents appeared to relate to communications between the corporate ERA parties and lawyers. Ms Marshall, after consulting with the responsible partner of Marque Lawyers, Mr Michael Bradley, wrote to Norton Rose pointing to an apparent inconsistency, whereby client legal privilege had been claimed with respect to some but not all communications of this kind. She gave as examples seven documents where it appeared that the ERA parties were obtaining legal advice but in respect of which no claim of privilege was made. [12] The partner in charge of the litigation at Norton Rose, Mr Stephen Klotz, responded on 6 December 2011. He thanked Marque Lawyers “for bringing to our attention the mistaken production of privileged documents”. He explained that they had inadvertently not been marked as privileged by the reviewers, when clearly they ought to have been. He said that the clients maintained their claim of privilege. He sought return of all copies of the documents and an undertaking that they would not be relied on in the proceedings or otherwise. [13] On 12 December 2011, Ms Marshall wrote to Norton Rose stating that, in Marque Lawyers’ view, its clients had no obligation to return the documents and any privilege attaching to them had been waived.

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Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd cont� [14] After completing a full search for other documents which may have been inadvertently disclosed, on 23 December 2011 Norton Rose filed the notice of motion which set in train these proceedings. … [43] It is important to bear in mind that the disks containing the privileged documents only came into the possession of the Armstrong parties as a result of the process of court-ordered discovery. They would not have known, and had no entitlement to know, of the ERA parties’ documents but for the provisions of the UCPR and the order for discovery made pursuant to them. When an order for discovery is made under the UCPR, the party ordered to make discovery is obliged to comply with the order by serving a list of documents. [44] As Lord Diplock observed in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 299, discovery is a practice peculiar to common law systems, whereby parties to litigation can be compelled to produce to one another, for inspection and copying, all the documents in their possession or control which contain information that may assist another party to advance its own case or to damage the case of the disclosing party. As his Lordship also observed (Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 300), “[t]he use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself”.

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[45] Although discovery is an inherently intrusive process, it is not intended that it be allowed to affect a person’s entitlement to maintain the confidentiality of documents where the law allows. It follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so. [46] It must be acknowledged that the UCPR require a party giving discovery to be accurate in listing the documents which are available for production and inspection. Of necessity, discovery must be a process upon which other parties can reasonably rely. A party should make every reasonable effort to ensure the accuracy of the verified Lists of Documents which are to form the basis for inspection. It was not suggested that this obligation was not met by the steps taken by Norton Rose with respect to its clients’ discovery, yet mistakes still occurred. [47] This is not the occasion on which to express views about the manner and extent of the discovery process today with its resultant costs, or whether it should be subjected to substantial reform. That the process of discovery has assumed large proportions in some cases and become increasingly burdensome is well known. In its report Managing Discovery: Discovery of Documents in Federal Courts, the Australian Law Reform Commission referred to the challenges which discovery presents to the due administration of civil justice. [48] For present purposes, it is sufficient to observe that, in large commercial cases, mistakes are now more likely to occur. In ISTIL Group Inc v Zahoor [2003] 2 All ER 252 at 269 [72], Lawrence Collins J observed that “[t]he combination of the increase in heavy litigation conducted by large teams of lawyers of varying experience and the indiscriminate use of photocopying has increased the risk of privileged documents being disclosed by mistake”. [49] The courts will normally only permit an error to be corrected if a party acts promptly. If the party to whom the documents have been disclosed has been placed in a position, as a result of the disclosure, where it would be unfair to order the return of the privileged documents, relief may be refused. However, in taking such considerations (analogous to equitable considerations) into account, no narrow view is likely to be taken of the ability of a party, or the party’s lawyers, to put any knowledge gained to one side. That must be so in the conduct of complex litigation unless the documents assume particular importance. [50] It goes without saying that the courts will not need to be concerned with the correction of error unless there is a dispute. In the case of inadvertent disclosure, this should not often arise.

Part 3 — Admissibility of Evidence

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd cont� The approach required by the CPA [51] In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 [92]-[93], 213 [98]; [2009] HCA 27, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. [52] Unsurprisingly, the case management rules with which the Court was concerned in Aon Risk Services Australia Ltd v Australian National University had essentially the same object as those stated in the CPA. The overriding purpose of the CPA and the rules of court provided for by the UCPR, as stated in s 56(1) of the CPA, is “to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings”. In order to achieve that purpose, s 56(2) provides that the court: must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

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A duty is also imposed upon a party to civil proceedings. Section 56(3) provides that: A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. Section 56(4) requires that lawyers representing a party to civil proceedings (or any person with a relevant interest in the proceedings) must not, by their conduct, put a party in breach of this duty. [53] Section 57 relevantly provides, with respect to case management by the court, that: (1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. [54] Section 58 provides in relevant part: (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and … (ii) any other order of a procedural nature, and (iii) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

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Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd cont� Sub-section (2) of s 58 goes on to provide that for the purposes of determining what the dictates of justice are in a particular case, the court must have regard to the provisions of ss 56 and 57 and may have regard to a number of other matters, to the extent it considers them to be relevant. Amongst these matters is the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction made in the process of case management. [55] Section 59 provides: In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. The CPA provides some broad powers to the court to enable it to fulfil its duties with respect to the management of proceedings. Sections 56 to 59 appear in Pt 6 of Div 1 (“Guiding principles”) of the CPA. Division 2 of Pt 6 is entitled “Powers of court to give directions”. Section 61(1) provides generally that: The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. Sub-section (2) goes on to provide that the court may, inter alia, direct the parties to take specified steps and give such other directions with respect to the conduct of the proceedings as it considers appropriate.

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[56] The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. [57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge’s individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice. … The direction which the Supreme Court should promptly have made in this case was to permit Norton Rose to amend the Lists of Documents, together with consequential orders for the return of the disks to enable the privileged documents to be deleted. Such a direction and orders would have obviated the need to resort to the more complex questions concerning the grant of relief in the equitable jurisdiction. It would have served to defuse the dispute and dissuaded the Armstrong parties from alleging waiver. It accords with the overriding purpose and the dictates of justice. [59] It could hardly be suggested that the pursuit of satellite interlocutory proceedings of the kind here in question in any way fulfils the overriding purpose of the CPA. To the contrary, it is the very kind of conduct which should be avoided if those purposes are to be achieved. It involved a relatively minor issue relating to discovery, the resolution of which appears to have offered little advantage to the Armstrong parties. Its determination went no way towards the resolution of the real issues in dispute between the parties. Instead, it has distracted them from taking steps to a final hearing, encouraged the outlay of considerable expense and squandered the resources of the Court. [60] What the Court was faced with was a mistake which had occurred in the course of discovery. It was necessary that the mistake be corrected and the parties continue with their preparation for trial.

Part 3 — Admissibility of Evidence

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd cont� [61] This was not a case where the fact of mistake was disputed. There was no conduct on the part of Norton Rose and its clients which would have weighed against the grant of that relief. There was no delay of any significance in the mistakes being notified or confirmed. The primary judge was not persuaded that the Armstrong parties would be prejudiced by requiring the disks to be returned. [62] It is difficult to see what benefit the Armstrong parties could have believed would be obtained by them by attempting to retain the documents. The possibility that they might support a further claim in the nature of a conspiracy between the ERA parties was canvassed. A similar claim had previously been struck out. It was not apparent to Sackville AJA in the Court of Appeal that the additional claims would add anything of substance. It is not immediately obvious how an attempt to replead such a claim could be said to advance the overriding purposes of the CPA. [63] Further, in reality, there was no question of waiver sufficient to be agitated before the Court. The documents disclosed during the discovery process were privileged, and Norton Rose’s claim that disclosure occurred by mistake was not disputed. Any allegation of waiver was going to turn on a legal, technical argument tangential to the main proceedings, and should not have been made. (Appeal allowed.)



Divall v Mifsud [14.90] Divall v Mifsud [2005] NSWCA 447

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Facts [This is an appeal against an award of damages for personal injuries suffered in a motor accident made in favour of Mifsud against the appellants, Divall and Mason, found to be respectively the owner and driver of the motor truck involved in the accident. The appellants appealed on the issue of liability and the respondent has cross-appealed as to contributory negligence and damages. One issue was the admissibility of a statement by a Mr Kent. Mr Kent went to the scene arriving whilst Mifsud was still pinned under the vehicle. He gave evidence before Armitage J that in response to a question as to what happened Mifsud said “I was tilting the tray and the truck ran away. I run round the front to get into the cab to stop it”.] Judgment IPP JA: [1] Save in one respect I agree with the reasons of MW Campbell AJA. I agree with the orders proposed by his Honour. [2] The respect in which I differ from MW Campbell AJA is in regard to the admissibility of Mr Kent’s statement. [3] As MW Campbell AJA points out, Mr Kent gave the following evidence under cross-examination: Q. Does the statement contain a reproduction of the conversation that you say you had with James Mifsud? A. As far as I’m aware, yes. Q. Do you say that that – what is contained in the statement is consistent with your evidence here today? A. Yes. [4] By these two answers, Mr Kent admitted that the statement he gave set out the conversation that he had with Mr Mifsud and that his statement in that respect was consistent with his evidence given

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Divall v Mifsud cont� in Court. Counsel for Mr Divall, despite earlier claiming privilege for the statement, did not object to these questions. [5] Had cross-examining counsel, instead of asking the two questions which I have set out, again called for the statement – and had the statement been produced and tendered as an exhibit – that statement would have been admitted into evidence unless counsel for Mr Divall had objected. I can see no difference in principle between the admission of a privileged statement into evidence in circumstances where counsel for the party holding the privilege does not object, and oral evidence given by a party of the contents of that statement in circumstances where counsel for the party holding the privilege does not object. [6] In my opinion the failure by counsel for Mr Divall to object to Mr Kent’s evidence amounted to Mr Divall knowingly and voluntarily agreeing to Mr Kent giving the privileged evidence. In my opinion, by the conduct of his counsel, Mr Divall waived his claim to privilege. McCOLL JA: [7] I have read MW Campbell AJA’s reasons in draft. I agree with the orders proposed by his Honour and, save in one respect, with his Honour’s reasons. [8] In so far as the admissibility of Mr Kent’s statement is concerned, I agree with Ipp JA that Mr Divall waived his claim to privilege in respect of that statement.

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[9] Campbell AJA has set out the facts relevant to this issue. I will not repeat them save as necessary. Section 119 of the Evidence Act 1995 entitles a client to object to evidence being adduced if, relevantly, that evidence would disclose a confidential communication between a lawyer acting for the client and another person that was made for the dominant purpose of the client being provided with professional legal services relevant to Australian court proceedings to which the client was a party. There was no dispute that Mr Kent’s statement constituted such a communication. [10] Although Mr Wilson initially claimed privilege over the statement, he did not object to counsel for Mr Mifsud asking two further questions the answers to which he conceded disclosed the substance of Mr Kent’s statement. His failure to object to those questions meant that the substance of Mr Kent’s statement had been “knowingly and voluntarily disclosed to another person”: s 122(2) of the Evidence Act; Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 431 [12]. … MW CAMPBELL AJA: [58] In cross-examination Mr Kent said that he had made a statement to an investigator from the NRMA. He had not looked at it since a couple of days after making it. [59] The statement was called for. Mr Wilson, then Counsel for Mifsud, claimed privilege, clearly enough under s 119 of the Evidence Act 1995 (the Act) whilst offering to produce the document to the Court but opposing access. [60] At that point the claim was upheld. [61] Mr Kent, still in cross-examination, gave the following evidence: Q. Does the statement contain a reproduction of the conversation that you say you had with James Mifsud? A. As far as I’m aware, yes. Q. Do you say that that – what is contained in the statement is consistent with your evidence here today? A. Yes. … [68] The document was produced. His Honour making an order “under s 122(2) of the Evidence Act 1995 that statement of witness Mr Kent be produced to the Court and to the plaintiff.”

Part 3 — Admissibility of Evidence

Divall v Mifsud cont� [69] Subsequently the document dated 6 September 2001, that is some 10 months after the accident and some two and a half years before the trial, was tendered and admitted. [70] The feature which became significant is that in the document Mr Kent said that at the accident he had spoken only to Mason and a fireman. There was no reference to the conversation with Mifsud referred to earlier [49]. [71] This omission was the principal basis upon which the Judge set aside the evidence of Mr Kent. … [95] With respect I have come to the view that his Honour focused on “the interests of justice” in the instant case and the disclosure of the substance of the statement, as conceded, and did not have adequate regard to the elements of the statutory scheme set out in s 122. [96] His Honour seems to have taken the position that the calling by a party of a witness, who subsequently makes substantial disclosure, is sufficient for that to be disclosure by the party. A position Mr King did not seek to advance, albeit the initial written submissions appeared to do so. [97] His Honour did not proceed on the basis that Mr Kent was an employee or agent of Divall and made no reference to the absence of objection to certain questions which form the foundation of Mr King’s principal submission. [98] The way in which the Judge has phrased his account of what he puts as Mr Kent’s evidence and the observation “if a client or party calls evidence from a witness … that’s a disclosure, isn’t it” raises the possibility that his Honour thought the relevant evidence had been given in chief. [99] Had that occurred it could be said that, at least, usually, the party had knowingly and voluntarily disclosed the material. However, that was not the position.

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[100] Whether the Judge did approach the matter in this way or not, his judgment does not establish the necessary foundation for loss of the privilege he had originally upheld. [101] It remains to consider whether the evidence, considered afresh, provides such a foundation. [102] Mr King contended that the failure of Mr Wilson to object to the two questions upon which Mifsud relies [53] amounts to a waiver of privilege such that it should be held that the appellants knowingly and voluntarily disclosed the material of which Mr Kent spoke. [103] I do not agree.



DPP (Cth) v Galloway (a Pseudonym) [14.100] DPP (Cth) v Galloway (a Pseudonym) [2014] VSCA 272 Facts [This was a stated case in respect of s 123.] Judgment (some footnotes omitted) MAXWELL P, NEAVE JA and COGHLAN JA: [1] Legal professional privilege (LPP) is an important common law right or, perhaps more accurately, an important common law immunity [Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543, 553 [11] (Daniels)]. It is the right of a person to seek legal advice knowing that what is disclosed in the course of receiving advice will always remain confidential as between client and legal adviser [Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121, 163 (Carter). There are exceptions to this principle: for example, privilege does not apply if the communication to the lawyer was made in the furtherance of a crime or fraud; see now s 125 of the Evidence Act 2008, s 125].

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DPP (Cth) v Galloway (a Pseudonym) cont� [2] A right or immunity of this kind is presumed not to have been taken away or limited by a legislative provision unless the Parliament’s intention to do so is expressed with unambiguous clarity. That is the principle of statutory construction sometimes referred to as the principle of legality …. [3] The case stated before the Court raises a question of precisely that kind. When the Victorian Parliament enacted s 123 of the Evidence Act 2008 (the Act), did it intend to abrogate LPP in criminal proceedings to such an extent that a prosecution witness would be precluded from objecting on that ground to answering a question in cross-examination? [4] The cross-examination which has given rise to the case stated is taking place not at a trial but at a preliminary hearing, in which the four accused (the respondents in this proceeding) have applied for a permanent stay of the charges against them. The applicant, the Commonwealth Director of Public Prosecutions (the CDPP), has brought the prosecution. One of the solicitors for the CDPP was asked in cross-examination to disclose the content of legal advice given by the CDPP to the Australian Federal Police (AFP).

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[5] The trial judge ruled that the solicitor must answer the question, on the basis that s 123 of the Act had removed the right to object on the grounds of LPP. Although it is only a preliminary hearing, this construction of s 123 – if correct – would apply equally at the trial of the proceeding, and in any criminal proceeding. [6] The common law recognised an exception to LPP in favour of an accused who had come into possession – even by unlawful means – of a document or information to which LPP would otherwise attach. In those circumstances, the accused person could introduce the privileged information into evidence [Baker v Campbell (1983) 153 CLR 52, 67 (Baker); Carter (1995) 183 CLR 121, 151]. The present case is not of that kind, however. Those representing the accused are not in possession of the legal advice sought, and do not know its contents. If the argument which they advance is correct, then the enactment of s 123 effected a very substantial abrogation of LPP, going far beyond the limits of the common law exception. [7] For reasons which follow, we have concluded that the Victorian Parliament intended no such abrogation of the privilege when it enacted s 123. We should acknowledge immediately that the arguments in support of this conclusion were put with much greater force and clarity in this Court than in the hearing before the judge. The argument on behalf of the CDPP before her Honour focused rather more heavily on the applicability of s 131A – which, as her Honour found, did not apply – than on the inapplicability of s 123. Moreover, unlike her Honour, this Court had the substantial assistance of separate submissions from counsel for the Commissioner of the AFP (the Commissioner). [8] In our view, s 123 of the Act was intended to do no more than create a statutory exception (from the privilege created by ss 118 and 119) corresponding to the exception recognised by the common law. Without s 123, the holder of the privilege would have been entitled under ss 118 and 119 to object to the accused adducing evidence of a privileged communication already in his/her possession. [9] Plainly enough, if defence counsel could investigate without restriction the contents of any relevant privileged communication of which any prosecution witness had knowledge, LPP in the context of criminal proceedings would be virtually destroyed. As already mentioned, the Court would not conclude that such a step had been taken unless the legislature had declared in the clearest terms its intention to do so. The legislative record contains no such indication. As will appear, the only express reference to LPP is to the opposite effect. [10] The questions in the stated case should be answered accordingly. … [32] The Act does not contain a definition of the phrase “adducing evidence”. Although Ch 2 comprises 43 sections dealing with the various ways in which evidence may come before a court, the phrase “adducing evidence” itself appears only infrequently [see ss 43, 46-50, 52]. Unsurprisingly,

Part 3 — Admissibility of Evidence

DPP (Cth) v Galloway (a Pseudonym) cont� the individual provisions in Ch 2 use language appropriate to the particular forms in which evidence is adduced. Thus they speak of: • a person giving evidence: ss 12-21, 29-34, 36-39 and 46; • the questioning of witnesses: ss 26, 27, 29, 31 and 37; • the stages in the giving of oral evidence – examination in chief, cross-examination and reexamination: ss 26, 28, 37-42; and • the tendering of documents: s 48. [33] The phrase “adducing evidence” therefore has no fixed meaning in the Act. As its repeated use in the “Outline” of Ch 2 makes clear, it is an umbrella term, used to cover a variety of means by which, and forms in which, evidence may come before a court. Depending on the context, the phrase “adducing evidence” when used in a particular provision may encompass all, or some, or only one of the ways in which the Act permits evidence to be adduced. …

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[35] Section 131A itself highlights the variable scope of the phrase as used in this Act. As noted earlier, s 131A(1) obliges the Court to determine an LPP objection – for example, to the production of documents on subpoena – “as if the objection ... were an objection to the giving or adducing of evidence”. In this particular context, it seems, the legislature viewed the “giving” and the “adducing” of evidence as different things. In Ch 2, by contrast, the latter includes the former. [36] It follows that the (rebuttable) interpretive presumption – that a word used more than once in a statute has the same meaning wherever it appears – has no application to this phrase in this Act. The intended meaning of “adducing evidence” in any particular provision falls to be determined by reference to the purpose of that provision and its context. (Even where the presumption applies, it readily gives way where context indicates that a different meaning was intended.) [DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, 2011) 121 [4.7]]. [37] It is highly relevant, therefore, that ss 118 and 119 serve a quite different purpose from that of s 123. The former sections were enacted to give statutory force and protection to LPP, a “fundamental and general principle of the common law” [Baker (1983) 153 CLR 52, 117]. The sections protect the two recognised forms of LPP – advice privilege and litigation privilege. That being so, and in the absence of any indication to the contrary, Parliament is to be taken to have intended the broadest scope for the phrase “adducing evidence” in ss 118 and 119, in order to provide LPP protection for evidence in whatever form it is brought before a court. [38] Quite different considerations apply to provisions – like s 123 – which remove the privilege. For obvious reasons, the consideration which favours a broad reading of the phrase “adducing evidence” in ss 118 and 119 – that it preserves a fundamental common law right – does not apply in relation to a provision which abrogates that right. Applying the principle of legality, the contrary must be true. That is, a section which abrogates the right must be interpreted as having no broader scope than Parliament can be seen clearly to have intended. … [41] To give the phrase “adducing evidence” in s 123 the construction contended for by the respondents would likewise “virtually eliminate the legal professional privilege as a ground for non-admission of evidence” in criminal proceedings. It would mean, quite simply, that no prosecution witness could decline to answer a question in cross-examination on the ground that to do so would result in the disclosure of a privileged communication or the contents of a privileged document. [42] Plainly, that would represent a profound change in the way criminal trials are conducted. (If s 123 did indeed effect such a change when first enacted in 1995, it seems remarkable that defence counsel in trials have not until now exploited the forensic opportunity opened up by the change.) It is therefore necessary to consider the respondents’ second submission, to the effect that on its first enactment in 1995 s 123 reflected, rather than changing, the common law of Australia as it stood at

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DPP (Cth) v Galloway (a Pseudonym) cont� that time. Before doing so, however, we should point out that the existence of s 131A is itself a serious obstacle to the broader interpretation of s 123. [43] As can be seen from the text of s 131A set out earlier, its manifest purpose is to preserve LPP as a ground of objection when a person is required to produce documents or provide information under a coercive process of a court (disclosure requirement). Section 131A(2)(a) gives, as an example of a “disclosure requirement”, a subpoena to produce documents or to give evidence. Counsel for the respondents accepted, as they were bound to, that if the CDPP solicitor presently under crossexamination had been subpoenaed to produce copies of the relevant legal advices or to give evidence about their content, and had objected on the grounds of LPP, the judge would have been bound by s 131A to uphold the objection (absent any argument about waiver or illegality). [44] It follows that, if the respondents’ construction of s 123 were correct, a wholly anomalous position would have been created. Disclosure of legal advice in answer to a subpoena could be resisted on the grounds of LPP but disclosure of the content of the same advice, in answer to a question in cross-examination, could not. When it is appreciated that s 131A would also apply where a subpoena was made returnable at the trial of the proceeding, the anomaly becomes even more striking. [45] Section 131A was, of course, introduced into the Commonwealth and New South Wales Acts long after s 123 had been enacted. Counsel for the respondents could advance no reason in logic or policy why those legislatures would have introduced a provision which expressly preserved the privilege at the pre-trial stage of a criminal proceeding, if s 123 had already abrogated the privilege at the trial stage of the very same proceeding.

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[46] Such an inconsistent approach to LPP defies rational explanation. Parliament would hardly have legislated in such careful terms (in s 131A) to preserve a right to object on grounds of LPP in response to compulsory process if the same privilege, in respect of the same communication, would inevitably be lost once relevant witnesses were cross-examined. Did s 123 change the common law? [47] As noted earlier, the submission for the respondents was that, in effectively removing LPP as a ground of objection in criminal trials, s 123 was a codification of the common law of Australia as it stood in 1995. The decisions in Barton [1973] 1 WLR 115 and Ataou [1988] QB 798 were said to express the common law “principle” thus given expression in s 123. Both were decisions of English courts, however, and counsel were unable to identify any Australian authority which supported the proposition. The only reference to an Australian decision was to the dissenting judgment of Gibbs CJ in Baker [1988] QB 798. [48] This submission must be rejected. First, as will appear, the English authorities established no such broad “principle”. Secondly, and in any event, such modification of LPP as those decisions may have temporarily effected in English law (until they were both overruled by the House of Lords in 1995) [R v Derby Magistrates’ Court, Ex parte B [1995] UKHL 18; [1996] 1 AC 487, 508-9 (Derby)] was never part of the common law of Australia. (We should point out that no such submission was advanced before the trial judge. On the contrary, as noted further, counsel for the accused advanced the opposite contention, namely, that s 123 had reversed the common law position as declared in Carter (1995) 183 CLR 121.) … [66] It follows that, if s 123 as originally enacted in 1995 had been intended to operate as the respondents contend, it would have fundamentally altered the common law of Australia. There is, however, nothing in the language of s 123, or in the extrinsic materials of the time, to suggest that such a change was ever contemplated. As will appear, the 1985 interim report of the Australian Law Reform Commission (ALRC) had proposed an LPP exception based on Barton [1973] 1 WLR 115.80. But that report contained no analysis of the common law position in Australia, and said nothing to suggest that a substantial abrogation of the common law was contemplated, less still recommended.

Part 3 — Admissibility of Evidence

DPP (Cth) v Galloway (a Pseudonym) cont� [67] But even if the common law position had been otherwise as at 1995, by the time the Victorian Parliament passed the Act in 2008 the common law applicable in Victoria was as stated definitively by the High Court in Carter (1995) 183 CLR 121. That is, there was no “Barton” exception. LPP continued to be a proper ground of objection in criminal trials except in the limited circumstances referred to earlier, that is, where an accused was already in possession of privileged information. Counsel for the respondents accepted that this must be so. [68] It followed that, if the construction of s 123 advanced by the respondents were correct, the enactment of that provision in Victoria in 2008 abrogated existing common law rights. Counsel for the respondents were asked to explain why, if that were the correct construction of s 123, Parliament in 2008 had said nothing about the fact that such a major change was taking place nor about why such a change was thought to be necessary or justified. [69] The explanation, counsel submitted, was that although the enactment of s 123 had had the consequence of abrogating the common law as declared in Carter (1995) 183 CLR 121 that had not been Parliament’s intention. Rather, it was said, the driving purpose behind the 2008 Act had been to achieve uniformity in the law of evidence between Victoria and the Commonwealth and New South Wales. According to the submission, the abrogation of the privilege was simply the “passive consequence” of the drive for uniformity. Counsel was unable to say whether this was an intended or an unintended consequence, as there was “no evidence either way”.

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[70] This argument (which was not advanced before the trial judge) must also be rejected. It cannot seriously be supposed that the Victorian Parliament effected a wholesale abrogation of LPP in criminal proceedings without intending to do so or realising that it was doing so. Common law rights cannot be removed inadvertently or accidentally. As we have already pointed out, such a change in the law can only be effected by the clearest statutory language, expressing unambiguously the Parliament’s intention to make the change. [71] In any case, the Attorney-General’s Second Reading Speech in 2008 makes clear that the matter of LPP was not overlooked. Far from signalling any significant abrogation of LPP, the Minister stated simply that the “client-lawyer privilege is continued broadly along traditional lines”. The law reform materials [72] We have left until last any reference to the successive reports of the Australian Law Reform Commission (ALRC) on evidence law, including most relevantly the 2005 joint report with the Victorian Law Reform Commission (and the New South Wales Law Reform Commission) which preceded the enactment of the Act. As will be apparent from the foregoing, we have not found it necessary to refer to those materials in order to decide the question of construction. Moreover, as the judge at first instance noted, they are of very limited assistance. [73] The following summary is sufficient for present purposes: • in ALRC 26 (the 1985 interim report), the ALRC said that LPP should be lost where “it would result in the withholding of evidence relevant to the defence of an accused”. The decision in Barton was cited as supporting this proposition but – as mentioned earlier – the report did not address the common law position or evince any awareness of how significant a change in the law this would represent; • in ALRC 38 (the 1987 final report), the ALRC described the earlier proposal as “too wide” and recommended that it be limited “so that it operates only in respect of evidence adduced by a defendant in a criminal proceeding”. Once again, there was no discussion of the intended scope of this recommendation or of its implications (other than that it should not affect the privilege of a co-accused); • in ALRC 102 (the 2005 joint report), the Commissions were primarily concerned with the extension of LPP to pre-trial proceedings. This was the report that led to the enactment of s 131A. The joint view expressed by the Commissions was as follows: It is the clear position of the courts in Australia since Baker v Campbell that legal professional privilege is a fundamental right that applies to court, administrative and investigative

Privilege

CHAPTER 14

DPP (Cth) v Galloway (a Pseudonym) cont� proceedings. The Commissions’ view is that, in the interests of clarity and uniformity, the client legal privilege sections of the uniform Evidence Acts [ss 118 and 119] should be extended to apply to these pre-trial contexts [subpoenas, interrogatories, notices to produce and so on], as currently regulated by the common law rules of legal professional privilege.

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[74] The Commissions considered the implications of extending s 123 to pre-trial contexts, before recommending that there should be no such extension: The Commissions agree that it would be undesirable if the extension of the privilege sections of the uniform Evidence Acts to pre-trial proceedings had the effect of abrogating client legal privilege in relation to any legal advice given to the DPP. The policy foundation of client legal privilege – frank and complete communication between lawyer and client – applies equally to the DPP. Given the obligation on the prosecution to reveal all material evidence, significant court time could be spent in applications by the defence to gain access to advice that will have little bearing on the substantive issues in the case. Counsel or solicitors may also feel constrained in the provision of their advice for the DPP if such information could be made available later. The extension of s 123 to pre-trial contexts may also have an impact beyond the difficulties for prosecutors described above. It would effectively overturn the decision in Carter and remove the basis on which any person could claim the privilege in response to a subpoena to produce documents from an accused� This would go against the narrowing of the proposal in ALRC 38, which, as mentioned above, expressly sought to limit the section to evidence adduced by a defendant in a criminal proceeding. Whilst the first proposal would address the concerns raised by prosecutors, it leaves open the issue of the otherwise privileged material of other parties being open to access by the accused. The Commissions are concerned that there has not been adequate time to explore the full impact of such a change, and recommend keeping the original limitation on s 123 intended by the previous Evidence inquiry. Therefore if Recommendation 14–1 is adopted [to extend statutory LPP to pre-trial compulsory processes], s 123 should remain only applicable to the adducing of evidence at trial by an accused in a criminal proceeding� (emphasis added) [75] As can be seen from the highlighted passages, the Commissions considered that to extend the s 123 exception to pre-trial compulsory processes “would effectively overturn the decision in Carter”. That would mean, they said, that LPP would disappear entirely as a ground of objection to production of documents on subpoena. For that reason, the Commissions recommended there be no such extension. [76] These remarks appear to imply a very broad view of the scope of s 123. But, if that was indeed the view of the Commissions, it is nowhere made explicit in the report. Nor, relevantly, is there any suggestion in the report that the enactment of s 123 in Victoria would abrogate – in all criminal proceedings – the common law of LPP as stated in Carter (1995) 183 CLR 121. Nor did the report suggest that the enactment of s 131A (preserving LPP) would create any inconsistency with the exception to LPP created by s 123. … [85] When s 123 uses the phrase “adducing evidence”, it refers to – and only to – the adducing by an accused of evidence already in the accused’s possession or knowledge. The statement to that effect in The New Law of Evidence, on which the CDPP and the Commissioner both relied, is correct [J Anderson, N Williams, L Clegg, The New Law of Evidence – Annotation and Commentary on the Uniform Evidence Acts (2nd ed, LexisNexis Butterworths, 2008) 562-3 [123.2]]. [86] Section 123 preserved the recognised common law exception to LPP in criminal trials. Without s 123, ss 118 and 119 would have prevented an accused person from adducing evidence of privileged communications already in his/her possession. As Grove J held in R v Wilkie [2008] NSWCA 885 [4]: [T]he effect of the section is to enable an accused to use what would otherwise be privileged information if he has possession of it, but it does not in its own terms provide a vehicle for enforced production of such material.

Part 3 — Admissibility of Evidence

DPP (Cth) v Galloway (a Pseudonym) cont� [87] The intended operation of s 123 is, in our view, helpfully illustrated by the following example set out in the submission for the Commissioner (we have made one modification, as marked): To illustrate, a company director may be charged with a criminal offence in circumstances where that director, in the course of his or her duties, had come into possession of legal advice provided to the company. The director may wish to give evidence about that advice in order to explain his or her state of mind (because, for example, it may assist to meet an allegation of dishonesty or recklessness). In the absence of s 123, s 118 would allow the company (the client) to claim LPP, with the result that evidence of the advice could not be adduced, and therefore would be inadmissible pursuant to s 134. Properly construed, s 123 reverses that situation so that the advice is admissible. Critically, however, in a case where the director did not already have the advice, s 123 would have no work to do. If any attempt was made to require the company to produce the advice, s 131A would prevent any reliance on s 123. Further, if a witness was asked about the advice during cross-examination, the witness could claim LPP [under s 118] to avoid answering the question because LPP operates at the point of compulsion, rather than at the subsequent point of determining the admissibility of the answer. … [90] The questions in the case stated should be answered as follows: • Question 1 Is each of the accused’s applications to stay the current prosecutions (“the stay applications”) in a criminal proceeding within the meaning of s 123 of the Evidence Act 2008 (Vic) (the Act)? • Answer

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Yes. • Question 2 In the stay applications, in asking questions of the CDPP and AFP witnesses (“the witnesses”), the answer to which may disclose a confidential communication or the contents of a confidential document (within the meaning of ss 118 or 119 of the Act) (“privileged matters”), are the accused adducing evidence from the witnesses within the meaning of s 123 of the Act? • Answer No. …

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Kang v Kwan [14.110] Kang v Kwan [2001] NSWSC 698 Facts [There were several judgments in relation to this matter. Kang, a creditor of Kate and Elaine Woowin (the second and third defendants) sought to enforce a lien over the proceeds of a sale of a house in Castlecrag, having failed to lodge an appropriate caveat over the property. The bulk of the proceeds had been used to discharge a mortgage to Christopher Kwan who had loaned money to the vendors, the Woowins. Kang claimed that the entire transaction including the loan had been designed to defraud him. The judgment handed down in Kang v Kwan [2001] NSWSC 697 concerning client legal privilege was revised the following day after taking into account further facts and submissions.]

Privilege

CHAPTER 14

Kang v Kwan cont� Judgment SANTOW J: ... Section 125 of the Act – fraud or abuse of power [36] I turn now to the contention by the Plaintiff that client legal privilege has been lost by reason of the application of s 125. [His Honour set out s 125.] [37] The issues which are posed by s 125 in its application to the present case turn upon whether there are reasonable grounds for finding that a “fraud, offence or act, or the abuse of power” was committed and “a communication was made or document prepared in furtherance of commission of the fraud, offence or act or the abuse of power”. That in turn depends upon what is connoted by those terms. Before answering that question, I have set out below a series of principles and the authorities upon which they depend:

Principles in relation to s 125 of Evidence Act

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1. Section 118 of the Evidence Act will operate to bestow legal privilege to confidential communications between a lawyer and client if the dominant purpose of those communications is to acquire legal advice. This is so even if the client intends to use the legal advice obtained, in furtherance of a fraud or some other improper purpose: per Hodgson CJ in Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 222 at para [60]. However that privilege does not prevent the adducing of such evidence where the conditions in s 125 of the Evidence Act are made out. 2. However, s 118 will not operate where the improper purpose of the client is not to be pursued through the legal advice which is being sought. In those circumstances the claim for privilege fails at the threshold of s 118. Thus it fails where legal advice is not obtained for the utility of that advice in furtherance of the improper purpose but instead for the sake of appearance, as by cloaking an illegal step with the appearance that things are being done properly: per Hodgson CJ in Idoport Pty Limited (supra). 3. A person who alleges that legal professional privilege does not apply to a communication tenders an issue for decision and has the onus of proving it: per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 at 587. 4. At common law a party seeking to resist a claim for legal professional privilege, based on the communication being to facilitate crime or fraud, need show reasonable grounds for believing that the communication between solicitor and client was one made in furtherance of an illegal or improper purpose, including fraud: per Hill J in Zemanek v Commonwealth Bank of Australia & Ors (FCA, Hill J, 2 October 1997, unreported) at 5. That is the standard in s 125(2), namely that “there are reasonable grounds for finding the fraud, offence, or act, or the abuse of power was committed” and “a communication was made or document prepared in furtherance” thereof. 5. Thus where it is alleged that the communication falls outside the ambit of protection for legal professional privilege it is not sufficient for the party seeking to resist the claim for legal privilege merely to state or assert that the communication was made in furtherance of a fraud or other illegal purpose but must adduce admissible evidence: Commissioner of Australian Federal Police v Propend Finance Pty Limited (supra). 6. Although the standard of proof is not required to the level of proof on the balance of probabilities that the communication was made in the commission of a fraud or other

Part 3 — Admissibility of Evidence

Kang v Kwan cont� improper purpose, there must be “something to give colour to the charge”, some evidence at a prima facie level that has foundation in fact grounding such a claim: per McHugh J in Propend at 587; Hill J in Zemanek (supra) at 6. 7. Consistent with the reasoning in Propend, the standards for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to “give colour to the charge”, that is at a prima facie level. Thus if a person challenging privilege is clearly not in a position to lead very much evidence concerning purpose, as where the other party has exclusive access to that evidence, the Court may be satisfied with relatively less evidence. In contrast, much more evidence may be required where the party challenging improperly obtained access to that evidence; Watson v McLearnon [2000] NSWSC 19, Hodgson CJ in Eq, 1 February 2000.

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8. Nor must it be overlooked that the court, by s 133, may inspect the documents the subject of the claim for privilege, for the purpose of determining a question that arises under the relevant Part 3. Such questions include not only the question of the application of s 118 but also questions concerning whether the client legal privilege has been lost or whether the evidence may nonetheless be adduced as under s 125. 9. I would follow the view, though expressed as tentative, that “fraud”, as used in s 125, requires an element of dishonesty; per Hodgson CJ in Eq in Idoport para [63]. I would however use that term to include the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely “lack of probity; disposition to deceive, defraud or steal”. I would agree also that an “abuse of power” which is dishonest would be caught by s 125(1)(b) as is clear from the requirement that there be a “deliberate” abuse of power. It is difficult to imagine a deliberate abuse of power that does not involve some element of dishonesty but I leave open that possibility for future decision. 10. It follows that the use of the word “deliberate” in s 125(1)(b) requires that the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power: per Hodgson CJ in Idoport para [64]. 11. The range of instances of fraud are not limited to legal fraud in the narrow sense, but as is said in Cross on Evidence by JD Heydon (Butterworths, 1996) at 25,148: all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances, [Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 at 565; [1971] 3 All ER 1192 at 1200] for example an employee who schemes to take other employees and customers into a business competing with the employer’s after termination of the employment, [Barclays Bank plc v Eustice [1994] 4 All ER 511 at 521–2; [1995] 1 WLR 1238 at 1249 (CA)] or the effecting of transactions at an under value with the purpose of prejudicing a creditor's interests, [Barclays Bank plc v Eustice [1994] 4 All ER 511; [1995] 1 WLR 1238 (CA)] 12. A communication which is made in furtherance of an abuse of the processes of the Court is not of itself fraud, involving dishonesty or a deliberate abuse of a power in the sense used in s 125(1)(b). However, a dishonest communication to the Court, in furtherance of a purpose standing outside the (legitimate) scope of the relevant legal process so as to amount to an abuse of process, would invoke s 125(1)(b), as constituting a deliberate abuse of a power. This is because the bringing of (or defending) legal proceedings is the exercise of a power which is “conferred by or under an Australian law”, within the definition of power in s 125(3). See Williams v Spautz (1992) 174 CLR 509 and Flower & Hart v White Industries Qld Pty Limited (1999) 87 FCR 134 at 150.

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Kang v Kwan cont� [38] For the purpose of answering the questions earlier posed and in particular as to whether s 125 does apply, I have, pursuant to s 133, inspected the relevant documents. It is clear from an examination of those documents in so far as they constitute communications made or the contents of a document prepared by a client or lawyer that there are reasonable grounds for concluding that a substantial number of them are “in furtherance of the commission of a fraud” or involve “a deliberate abuse of a power”. This is clear by applying the principles earlier set out in the context of the present litigation and by reference to PX6 and the content of the documents themselves. Indeed inferences to that effect sufficient to establish reasonable grounds may fairly be drawn from those documents that are in the public domain, including the documents in respect of which privilege ceased to apply by reason of their ceasing to be confidential. … [40] I then conclude that there are reasonable grounds for finding that fraud in the sense of alienation of property with intent to defraud creditors did occur by reason of the disposition of the Castlecrag property and the associated mortgage, within the meaning of s 37A of the Conveyancing Act 1919, where fraud is used in a sense that connotes dishonesty. If anything, the circumstances are stronger than in Barclays Bank plc v Eustice [1995] 1 WLR 1238. There a client of the Bank effected transactions at an undervalue with the purpose of prejudicing a creditor’s interests. Schiemann LJ writing the leading judgment in the Court of Appeal characterised this as “sharp practice” or conduct which was “iniquitous”. He did so under the common law of legal professional privilege. However, the circumstances of that case may well constitute the kind of sharp practice as is dishonest and thus fraud within s 125.

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[41] Moreover, that case is authority for the proposition that neither client nor legal adviser need appreciate the fraudulent character of the transaction (at 1252 “public policy does not require the communications of those who misapprehend the law to be privileged in circumstances where no privilege attaches to those who correctly understand the situation”). [42] I would go further and say that the action of deliberately seeking to frustrate a judgment by dissipating assets so that they cannot practicably be reached is itself dishonest to the level where it constitutes fraud as that term is used in s 125. It is moreover a deliberate abuse of a power (to bring or defend legal proceedings). That that was the intention is an inference I am satisfied I have reasonable grounds to draw. … Overall conclusion [46] The documents the subject of the claim for privilege, with minor exceptions identified by pink tags, are not prevented by the relevant provisions of the Evidence Act from being adduced, since they fall within s 125 of the Act. I should emphasise, so as to leave no room for misunderstanding, that that finding and the anterior matters that I have determined are only determined at the prima facie level of there being reasonable grounds. They do not constitute binding findings of fact and may be controverted for the purposes of the substantive issues still to be determined. It remains therefore open to the first Defendant to adduce such evidence and make such submissions as are relevant to those substantive issues. [47] In those circumstances I probably do not need to consider whether client legal privilege was also lost, pursuant to s 122 of this Act. Were it necessary to do so, I would conclude: (a)

that no consent of the client or party concerned (the Woowins) was given within s 122(1), nor such as should be implied;

(b)

the disclosure to Mr Tassell of Verekers of the contents of the conveyancing file, being the solicitor conducting the present case for the First Defendant, even if with the express or implied consent of the Woowins (being aware that Verekers were so acting), did not result in the loss of privilege (under sub-s (2) or (4) of s 122) because still protected by the common interest provisions in s 122(5)(b), which have overriding effect.



Part 3 — Admissibility of Evidence

PROFESSIONAL CONFIDENTIAL RELATIONSHIP PRIVILEGE [14.120] Division 1A in the New South Wales Act only permits a court to direct that evidence

not be adduced in a proceeding if it would disclose certain protected confidences: for further reference, see s 126F.

Director-General, Dept of Community Services v D [14.130] Director-General, Dept of Community Services v D (2006) 66 NSWLR 582; [2006] NSWSC 827 Facts [In these contested adoption proceedings, the birth mother D maintained a claim for privilege in respect of documents produced to the court in response to a subpoena issued at the request of the Director-General to a Community Health Centre, to which the Director-General sought access. She opposed access being given to the notes produced by the Community Health Centre, on the grounds that they recorded communications made by her in confidence to a confidant acting in a professional capacity where there was either an express or an implied obligation not to disclose the contents of those communications, so as to attract “protected confidence privilege” under s 126B.] Judgment BRERETON J:

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... [17] At the outset, it is to be observed that s 126B is concerned with the adducing of evidence in a proceeding, and not with the granting of access to documents produced on subpoena. However, as it would defeat the purpose of s 126B to grant access to documents which record a protected confidence, I accept that the provisions of s 126B are relevant to the exercise of the court’s discretion whether or not to grant access to documents produced on subpoena. It would generally be inappropriate to grant access to the documents in question, if the court were likely to make a s 126B direction at the hearing. [18] In an affidavit read in support of the claim for protected confidence privilege, D’s solicitor deposes: The whole of the notes produced by … Community Health Centre record communications made by client in confidence to a confidant acting in a professional capacity where there was either an express or an implied obligation not to disclose the contents of those communications. The first defendant has provided reports from the treating psychiatrists and has submitted to examination by a single expert appointed by the court. It is submitted that the likelihood of harm being caused by the disclosure of the protected confidences of my client would outweigh the desirability of the evidence in the proceedings. It is submitted that there is available better evidence of my client’s state of mental health than her confidences with her Community Health Centre contact. [19] The parties accepted that for the purpose of ruling on this issue I was entitled to examine the documents produced, and I have done so. They record, in part, statements made by D. They also include records of the observations of medical practitioners, observations made by social workers, reports of Dr Harris of 19 April 2005, 23 August 2005 and 12 April 2006, and instructions to Dr Harris in connection with his reports. I am prepared to accept that communications made by D to medical practitioners, social workers and other health professionals at the Community Health Centre were “protected confidences”, within the definition of that term in s 126A. However, notwithstanding D’s solicitor’s affidavit, such protected confidences comprise only a part, and not the whole, of the material produced by the Community Health Centre.

Privilege

CHAPTER 14

Director-General, Dept of Community Services v D cont� [20] On behalf of D, there has been served and filed in the proceedings an affidavit, which it is proposed to read at the hearing, of Dr Harris, who saw her at the Community Health Centre, and who expresses an opinion as to her condition. His affidavit annexes his report of 12 April 2006, in which Dr Harris wrote: In response to your letter of 3rd April 2005 for a further report regarding [D] I have made the following report. In making this report I have had access to her notes detailing her care at the … community health centre by myself and her case managers. (emphasis added) [21] The reference to “a further report” directs attention to his report of 23 August 2005, in which Dr Harris states:

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I am making this report in regards to [D] on the basis of my clinical knowledge of her as her treating psychiatrist since December 2004, discussions with hospital social workers and staff active in her care prior to that time, the medical records from … community health centre and notes therein of [D’s] case manager, … and myself. (emphasis added) [22] One of the issues in the proceedings involves D’s mental health [see issue 4, first bullet point, in [5] above]. The material produced by the Community Health Centre has prima facie relevance to that issue. D has deployed the material contained in the notes forensically, albeit indirectly, through tendering the evidence of Dr Harris, which at least in part relies on the contents of the notes. At stake in these proceedings is the welfare of a child, and the importance of the court having relevant evidence bearing on that matter outweighs the interest of a party in a protected confidence. While there is other evidence available as to D’s mental health, it is secondary evidence, at least some of which uses the subject notes as a source. In those circumstances it would be unsatisfactory and unjust if the notes themselves were not to be available, so that opinions based on them could be scrutinised. There is no evidence that adducing evidence of the protected confidence would cause any harm. As such evidence of D’s condition is to be adduced indirectly through Dr Harris in any event, I am unpersuaded that adducing evidence of such protected confidences as are contained in the notes would have any relevant consequence, beyond those that would be occasioned by the adducing of Dr Harris’s evidence. As Mr Moore has pointed out, it is unnecessary to resort to s 126E for ancillary orders to limit the harm or extent of harm likely to be caused if evidence of the protected confidence is disclosed, since the hearing is required to be in camera [Adoption Act, s 119], access to court records is limited [s 143], and the publication of the name of any party or child or any matter reasonably likely to enable them to be identified is a punishable offence [Adoption Act, s 180]. [23] Before s 126B, the confidentiality of a document, in the absence of legal professional privilege, was no objection to its production or admissibility. Section 126B does not create a “privilege”, properly so called, but confers on the court a discretion by which it may direct that evidence of a confidential communication not be adduced, which is to be exercised having regard to the various relevant factors, including those listed in s 126B(4). The mere fact of confidentiality gives rise to the discretion, but it is clear from the factors listed in s 126B that the mere fact of confidentiality does not create an entitlement to a favourable exercise of that discretion. [24] In this case, the only matter that weighs in favour of prohibiting adducing evidence of the protected confidences is the mere fact that they were confidential. There is nothing in the evidence so far available that would weigh against permitting evidence of them to be adduced notwithstanding their confidentiality, and significant factors that favour permitting their disclosure, of which the most significant are that, through the evidence of Dr Harris, D is herself making indirect forensic use of them; that proper scrutiny of Dr Harris’s evidence requires that the source material on which he relied be available; that there is no evidence that any harm will be occasioned by their disclosure; that the confidential nature of the proceedings will in any event minimise their dissemination; and, above all, that these proceedings concern the welfare of a child.

Part 3 — Admissibility of Evidence

Director-General, Dept of Community Services v D cont� [25] On the material presently available I would therefore refuse to make a direction under s 126B, and for the same reasons I would not withhold access to the Community Health Centre records in so far as they contain protected confidences.



JOURNALIST PRIVILEGE [14.140] The terms “journalist”, “informant” and “news medium” are defined in s 126J of

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the NSW Act. Section 126K (and s 126H of the Commonwealth Act) provides that a journalist (and the journalist’s employer) cannot be compelled by a court to disclose the informant’s identity if the journalist “promised” the informant “not to disclose the informant’s identity”. The privilege to resist being compelled to disclose the identity of an informant is owned by the journalist and their employer, not the informant. Section 126K applies to the adducing of oral evidence from the journalist or employer, to the answering of pre-trial questions (such as responses to interrogatories) and to the production of a document either pre-trial or during a trial. The privilege in s 126K(1) may not apply if a court decides that it is in the public interest for disclosure of the identity of the source: s 126K(2). The court could make an order for disclosure if the following requirements are satisfied: (a)

an application is made by a party for an order for disclosure;

(b)

there is a public interest in the disclosure of evidence of the identity of the informant; and

(c)

“having regard to the issues to be determined in that proceeding”, that public interest “outweighs” the matters referred to in s 126K(2)(a) and s 126K(2)(b).

An order for disclosure means that the court orders that s 126K(1) is not to apply and the consequence of such an order is that the journalist or employer can be compelled to answer any question or produce any document that would disclose the identity of the informant or enable that person’s identity to be ascertained. In Madafferi v The Age [2015] VSC 687; 50 VR 492 [39]-[55] John Dixon J made some general observations about the operation of the privilege: [39] First, Div 1C of the Evidence Act replaces the common law’s uncertainty with journalist’s prima facie entitlement to assert privilege. Journalist’s privilege is no longer a rule of practice. It is now a statutory privilege. The Act alters the emphasis in the balance that the common law had achieved in favour of protection of confidential sources. In Ashby v Commonwealth of Australia (No 2), Rares J described the amendments to the Evidence Act (Cth) as having “created a statutory right of journalists, as defined in s 126G, to assert privilege from disclosure of their sources which has greater force than the common law rule of practice known as the newspaper rule”. Rares J referred to the general purpose underlying the provisions as the importance of the free flow of information in a democratic society. [40] Secondly, and importantly, the newspaper rule only applied in interlocutory proceedings. In Cojuangco, the newspaper’s counsel (AM Gleeson QC) contended in argument that the newspaper rule merely brings about a postponement of the disclosure of sources that will be compelled at trial when a newspaper runs a qualified privilege defence under

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s 22 of the Defamation Act 1974 (NSW). This contention was implicitly accepted by the High Court in its reasons. Prior to the enactment of Div 1C, the practice was, when the identity of sources was relevant, to generally permit the plaintiff to seek disclosure during evidence if the journalist gave evidence. Division 1C brings about a change in that practice. Now neither the journalist nor his employer is compellable to answer that question at trial and may object to do so by asserting the privilege under s 126K(1). When the journalist does not give evidence or the privilege is successfully claimed at trial, issues may arise about whether that claim of privilege provides a sufficient basis to exclude Jones v Dunkel reasoning because a party or witness has failed to give evidence that, on the question of reasonableness of publication, it could be expected to give. I  will later return to this question. [41] Thirdly, the circumstances in which the court’s power to override the privilege is to be exercised are defined. Section 126K(2) identifies factors to be taken into account in undertaking the balancing exercise. The presumption against compellability for disclosure is only displaced on the application of a party. Thus, the plaintiff carries the primary onus. The use of the word “likely” suggests the standard to be met in establishing adverse effect. However, I do not think that the plaintiff carries the onus of proof on all issues raised for consideration by the section and I will return later to the issue of onus and standard. …

When will journalist’s privilege not apply

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[44] On the basis of the analysis that follows, the proper approach to considering whether to require disclosure of the identity of sources is: (a) First, to identify the issues in the proceeding that determine the context of the application; (b) Second, to identify the public interest in disclosure in the context of those issues that is advanced by the plaintiff; (c) Third, to assess the degree of significance, or weight, to be attributed to that public interest; (d) Fourth, to identify the likely adverse effect of an order for disclosure on the informant and others; (e) Fifth, to identify the public interest in a free and informed press and in investigative journalism; (f) Sixth, to assess the degree of significance, or weight, to be attributed to that public interest; (g) Seventh, to weigh up the competing considerations according to the significance, or weight, attributed to them to answer whether the public interest in disclosure outweighs the other interests. [45] The first task is to determine the issues in the proceeding that determine the context of the application, since the balancing exercise is undertaken “having regard to the issues to be determined in the proceeding” which includes the defences put forward, or to be taken, by the defendants. The public interest in disclosure must be identified by the plaintiff. That inquiry will usually involve prognostication about the impact of the privilege on the just determination of the plaintiff’s claim. That said, the public interest considerations that are put into the value judgment required of the court are not in their entirety referable to the issues in the proceeding. Plainly, some of those considerations are broad, extending well beyond the issues between the parties. [46] The question for the court is whether that public interest “outweighs” the other matters identified in the sub-section. In another context (propensity evidence), McHugh J observed, in Pfennig v The Queen that: The use of the term “outweigh” suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurable. They have no standard of comparison.

Part 3 — Admissibility of Evidence

[47] The balancing exercise created by s 126K(2) may be similarly described. The public interest in the disclosure of the informant goes to the fairness of the trial of the issues raised in the proceeding, the interests of justice. The issues of likely adverse effect and public interest in facts and opinions communicated by an informed media have nothing to do with the fairness of the trial process, but a great deal to do with the proper functioning of a free democratic society under the rule of law. The only sense in which one set of considerations can outweigh the other is by a value judgment, which requires the attribution of weight, or degree of significance, to the factors being considered, but not for a calculation. [48] To reject the notion that the confidentiality of journalist’s sources deserves absolute protection, the High Court in Cojuangco stated that:

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The role of the media in collecting and disseminating information to the public does not give rise to a public interest which can be allowed to prevail over the public interest of the litigant in securing a trial of his action on the basis of the relevant and admissible evidence. No doubt the free flow of information is a vital ingredient in the investigative journalism which is such an important feature of our society. Information is more readily supplied to journalists when they undertake to preserve confidentiality in relation to their sources of information. The High Court stated 20 years ago that the appropriate balance would not be struck where such a high value on a press freedom and on freedom of information was set so as to leave an individual without an effective remedy in respect of defamatory imputations published in the media. [49] This analysis brings into focus the concept of an effective remedy. To what degree will the conduct of a fair trial for the benefit of the plaintiff be impaired by maintaining confidentiality of sources? On the other hand, given the obvious public interest in investigative journalism, which the plaintiff accepts, in what degree will detrimental impact on that public interest or likely adverse consequences for the informant or any other person outweigh the conduct of a fair trial? [50] The onus and standard of proof on the parties when advocating for that value judgment to be exercised in their favour are identified by an analogy with the scales of justice. The plaintiff bears the onus to tip the balance of the scales to favour disclosure, which is the required standard. The plaintiff bears the evidentiary onus of placing proof of relevant considerations in one pan, while the defendants seeking to tip the balance in favour of confidentiality by reference to other considerations bear an evidentiary onus to place proof of those other considerations in the opposing pan. The court’s value judgment turns on assessing the weight, or degree of significance, of the opposing sets of considerations or values. That exercise may be affected by the extent to which the party that does not bear the evidentiary onus has sought to negate or minimise considerations put against its position. In respect of adverse effects from disclosure, which is a factual question, such consequences must be likely, in the sense of probably or apparently going to happen. … [55] To assist in this balancing exercise, the court has the power, pursuant to s 126K(3), to make an order subject to such terms and conditions as the court thinks fit. Appropriate terms and conditions may depend on the point in the proceeding when the issue arises, and may include pseudonym orders, closed court orders, and orders that restrict disclosure to certain persons and/or on the basis of particular undertakings given by those persons. In criminal cases, physical facilities in courtrooms, including screens and remote audiovisual transmission are also employed where a witness persuades the court that adverse effects from identification by, or confrontation with, an accused are likely.

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SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE [14.150] Division 1B in the New South Wales Act only provides that evidence found to be

privileged in a criminal proceeding under Pt 5, Div 2 of the Criminal Procedure Act 1986 (NSW) may not be adduced in a civil proceeding in which substantially the same acts are in issue: s 126H. Chapter 6, Pt 5 of the Criminal Procedure Act 1986 (NSW) creates a privilege in relation to certain protected confidences in sexual assault prosecutions. The Criminal Procedure Act 1986 was amended to overcome the decision of R v Young (1999) 46 NSWLR 681; 107 A Crim R 1, which held that s 126H of the Evidence Act 1995 did not apply to inspection of documents produced on subpoena. The majority found that there was no privilege in respect of rape counselling notes that would privilege the notes from production.

RELIGIOUS CONFESSIONS PRIVILEGE [14.160] Section 127 creates a privilege in respect of religious confessions. The Royal

Commission into Institutional Responses to Child Sexual Abuse has recommended that a proposed failure to report offence (failing to report to police in circumstances where they know, suspect, or should have suspected that an adult was sexually abusing or had sexually abused a child) should apply in relation to knowledge gained or suspicions that are or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.

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[14.170] Section 128 creates a privilege against self-incrimination. A witness can object in

civil and criminal proceedings against giving evidence on the ground that it may tend to prove that the witness has committed an offence or is liable to a civil penalty. However, s 187 provides that a corporation may not claim the privilege. The Full Federal Court in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 details the history of the section and the various cases that have been decided on the operation of the section.

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [14.180] Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 Facts [The trial judge had refused Mr MacDonald a s 128 certificate which he sought when giving evidencein-chief in civil penalty proceedings brought against him under the Fair Work Act 2009 (Cth).] Judgment Bromwich J (with whom Tracey and Kenny JJ agreed) [3] This is an application for leave to appeal and, if leave is granted, an appeal by the Construction, Forestry, Mining and Energy Union (CFMEU) and Mr Drew MacDonald, an official of the CFMEU, from orders made by a judge of this Court. His Honour refused an application made on behalf of Mr MacDonald for a certificate under s 128 of the Evidence Act 1995 (Cth) (s 128 certificate). That application was made in the course of Mr MacDonald giving evidence-in-chief in defence of civil penalty

Part 3 — Admissibility of Evidence

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� proceedings brought against him, the CFMEU and another respondent by the Australian Building and Construction Commissioner under s 546 of the Fair Work Act 2009 (Cth) (FW Act). Those proceedings have since been stayed pending the outcome of the application for leave to appeal and the determination of the appeal if leave is granted. As leave to appeal should be granted for the reasons outlined below, it will be convenient to refer to the CFMEU and Mr MacDonald collectively as the appellants. [4] The application for a s 128 certificate was made after Mr MacDonald indicated, in the course of being examined in chief by his counsel, that he was concerned about giving certain evidence because it might incriminate him. The key issue that has arisen is whether Mr MacDonald was a witness “objecting” to the giving of the proposed evidence, so as to engage s 128 of the Evidence Act. The primary judge answered that question in the negative. Critically, his Honour did not consider that Mr MacDonald was under any legal compulsion to give the evidence in respect of which he sought the s 128 certificate. On that basis, his Honour, with some degree of misgiving, decided the case by reference to a decision of the New South Wales Court of Appeal, Song v Ying [2010] NSWCA 237; 79 NSWLR 442, aided by obiter dicta of the High Court in Cornwell v The Queen [2007] HCA 12; 231 CLR 260. Overview of the case in which the issue arose [9] The underlying proceedings before the primary judge concern an application by the Commissioner for remedies in relation to alleged contraventions by Mr MacDonald and others of ss 340(1), 343(1), 346 and 348 of the FW Act. It is relevantly alleged that Mr MacDonald took unlawful action against a head contractor responsible for constructing a new Aldi supermarket at a site in Altona North, Victoria. In particular, Mr MacDonald is said to have blockaded the construction site on 5 and 8 December 2014 by parking his vehicle at the site entrance. It is alleged that his reason for doing so was the head contractor’s failure to have made an enterprise agreement with the CFMEU or, alternatively, that he had the intention of coercing the head contractor to make an enterprise agreement with the CFMEU. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

… [11] As was noted by the primary judge at [5], contravention of each of the relevant civil remedy provisions depends upon it being established that the alleged conduct was taken by Mr MacDonald for a particular reason or with a particular intent. When, as in this case, s 361(1)of the FW Act is engaged, such a proscribed motivation or intent is to be presumed, with the onus then cast on the respondent to prove that his or her conduct was not engaged in for that reason or with that intent. [12] By his further amended defence in the proceedings before the primary judge, Mr MacDonald admitted that he had blockaded the construction site on 5 and 8 December 2014. However, he denied that he had acted for the reasons or with the intent alleged by the Commissioner. It was in that context that he indicated, during examination in chief by his counsel, that he was concerned about giving certain evidence because it might “incriminate” him by tending to prove that he had contravened the FW Act on a basis other than the one pleaded against him. He sought a s 128 certificate in respect of that evidence. It was not in doubt that were the operation of s 128 triggered, there would be reasonable grounds for the “objection” made by Mr MacDonald and there would be no other impediment to the grant of the certificate he sought. [13] Mr MacDonald’s submissions in support of his application for a s 128 certificate were largely responsive to the New South Wales Court of Appeal’s reasoning in Song, in so far as it was found in that decision that, in the case of a party witness giving evidence in chief, s 128 requires consideration of “whether the witness was otherwise compellable to give the evidence objected to” (at [22]). Relevantly, Hodgson JA, writing for the Court of Appeal in Song, had also observed at [24] that “there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion” (emphasis added). [14] Mr MacDonald contended that his case represented one of the rare exceptions to the proposition in Song that the giving of evidence-in-chief by a party witness will not involve an element of compulsion. This was argued on the basis that he was essentially compelled to give evidence of his intent or the reasons for his impugned conduct by operation of the reverse onus provision in s 361(1).

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Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� The primary judge rejected this argument, doing so on the basis that the nature of the compellability asserted by Mr MacDonald had been rejected in Song. In that regard, it was observed by his Honour that Hodgson JA in Song had drawn a distinction between the compellability of a witness to answer questions at the instance of a party who had called the witness, or at the instance of a judge, and the motivation of a defendant to give evidence to avoid having a judgment entered against him or her. The latter was characterised as not amounting to relevant compellability. [15] The primary judge, despite expressing some reservations, could not conclude that Song was plainly wrong. Mr MacDonald’s application for a s 128 certificate was therefore refused. Section 128 of the Evidence Act 1995 (Cth) [16] Section 128 of the Evidence Act obliges the Court to give a witness a certificate under that provision if certain requirements are met. The substantive effect of such a certificate is that the evidence given by the witness in respect of which the certificate has been granted, and any evidence obtained as a direct or indirect consequence, may not be used against that person in any proceeding in an Australian court: s 128(7).

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[17] The provision is relevantly engaged if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence arising under Australian law or a law of a foreign country, or is liable to a civil penalty: s 128(1). If the section is engaged, the Court must determine whether or not there are reasonable grounds for the witness’s objection: s 128(2). If satisfied of those grounds, the Court must inform the witness that: (1)

they need not give evidence unless required; and

(2)

the Court will give the witness a certificate if the witness willingly gives the evidence, or if the witness gives the evidence after being required to do so by the Court.

[18] Because of the issues of interpretation involved, it is necessary to set out s 128 of the Evidence Act in full, noting that the current version differs in certain respects from the version in force when Song and a number of other cases were decided: … The history of s 128 [19] The certificate procedure in s 128 of the Evidence Act reflects a modification of what is referred to generally as the common law privilege against self-incrimination. That privilege entitles a person to refuse to answer any question, or produce any document, if the production would tend to incriminate that person: Sorby v Commonwealth (1983) 152 CLR 281 at 288. Section 128 also encompasses the distinct privilege against self-exposure to a civil or administrative penalty, also known as penalty privilege. Both aspects – privilege against self-incrimination and penalty privilege – will be considered as a single privilege for the purposes of these reasons, although there are some important differences which do not presently need to be explored. [20] As Crennan J observed in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [134]: In different contexts, legislatures have abrogated or modified the privilege against selfincrimination, and the closely related but not co-extensive right to silence, when public interest considerations have been elevated over, or balanced against, the interests of the individual so as to enable the true facts to be ascertained. [21] The House of Lords, now the Supreme Court of the United Kingdom, in addressing such a modification and balancing exercise in relation to the interrogation powers of the Serious Fraud Office, said in R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30 that the general immunity from being compelled, on pain of punishment, to answer questions the answers to which may incriminate a person, was to be regarded as one of a number of a group of disparate immunities falling under the

Part 3 — Admissibility of Evidence

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� general expression of the “right to silence”. When considering a statutory modification, it is necessary to look at the reasons behind the immunity in the first place, in order to understand better what the modification is seeking to achieve. [22] Properly understood, the privilege is to be understood as a negative right to resist compulsion. It reflects “the long-standing antipathy of the common law to compulsory interrogations about criminal conduct”: Lee at [1] per French CJ.

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[23] In considering the operation of s 128 as a modification of the privilege, it is useful to have regard to an Interim Report delivered by the Australian Law Reform Commission in 1985, ALRC 26 (ALRC Report), which preceded the enactment of the provision and addressed the issue of whether the common law privilege against self-incrimination should be abolished or instead modified. The ALRC recommended that the privilege be retained in modified form by way of the adoption of a certification procedure that was modelled, with some variations, on provisions operating in the Australian Capital Territory. The recommendation was summarised at xxxviii as follows: At common law, a witness can object to answering any question the answer to which may tend to incriminate him. This privilege has been subject to various modifications in different jurisdictions. In particular, in Western Australia, Tasmania and the Australian Capital Territory there is a certification procedure under which a judge may grant a certificate which either confers immunity from prosecution on the witness or renders any evidence that he may give inadmissible against him in any subsequent criminal proceeding. In recent years the issue has been raised as to whether the privilege should be abolished. This issue is considered in the report. The conclusion reached is that the privilege should be retained as a protection of the individual’s personal freedom. It is, however, recognised that the privilege can deprive the courts of information relevant to the proceedings and thus make the fact finding task more difficult. The Commission has formed the view that the proper solution in light of the competing interests is to retain the privilege in a modified form. A modified version of the certification procedure operating in the Australian Capital Territory is proposed. Under this proposal a witness may claim the privilege but if he is prepared to testify, the judge may issue a certificate which will prevent the evidence being admitted against him in subsequent legal proceedings. Unlike the ACT provision, the certificate will only be issued if the witness consents to the procedure. The decision will be for the witness, not for the judge. [24] The recommendation of the ALRC for a certification procedure was ultimately adopted by the enactment of s 128, save that a court was given the power to require the giving of evidence under certificate notwithstanding that a witness might not consent: see s 128(4). … [29] In support of its recommendation that the common law privilege should be retained, albeit in modified form, the ALRC considered that the following options were available: (1)

certification, with the evidence then given not being admissible in subsequent proceedings;

(2)

certification, with neither the evidence nor consequential evidence being admissible in subsequent proceedings (these days commonly referred to as a “use/derivative use” prohibition);

(3)

certification being a bar to prosecution – in effect, a statutory transactional indemnity – but with doubtful legislative capacity of the Commonwealth to bind the States; or

(4)

optional certification, by which the witness would be able to choose whether or not to be given the certificate and thus give evidence, with the certificate affording protection against use of the evidence in subsequent proceedings.

[30] Ultimately, the optional certification model referred to at (4) of the preceding paragraph was recommended by the ALRC. That was the only model that would have left the final question of whether evidence should be given under certificate in the hands of the witness. It will be apparent, however, that the model that was implemented by the legislature was the second model outlined earlier. That

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Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� option provided for evidence to be compelled by a judicial officer if so ordered under s 128(4), but with protection from “use/derivative use” in subsequent proceedings by virtue of s 128(7). … [33] That recommendation was for the complete retention of protection against any compulsion to give evidence, with the alternative certification process being optional to the witness and conditioned on their consent. There is nothing in the ALRC Report to suggest that there was perceived to be a problem with party witnesses having to make a choice about whether or not to give evidence-in-chief that might tend to incriminate them by way of use in a later investigation, prosecution or civil penalty proceeding, in return for obtaining the benefit of such evidence. When in fact compelled to answer questions under cross-examination, a party witness would have the same protections under s 128 as any other witness who might seek to refuse to answer questions on the ground that it may tend to incriminate him or her.

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[34] It is clear from the foregoing that the ALRC’s focus was on balancing the individual’s right or interest in not being compelled to give evidence that may tend to incriminate or expose him or her to penalty, and the public interest in having such evidence available to a court. In this regard, the report considered, in the form of different options canvassed, how best to compensate for the loss of the right to remain silent, and whether there should be retained any choice in the hands of the witness. At the centre of the ALRC’s proposal was the question of the Court’s power to compel the giving of evidence. There is nothing to indicate that the ALRC was considering whether the choices available to a party witness to control the evidence that he or she elected to give in an affidavit or in oral evidencein-chief should be changed in any way. [35] What was lost in the statutory bargain that was ultimately legislated for by the enactment of s 128 was, in the confined circumstances in which that provision applied, the right to remain silent. The introduction of a means of compelling the giving of evidence that would otherwise be covered by the privilege was to be compensated for by protection from the use of that evidence in subsequent proceedings. The putative witness was, at least in a formal sense, worse off, but only to the extent that his or her evidence, which would otherwise be protected by the certificate, might be both known publicly and used in some way in the proceedings in which the evidence was given. To that extent, the privilege was wound back in a protected way, trading a private right or interest for a public interest. It was not a gain for the witness but, rather, a compensated loss. [36] By contrast, to extend that statutory bargain to a party witness in the absence of compulsion would be to bestow a gain on an individual to advance his or her private interest in litigation, protected from the adverse consequences that might otherwise arise from use of that evidence. Such an outcome would be divorced from the clear historical roots of the privilege as an immunity from compulsion that is closely related to the right to silence, as opposed to a positive right to advance a forensic desire. Even if there is any public interest to be had from such an outcome, it would be incidental and secondary to the private interest. That was not any part of the reasoning of the ALRC in recommending a limited modification of the privilege as an alternative to its complete abolition. Relevant case law on the meaning of “objects” in s 128 [37] As foreshadowed earlier, the proper construction of the expression “objects” in s 128 falls to be determined in the context of three key authorities, being Ferrall v Blyton [2000] FamCA 1442; 27 Fam LR 178; Cornwell v The Queen [2007] HCA 12; 231 CLR 260; and Song v Ying [2010] NSWCA 237; 79 NSWLR 442. Each is considered in turn below. Ferrall v Blyton [38] In Ferrall, the Full Court of the Family Court of Australia dismissed an appeal by third parties from an order granting a s 128 certificate to a party witness in proceedings between a former husband and wife relating to property and spousal maintenance. Although the Full Court of the Family Court arrived at the construction of s 128 urged in this case, no express reliance is placed by the appellants on the reasoning for that outcome. The decision should nonetheless be examined as part of the relevant case law, and to the extent that it may be inconsistent with and was criticised in Song.

Part 3 — Admissibility of Evidence

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� [39] The background to the proceedings that gave rise to the appeal in Ferrall is of some importance in understanding the result. The former husband had entered into a scheme designed to place his assets beyond the reach of any Family Court order in favour of his former wife, by placing those assets beyond his ownership and control. This was achieved by a complex series of share transactions based on the premise that the Family Court did not have power to overturn share issues. The underlying assets, held by a series of private companies, were substantial. As part of the scheme, the husband gave false evidence to the Family Court denying the evidence of his former wife as to their interests in the relevant assets. [40] Before the proceedings with the wife had been resolved, the third parties involved in implementing the scheme indicated that they wanted to retain the husband’s interests and took steps to sell his assets. In circumstances of some urgency, the husband sought to give evidence to the Family Court of his true position, and thereby effectively sought to confess to perjury, under the protection of a s 128 certificate. His proposed evidence was to be adduced for the immediate purpose of an application for interlocutory ex parte injunctions restraining the third parties from disposing of the relevant assets. That course of action doubtless reflected the former husband’s acceptance of the expedience in securing the return of his assets, notwithstanding that he would be required to pay the proper share to his former wife.

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[41] In dealing with the question of whether or not to grant the s 128 certificate, the primary judge was faced with a dilemma. If the certificate was not granted to the husband, there was a risk, however slight, that the husband would not have given the evidence that was necessary to enable the scheme to be undone. His Honour concluded that if the relief sought was not granted, “it could cause significant, and in my opinion, grave injustice to the wife”: Ferrall at [25]. [42] In the Full Court of the Family Court, the third-party applicants – who had executed the scheme for the husband – challenged the grant of the s 128 certificate and the grant of injunctions. The opposing parties were aligned according to financial interest. The former husband and wife, separately represented, were the respondents to the appeal, having a shared interest in the grant of the injunctions being upheld. The Attorney-General for the Commonwealth of Australia intervened. [43] The competing arguments before the Full Court of the Family Court on the availability of a s 128 certificate for a party witness in chief may be summarised as follows: (1)

Senior counsel for the third-party applicants contended that the question of whether a certificate should be granted only arose when the witness “objects” to giving evidence, relying on the use of “objects” in s 128(1) and on the phrase “overruling the objection” in s 128(4). Because the husband sought to give the evidence, he was not objecting to doing so and, as a consequence, the terms of s 128 were not satisfied: see Ferrall at [83].

(2)

Senior counsel for the husband, also apparently speaking for the wife, contended that there was nothing to suggest that s 128 was intended to operate only in relation to cross-examination, and that it clearly extended to evidence-in-chief as well evidence which a witness would otherwise wish to give but for being self-incriminatory. It was submitted that all that was intended by the reference to “objects” and “objection” in s 128 was to cover the situation of witnesses giving evidence both in chief and in cross-examination. It was pointed out that the offer of a certificate did not compel a witness to give evidence, but if evidence was given, the court had to give a certificate. This was said to be inconsistent with the proposition that s 128 is only concerned with a witness who objects to giving the evidence at all and wholly consistent with application to the circumstance of a witness who wishes to give evidence subject to being given a certificate: see Ferrall at [85].

[44] Senior counsel for the husband also referred to In the Marriage of Atkinson (1997) 21 Fam LR 279, a prior decision of the Full Court of the Family Court. However, Atkinson does not engage with the arguments raised in Ferrall, and appears to proceed without considering the true meaning and scope of s 128. Accordingly, Atkinson does not warrant further consideration.

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Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� [45] The Full Court of the Family Court in Ferrall disposed of the points raised in relation to s 128 in three short paragraphs, which were as follows:

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[88] The trial judge considered that it was a matter of discretion whether he granted the certificate and/or whether he adopted the practice outlined by Young J in HPM Industries Pty Ltd v Graham, above. He pointed out that the certificate in question was sought only in relation to the hearing he was conducting which was simply to make injunctions preserving a situation pending the determination of other proceedings and not in relation to any other proceeding. [89] We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine. [90] In the particular circumstances of the Family Court of Australia, evidence-in-chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence-in-chief, and had objected to doing so without the issue of such a certificate. [46] It may be seen that the conclusion reached earlier entails a measure of circular reasoning. “Objects” and “overruling the objection” were effectively assumed to have the meaning that would be required for s 128 to apply to a party witness’s evidence-in-chief. No consideration was given to either the common law position that s 128 operated to modify, or to the reasons for modifying that position. As was later observed by the New South Wales Court of Appeal in Song, the Court in Ferrall had no regard to the absence of compellability of a party witness called in their own case. The conclusion reached in Ferrall begs the question of the meaning of “objects”; it does not properly answer it. [47] The reasons in Ferrall for not wanting to disturb the grant of the s 128 certificate to the husband were clear in the circumstances. It seems that, for entirely understandable reasons, a sense of justice and pragmatism prevailed. However, the absence of any proper reasoning means that decision does not afford any true support for the construction adopted. As the following analysis seeks to demonstrate, Ferrall appears to be an exemplar of the old saying that bad cases make bad law. When consideration is given to the analysis of the ALRC Report above and to the authority below, the conclusion reached in Ferrall cannot be accepted as being correct. Cornwell v The Queen [48] As part of the determination of a Crown appeal, the High Court in Cornwell v The Queen [2007] HCA 12; 231 CLR 260 collaterally considered whether there had been a proper grant of a s 128 certificate to the appellant, Mr Cornwell. He had been put on trial twice on indictment for conspiracy to import cocaine. Obiter dicta observations were made on the question of whether s 128 is engaged if a party witness objects to questions posed in examination in chief. The facts of the case were as follows. [49] In his first trial in the Supreme Court of New South Wales, Mr Cornwell had been called to give evidence in his defence case. After giving certain evidence in response to questions asked of him by his counsel, he said that he did not want to answer a particular question on the ground that it might incriminate him. The first trial judge indicated that he would require Mr Cornwell to give the evidence, but would, over a Crown objection, grant a s 128 certificate subject to a draft certificate being furnished by his legal representatives. That draft was not forthcoming, and the certificate did not issue in that trial. Mr Cornwell gave evidence as “required” following the indication given by the first trial judge, although the High Court described it as an exaggeration to propose that the evidence was given on the faith of that indication. Ultimately, the first jury were unable to agree on a verdict.

Part 3 — Admissibility of Evidence

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� [50] In the lead up to Mr Cornwell’s second trial, this time in the District Court of New South Wales, the Crown sought to tender Mr Cornwell’s evidence given at the first trial. The second trial judge ruled that any s 128 certificate issued by the Supreme Court would apply to those proceedings. Counsel for Mr Cornwell returned to the first trial judge and succeeded in obtaining the issue of a s 128 certificate to cover his evidence in the first trial. However, the second trial judge ruled that, contrary to the first trial judge’s ruling, the protection against use/derivative use under s 128(7) did not apply by reason of s 128(8) (now s 128(10)). Section 128(8) provided that s 128 did not apply to evidence given by an accused in criminal proceedings about doing an act or having a state of mind which was a fact in issue. Accordingly, Mr Cornwell’s evidence from the first trial was admitted into evidence over objection. He did not give evidence at the second trial, was found guilty, and was subsequently convicted and sentenced. [51] Mr Cornwell succeeded in an appeal to the New South Wales Court of Criminal Appeal (NSWCCA) upon the ground that the second trial judge erred in admitting the evidence that was referred to in the s 128 certificate. The Crown then appealed to the High Court by the grant of special leave, inter alia, on the issue of the s 128 certificate being granted. It is not necessary to canvas all the issues considered and determined by the High Court in deciding by majority (4:1) that the NSWCCA had erred in numerous respects. The High Court relied upon the legislative antecedent to s 128(8) in the United Kingdom and the ALRC Report to find that s 128 could not have applied to Mr Cornwell’s evidence by virtue of s 128(8) (now s 128(10)). It followed that there was no power to “require” Mr Cornwell to give evidence under s 128(5) (now s 128(4)), nor any justification for causing him to be given a certificate under s 128(6) (now in somewhat different terms).

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[52] The High Court’s subsequent consideration of whether a s 128 certificate could issue for the evidence of a party witness in chief was therefore, unavoidably and expressly, obiter dicta. It was still, however, carefully considered dicta of the High Court, albeit not with the focus of this case, nor the focus of the New South Wales Court of Appeal in Song, which has been considered further. [53] The dicta of the High Court on the meaning to be given to “objects” in s 128(1) do not readily lend themselves to any useful summary. Those views were as follows (omitting footnotes): [111] This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief. [112] The view that the accused’s claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word “objects” in s 128(1). It also strains the word “require” in s 128(5) – for how can it be said that a defendant-witness is being “required” to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness’ desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be “asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged”, which implies that the protection of the accused’s position in chief or in re-examination was a matter between the witness’ counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only.

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Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� [113] The present point was not raised by the DPP either in the courts below or in this Court. It was raised by this Court in the course of oral argument, but was not embraced by counsel for the DPP. “Sometimes this Court will decide a question which has not been referred to or discussed by an intermediate court of appeal but that is not the course which should ordinarily be followed.” The present question could be of considerable importance in the day-to-day conduct of trials, since counsel for the accused submitted that in practice s 128 was often employed by prosecutors to elicit evidence in chief. It is not necessary finally to decide this issue, since the appeal is to be allowed on other grounds. And it is not desirable to do so in view of the absence of dispute between the parties on the question and the importance of the question. [54] The final passage above indicates that the views expressed by the High Court were intended to illuminate the issue and contribute to the debate, but not necessarily to be determinative in the absence of full and proper argument of the kind that this Court has had the benefit of.

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Song v Ying [55] In Song, the New South Wales Court of Appeal dismissed an appeal from a civil trial judge in equity, who had refused an application to grant a s 128 certificate to a plaintiff for the purposes of giving particular evidence-in-chief. Hodgson JA (with whom Giles and Basten JJA agreed), prior to considering Ferrall and Cornwell in some detail, observed at [20]: Plainly, in my opinion, if a witness gives evidence in chief because actually compelled to do so (by subpoena and threat of imprisonment), or because of the availability of such compulsion if he or she does not do so, there is no reason why that witness may not object to giving evidence in chief on the ground that that evidence may tend to incriminate. The question in my opinion is not whether the evidence is given in chief or in cross-examination, but rather whether an objection under s 128 is limited to an objection to giving evidence which the witness would otherwise be compellable to give. [56] At [22], Hodgson JA agreed with the reasoning in Ferrall to the effect that the availability of s 128 was not confined to questions in cross-examination. However, his Honour considered the reasons of the Full Court of the Family Court to be flawed because they did not “advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to”. That observation is undoubtedly correct and that criticism should be adopted. His Honour then quoted Cornwell from [106] to [113], made some further contextual comments and said the following: [24] It is true that in par [112] the High Court focused on the distinction between examination in chief and cross-examination; but that was in a context of evidence being given by a party to the case, namely the accused. When a witness is a party to the case, giving evidence in chief pursuant to questions asked by the witness’ own counsel, there would rarely, if ever, be a question that the evidence in chief is given under compulsion or because of liability to compulsion. I do not understand the High Court’s reasons to be authority for restricting s 128 to cross-examination. [25] In circumstances where there is conflict between a decision of the Full Court of the Family Court and dicta (albeit tentative dicta) of the High Court, I think it is appropriate for this Court simply to reach its own view, while paying regard to relevant persuasive authority. [26] In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party’s own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party’s evidence in chief is given entirely at the choice of that party and is not evidence that the party is

Part 3 — Admissibility of Evidence

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� compellable to give at the instance of anyone else. It is true that a party’s legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply. [27] In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party’s own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word “objects” in s 128(1) and makes sense of the word “require” in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability. [28] In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party’s own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, “objects” to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression “objects” apposite.

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[57] There is some additional support for the conclusions reached by Hodgson JA to be derived from the primary judge in Ying v Song [2009] NSWSC 1344. Ward J, as the Chief Judge in Equity then was, helpfully observed: [42] Under the common law, a person who, without objection, gave self-incriminating evidence was not protected from the use of that evidence in subsequent proceedings, whereas a person who, after objection, was wrongly compelled to give self-incriminating evidence was protected from the use of that evidence in subsequent proceedings. As noted by Gleeson CJ and Heydon J during argument in Cornwell, the construction for which the defendants contend in this case would effect a radical alteration of the common law in circumstances where such a change has been contemplated in none of the relevant law reform reports leading to the enactment and amendment of the uniform evidence laws … GLEESON CJ: You may be right about that, but if you are right it means, does it not, that this legislation had a very far-reaching purpose and made a very far-reaching change to the law. It conferred upon people a right to give evidence to their own advantage of criminal conduct in which they had engaged and immunised them against the consequences of that. MR GAME: Yes, it did that because it put all parties in the same positions as witnesses and the only stopgap was section 128(8). Yes, that is the effect of this legislation - - HEYDON J: There is not a word to that effect in the two Law Reform Commission reports. [43] The question is whether, properly construed (with regard, as appropriate, to underlying policy), s 128 permits a certificate to be issued in the present circumstances. [44] The construction apparently favoured by the majority in Cornwell is supported by the presence of the word “require” in s 128(4), as their Honours note at [112]. If s 128 bears the meaning for which Mr Lawson contends, and a defendant in Mr Song’s position may object to giving evidence in chief so as to fulfil s 128(1), then it must follow that, once the objection has been made, under s 128(4), the court may require the defendant to give evidence in chief. This would seem to mark a serious erosion of the right of the defendant in adversarial proceedings not to go into evidence or, at least, to determine the evidence which it wishes to adduce in chief. It seems unlikely that the legislature could have intended such a result. A construction of “objects” as referring to a circumstance where a witness protests against giving evidence in circumstances where, but for the privilege, they would be compelled to do so is also supported by the legislative progenitor of the present section,

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Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� the relevant history being referred to by the majority [at [62] quoting from halfway through that paragraph]. 58. The above reasoning in Song, both at first instance and on appeal, is complementary to the analysis of the ALRC Report above. It reinforces an understanding of s 128 as being directed to preserving a witness’s common law right to refuse compulsion to give evidence on the ground that it might be self-incriminatory, and providing compensation and protection to the witness for the circumstances in which that right to silence is to be overruled under the provision. … Consideration of the competing submissions [60] Given the persuasive weight of the legislative history and case law considered earlier, the appellants faced significant obstacles to success. In that regard, credit should be given to counsel for the appellants for her advocacy in advancing her clients’ position.

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[61] Counsel for the appellants relied upon textual and historical analysis to support the contention that Song was wrongly decided. It was submitted that, on its proper construction, the term “objects” in s 128 requires only a formal objection by a witness, without any requirement that the witness be compellable to give the evidence objected to. In support of this construction, it was submitted in writing that: (1)

by reason of its definition in cl 7 of Pt 2 of the Dictionary to the Evidence Act, the word “witness” in s 128 applies to all witnesses without distinction;

(2)

the syntax of s 128(1) requires that the word “objects” and the words “on the ground that” be read together as forming a compendious phrase, linking the objection to the purpose of the objection – so read, the phrase simply conveys that the witness has elected to invoke the privilege;

(3)

what is referred to in s 128 is an objection to giving particular evidence on a particular matter, rather than an objection to answering questions – the objection is the same whether the question arises viva voce in chief or in cross-examination, or in respect of affidavit evidence;

(4)

contextually, s 128 needs to be construed consistently with the operation of the common law, recalling that in civil proceedings, a party witness who objected remained silent and a court was thereby deprived of the evidence the witness could give;

(5)

the construction of s 128 urged by the appellants made consistent sense of the word “require”, referring to circumstances in which a party witness might not subjectively wish to give the evidence and gives an explanation for that decision, but the Court nonetheless compels the witness to do so;

(6)

the Court should favour a construction that best serves the purpose of the provision – in this regard, it was submitted that the paramount consideration is the Court’s interest in receiving the evidence of all witnesses, including those who subjectively do not wish to give the evidence-in-chief on the relevant grounds; such a construction was said to reflect the evolution of the law of evidence considered by the High Court in Cornwell;

(7)

the ALRC was concerned with maintaining a balance between the advantages and disadvantages of the privilege against self-incrimination as it had evolved at common law and in statute, with the focus shifting towards making more evidence available than was possible with the privilege remaining intact;

(8)

the rejection by the legislature of the ALRC’s optional certificate model meant that primacy was given to the interests of justice by enabling a court to require the witness to give the relevant evidence – those interests would not be advanced if the Court were to be deprived of evidence merely because the questions adducing that evidence were asked by the witness’s own representative;

Part 3 — Admissibility of Evidence

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner cont� (9)

regard should be had to changes made to s 128 following subsequent review by the ALRC and the dispensing with the distinction between the privilege against self-incrimination and penalty privilege;

(10)

the deliberation on enactment of the section did not distinguish, save as to what became the current s 128(10), between party witnesses and non-party witnesses; and

(11)

upholding Song would produce absurd results, such as a court being deprived of relevant evidence – it was suggested, by way of example, that Mr MacDonald could circumvent the restrictions on s 128 by being called by another party in the same interest, or by the Commissioner, by whom he was also compellable.

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[62] The abovementioned arguments are a valiant attempt to cast doubt on the meaning given to s 128 by Song. However, they cannot prevail against the reasoning in that case, both at first instance and on appeal, aided by the observations of the High Court in Cornwell. As observed in Cornwell, the construction advanced by the appellants strains the word “objects” in s 128(1). It is not to the point that s 128 would, in theory, be capable of applying to a witness who happens to be a party. An objection to giving evidence is, in history and context, directed to resisting compulsion, and is not merely a means of electing for the protection of a certificate to advance a forensic desire. This much is reflected in the ordinary meaning of “objects” as used in s 128(1). [63] As demonstrated by careful consideration of the ALRC Report, the certification procedure was not enacted simply as a way to maximise the available evidence to a court by narrowing the operation of the privilege against self-incrimination. Rather, it reflected a balance struck between the public interest in evidence being available to the Court, and the individual right to refuse to answer any question, or produce any document, if the production would tend to incriminate that person. To that end, the s 128 procedure offered a measure of protection for the circumstances in which the privilege was to be overridden by requiring a witness to give evidence that may tend to incriminate him or her. The need for compulsion as part of that equation is inescapable. [64] The submissions for the Commissioner essentially defended Song, relied upon Cornwell and refuted Ferrall. Those arguments were substantially correct and the Commissioner’s position is accepted. It is unnecessary to address separately the Commissioner’s notice of contention. [65] The argument that Song was wrongly decided cannot be sustained. To the contrary, that decision was plainly correct and should be followed. Accordingly, there was no error in the primary judge’s decision. Conclusion [66] The appeal must be dismissed. It was common ground that there should not be any orders as to costs.



PUBLIC INTEREST IMMUNITY Judicial decisions [14.190] Section 129 creates a privilege in relation to the reasons for decision of a judge or

similar person. Matters of state [14.200] Section 130 permits a court to direct that information or a document relating to matters of state not be adduced in evidence. Communications and documents are privileged

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on the basis that it is in the public interest of government for non-disclosure: for example, Cabinet minutes (New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60); police informers (Attorney-General v Kaddour & Turkmani [2001] NSWCCA 456). Under s 130, the court conducts a balancing exercise to determine if the documents and/or communications should be disclosed. The public interest in admitting the documents should be weighed against the public interest in preserving secrecy or confidentiality. The balancing exercise in s 130 reflects the common law position in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43. A court can apply s 130 on its own motion and can inform itself as it thinks fit. Examples of information where a public interest immunity claim could be made are: • information where its disclosure could prejudice the functioning of government, for example, cabinet documents:  see New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; • documents that reveal the identity of police informers, because otherwise such a source of information might disappear and make it more difficult to detect and prevent crime: Attorney-General v Kaddour & Turkmani [2001] NSWCCA 456; ACCC v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; • documents that contain confidential police methodology where disclosure could harm the property conduct of law enforcement: S v New South Wales (No 3) [2009] NSWCA 248 at [7];

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• information that could disclose the identity of police involved in search warrants: Derbas v The Queen (2012) 221 A Crim R 13; [2012] NSWCCA 14; • information that could harm national security, for example, documents held by ASIO: Alister v The Queen (1984) 154 CLR 404. This type of information is now covered by the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The purpose of the legislation is to prevent disclosure of information in both civil and criminal proceedings where “the disclosure would seriously interfere with the administration of justice” (s 3(1)). The Act provides the procedure to be adopted if a party knows or believes there will be a disclosure of information that relates to national security and the orders that can be made by a court.

Sankey v Whitlam [14.210] Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 Facts [On 20 November 1975, Sankey, a private citizen, laid informations against Whitlam (who had been dismissed from office as Prime Minister on 11 November) and three other former members of Cabinet. This was that they had attempted to cause a sum (approximately US$4 billion) to be illegally borrowed by the Commonwealth from overseas in contravention of the Financial Agreements, the Constitution Alterations (State Debts) Act 1928 (Cth), and the Financial Agreement Act 1944 (Cth). Sankey issued subpoenas on various government officers as well as Whitlam. These were resisted by the Commonwealth and to a greater extent by Whitlam on the basis of Crown privilege. These documents included various memoranda, a minute paper, and a group of documents known as the “Loan Council documents”. The documents were claimed to be privileged because their secrecy was

Part 3 — Admissibility of Evidence

Sankey v Whitlam cont� necessary for the proper functioning of government. In the case of one group of documents, it was also stated that it should be privileged because “all members of the Executive Council are required to take an oath or affirmation of secrecy”. This claim was largely upheld by the magistrate. Sankey appealed against this decision to the Supreme Court of New South Wales, but the case was removed to the High Court on application by the Attorney-General.] Judgment GIBBS ACJ (at 38): ... [37] The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] AC, at 940, as follows:

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There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document [at 39] should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer (1968) AC, at 940, “the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”. In such cases once the court has decided that “to order production of the document in evidence would put the interest of the state in jeopardy”, it must decline to order production. [38] An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. In the present case no suggestion has been made that the contents of any particular documents are such that their disclosure would harm the national interest. The claim is to withhold the documents because of the class to which they belong. Speaking generally, such a claim will be upheld only if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. However, it has been repeatedly asserted that there are certain documents which by their nature fall in a class which ought not to be disclosed no matter what the documents individually contain; in other words, that the law recognises that there is a class of documents which in the public interest should be immune from disclosure. The class includes cabinet minutes and minutes of discussions between heads of departments (Conway v Rimmer (1968) AC, at 952, 973, 979, 987, 993; Reg v Lewes Justices; Ex parte Home Secretary (1973) AC, at 412; Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582, at 591), papers brought into existence for the purpose of preparing a submission to cabinet (Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650), and indeed any documents which relate to the framing of government policy at a high level (cf In re Grosvenor Hotel, London (No 2) (1965) Ch 1210, at 1247, 1255). According to Lord Reid, the class would extend to “all documents concerned with policy making within departments including, it may be, minutes and the like by quite junior officials [at 40] and correspondence with outside bodies”: Conway v Rimmer (1968) AC, at 952.

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Sankey v Whitlam cont�

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[39] One reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of government only if there is complete freedom and candour in stating facts, tendering advice and exchanging views and opinions, and the possibility that documents might ultimately be published might affect the frankness and candour of those preparing them. Some judges now regard this reason as unconvincing, but I do not think it altogether unreal to suppose that in some matters at least communications between Ministers and servants of the Crown may be more frank and candid if those concerned believe that they are protected from disclosure. For instance, not all Crown servants can be expected to be made of such stern stuff that they would not be to some extent inhibited in furnishing a report on the suitability of one of their fellows for appointment to high office, if the report was likely to be read by the officer concerned. However, this consideration does not justify the grant of a complete immunity from disclosure to documents of this kind. Another reason was suggested by Lord Reid in Conway v Rimmer (1968) AC, at 952: “To my mind the most important reason is that such disclosure would create or fan ill-formed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.” Of course, the object of the protection is to ensure the proper working of government, and not to protect Ministers and other servants of the Crown from criticism, however intemperate and unfairly based. Nevertheless, it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public. The public interest therefore requires that some protection be afforded by the law to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure, irrespective of the subject-matter with which they deal. [40] Although it is sometimes categorically stated that documents of this class will not be ordered to be disclosed, at least if proper objection is taken, it has been acknowledged in some authorities [at 41] that the protection which this class enjoys is not absolute. In Conway v Rimmer (1968) AC, at 952, Lord Reid recognised one exception – that cabinet minutes and the like can be disclosed when they have become only of historical interest. In Lanyon Pty Ltd v Commonwealth, Menzies J said (1974) 129 CLR, at 653 that there might be “very special circumstances” in which such documents might be examined. In Attorney-General v Jonathan Cape Ltd (1976) QB 752, at 764, Lord Widgery CJ accepted that no court would compel the production of cabinet papers, but nevertheless refused an application to restrain publication of the diaries of a former cabinet Minister, which revealed, amongst other things, details of cabinet discussions and of advice given to cabinet. He said (1976) QB, at p 767: “… it seems to me that the degree of protection afforded to Cabinet papers and discussion cannot be determined by a single rule of thumb. Some secrets require a high standard of protection for a short time. Others require protection until a new political generation has taken over.” [41] Later his Lordship said (1976) QB, at 770: The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility. He concluded that there cannot be a single rule governing the publication of such a variety of matters. These remarks, although directed to a different issue, afford useful guidance in considering the present question.

Part 3 — Admissibility of Evidence

Sankey v Whitlam cont� [42] Although the statement that cabinet documents and other papers concerned with policy decisions at a high level (“state papers”, as I shall henceforth call them) are immune from disclosure was repeated in Conway v Rimmer (1968) AC 910, it accords ill with the principles affirmed in that case. The fundamental principle is that documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary. That principle in my opinion must also apply to state papers. It is impossible to accept that the public interest requires that all state papers should be kept secret for ever, or [at 42] until they are only of historical interest. In some cases the legitimate need for secrecy will have ceased to exist after a short time has elapsed; this will be so, to take Lord Widgery’s example, when new taxation proposals have passed into legislation. In other cases it may be necessary to maintain secrecy for many years. This may be so where the documents concern national security or diplomatic relations, to give two obvious examples. In other words, state papers do not form a homogeneous class, all the members of which must be treated alike. The subjectmatter with which the papers deal will be of great importance, but all the circumstances have to be considered in deciding whether the papers in question are entitled to be withheld from production, no matter what they individually contain.

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[43] If state papers were absolutely protected from production, great injustice would be caused in cases in which the documents were necessary to support the defence of an accused person whose liberty was at stake in a criminal trial, and it seems to be accepted that in those circumstances the documents must be disclosed: Duncan v Cammell, Laird & Co (1942) AC 624, at 633-634; Conway v Rimmer (1968) AC, at 966-967, 987; R v Lewes Justices Ex parte Home Secretary (1973) AC, at 407-408. Moreover, a Minister might produce a document of his own accord if it were necessary to do so to support a criminal prosecution launched on behalf of the government. The fact that state papers may come to light in some circumstances is impossible to reconcile with the view that they enjoy absolute protection from disclosure. [44] The fact that members of the Executive Council are required to take a binding oath of secrecy does not assist the argument that the production of state papers cannot be compelled. In Attorney-General v Jonathan Cape Ltd (1976) QB 752, Lord Widgery CJ dealt with the suggestion that the publication of the diaries in that case would have been a breach by the Minister of his oath as a privy councillor, and said that it was necessary to show that whatever obligation of secrecy or discretion attaches to former cabinet Ministers, that obligation is binding in law and not merely in morals (1976) QB, at 767. Similarly, state papers are not protected from disclosure because they are confidential or because the Minister has taken an oath not to reveal them. The question is whether the disclosure of the documents would be contrary to the public interest. Confidentiality is not a separate head of privilege, but [at 43] may be a material consideration to bear in mind when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) (1974) AC 405, at 433. [45] For these reasons I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection – the extent of protection required will depend to some extent on the general subject-matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. In view of the danger to which the indiscriminate disclosure of documents of this class might give rise, it is desirable that the government concerned, Commonwealth or State, should have an opportunity to intervene and be heard before any order for disclosure is made. Moreover, no such order should be enforced until the government concerned has

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Sankey v Whitlam cont� had an opportunity to appeal against it, or test its correctness by some other process, if it wishes to do so (cf Conway v Rimmer (1968) AC, at 953) … [at 45] What I have just said applies to cases where it is established that a true copy of the document sought to be produced has in fact been published. The publication by an unauthorised person of something claimed to be a copy of an official document, but unauthenticated and not proved to be correct, would not in itself lend any support to a claim that the document in question ought to be produced. In such a case it would remain uncertain whether the contents of the document had in truth been disclosed. In some cases the court might resolve the problem by [at 46] looking at the document for the purpose of seeing whether the published copy was a true one, but it would not take that course if the alleged publication was simply a device to assist in procuring disclosure, and it might be reluctant to do so if the copy had been stolen or improperly obtained. [50] Finally, the power of the court to inspect the document privately is clear, and once a court has decided, notwithstanding the opposition of a Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: see Conway v Rimmer (1968) AC, at 953, 979, 981-982, 995; compare 971. However, where the objection is to the disclosure of a document because it belongs to a class, and the Minister, being represented, does not suggest that there is anything in its contents that ought to be withheld from production, there will not always be the same need to examine the document before ordering its production if the objection is overruled.

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Disclosure of the particular documents [51] It clearly follows from what I have said that Mr Whitlam’s cross-claim for a declaration that the documents in what I have called categories 5 and 6 should not be disclosed cannot succeed. Those documents have already been published, in the most formal and regular way, by tabling them in Parliament. Not only has the Minister concerned refrained from taking any objection, but counsel for the Attorney-General of the Commonwealth has submitted that the documents should be produced. The magistrate was correct in ordering them to be produced. [52] The documents in categories 1, 2 and 3 are all “state papers” within the meaning I have given to that expression. They belong to a class of documents which may be protected from disclosure irrespective of their contents. Full respect must be paid to the objections taken to their production, even though the Ministers did not swear that they had personally seen the documents. On the other hand, the documents relate to a proposal which was never put into effect, has been abandoned and is of no continuing significance from the point of view of the national interest. The matters to which they refer occurred over three years ago. Their disclosure cannot affect any present activity of government. Moreover, if the documents can be withheld, the informant will be unable to present to the court his case that the defendants committed criminal offences while [at 47] carrying out their duties as Ministers. If the defendants did engage in criminal conduct, and the documents are excluded, a rule of evidence designed to serve the public interest will instead have become a shield to protect wrongdoing by Ministers in the execution of their office. I hasten to add – although it should be unnecessary for me to do so – that these remarks are not intended to suggest that any of the defendants has been guilty of any offence; the material placed before us does not enable us to form any opinion whether or not Mr Sankey can produce evidence that could make out a prima facie case against any defendant. I have been speaking hypothetically, and with reference to the principles concerned rather than to any established facts. For these reasons I conclude that the public interest in the administration of justice outweighs any public interest in withholding documents of this class, and that the public interest does not render it necessary that the documents in categories 1, 2 and 3 should be withheld from production. [53] This leaves category 4, the Loan Council documents. Although the charges laid under s 86 of the Crimes Act are bad, the charge of conspiracy at common law states as an element that the proposed borrowing was in contravention of the Financial Agreement. The arguments presented to us did not raise for our consideration whether the charge was properly drawn or whether it was necessary

Part 3 — Admissibility of Evidence

Sankey v Whitlam cont� to allege that the proposed borrowing was in contravention of the Financial Agreement. However, assuming that allegation to be material, the proposed borrowing, even if not made for temporary purposes, would not have contravened the Financial Agreement if it had received the approval of the Loan Council. If the assumption stated is correct, in endeavouring to substantiate the charge of conspiracy at common law it would be relevant to establish that the proposed borrowing was not authorised by the Loan Council. For the purpose of establishing that fact Mr Sankey now wishes to prove by means of the Loan Council documents the amount which the Commonwealth was authorised by the Loan Council to borrow in the year in question. In fact the amount actually borrowed in that year is now public knowledge. [54] The Loan Council documents are concerned with decisions of policy made at a very high level by a body which exercises great financial power within the federation. There are strong reasons why the negotiations between the Commonwealth and the States during the meetings of the Loan Council should be protected from disclosure. However, all that Mr Sankey now seeks to have disclosed is so much of the Loan Council documents as reveals [at 48] the amount which the Commonwealth was authorised to borrow during the year 1974-1975, and disclosure of that amount after this lapse of time could not be detrimental to the public interest. If it is possible to seal up or otherwise deal with the documents so that they reveal that fact and no more, it would not be necessary in the public interest to withhold the relevant documents, with all else hidden, from production. In my opinion we should now inspect the Loan Council documents to see whether it is practicable to make this very restricted disclosure, and if it is practicable we should order disclosure to be made.

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Conclusions [55] 1. Mr Sankey’s application: I would make a declaration that all the documents in question, except the Loan Council documents, should be produced. If the Loan Council documents can be sealed up or otherwise dealt with so as to reveal only the amount which the Commonwealth was authorised to borrow during the year 1974-1975, I would declare that the relevant documents, so covered, be produced. 2. Mr Whitlam’s cross-claim: (a) I would make an appropriate declaration to the effect that the charges laid under s 86(1)(c) of the Crimes Act are unknown to the law. (b) I would dismiss the cross-claim for declarations that the documents to whose production no objection was taken should nevertheless not be produced.



New South Wales v Public Transport Ticketing Corporation [14.220] New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Facts [The PTTC terminated an agreement for the designing, building and installation of an integrated ticketing and fare payment system for public transport in the greater Sydney area. Such termination was said to have been justified by the alleged serious breaches of contract, and delay in performance, by Integrated Transit Solutions Limited and ERG Limited. Documents were discovered by PTTC and the State of NSW claimed public interest immunity over them. The primary judge concluded that the balancing exercise contemplated by s 130 favoured inspection. Then, his Honour resorted to the expedient of allowing the claim to immunity only if the document had stamped on it “Cabinet in Confidence” and not allowing it if it did not. ERG also sought orders that special counsel be appointed to assist the Court in advancing argument to the Court in respect of the balance of the documents, in effect, as independent contradictor to the State, which was considered in New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200. Such an order was made.]

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New South Wales v Public Transport Ticketing Corporation cont� Judgment ALLSOP P (Hodgson JA and Sackville AJA agreeing): ... [26] The State submitted that the terms of s 131A(1) were not engaged. That was so, it was submitted, because the State, which had the carriage of the upholding of the immunity was not a person subject to a disclosure requirement who objects to giving that information or document. The PTTC is the person subject to the disclosure requirement; all the documents are discovered by it and are within its custody, power and control. The State is seeking to rely upon the immunity, not the PTTC, and the State is not subject to the disclosure requirements. [27] The PTTC withheld from inspection documents which it apprehended may be the subject of a claim for public interest immunity. The State filed a motion in the proceedings (without objection by ERG) for the purpose of making the claims for public interest immunity. The PTTC submitted (in a carefully worded submission) that it had a “general preference that all relevant, non-privileged material be made available to the parties for use in the proceedings, while recognising that the forensic interests of the parties must yield to the principles of public interest immunity. [It] defers to the [State] and does not wish to be heard [on the immunity issues]”. (Outline of submissions dated 11 October 2010.) The State, not the PTTC, had carriage of the motion propounding the immunity.

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[28] The State submitted first, that the PTTC was not the State, although it was a statutory body representing and having the status of the Crown: TA Act, s 35R(2) and now “a NSW Government agency”: cl 2(3) of Sch 9 introduced by the 2010 Act, Sch 5; and secondly, that the State (or the Crown) cannot be described as “a person” as a matter of statutory interpretation. [29] ERG submitted that at the time the PTTC was required to disclose the documents it was a statutory body representing the Crown and so the State and the PTTC were the same person. The position since 1 July 2010 is, it was submitted, even clearer. So, it was submitted, the State was claiming the immunity and it (through the PTTC) was required to produce the documents. [30] That the PTTC has the status of the Crown does not deny its character as a corporation constituted by the TA Act, s 35R. One aspect of that character is its separateness as a corporate personality. As a corporation constituted by s 35R, the PTTC was continued by the 2010 Act, cl 2(1) of Sch 9, introduced into the TA Act by the 2010 Act, Sch 5. For the purposes of the Australian Constitution, s 75(iv) or s 114 or of the Judiciary Act 1903 (Cth), s 38, the PTTC may well be the State: State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62; 161 CLR 639; Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; 174 CLR 219; Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; 119 CLR 334. Such provisions are not to be defeated or avoided by the precise corporate form in which the State conducts its affairs. That, however, does not mean that the PTTC does not have a separate personality as a corporation, distinct from the polity of the State of New South Wales: Commonwealth v Silverton Ltd (1997) 130 ACTR I at 13-18; Ex parte Workers’ Compensation Board of Queensland [1983] 1 Qd R 450. In the last two cases, such separateness of the entity permitted agencies of the one polity to sue each other. … [32] The issue here is one of the separateness of juristic person between the body politic of New South Wales and a corporation the creature of statute. The TA Act says the PTTC is a corporation; hence it is a distinct entity. The 2010 Act continued it as such. The PTTC (albeit a corporation) is “a person ... required by a disclosure requirement [as defined in s 131A(2)] ... to produce a document”. However, it does not “object to ... providing that document”. Its carefully drafted position does not amount to such objection. The State objects. Assuming for the moment that the State (being the body politic of New South Wales) is “a person” for the purposes of s 131A(1)(a) (which, for the reasons set out below, it is), it is not a person who is required, by pre-trial discovery as the relevant disclosure requirement for s 131A(2), to produce the documents. It is for this purpose a separate entity from the PTTC, although the PTTC represents the Crown and for the purposes of the Judiciary Act and Constitution may well

Part 3 — Admissibility of Evidence

New South Wales v Public Transport Ticketing Corporation cont� be the State. That does not make the corporation created by s 35R and the body politic the same “person”. On this basis, the Evidence Act, ss 130 and 131A are not engaged. [33] Having regard to this conclusion, it is not strictly necessary to consider whether the State is “a person” within the meaning of s 131A(1)(a) of the Evidence Act. Nonetheless, as the question was debated in argument, it is appropriate to express a view. [34] The question of whether the State is “a person” for the purpose, and within the meaning, of s 131A(1)(a) is a matter of statutory interpretation. This process commences with the presumption that the general words of a statute do not bind the Crown or its instrumentalities or agents: Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 22. The earlier position that the Crown would only be bound if the statute contained express words to that effect or if the intention to bind the Crown was manifest from the very terms of the statute is now viewed as outdated: Bropho at 19 and compare Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 at 61; Bradken Consolidated Ltd v Broken Hill Pty Co Ltd [1979] HCA 15; 145 CLR 107. In Bropho, six justices of the High Court said (at 23):

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In the case of legislative provisions enacted subsequent to this decision [which the Evidence Act was], the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong. [35] To assess the meaning of the phrase “a person” for the purposes of s 131A(1)(a), it is important to consider the relevant provisions of the Interpretation Act and the provisions of the Evidence Act itself. Section 21 of the Interpretation Act provides that, in any Act or instrument, the meaning of the term “person” includes “an individual, a corporation and a body corporate or politic”. No contrary definition of “person” is contained in the Evidence Act. Section 7 of the Evidence Act provides as follows: This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, in all its other capacities. [36] In Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334, the High Court considered whether reference to a “person” (as including a person not being a corporation) in ss 6(3) and 75B(1) of the Trade Practices Act 1974 (Cth) extended the application of some aspects of the legislation to the State of New South Wales. It did so against the backdrop of the Acts Interpretation Act 1901 (Cth), s 22(1), which provides, in similar terms to the Interpretation Act, that expressions used to denote persons generally include a body politic. The majority of the Court held that at the time of the acts complained of the relevant provisions of the Trade Practices Act did not apply to the State of New South Wales (at 349). Section 2A of the Trade Practices Act provided, relevantly: “this Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth” and that the Act would apply to the Commonwealth (and each authority of the Commonwealth) in so far as it carried on a business as if it were a corporation. The inclusion of s 2A was held by the majority of the Court to raise the rule of statutory construction embodied in the Latin maxim expressio unius est exclusio alterius such that s 2A represented a “complete and exhaustive statement” of the Act’s application to the Commonwealth (at 348-349). Although not an express exclusion of the application of the Act to the States, it was held to tell strongly against the Act so extending. Thus, the majority of the Court found that the Trade Practices Act evinced an intention that a State was not a person for the purposes of the relevant sections, contrary to the Acts Interpretation Act 1901 (Cth), s 22(1). [37] In Commonwealth v Wood [2006] FCA 60; 148 FCR 276, Heerey J held that the Commonwealth was a “person” for the purposes of the application of the Anti-Discrimination Act 1998 (Tas), s 16. His

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New South Wales v Public Transport Ticketing Corporation cont� Honour held that s 4, which stated (similarly to s 7 of the Evidence Act) that the Act bound the Crown in right of the State (Tasmania) and, so far as was permissible, in all other capacities, extended to bind the Crown in right of the Commonwealth. In so finding, Heerey J gave weight to the fact that the Anti-Discrimination Act was beneficial legislation, which ought to be construed liberally and that “since s 4 provides expressly that the Crown in the right of Tasmania is bound, the Crown, at least in that capacity, must be a ‘person’ for the purpose of s 16” (at 283). Heerey J’s decision was not followed in Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; 169 FCR 85, per Weinberg J and Kenny J, Goldberg J dissenting. Weinberg J held that, reading the Anti-Discrimination Act 1998 (Tas) as a whole, the construction supported by s 4 that the Commonwealth was a “person”, was outweighed by indications elsewhere in the Act which tended against that being the case (at 118). Kenny J also found that the Anti-Discrimination Act 1998 (Tas), viewed as a whole, did not apply to the Commonwealth as a person. Her Honour noted that the Acts Interpretation Act 1931 (Tas), s 41(1) (unlike the Commonwealth and New South Wales Acts) stated that the expression “person” “shall include any body of persons, corporate or unincorporated, other than the Crown” (at 123). Kenny J also noted that the definition of a “person” in the Anti-Discrimination Act 1998 (Tas), s 3, included an “organisation” and “organisation” was defined to include “a council, a Government department ... or a State authority”. Her Honour held that the specific reference to State authorities and State departments and local government, which would come within that term in the absence of reference to other bodies politic weighed against the term “organisation”, and, therefore, “person” as including the Commonwealth (at 125-126).

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[38] As mentioned earlier, the Interpretation Act, s 21 adopts the wider definition of the term person as including a body politic. The Evidence Act, ss 130 and 131A do not seek to impose upon the State obligations of a nature which would require express language that the Crown be “a person” for the purposes of those sections. Taken together with s 7 of the Evidence Act, which states the Crown to be bound unreservedly, the construction favoured in the Interpretation Act would not appear to be displaced. [39] Further, the phrase “a person” finds its place in Div 4 of Pt 3.10 dealing with privileges which include in s 130 in Div 3 of Pt 3.10 the question of matters of State. One of the circumstances to which ss 130 and 131A can be seen to be naturally directed is the State (and not merely instrumentalities or corporate agents of the State) being required by a “disclosure requirement” to produce a document and objecting to that course. If there were litigation to which the polity of the State of New South Wales was a party or in which a subpoena was directed to it, the plain intent of ss 130 and 131A is that the Evidence Act would regulate production. In that context, the word “person” would be wide enough to encompass the State, displacing any presumption to the contrary. [40] Nevertheless, for the reasons I have earlier given, the Evidence Act, s 131A, is not engaged here. [41] Notwithstanding this conclusion, the assessment of the claims for the immunity will be undertaken both by reference to the common law and the Evidence Act, s 130. Applicable principles [42] Both the common law and s 130 require two broad stages of analysis: first the assessment of the character of the information or document (as state papers or as relating to a matter of state) and secondly a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government. [43] The reasons of the majority (Mason CJ, Brennan J, Deane J, Dawson J, Gaudron J and McHugh J) in Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 (NLC) at 614-619 lay out the principles to be applied in the operation of the common law of public interest immunity. It has been accepted that those principles assist in informing of the content and operation of the Evidence Act, s 130: Eastman v The Queen (1997) 76 FCR 9 at 63 (per curiam); Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010; 100 FCR 229 at 246 (von Doussa J). None of the parties in the present case suggested otherwise. It is therefore unnecessary to consider the extent to which, if at all, s 130 of the Evidence Act departs from common law principles.

Part 3 — Admissibility of Evidence

New South Wales v Public Transport Ticketing Corporation cont� [44] It is not appropriate to take one line or one idea from the discussion by their Honours in NLC. The essence, however, of the underpinning ideas expressed in the reasons is the prevention of prejudice to the subject to which the Evidence Act, s 130(4)(f) is directed: the proper functioning of government of the polities of the Federation. [45] A number of propositions can be taken from their Honours’ reasons to guide consideration of this issue. It is in the public interest that deliberations of Cabinet, including the decisions made by Cabinet, should remain confidential in support of the collective responsibility of Cabinet government: NLC at 615. It is the position of the body as responsible for the creation of state policy at the highest level that engenders the need for protection: NLC at 615. Thus, an important consideration is the protection of deliberations leading to the formulation of state policy, though this proposition should not be taken as meaning that only formulation of policy is to be protected. The threat of disclosure may impede or mute free and vigorous exchange in Cabinet: NLC at 615. Decision-making and policy development by Cabinet is to be uninhibited: NLC at 616. The division of claims into “class” and “contents” claims is rough, but acceptable, to differentiate types of documents the disclosure of which would injure the public interest, irrespective of contents, and those which ought not to be disclosed because of their contents: NLC at 616. Documents revealing Cabinet deliberations and decisions fall within the former class. But their immunity is not absolute: NLC at 616. The immunity must be weighed against the public interest in the administration of justice: NLC at 616.

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[46] The nature of this weighing or balancing process is what lies at the heart of any contested application such as this. The majority in NLC at 616-617 approved a passage from the judgment of Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 43 which is worthy of repetition here: The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection – the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. [47] The majority in NLC at 617 elaborated upon the last sentence in this passage from Gibbs ACJ’s reasons in Sankey v Whitlam saying: In a case where a document fell into a class of document the disclosure of which would be injurious to the public interest regardless of the contents, a court could conclude that “disclosure would not really be detrimental to the public interest” only in circumstances where there was a competing public interest, such as the public interest in the advancement of justice, which outweighed the public interest in the preservation of confidentiality. [48] Their Honours then went on to say at 617 that the currency or controversiality of the subjectmatter is relevant to the balancing process. The character of the subject-matter is, implicitly, also important. Their Honours had already spoken of policy and its formulation through the deliberations of Cabinet. Their Honours then emphasised that immunity of documents of Cabinet deliberations and Cabinet documents (ordinarily attracted irrespective of contents) is not absolute: NLC at 617618. A court will initially lean against disclosure: NLC at 618. Whether circumstances are sufficient to displace the immunity depends in part on the nature of the class. As to this the majority said at 618: In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class

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New South Wales v Public Transport Ticketing Corporation cont� should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations. Indeed, for our part we doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different. (emphasis added) [49] The authoritative statements of principle and approach in NLC both expound the common law of Australia and assist in the understanding of the content of the phrase “prejudice [to] the proper functioning of government” for the purposes of s 130(4)(f).

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[50] Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes for the consideration of Cabinet) have been held to be in the same position as records of the deliberations or decisions of Cabinet: Commonwealth v Construction, Forestry, Mining and Energy Union [2000] FCA 453; 98 FCR 31 at 42-43 [42]-[45]; Egan v Chadwick [1999] NSWCA 176; 46 NSWLR 563 at 573 [69] and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 8th Australian ed, 2010) at p 961 [27065]. Thus, broadly, records of Cabinet deliberations and decisions and documents revealing the deliberations of Cabinet will be regarded as attracting the protection conferred by public interest immunity or by that afforded to matters of state, subject to the balancing of the competing interests. The public interest in preserving the secrecy of such documents will ordinarily be given considerable weight in the balancing process. [51] The author of Cross on Evidence (8th ed), after discussing the broad equivalence of documents recording the deliberations or decisions of Cabinet and those which reveal those deliberations, says at p 961: Having regard to the strength of the claim for immunity, a judge ought not to order disclosure unless satisfied that the materials are crucial for the proper determination of the proceedings. [52] Conformably with the weighing or balancing process discussed in NLC and inhering within s 130, relevant considerations to take into account are whether the documents concern policy, the currency and contemporaneous controversiality of the subject-matter, the character of the subjectmatter otherwise, for instance, whether national security or high policy and the forensic relevance of the documents: see the Full Court in Commonwealth v Northern Land Council (1991) 30 FCR 1 at 38; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080 at [16] (Wilcox J); Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; 181 FCR 66 at [34] (Jagot J); and RP Data v Western Australian Land Information Authority [2010] FCA 922; 188 FCR 378 at [23] (Barker J). [53] The word “policy” should be recognised as a broad concept. It is notoriously difficult to differentiate between “policy” and “operation” in some contexts. I would understand the word to be used (and I use it below) in the sense of the consideration of approaches and conduct for the present and the future assessed by reference to the general interests of society. What I exclude from policy is the consideration, here, of a particular body of facts in a particular legal and contractual context and any discussion about that specific contractual matter. [54] This concept does not necessarily exclude consideration of what might be described as commercial ventures undertaken by governments or in which governments participate one way or another. The history of Australia reveals that governments have often participated in undertakings of a kind that involve large expenditure of money and large social and economic investments. To say this is to recognise that policy, economic and commercial considerations play a part in such undertakings. [55] However, the cases have recognised that the commercial or contractual responsibilities of government, once entered, may well be able to be treated differently to questions of policy. To the extent

Part 3 — Admissibility of Evidence

New South Wales v Public Transport Ticketing Corporation cont�

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that the executive branch of government participates in contractual arrangements and commercial undertakings (in the advancement of the public interest), there is much to be said for the proposition (present elsewhere in the legal system, eg the Judiciary Act 1903 (Cth), s 64) that it should be treated like any other litigant in a commercial dispute in which it finds itself: cf Robinson v South Australia (No 2) [1931] AC 704 at 715; Harbours Corporation of Queensland v Vessey Chemicals Pty Ltd (1986) 12 FCR 60 at 63-64; Hooker Corporation Ltd v Darling Harbour Authority (1987) 14 ALD 110; Carey v Ontario [1986] 2 SCR 637 at [82]-[84]; Adelaide Brighton Cement Ltd v South Australia [1999] SASC 379; 75 SASR 209; Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; 262 ALR 27 at 38 [39]. These cases reveal that whilst not a hard and fast consideration, the commercial character of a contract as the subject-matter of a document is an important consideration in the balancing exercise. In particular, consideration of a specific contractual dispute or of particular facts relevant to that dispute may require a different approach than consideration of whether a government should become involved in a proposed project. In this respect, an important consideration in the due administration of justice is the denial of any possible perception that the government is in a privileged position in how it litigates its commercial rights and entitlements against citizens, in the absence of demonstration of a proper basis of interest of a character that attracts the immunity. There are many circumstances where policy has got nothing to do with a decision by government as to a step in a commercial arrangement or dispute. There are other circumstances where commercial decision-making and policy can intersect. [56] The likelihood that candour by public officials will be discouraged should disclosure of their communications be possible has been at times doubted: Air Canada v Secretary of State for Trade (No 2) [1983] 1 All ER 161 at 168; and see NLC at 615. Whatever may be the legitimacy of that consideration in regard to non-commercial questions or in questions of policy, it should usually have little weight in the reporting on and discussing of the factual and legal aspects of a commercial dispute involving the State. The candour of those reporting to Ministers and Cabinet about the factual and legal state of a contractual or commercial dispute and the available courses of action is hardly likely to be undermined if, in due course, when the dispute becomes litigious, the advice is disclosed in litigation about the contract or commercial transaction. [57] These kinds of considerations must be brought to bear on the individual documents with which we are asked to deal. Broad generalisations are to be avoided. Category D: “Decisions of the Budget Cabinet Committee” [60] Before dealing with these documents, Mr Miller’s affidavit described the Cabinet and Cabinet processes (at pars 11-26). In that explanation the Budget Cabinet Committee was described as a committee charged with the responsibility of overseeing the financial management of the State, the Budget process and ongoing expenditure across government. The Committee is part of Cabinet. [61] The six documents in category D were described as follows: • D1: Cabinet Standing Committee on the Budget – Decision Paper, 24 September 2007. • D2: Cabinet Standing Committee on the Budget – Decision Paper, 5 November 2007. • D3(a): Cabinet Standing Committee on the Budget – Decision Paper (note of Ministers in Attendance), 5 November 2007. • D3(b): Cabinet Standing Committee on the Budget – Decision Paper, 5 November 2007. • D4: Cabinet Standing Committee on the Budget – Decision Paper, 5 November 2007. • D5: Cabinet Standing Committee on the Budget – Decision Paper, 23 January 2008. • D6: Cabinet Standing Committee on the Budget – Decision Paper, 23 January 2008. [62] In relation to them, reliance was placed on pars 32-35 of the affidavit of Mr Miller, which were as follows: [32] The documents at Tabs D1 to D6 of Volume 1 of Confidential Exhibit CE1 are decisions of the Budget Cabinet Committee. It is vital to the good government of New South Wales

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New South Wales v Public Transport Ticketing Corporation cont� that Budget Cabinet Committee decisions be recorded accurately, precisely and as succinctly as the subject matter permits. Budget Cabinet Committee decisions are so recorded. They are recorded in a manner that is not designed for publication. [33] In many cases the disclosure of a Budget Cabinet Committee decision would disclose, implicitly or explicitly, the deliberations of the Committee. Budget Cabinet Committee decisions may disclose dissenting views or disclose positions of particular Ministers which positions were rejected by the Committee. As such, disclosure of Cabinet Decisions would undermine the principle of collective responsibility upon which the Budget Cabinet Committee operates. [34] If the records of Budget Cabinet Committee decisions were liable to being disclosed pursuant to the discovery process it would tend to inhibit the phrasing and recording of those decisions. In some cases decisions would be phrased and recorded in a manner calculated to be suitable for disclosure to the public. On some occasions there would be a tendency to phrase and record decisions in more circumspect and inhibited language, perhaps with statements of reason and qualification incorporated. There would arise a tendency towards the phrasing and recording of decisions in less precise terms. It would be against the public interest for Budget Cabinet Committee decisions to be recorded imprecisely or verbosely. Therefore, it would be against the public interest to expose any record of a Budget Cabinet Committee decision. [35] I am informed by Barbara Wise and believe that whilst aspects of some of the substance of some of the particular decisions of the Budget Cabinet Committee have since been made public, the public statements are not worded using the same language used in the decisions. Further, I am informed by Ms Wise and believe that not all parts of those decisions have been made public and that several parts of the decision reflect what the Budget Cabinet Committee took into account when reaching its decision and are not matters that have been publicly disclosed. Disclosure of the decisions will therefore disclose the deliberations of the Budget Cabinet Committee that have not been made public. [63] None of these documents was stamped “Cabinet in Confidence”. [64] The evidence at par 32 was sufficient to have these documents categorised as relating to matters of state for the purposes of s 130(4) or as part of the well-recognised class of documents that prima facie attracts immunity as “State papers”: Sankey v Whitlam at 39-42 (Gibbs ACJ) or as records of the decisions of a Cabinet Committee: NLC at 614-618. [65] It was submitted on behalf of the State that the clear status of these documents should lead (and should have led) to their protection from production under the immunity without the need to examine the documents. I do not agree. Whether or not Cabinet documents are immune from disclosure is based on the public interest which can be affected by the question of the currency or continuing relevance of the subject-matter of the documents and their relevance to the proceedings: Sankey v Whitlam at 41-43; NLC at 616-618; New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWCA 366; 70 NSWLR 643 at 649 [42]. To the extent that the Evidence Act, s 130 is relevant, the assessment of any prejudice to the proper functioning of the government of the State under s 130(4)(f) necessarily involves a similar weighing process. [66] The State relied on Ms Quiltys affidavit of 26 May 2010 in relation to the on-going currency of documents. In that affidavit, Ms Quilty explains the continuing political debate and live policy issue regarding fare reform: see in particular pars 24-26 of her affidavit at Blue Vol 1 p 41. She does not deal with documents in categories D or G, but she does deal with documents in category E. She says the following in pars 24-26: [24] Fare reform in respect of public transport in New South Wales is an important and sensitive issue because of the impact it has on the daily lives of commuters living in metropolitan regions of New South Wales; the cost of running public transport services; the Government’s long term metropolitan infrastructure and development plans as targeted in the State Plan

Part 3 — Admissibility of Evidence

New South Wales v Public Transport Ticketing Corporation cont� given that the effect that [sic] the structure and price of public transport fares have on consumer demand. [25] There is a diverse range of strongly held opinions about what fare structure should apply to public transport services. Government has to balance a wide range of competing priorities including (but not limited to) the cost to taxpayers of subsidies, the impacts of pricing signals on the economically efficient operation of the network, and social equity considerations. It is important that Government make these decisions in an environment that is not impacted by ill-informed criticisms. [26] I therefore maintain the view expressed in the affidavits sworn by Andrew Nicholls in these proceedings that the disclosure of documents of the kind contained in Confidential Exhibit AN1, including the reports contained in Volume 2 of that Confidential Exhibit, would significantly inhibit the ability of persons developing government policy and preparing relevant Cabinet Minutes from obtaining advice and views of others with expertise within and outside of government on issues being considered by Cabinet which in turn will significantly reduce the quality of any advice that is then able to be provided to Cabinet.

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[67] Ms Quilty’s view as to the current relevance of policy at that level of generality is of assistance, to a point. It makes clear the continuing currency of a subject-matter. It does not help very much in translating that to the examination of any particular document. Certainly, if the subject of the document related to the development and content of fare policy one could see the relationship with current policy and contemporaneous controversy. It does not follow at all, however, that documents dealing with a particular commercial contractual dispute, that arose out of the execution of that policy, where that dispute is now being litigated, remain in any way current or controversial. [68] All the documents with which we are concerned (categories D, G, A, E and N) are documents created and deployed for use at the highest levels of government: Cabinet and Ministerial level. That said, care must be taken to recognise that parts of them deal solely with a particular commercial contract (of some magnitude) entered by the PTTC. To the extent that these documents simply discuss the particular contract and the conduct of the parties to that contract, no questions of government policy will arise. I say this not as a matter of logic but by reference to the documents that I have examined and that I discuss later. Significant parts of these documents simply discuss a contract that has been entered, and, in latter years, that appears not to have produced the expected results. These matters were referred to and deliberated upon by Cabinet because of the monetary size and scale of the contract and, one can infer, because of the importance of public transport to the public and to the Government in a political sense. [69] That importance does not mean that any historical discussion of a transport-related contract that may have gone wrong necessarily engages any question of policy. It may do so. The contract may epitomise an error in policy that is discussed and that policy may be of current relevance (for instance, in the general way discussed by Ms Quilty). The consequences of a breach of contract and how they are to be dealt with may give rise to policy questions. Or, the discussion may simply be a factual and legal one as to the contents and nature of a dispute and how to deal with it. Simply to label the topic as a commercial dispute will not answer the question as to application of the immunity or as to the intrusion of government policy. Nevertheless, if the Cabinet Minute deals with the circumstances of a (large) commercial dispute involving the State and raises no question of policy and is of no particular currency, these will be important considerations in assessing the public interest or the prejudice to government that would be caused by disclosure of the documents. [70] Taking all of the above into account, the disclosure of documents recording the actual deliberations of Cabinet itself (or of one of its committees, such as the Budget Cabinet Committee) must be governed by what was said in NLC. In respect of such documents “only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure”. [71] As to D1, decision of 24 September 2007 in relation to T card and other issues (Confidential Blue Vol 1 pp 38-42), aspects of the minute do not concern the T card: see items 1, 2, 3, 5 and 6. The

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New South Wales v Public Transport Ticketing Corporation cont� immunity plainly attaches to these. Item 4 contains resolutions of the Budget Cabinet Committee, many of which relate to this contract and the dispute concerning it, though some are broader: for example, items 4.4, 4.5, 4.7, 4.9 and 4.10 (to a limited extent). Paragraphs 4.1, 4.2, 4.3, 4.6 and 4.8 relate solely to this contract. Parts of this document are directly relevant to the proceedings. They record decisions about this contract. If the balancing were to be assessed solely by reference to the subject-matter of the contents, I would have no hesitation in ordering disclosure. But these are the records of decisions of government in Cabinet. I cannot conclude that the circumstances are so exceptional as to warrant the disturbance of the maintenance of confidentiality for the decisions of the highest level of government. In particular, in circumstances where the PTTC, and not the State (as a polity), was a party to this contract and had to take the steps necessary to terminate or enforce rights under the contract, I do not see the decisions of Cabinet as of substantial significance to the disposition of the case. I would maintain this view notwithstanding the conclusion that I have come to concerning the draft Cabinet Minutes and like documents in category E.

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[72] As to D2-D4, decisions of 5 November 2007 in relation to T card and other issues (Confidential Blue Vol 1 pp 43-53), aspects of the minutes do not concern the T card: item 6 (p 44), item 1 (pp 47-48), item 2 (pp 48-49), item 3 (p 49), item 4 (p 49), item 6 (p 50) and items 7 and 8 (p 51). Item 5 (5.1-5.3) (pp 44, 50 and 52-53) concerns the T card contract and steps in relation to the dispute. Notwithstanding these considerations, as for D1, no exceptional circumstances have been shown to warrant disclosure. Item 5.4 has a slightly broader policy content. The immunity attaches to it. [73] As to D5-D6, decisions of 23 January 2008 in relation to T card and other issues (Confidential Blue Vol 1 pp 54-67), aspects of the minutes do not concern the T card: item 4 (pp 57-59 and 64-66), item 5 (pp 59 and 66) and item 6 (pp 60 and 67). Item 3 concerns the T card. Items 3.1-3.7 concern the contract, its termination and the likely dispute. Notwithstanding these considerations, as for D1, no exceptional circumstances have been shown to warrant disclosure. Items 3.8-3.13 concern the future policy and planning assuming the end of the contract with ERG. To the extent that the decisions and minutes in category D record views and steps taken in relation to this particular contract and this particular dispute, it could be said that there is little or no remaining currency or contemporaneity, other than the dispute itself in the courts (which was rightly eschewed by senior counsel as relevant). Thus, those parts of the Cabinet decisions appear to have little or no currency. Nevertheless, for the Court to order disclosure of the records of the actual deliberations and decisions of Cabinet more is required – there must be exceptional circumstances, which I do not see here.



Derbas v The Queen [14.230] Derbas v The Queen (2012) 221 A Crim R 13; [2012] NSWCCA 14 Facts [The accused was charged with offences relating to cocaine and firearms seized from his home during the execution of a search warrant that was issued from an application made by the police. The Commissioner of Police argued that the application should not be revealed on the ground that the document was subject to immunity from disclosure in the public interest because it would disclose the identity of a police informer. The primary judge ordered that a version of the application, limited (by masking the rest of the document) to the part of the “grounds” relied upon in support of the application, be produced to the parties. The Attorney-General appealed under s 5F(1)(a) and 5F(2) of the Criminal Appeal Act 1912 on the grounds: (a) that the primary judge erred when conducting the balancing exercise required for the purpose of determining whether any part of the application should be disclosed; and (b) that the primary judge erred, before undertaking that balancing exercise, in not requiring further evidence of matters which he regarded as relevant but about which he was not satisfied on the evidence led by the Commissioner. The appeal was allowed.]

Part 3 — Admissibility of Evidence

Derbas v The Queen cont� Judgment MEAGHER JA (with whom Hoeben and Rothman JJ agreed): ... Relevant principles [20] The general principle was stated by Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38-39.

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The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, as follows: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. It is in all cases the duty of the court ... to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.” [21] As is pointed out in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, where a party seeks the production of and access to documents in respect of which a claim to immunity is made, the party seeking access first must demonstrate a legitimate forensic purpose for having the documents produced. It is only in the event that such a purpose is demonstrated, that both aspects of the public interest require consideration by the undertaking of the balancing exercise and, when doing so, the Court may inspect any documents produced: Alister v The Queen at 412, 414, 438-439, 456; Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436, 439; R v Saleam (1989) 16 NSWLR 14 at 18-19; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 675-676, 681, 690. [22] It has long been recognised that there is a public interest in the protection against disclosure of the identity of police informers. The leading English cases include Marks v Beyfus (1890) 25 QBD 494 and D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171. In the latter case the practice which had developed by the time of Marks v Beyfus was described as having hardened “into a rule of law” that the informer’s identity should not be disclosed “except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence”: per Diplock LJ at 218. [23] In Cain v Glass (No 2) (1985) 3 NSWLR 230, McHugh JA (with whom Kirby P agreed on this question) said of that rule (at 248): ... the courts in this State should continue to apply the rule that no question of weighing competing public interests arises when a claim is made that the name of a police informer should be disclosed. The rule is absolute and is relaxed only “where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence”. I have stated the exception in the language of Lord Diplock in D v National Society for the Prevention of Cruelty to Children (at 218). In the same case Lord Simon of Glaisdale said (at 232) that the sources of police information “must be forthcoming when required to establish innocence in a criminal trial”. Priestley JA considered (at 242-243) that the court was still required to undertake a balancing exercise of the competing interests.

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Derbas v The Queen cont� [24] As this passage from McHugh JA’s judgment shows, the exception to the informer rule has been described in different ways. In Marks v Beyfus Lord Esher MR (with whom Lindley LJ agreed) described it (at 498) as being that disclosure should be made where the judge is of the opinion that “it is necessary or right in order to shew the prisoner’s innocence”. Bowen LJ (at 500) said the exception applied when the judge “saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice” because of the risk of innocent people being convicted. [25] In DPP v Smith (1996) 86 A Crim R 308 this Court said (at 311-312) with reference to these cases that there was powerful authority for the proposition that, at common law, when a claim for immunity from production is made in respect of the identity of a police informer, the court before whom the claim is made does not undertake for itself, afresh, a balancing exercise, weighing one interest against the other because that balance has already been struck and is reflected in the various statements of the exception to the rule.

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[26] As this Court also noted in DPP v Smith, there are contrary views as to the extent to which a weighing of the competing interests is still required when a claim is made to protect the identity of a police informer. Those contrary views have been stated in this Court …. It is not necessary in this case to resolve these different views because on either approach the primary judge erred in the exercise he undertook. [27] As Doyle CJ notes in Haydon v Magistrates Court of South Australia (at [17]), on either approach the court is required to make an assessment of the significance to the defence case of the material which identifies the police informer and the need to disclose his or her identity. In DPP v Smith (at 311312) the rule was described as requiring non-disclosure except where disclosure could help show that the accused is not guilty. In Jarvie v Magistrates Court of Victoria, Brooking J considered (at 89-90) that the balance would incline in favour of disclosure once it was demonstrated that “there is good reason to think that disclosure of the informer’s identity may be of substantial assistance to the defendant in answering the case against him”. The latter formulation was adopted in R v Meissner at 88; R v Mason [2000] SASC 161; (2000) 77 SASR 105 at [36]-[45]; Haydon v Magistrates Court of South Australia at [29]-[31], [118]; and R v McKelliff at [26]. [28] An assessment of the significance of the material which identifies the police informer directs attention to why disclosure is required to avoid the likelihood of substantial prejudice to the accused. The circumstances in which that may be the case include that mere disclosure of the identity of the informer will help to show that the accused is innocent, that disclosure is necessary to adduce evidence of information which will help to show that the accused is innocent and that disclosure will lead to the production of other evidence which will have that consequence: Cain v Glass (No� 2) at 250-251; R v Mason at [38]-[44]. [29] Another factor to be taken into account, when addressing the exception to the rule and balancing the competing public interests, is the stage which the criminal proceedings have reached. In Cain v Glass (No� 2) the question was whether the exception applied to committal proceedings. McHugh JA (with whom Kirby P agreed) concluded (at 251) that the rule applied “at all stages of criminal proceedings” including the committal stage and that “(r)ejection of the claim at one stage will not preclude an application at a subsequent stage”. At each stage it was necessary to consider the question being addressed and whether, in that context, disclosure of an informant’s identity would assist the defendant. At the trial stage it is sufficient to require disclosure “that the jury might reasonably think that the evidence which is likely to result from the disclosure, will lead to an acquittal” (at 251). [30] The authorities also make clear that for the non-disclosure rule to apply or the public interest against disclosure to prevail, it is not necessary to show the existence of any real or imminent threat or danger to the particular informer in the event of disclosure. That is because the public interest and rationale for the rule is to ensure that sources of information which assist police in discharging their duty of preventing and detecting crime do not dry up: D v National Society for the Prevention of Cruelty to Children at 218, 232; Cain v Glass (No� 2) at 233-234, 247; DPP v Smith at 311. That interest is put at risk if the anonymity of those sources is not respected and protected. In R v Mason Bleby J

Part 3 — Admissibility of Evidence

Derbas v The Queen cont� noted (at [29]-[31]) that the existence of a threat to the informer is not a condition precedent to the operation of the informer rule. The same point was emphasised by McHugh JA in Cain v Glass (No� 2) (at 253-254) when addressing whether it was relevant to consider the safety of police informers who were witnesses: ... the anonymity of the informants is entitled to be protected whether or not they are likely to be in danger. It is precisely because informants may often be in danger that the public interest requires that their anonymity should be protected. It is not for individual judges or magistrates to weigh up the competing public interest. The law has already done so. The public interest always requires the protection of the informant unless disclosure will assist in the protection of the liberty of the subject in criminal proceedings. There was error on the part of the primary judge

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[31] The primary judge approached the claim to public interest immunity by addressing first whether the Accused had a legitimate forensic purpose in having access to the Application or at least parts of it. He concluded that the Accused had demonstrated such a purpose for obtaining production of the Application because it was “on the cards” that it would materially assist his case that he only recently had come into possession of the cocaine and firearms and did so because he was forced to store them by his cousin, Shadi Derbas: [21], [22]. [32] The primary judge did not err in so concluding. The subpoena was issued in August 2010 and sought the production of documents including the Application. By that time those acting for the Accused had been informed by the police of the matters set out in [14] above. The accused was aware that the police had received information from a confidential source which was relied upon to obtain the issue of a search warrant in relation to prohibited drugs and firearms offences. It was also known that any application for the issue of a search warrant would have had to set out the grounds relied upon to support its issue. On the Accused’s case, there were issues as to when and in what circumstances he had come to be in possession of the cocaine and firearms and as to the basis upon which he held them. Where it was known that the police had received information that he held those items, it was “on the cards” that the Application would set out the basis upon which the police believed that he had possession of the cocaine and firearms and their understanding of the circumstances in which he had come to do so: see Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 at 181-182; Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64]-[68]. [33] The primary judge then undertook the process of balancing “the competing interests” in deciding whether to require production of the Application or any part of it to the court: [23]. With respect to the material extracted in confidential [32], he addressed whether the information contained in that part, which included the identity of a police informer, was “relevant” to any of the matters raised or proposed to be raised by the Accused by way of defence. He concluded (at [46]): [T]he interest of the accused in being provided with information clearly relevant to the expressed defence substantially outweighs any public interest in the information not being disclosed. That is, that ... access to ... that portion ... of the Application as set out at paragraph 32 above, is in the interests of justice and relevant to establishing the innocence of the accused. The primary judge then considered the public interest in the information not being disclosed. When doing so he took into account as relevant his views about the possible consequences for the informer of the disclosure of his or her identity: confidential [43], [44] and [45]. [34] The primary judge did not address the significance of the identity of the police informer to the conduct of the Accused’s defence and the need to know that identity at this stage of the proceedings. Specifically, he did not consider whether, apart from the identity of the informer, there was other information contained in confidential [32] which was not already available to the Accused or why it would be of substantial assistance to the Accused to know the identity of the informer at this stage of

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Derbas v The Queen cont� the proceedings. Nor did the primary judge consider whether there was some other reason why the Accused should have access to part of the Application at this time. [35] It was not sufficient for the primary judge to consider, as he did, whether the information contained in confidential [32] was relevant in the sense that it supported the defences outlined on behalf of the Accused. Ultimately it was necessary to assess the significance of the identity of the informer and the other information in confidential [32] to the Accused’s ability to pursue those defences in the proceedings. The primary judge erred in not doing so. [36] The primary judge also erred in taking into account his assessment of the likely consequences of disclosure of the informer’s identity.... For the reasons given earlier, that matter was not relevant to whether the exception applied or to any balancing exercise. The claim to immunity from production should be upheld [37] Accordingly, this Court is required to address the claim for public interest immunity in accordance with the principles stated earlier. In doing so it has the benefit of the evidence which was adduced by leave under s 5F(4).

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[38] The following matters are relevant to that consideration. First, except for the identity of the police informer, at the time the subpoena was issued the Accused and his lawyers were aware of the information provided to the police by that informer concerning the cocaine and firearms held by the Accused which is recorded in confidential [32]. That information was provided in the course of communications between the Accused and his solicitor and the police, following the execution of the search warrant. [39] Secondly, the claim to immunity is made after the completion of the committal proceedings and before the commencement of the trial. A significant purpose identified by counsel for the Accused for seeking access to the Application at this time is that it might form part of representations to be made on behalf of the Accused to the Director of Public Prosecutions in support of a no bill finding in respect of all or some of the charges against him. In my view that purpose is not one to which the exception to the rule applies because it is not directed to assisting the Accused in relation to any issue arising in the prosecution or defence of the criminal proceedings at any of the stages of those proceedings. Nor, in undertaking any balancing exercise, is there good reason to think that knowledge of the identity of the informer would be of “substantial assistance” to the Accused in persuading the Director to make a no bill finding in respect of any charge, and specifically the charge of possession for supply. [40] Thirdly, the specific issues to which the identity of the informer is said to be relevant are whether the Accused’s possession of the firearms was as a result of duress and whether the Accused possessed the cocaine “otherwise than for supply”. The Accused’s case is that he was forced to hold the items by his cousin, Shadi Derbas, and that he did so because of his fear of his cousin. That case is supported by forensic evidence which is said to link the items found at the Accused’s home with Shadi Derbas. It is also consistent with the information provided to the police by the informer and communicated by the police to the Accused or his solicitor. The Accused argues that knowledge of the identity of the informer may increase the perceived likelihood that the information provided to the police was correct and that this is something which a jury might take into account when assessing whether to accept that hearsay evidence as correct. [41] This argument assumes that hearsay evidence of statements made by the informer may be led before the jury and that there is a risk that a jury might not accept that evidence, or give it sufficient weight, in the absence of knowledge of the informer’s identity. It is conceded by the Accused that the police officer who applied for the issue of, and executed, the search warrant will have to be called at the trial to establish possession of the charged items. At present that officer does not dispute that he was given the information referred to and does not suggest that he does not believe that information to be true. If he is cross-examined on behalf of the Accused and permitted without objection to give that evidence, his evidence and the forensic evidence would confirm the Accused’s case that he held the items for Shadi Derbas. In those circumstances it is difficult to see why there is a risk that a jury

Part 3 — Admissibility of Evidence

Derbas v The Queen cont� would not treat that evidence as correct. If he gives different evidence as to what he was told or as to his belief in the accuracy of that information, he could be further cross-examined by reference to his two signed statements admitted in evidence before this Court. If necessary at that stage a further application could be made for access to the Application so that he could also be cross-examined by reference to that document. At that time it would be necessary to address in that context whether the document should be produced and the identity of the informer disclosed. [42] If the giving by the officer of hearsay evidence is objected to at the trial, the Accused’s position would not be advanced by having the Application or a part of the Application because the hearsay rule would also apply to its admission in evidence. Any statements made by the informer to Detective O’Neill would be firsthand hearsay if given in evidence by him and second-hand hearsay in the Application. The only circumstance in which hearsay evidence of the information provided to the officer might be given is if one of the exceptions in ss 65 or 66 of the Evidence Act was shown to apply. Should the Crown object to the hearsay evidence, and it become necessary to consider the application of those exceptions, it would also be necessary to address whether the informer’s identity should be disclosed to enable one of those exceptions to be established, or for some other good reason.

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[43] Fourthly, as is assumed earlier, rejection of the claim to allow access to any part of the Application so as to disclose the informant’s identity at this time does not preclude a further application being made during the course of the trial in the circumstances which then obtain: Cain v Glass (No� 2) at 251. [44] The foregoing analysis shows that depending upon what happens at the trial, disclosure of the informer’s identity may assist the Accused in prosecuting his defence to some of the charges against him. As the matter presently stands, however, the Accused has not established any more than that it “might” be of some assistance to him to have disclosure of the informer’s identity, depending upon what happens at the trial. That is not sufficient either to establish the exception to the rule or to justify disclosure at this time in a balancing of the relevant interests. As Doyle CJ said in Haydon v Magistrates Court of South Australia (at [30]): ... the fact [that] disclosure of an informer's identity, or of information provided, might be of some assistance will not be sufficient. To require disclosure on this basis would be to undervalue the importance of public interest in non-disclosure. [45] For these reasons the appeal should be allowed for the first of the grounds of appeal. That makes it unnecessary to consider the second of the grounds relied upon by the Attorney. [46] Finally, reference was made in the written submissions of the Accused to an appeal by the Accused from that part of the primary judge’s order refusing access to the balance of the Application. That matter was not addressed in oral argument and there was no leave sought to file a cross-appeal. Accordingly, it does not arise for consideration. I should add that by mentioning this matter I am not to be taken to suggest that any such argument would have had any real prospects of success.



Attorney-General v Kaddour & Turkmani [14.240] Attorney-General v Kaddour & Turkmani [2001] NSWCCA 456 Facts [Kaddour and Turkmani were on trial for having solicited the murder of Brikha. The Crown case was that they had solicited Lo, who had already pleaded guilty and was serving a sentence for murder, to kill Brikha. Police informers were used in the murder investigation although they were not used to obtain evidence against Kaddour and Turkmani. When cross-examined about the identity of such informers, the police claimed public interest immunity. The Crown also asserted that nobody other

Privilege

CHAPTER 14

Attorney-General v Kaddour & Turkmani cont� than Lo and his wife should be questioned as to whether or not they acted as informants. The public interest claimed was that the answers to such cross-examination could lead to identification of the informers and thus render them and their families vulnerable to reprisals. The applications were supported by three affidavits from members of the police. This claim was disallowed by Woods J and the Crown appealed.] Judgment SULLY J (with whom Spigelman CJ and Adams J agreed): ... [10] Given the whole of the foregoing circumstances, the first question requiring the learned trial Judge’s careful consideration was the question whether, and if so to what extent, section 130 of the Evidence Act 1995 (NSW) was applicable to the immunity applications made by the Commissioner. [11] Sub-section (1) of s 130 provides: (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

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[12] There are no closed categories of “matters of state”, but sub-s (4) of s 130 defines a number of situations which will be taken to relate to “matters of state”. One such situation is defined as follows in paragraph (e) of sub-s (4). (4) … The information or document is taken … to relate to matters of state if adducing it as evidence would: (e) disclose or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State. [13] It seems to me to be clear that the information which is the subject of the present claims of public interest immunity fits within the statutory definition in paragraph (e). [14] If that be a correct view, then s 130 is applicable. That entails that the test established by sub-s (1), as amplified by, but not restricted by, sub-se (5) of s 130, provides the sole proper test by reference to which the present claims of public interest immunity were to be decided by the learned trial Judge. [15] The proper application of s 130(1) required that the learned trial Judge identify with precision, and then balance fairly and sensibly, the two competing public interests to which sub- (1) makes reference. [16] In that connection, it seems to me that a fair reading of the three affidavits and their respective supporting Confidential Statements makes completely clear the bases upon which it was being contended that there was a public interest, and a preponderant public interest, “in preserving secrecy or confidentiality in relation to the information or document”. It is not possible, as I think, to define with equal precision what is said to be the public interest in admitting to evidence the controversial information. [17] It is, of course, obvious that the basic contention of the respondents was, and is, that they cannot have a fair trial unless they are permitted to adduce, and to test, the information for which immunity has been claimed. That does not provide, however, any coherent exposition of precisely why the respondents cannot have a fair trial if the claimed immunity is upheld. It was submitted for the appellant that there is in truth no single statement to be found in the transcript of the relevant arguments, defining with any acceptable precision the basis or bases upon which it is contended for the respondents that there cannot be a fair trial in the absence of the adducing and testing of the information for which immunity has been claimed. It is submitted for the appellant that it is possible to deduce from the arguments advanced in the Court below four broad arguments in support of the proposition that there cannot be a fair trial of the respondents if the immunity claims are upheld. Learned counsel for the appellant made available to the Court a document which summarises as follows those apparent defence arguments:

Part 3 — Admissibility of Evidence

Derbas v The Queen cont� [1] Someone other than the respondents was responsible for the murder. There has been a biased police investigation. The police have filtered information that has come before the Court and are denying the respondents the opportunity of identifying and of developing those alternative hypotheses. There were two relevant rival groups in the tow-truck industry and the police investigation has favoured one over the other. The evidence before the Court is the result of police endeavouring to confirm previously held suspicions, rather than the result of an unprejudiced police investigation. [2] The technique employed by the investigating police of using people to engage others in conversation with the aim of obtaining intelligence and evidence might have caused the targets of the operation to colour their evidence, because of feeling intimidated or for some other reason. This goes to the credit of the witnesses who were targets of the technique. [3] It is material to know if a witness was an informer so that the credit of that witness can be challenged by asking whether or not he was paid or given some other improper inducement. [4] An agent used by the police might have started false rumours which, so the argument would presumably run, might have in some way found their way into the evidence.

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[18] The appellant’s summary gives various transcript references to which it is not necessary to refer in fine detail. [19] What the trial Judge was required to do was, in my opinion, to strike a careful and sensible balance between, on the one hand, the precise objections taken in the affidavits and their respective supporting Confidential Statements; and, on the other hand, a congeries of fairly imprecise and speculative propositions of the kind summarised in the paragraphs numbered [1] through [4] above. In striking that balance, the learned trial Judge was required to consider, so far as was relevant, the particular matters to which reference was made in sub-s (5) of s 130. His Honour was required to consider as well – for the requirements of sub-s (5) are inclusive and not exclusive – the propositions summarised in the decision of this Court, (Gleeson CJ, Clarke and Sheller JJA), in Arthur Stanley Smith (1996) 86 A Crim R 308: see in particular at 311, 312. [20] The learned trial Judge, in proceeding in the way in which I have suggested his Honour ought to have proceeded, was entitled to “inform himself in any way he thought fit”: see s 130(3). His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements. [21] I have read with care the published reasons of his Honour. They do not show a process of reasoning that is remotely akin to that which I have earlier herein suggested. His Honour’s entire exposed process of reasoning seems to concentrate upon whether the respondents had a reasonable or legitimate forensic purpose in seeking to adduce and to test the evidence for which immunity had been claimed. In my respectful opinion his Honour’s approach was entirely misconceived. The question for his Honour did not involve some freewheeling inquiry into what his Honour described at one point in his reasons as “a real prospect of forensic fruitfulness”. What was required of his Honour was a precise and careful striking of a precise and prescribed statutory balance. It is my respectful opinion that a fair reading of his Honour’s published reasons does not disclose any such striking of that prescribed balance. [22] For the whole of the foregoing reasons, I am of the opinion that the appeal should be allowed; and that the interlocutory judgment and orders rejecting the claim of public interest immunity should be vacated. [23] All three copies of the Confidential Statements referred to in this judgment should be placed in a sealed envelope, the envelope being marked “Confidential: not to be opened without the prior order of a Judge of this Court”; and kept with the Court file for any necessary future reference.

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Privilege

CHAPTER 14

EVIDENCE OF SETTLEMENT NEGOTIATIONS [14.250] Section 131 creates a privilege in relation to evidence deriving from an attempt to

negotiate a settlement of a dispute. The negotiations privilege is for the purpose of achieving settlements. It derives from the notion that parties in dispute should be encouraged in the public interest to settle their disputes. It only applies in civil proceedings. The privilege does not extend to the protection of objective facts not connected with settlement: Field v Commissioner for Railways for NSW. The privilege is applicable to communications of different parties involved in litigation with the same party: Rush & Tompkins Ltd v Greater London Council. The privilege does not extend to a document that only records the terms of settlement: State Rail Authority of New South Wales v Smith. Also see Lexcray Pty Ltd v Northern Territory (2015) 292 FLR 447; [2015] NTSC 11 for a recent application of s 131.

Field v Commissioner for Railways for NSW [14.260] Field v Commissioner for Railways for NSW (1957) 99 CLR 285; [1957] HCA 92

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Facts [Field alleged he had been lawfully alighting from a train but that it had started to move while he was doing so, throwing him onto the platform and seriously injuring him. In the process of negotiating settlement, solicitors for the Commissioner sought a medical examination of Field by a medical specialist appointed by the department. The correspondence by which this was arranged was marked “without prejudice”. At the medical examination, Field said the train was already in motion when he stepped off it. Settlement negotiations broke down and the matter came up for trial. At trial, the medical specialist gave evidence of the history given by Field. It was unsuccessfully objected at trial that this history was privileged.] Judgment DIXON CJ, WEBB, KITTO and TAYLOR JJ (at 291): ... [7] No doubt the plaintiff’s legal advisers hardly expected that the consequence of submitting their client to medical examination would be that the specialist by whom he was examined would give evidence of a crucial admission going to the cause of action. Had this been anticipated doubtless they would have been reluctant to allow their client to go unattended. On the other hand, it seems equally clear that the purpose of the medical examination was to enable the defendant commissioner to see for himself what the plaintiff’s injuries were and what was his present condition as the result of the accident. It can hardly be doubted that both parties understood that, if, as in the event happened, the negotiations for settlement should break down, then Dr Teece might give the evidence of his actual observations of the plaintiff’s bodily condition and the opinion he formed of his injuries. In this sense the examination had a double aspect. Primarily it was to enable the defendant to obtain a medical report in order to form an estimate of his injuries for the purpose of making an offer of settlement. Failing settlement, the purpose was to enable the defendant’s medical expert to give evidence of what he saw. The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form

Part 3 — Admissibility of Evidence

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Field v Commissioner for Railways for NSW cont� of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by [at 292] way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words “without prejudice” and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other side of these words: see Thomas v Austen; Kurtz & Co v Spence & Sons, at p 441; Paddock v Forrester, at p 1411; Hoghton v Hoghton, at p 559; Re River Steamer Co; Mitchell’s Claim, at 831, 832; Walker v Wilsher, at 337-338. Needless to say, the privilege is a matter to be raised by objection to the admissibility of the evidence. For the purpose of deciding such an objection, the judge may take evidence on the voir dire. The problem in the present case is whether what according to Dr Teece the plaintiff said to him as to the manner in which the accident occurred is within the protection of the privilege. Looked at antecedently the question may be stated as being whether what he might unexpectedly say to Dr Teece should be regarded as within the area of protection. In the first place as a matter of ordinary knowledge it must have been within the contemplation of the parties that some statement would be made by the plaintiff to Dr Teece concerning the nature of his injuries. It could hardly be expected that an orthopaedic surgeon would not ask questions about symptoms, pain, capacity to move and so forth, and such matters must have formed part of the material upon which Dr Teece would form his opinion. Clearly enough, these were not matters which were considered by the parties to fall within the protection of without prejudice negotiations. For it is plain that Dr Teece was expected to give evidence of the opinion he formed should the negotiations for settlement break down. The question, however, does not depend altogether upon the expectations of the parties. It depends upon what formed part of the negotiations for the settlement of the action and what was reasonably incidental thereto. On the one hand, it is contended that it was reasonably incidental to the negotiations to place the plaintiff without reserve in the hands of Dr Teece and allow him to talk freely. On the other hand, it is pointed out that Dr Teece’s function was wholly medical, that no one anticipated the plaintiff discussing the cause of action with him, that he had no function to perform in relation to the settlement except to report his medical judgment of the [at 293] plaintiff’s condition, past, present and future, and that he was not a general agent of the defendant but was appointed only ad hoc to make a medical examination. Further, for purposes of the medical examination it was not necessary or reasonable that the plaintiff should state anything touching his cause of action. [8] The question really is whether it was fairly incidental to the purposes of the negotiations to which the medical examination was subsidiary or ancillary that the plaintiff should communicate to the surgeon appointed by the Railway Commissioner the manner in which the accident was caused. To answer this question in the affirmative stretches the notion of incidental protection very far. The defendant’s contention that it was outside the scope of the purpose of the plaintiff’s visit to the doctor to enter upon such a question seems clearly right. On the whole the conclusion of the Supreme Court that the plaintiff’s admission fell outside the area of protection must command assent as correct. It was not reasonably incidental to the negotiations that such an admission should be protected. It was made without any proper connexion with any purpose connected with the settlement of the action. In these circumstances it appears that the evidence of Dr Teece on this subject was admissible.

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Privilege

CHAPTER 14

Rush & Tompkins Ltd v Greater London Council [14.270] Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 Facts [Rush & Tompkins entered into a building contract with the first defendant, Greater London Council (GLC), for a housing development and had engaged the second defendants (for convenience, “Carey Contractors”) as subcontractors for certain of the works. The completion of the contract was subject to much disruption and delay and in 1979 Carey Contractors made a claim against Rush & Tompkins for loss and expense under the subcontract. Rush & Tompkins began action to seek a declaration that the GLC was liable to reimburse them in respect of any sums that they might be found liable to pay to Carey Contractors. Correspondence marked “without prejudice” between Rush & Tompkins and the GLC resulted in a compromise agreement in 1981 by which on payment by the GLC of £1.2 million Rush & Tompkins would meet the claims of Carey Contractors. Carey Contractors sought disclosure by Rush & Tompkins of the correspondence. Rush & Tompkins refused on the ground of privilege. The trial judge upheld the claim of privilege. This was reversed on appeal, and Rush & Tompkins appealed that finding.] Judgment LORD GRIFFITHS (at 1299):

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The “without prejudice” rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v Head [1984] Ch 290, 306: That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151, 156, be encouraged fully and frankly to put their cards on the table … The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability. The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence “without prejudice” to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase “without prejudice” and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to [at 1300] establish an admission or partial admission. I cannot therefore agree with the Court of Appeal that the problem in the present case should be resolved by a linguistic approach to the meaning of the phrase “without prejudice”. I believe that the question has to be looked at more broadly and resolved by balancing two different public interests namely the public interest in promoting settlements and the public interest in full discovery between parties to litigation. Nearly all the cases in which the scope of the “without prejudice” rule has been considered concern the admissibility of evidence at trial after negotiations have failed. In such circumstances no question

Part 3 — Admissibility of Evidence

Rush & Tompkins Ltd v Greater London Council cont� of discovery arises because the parties are well aware of what passed between them in the negotiations. These cases show that the rule is not absolute and resort may be had to the “without prejudice” material for a variety of reasons when the justice of the case requires it. It is unnecessary to make any deep examination of these authorities to resolve the present appeal, but they all illustrate the underlying purpose of the rule which is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement. Thus the “without prejudice” material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement, which is the point that Lindley LJ was making in Walker v Wilsher (1889) 23 QBD 335 and which was applied in Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1378. The court will not permit the phrase to be used to exclude an act of bankruptcy: see Re Daintrey, Ex parte Holt [1893] 2 QB 116 nor to suppress a threat if an offer is not accepted: see Kitcat v Sharp (1882) 48 LT 64. In certain circumstances the “without prejudice” correspondence may be looked at to determine a question of costs after judgment has been given: see Cutts v Head [1984] Ch 290. There is also authority for the proposition that the admission of an “independent fact” in no way connected with the merits of the cause is admissible even if made in the course of negotiations for a settlement. Thus an admission that a document was in the handwriting of one of the parties was received in evidence in Waldridge v Kennison (1794) 1 Esp 142. I regard this as an exceptional case and it should not be allowed to whittle down the protection given to the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. If the compromise fails the admission of the facts made for the purpose of the compromise should not be held against the maker of the admission and should therefore not be received in evidence.

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I cannot accept the view of the Court of Appeal that Walker v Wilsher (1989) 23 QBD 335 is authority for the proposition that if the negotiations succeed and a settlement is concluded the privilege goes, having served its purpose … [at 1302] … For the reasons I have given the contents of the “without prejudice” correspondence between the main contractor and the GLC will not be admissible to establish any admission relating to the subcontractors’ claim. Nevertheless, the subcontractors say they should have discovery of that correspondence which one must assume will include admissions even though they cannot make use of them in evidence. They say that the correspondence is likely to reveal the valuation put upon the claim by the main contractor and the GLC and that this will provide a realistic starting point for negotiations and therefore be likely to promote a settlement. This is somewhat speculative because for all we know the subcontractors’ claim may have been valued in the “without prejudice” correspondence at no more than the figure of £10,000 pleaded in the statement of claim leaving the parties as far apart [at 1303] as ever. However, it is of course a possibility that it appeared at a much higher figure. It was only at a late stage in the argument for Carey that the distinction between discoverability and admissibility was taken. In the courts below the question appears to have been considered solely on the question of admissibility. But the right to discovery and production of documents does not depend upon the admissibility of the documents in evidence: see O’Rourke v Darbishire [1920] AC 581. The general rule is that a party is entitled to discovery of all documents that relate to the matters in issue irrespective of admissibility and here we have the admission of the head contractors that the “without prejudice” correspondence would be discoverable unless protected by the “without prejudice” rule … [at 1305] … I have come to the conclusion that the wiser course is to protect “without prejudice” communications between parties to litigation from production to other parties in the same litigation. In multi-party litigation it is not an infrequent experience that one party takes up an unreasonably intransigent attitude that makes it extremely difficult to settle with him. In such circumstances it would, I think, place a serious fetter on negotiations between other parties if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant. What would in fact happen would be that nothing would be put on paper, but this is in itself a recipe for disaster in difficult negotiations which are far better spelt out with precision in writing.

Privilege

CHAPTER 14

Rush & Tompkins Ltd v Greater London Council cont� If the party who obtains discovery of the “without prejudice” correspondence can make no use of it at trial it can be of only very limited value to him. It may give some insight into his opponent’s general approach to the issues in the case, but in most cases this is likely to be of marginal significance and will probably be revealed to him in direct negotiations in any event. In my view this advantage does not outweigh the damage that would be done to the conduct of settlement negotiations if solicitors thought that what was said and written between them would become common currency available to all other parties to the litigation. In my view the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties. Accordingly I would allow this appeal and restore the decision of Judge Esyr Lewis QC.

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State Rail Authority of New South Wales v Smith [14.280] State Rail Authority of New South Wales v Smith (1998) 45 NSWLR 382

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Facts [Smith had previously commenced and settled proceedings against his former solicitors for professional negligence after they had sued the wrong defendant in connection with a workplace injury suffered by Smith. Smith then brought an application against the State Rail Authority (SRA) in the Workers’ Compensation Court for weekly compensation. The SRA sought leave to reopen crossexamination of Smith to explore the circumstances of that settlement as relevant to the assessment of weekly payments under s 11(1) of the Workers’ Compensation Act 1926 (NSW). Armitage CCJ refused leave on grounds including that the details of the settlement were protected by the provisions of s 131(1) of the Evidence Act 1995 (NSW) and were therefore inadmissible and that the parties to the settlement were bound by an agreement not to disclose the terms of the settlement. The SRA challenged these grounds on appeal.] Judgment BEAZLEY JA (Priestley and Handley JJA agreeing): [at 385] Section 131 of the Evidence Act is directed solely at communications between parties in an attempt to settle. It is not concerned with the settlement document itself. Counsel for the respondent properly conceded this was the case. His Honour therefore erred in finding that the terms of settlement were not admissible under s 131. Term “Not to Disclose” terms of settlement The parties, it appears, were contractually bound not to disclose the terms of the settlement. His Honour considered that the appellant should not be able “to force the [respondent] to breach that term … having regard to the [respondent’s] uncontradicted evidence … that Tipper v Williams was taken into account” in the settlement. The reference to the respondent’s “uncontradicted evidence” is a reference to the letter of 10 October. It appears his Honour, in this part of his reasoning, combined two concepts. The first is whether the respondent could be required to “breach” his contract by disclosing the terms. The second is whether the terms of the settlement had any relevance to the determination which his Honour had to make. That issue conceptually forms part of the third basis upon which the discretion was exercised. Dealing with the first concept, there is authority that a statutory prohibition on the disclosure of information, such as is found in the taxation legislation, does not operate when disclosure is required by coercion of law, for example, by way of response to an order for discovery: Nestle Australia Ltd v Federal

Part 3 — Admissibility of Evidence

State Rail Authority of New South Wales v Smith cont� Commissioner of Taxation (1986) 11 FCR 453. I can see no reason of principle or policy why the same principle does not apply to a contractual prohibition on disclosure.



Questions

[14.290]

General 1. Refer to the Evidence Act 1995 and the relevant Court rules, then complete the following table: Court and context

Does Pt 3.10 apply or does the common law test for privilege apply?

Why does the Evidence Act or common law test apply?

(a) In an interlocutory proceeding to argue that documents should not be inspected on a return of subpoena before the trial in the Federal Court.

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(b) In an interlocutory civil proceeding to resist inspection of documents on a return of subpoena before the trial in the Supreme Court. (c) In an interlocutory civil proceeding to argue that documents should not be inspected on a return of subpoena before the trial in the District Court. (d) Would your answers to (b) and (c) differ if privilege argument arose in the context of discovery between the parties? (e) In an interlocutory criminal proceeding to resist inspection of documents due to privilege on a return of subpoena before the trial in the District or Supreme Court. (f) In a civil proceeding to argue that documents should not be inspected on a return of subpoena returnable during the trial in the District Court. (g) In a criminal trial to argue that documents should not be inspected on a return of subpoena returnable during the trial in the District Court. (h) During a criminal trial to object to a witness answering a question put in cross-examination on the grounds of privilege. (i) During a civil trial in the Federal Court or the District Court to object to the admissibility of a document on the grounds that it is the subject of client legal privilege.

Client legal privilege 1. Which case authoritatively determined that the Evidence Act 1995 does not have derivative application to the common law?

Privilege

CHAPTER 14

2. Can a judge inspect documents to determine whether they are privileged? 3. What are the competing considerations in privileging information and disclosure of material? 4. Can client legal privilege be waived? If so, how? 5. Read the following scenario and then answer the questions. Jennifer Smith was an accountant responsible for the auditing of a financial company, Dollars-R-Us, which went into liquidation in 2007. Smith has been charged in relation to the collapse of the company, and is accused of having conspired with the directors of the company to commit fraud, and of publishing false financial reports about the state of the company’s finances. These proceedings are in the Supreme Court of New South Wales. There are related civil proceedings in the Federal Court. Smith has issued subpoenas seeking a range of documents held by a firm of solicitors acting for another company, Finance 24–7, in these related proceedings. The solicitors claim that those documents are the subject of legal professional privilege and the client who holds the privilege has not waived that privilege. Smith argues that the documents may establish her innocence or at least assist her in her defence.

6. Can Smith compel the solicitors to produce the documents? 7. Do you think she should be able to access the documents? 8. Would your answer be different if the proceedings were occurring in Western Australia?

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9. Some of the documents were produced before the related court proceedings were anticipated, and contain a combination of legal and policy advice. Might this make a difference to whether privilege applies to them? 10. Some of the documents are records of interviews with clients of Finance 24–7, that were taken after proceedings commenced in the Federal Court. They have been checked by the interviewee for accuracy. Can Smith argue that the contents have been disclosed and that the records of interview have lost their privilege? 11. There are also some records of conversations between Finance 24–7’s solicitors and an external financial adviser about Dollars-R-Us, that occurred before it went into liquidation. Can privilege be claimed over those records? 12. Some of the documents are referred to in the pleadings exchanged between the parties in the Federal Court matter. Could this make a difference to whether the privilege can be claimed? 13. Smith is also arguing that some of the documents that she wants to access are records of an attempt by the solicitors and their clients to conceal assets that might become the subject of a judgment debt. Will that make a difference to the success of the privilege claim? Other privileged communications 1. Can a priest be compelled to attend court in answer to a subpoena to testify? Can the priest object to giving oral evidence about a previous representation of a person if that representation was a confession? If so, how? 2. What is the effect of ss 126J-126L?

Part 3 — Admissibility of Evidence

Privilege against self-incrimination in other proceedings: s 128 1. Which party must object to adducing evidence that may incriminate a person? 2. What evidence need not be given? 3. What are “reasonable grounds for objection”? 4. What happens if the court thinks there are reasonable grounds for the objection? 5. What effect does a certificate have? 6. When does a witness get a certificate? 7. What obligation does the court have because of s 132? 8. What “interests of justice” considerations would require a witness to give evidence? 9. Do bodies corporate have the right to claim the privilege? See s 187. Public interest immunity: ss 129 and 130 1. Did the ALRC intend to change the common law in relation to this area? 2. What effect does s 129 have? 3. What is the test for exclusion of material under s 130(1)? 4. Who initiates exclusion of the evidence? 5. What are some factors the court takes into account in making a decision?

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6. Can public interest immunity be waived? If so, how? 7. Consider the decision of Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 and the Evidence Act 1995, and answer the following questions: (a) Does public interest immunity apply to both documents and oral communications? (b) Why are Cabinet documents and papers concerned with policy decisions at a high level entitled to protection from production due to the “class” of the document? What “class” of documents should be immune from production? (c) What is the reason for withholding a “class” document from production? Is it in the public interest to withhold a document which describes events which occurred many years ago or has been tabled in Parliament? (d) Does the court have a duty to apply the privilege or can it be asserted by a party? Also refer to the Evidence Act 1995. (e) What was the balancing exercise in Sankey v Whitlam? Did Sankey gain access to the documents? Did the documents concern Cabinet deliberations? (f)

Can the court inspect the documents to determine whether they are privileged?

(g) Does the fact that the determination of the privilege is in the context of a criminal trial affect the balancing exercise? 8. Consider the case extracts and answer the following questions: (a) Is the classification of claims as class or contents a precise exercise? (b) Are “class documents” documents where there are strong considerations of public policy militating against the disclosure regardless of the content of the document?

Privilege

CHAPTER 14

(c) Do class documents have absolute immunity from disclosure? (d) In what circumstance should a judge inspect the documents? (e) Do Cabinet minutes have a pre-eminent claim to confidentiality? Would Cabinet deliberations upon matters which remain current or controversial be disclosed in civil proceedings? Would criminal proceedings warrant disclosure of such Cabinet minutes?

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Problem Refer to R v Eagle in Chapter 20. Consider whether any of the documents produced on subpoena are the subject of privilege. Refer to sections of the Evidence Act 1995 to determine whether documents are privileged. Role-play and problem Three students should use the script below to role-play the fact scenario. Then consider the legal issues that arise. Penny Daybox:  (sobbing) Peter is dead! I  want to sue the ABC Chemical Company! It’s all their fault! My neighbour Betsy says I can use some Compensation to Relatives Act 1897. Lawyer: There, there. Have a tissue. Tell me what happened. Penny: Well, Peter, my husband, died on 20 March. But … (sob) … Jane, you explain. Jane (Penny’s daughter):  Well, dad was a paralegal at the well-known commercial law firm of Bagfulls & Cash. The partner, Mr Cash, told him to prepare an advice regarding the criminal and civil liability of their client, ABC Chemical Company in respect of its storage facilities at Woy Woy. I’ve got some of his notes. He wrote that at Woy Woy the ABC Chemical Company stored various chemicals including nitrous oxide, oxygen and liquid petroleum gas. It also sublet part of its storage facility to the Department of Defence, which used the site to store various volatile chemicals. The storage facilities on the island were built in 1950. There is a minute of a meeting of ABC’s Board of Directors dated 1 March 2000 which authorised the General Manager to have plans drawn up for the complete demolition and reconstruction of the chemical storage facilities on the site and to obtain quotes. He was to report back to the board on 1 November for final approval of the work. When Dad was taking instructions from the managing director and chief chemist at ABC he was given a report prepared by the engineer and safety officer of ABC, Mr Chernobyl. With a view to minimising the company’s legal exposure, Mr Chernobyl’s report outlined that the site was outdated and hazardous and in particular that the types of chemicals stored at Woy Woy, if mixed together could create an enormous, potentially lethal fireball. Dad told the partner at the law firm, Mr Cash, about the report and the danger. Mr Cash told him to visit the site to complete his research and to interview Mr Chernobyl. He visited the site on 17 March. It was a really hot blustery day. Penny:  They say that Peter absentmindedly lit a cigarette. He’d been trying to give up smoking, but he found working with lawyers so stressful! And then there was a big fire! And poor Peter. He never managed to speak to me again. But his friend, Rob, who has just become a Catholic priest, says that Peter said to him in hospital “Why did I do it? I knew the site was unsafe.” I don't really like Rob. But anyway, Peter died three days later. Lawyer: I see that the federal police were granted a search warrant issued pursuant to s 10 of the Crimes Act 1914 (Cth). They raided the premises of ABC and seized all documents and files of the in-house solicitors at ABC, including Mr Chernobyl’s report. But they accidentally

Part 3 — Admissibility of Evidence

dropped a piece of paper containing a complete summary of Mr Chernobyl’s report. The next day a Mr Faxfair published the contents of the summary of the report. Penny: I think that the Department of Defence is hiding something too. I asked them what chemicals they have on site and what safety precautions they took, but they are refusing to reveal anything. Won’t you help? Poor Peter (sob, sob). Group work Students should divide into four groups and read the instructions for only their group. The groups should then reconvene and consider whether the documents the subject of subpoena can be accessed.

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Information for all groups Jacobs is charged with sexual intercourse without consent against Smith. The alleged assault occurred on 7 June 2015. The prosecution has been fixed for trial later this year in the District Court (Downing Centre). The defence case is based on Jacobs’ mistaken belief in consent. Instructions for Group 1 (defence lawyers) Smith has been undergoing therapy for trauma associated with the incident. The prosecution have disclosed to the defence, at their request, that Smith has been seeing a counsellor at the Sydney Rape Therapy Centre. The police have also begun investigations into alleged sexual assaults by Jacobs on a number of other people. No charges have been laid against Jacobs for these offences. The defence have reason to believe that these people who made the complaints are associates of Smith (ie they are Smith’s friends). The defence wish to view the entries in police notebooks associated with these investigations. You are the defence lawyers for Jacobs. How would you obtain the above material? Prepare for legal arguments that may result on the return date of the subpoenas that you have issued. Instructions for Group 2 (Rape Therapy Centre) Smith has been undergoing therapy for trauma associated with the incident. The prosecution have disclosed to the defence, at their request, that Smith has been seeing a counsellor at the Sydney Rape Therapy Centre. Smith has been seeing a rape counsellor on weekly intervals since 2006. Smith had been a victim in an unrelated sexual assault during 2006. The defence do not know of this matter. Smith’s rape counsellor took detailed notes of the counselling sessions after the 2015 sexual assault. The notes reveal that Smith relived the trauma associated with the first sexual assault when the 2006 assault occurred. The notes contain information about Smith’s previous sexual relationships and family history. Smith’s file at the centre also contains a “surviving rape journal” which is a diary kept by Smith after the assault. The purpose of the diary is to overcome the assault. The Sydney Rape Therapy Centre has been issued with a subpoena for production of “all the files and all notes and other documents concerning Smith”. The centre has employed your firm of lawyers to resist the production of the notes and the diary. Prepare your legal submissions.

Privilege

CHAPTER 14

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Instructions for Group 3 (Commissioner for Police) The police have begun investigations into alleged sexual assaults by Jacobs on a number of other people. No charges have been laid against Jacobs for these offences. The defence believe that these people are associated with Smith. The other complainants live in the same suburb as both Smith and Jacobs. In fact, it appears that all complainants and Jacobs attended the same high school. The defence seek access to the police notebooks associated with these investigations. The Police Commissioner has been served a subpoena for the production of these notebooks. The police suspect that Jacobs is a serial rapist and they do not want their investigations to be revealed until they have formally charged Jacobs for these offences. You are a solicitor at the Crown Solicitor’s Office and you are instructed by the Police Commissioner to resist the production of the documents at the return date of the subpoena. Prepare your legal submissions. Instructions for Group 4 (lawyers for the prosecution) The Crown Prosecutor who is briefed to prosecute Jacobs wishes to call Rose as a witness. Rose has made a statement to police. In his statement Rose reveals that on 8 June 2015 he was having a drink with Jacobs and Jacobs said “I raped a woman last night, I think the police know about it, what should I do?” Rose states that he told Jacobs to do nothing or “leave the country”. Rose has not been charged with committing an offence of accessory after the fact. Rose’s statement has been served on the defence. You are a solicitor at the Office of the DPP. You have been requested to advise whether Rose can be called as a witness and whether Rose can claim privilege against giving evidence.

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PART 4 — PROOF 15 Burden and Standard of Proof ............................................................... 643

17 Facilitation of Proof ................................................................................... 675 18 Corroboration and Warnings ................................................................. 701

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19 Prima Facie Case ........................................................................................... 727

PART4

16 Judicial Notice .............................................................................................. 663

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CHAPTER 15

Burden and Standard of Proof [15.10]

OVERVIEW ................................................................................................................ 643

[15.20]

BURDEN OF PROOF .................................................................................................. 644 [15.30]

[15.40]

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation .................................. 645

STANDARD OF PROOF .............................................................................................. 647 [15.40] [15.60]

Civil proceedings .................................................................................... 647 [15.50] Qantas Airways Ltd v Gama ....................................................... 650 Criminal proceedings.............................................................................. 654 [15.70] Green v The Queen................................................................... 656 [15.80] Shepherd v The Queen .............................................................. 659

[15.90]

Standard of proof relating to admissibility of evidence ............................ 661

OVERVIEW

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[15.10] Chapter  4 of the Evidence Act 1995 deals with various aspects of proof. Part  4.1

deals with standard of proof, Pt  4.2 with judicial notice, Pt  4.3 with facilitation of proof, Pt 4.4 abolishes corroboration requirements, Pt 4.5 requires jury warnings in respect of unreliable evidence and Pt 4.6 creates a number of ancillary provisions. In Pt 4.1, s 140 prescribes the standard of proof in civil proceedings (proof “on the balance of probabilities”). Section 141 prescribes the standard of proof in criminal proceedings. Where the burden of proof is on the prosecution, it is proof beyond reasonable doubt. Where the burden of proof is on the defence, only proof “on the balance of probabilities” is required. Under the common law, special rules apply where proof of guilt is dependent upon circumstantial rather than direct evidence. These rules continue to apply, given that they are based on the general standard of proof. Thus, where a case involves circumstantial evidence, it may be necessary to direct the jury that, where they rely upon circumstantial evidence, guilt should not only be a rational conclusion but also the only rational conclusion that can be drawn from the circumstances. In addition, where a prosecution case relies upon circumstantial evidence and an intermediate conclusion of fact in the inferential process constitutes an “indispensable link in a chain of reasoning towards an inference of guilt”, such fact must itself be proved beyond reasonable doubt. Section 142 prescribes the standard of proof in respect of any question arising under this Act, including any question of fact which arises when determining the admissibility of evidence (proof “on the balance of probabilities”). However, the Evidence Act 1995 does not deal with a number of topics sometimes associated with the law of evidence, such as the allocation of the burden of proof in respect of facts in issue, most presumptions, the doctrines of res judicata and issue estoppel, the parol

Part 4 — Proof

evidence rule and the admissibility of extrinsic evidence to assist in the interpretation of wills, deeds and other instruments. The Act does not, in general, attempt to regulate the drawing of inferences from evidence or from the failure of a party to call particular evidence where such evidence would reasonably have been expected. This chapter will deal with both the provisions of the Act and common law rules. It will not follow exactly the order of the Act.

BURDEN OF PROOF [15.20] As noted at [15.10], the Act does not deal with the allocation of the burden of proof

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in respect of facts in issue, which the ALRC regarded as a matter of substantive law. In relation to the civil burden of proof, the plaintiff bears the onus. There are some exceptions, which are issues of substantive law, such as that the defendant bears the onus of proving contributory negligence. In Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, a negligence case, Heydon J made the following comments (although in dissent in the result): [50] To speak of a legal (ie persuasive) burden is to speak of a burden of satisfying the trier of fact on the balance of probabilities when all the evidence has been received. This is what Wigmore called a risk of nonpersuasion. [51] Of the expression “evidential burden”, Sir Nicolas Browne-Wilkinson V-C said that in his “experience, every time the phrase ‘evidential burden’ is used it leads to error”. It can be used in at least three senses. [52] In the first sense, “evidential burden” refers to the duty of one party (usually the party bearing the legal (ie persuasive) burden, who in most instances will be the plaintiff) to call sufficient evidence to raise an issue as to the existence or non-existence of a fact in controversy. This must be done to prevent a no case submission succeeding (or if the relevant evidential burden rests on the defendant, to prevent the issue otherwise being withdrawn from the jury). The Privy Council (Lord Hodson, Lord Devlin, Viscount Dilhorne, Lord Donovan and Lord Pearson) criticised the expression “evidential burden of proof” as follows:  “It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof.” However that may be, this is what Wigmore called the duty of producing evidence. [53] In the second sense, “evidential burden” refers to circumstances in which a plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiff’s favour. There is then said to be an “evidential burden” in the sense of a “provisional” or “tactical” burden on the defendant: if the defendant fails to call any or any weighty evidence, it will run a risk of losing on the issue – that is, a risk that at the end of the trial the trier of fact will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive) standard of proof. The “provisional” or “tactical” burden raises the question whether a defendant should as a matter of tactics “call evidence or take the consequences, which may not necessarily be adverse” [64]. [54] The third sense in which the expression “evidential burden” is employed arises where a plaintiff, in discharging the evidential burden in the first sense, calls evidence so strong that a reasonable trier of fact would be bound to decide the issue in the plaintiff’s favour if the defendant calls no evidence. It is sometimes said that an “evidential burden” rests on the defendant which, if not discharged, will cause the defendant to lose and which, if discharged so as to cause the trier of fact either to reject the plaintiff’s evidence or to be undecided, will result in the legal (ie persuasive) burden on the plaintiff not being satisfied.

Burden and Standard of Proof

CHAPTER 15

In Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14, French CJ, Crennan and Kiefel JJ stated:

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[33] The distinction between the “legal burden” and the “evidential burden” has been explained in this Court as the difference between “the burden ... of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt” and “the burden of proof in the sense of introducing evidence” (emphasis in original). It has also been explained in the 8th Australian edition of Cross on Evidence by reference to the distinction between the functions of judge and jury: “The concept of the evidential burden is the product of trial by jury and the possibility of withdrawing an issue from that body. Unlike the concept of the legal burden it is not a logical necessity of litigation about questions of fact: ‘If it were to be said of any issue, that it was not covered by an evidential burden, the only effect would be to remove the judge’s filtering power in respect of that issue’.” What the preceding passage makes clear is that the term “evidential burden” directs attention to the function of the trial judge when instructing the jury about the issues which they are required to determine. The question for the trial judge [34] There are some “defences” in respect of which the accused bears no evidential burden because the negativing of such defences is an integral part of the prosecution’s positive case, on which it bears the legal burden. It is not necessary here to discuss which defences fall into that category and which defences give rise to an evidential burden on the accused. [35] Where, as in the present case, a statute creating an offence provides for a defence and imposes the legal burden of establishing that defence on the accused, then the accused also bears the evidential burden. For that evidential burden to be met there must be evidence upon which the trial judge can properly direct the jury that the defence is open as a matter of law. [36] If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:

1. In a case where the legal burden is on the prosecution and the evidential burden on the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived? 2. In a case in which both the legal burden and the evidential burden rest upon the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation [15.30] Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Facts [Building and Construction administered a statutory scheme for leave provisions for temporary workers in the building and construction industry. There was concern that Apollo was in breach of the scheme. Apollo sought a declaration that its workers who installed prefabricated shower screens, wardrobe doors and shelving were not within the statutory definition of “workers within the industry”, which would mean there was no breach. In effect, the plaintiff had an onus to prove a negative proposition (that the class of work was not usually performed by a carpenter). The court held that the plaintiff must establish sufficient evidence from which the negative proposition can

Part 4 — Proof

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation cont be inferred. The defendant then has an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiff would have to deal in the discharge of the plaintiff’s overall burden of proof.] Judgment HUNT J:

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[at 564] What the plaintiffs have to prove in the present proceedings is really in the nature of a negative proposition: that the class of work which includes the installation of prefabricated shower screens is not usually performed by a carpenter. The onus in these proceedings lies on the plaintiffs to prove the negative. The burden of proof required to satisfy such an onus is not usually difficult to discharge, particularly where (as in the present case) the other party has the greater means to produce evidence which contradicts the negative proposition for which the onus-carrying party contends. If there was one thing which was made abundantly clear in the evidence in the present [at 565] case, it was that the defendant had available to it in its dispute with the plaintiffs the not inconsiderable resources of the Building Workers Industrial Union of Australia, New South Wales Branch. Were these proceedings a prosecution by the defendant of the plaintiffs for failing to lodge returns (as were the proceedings which led to the decision of Cross J in Builders Licensing Board v Pride Constructions Pty Ltd) the onus would be on the corporation to establish that the class of work which includes the installation of shower screens was usually performed by a carpenter. It is easy to imagine how the corporation would have gone about seeking to establish its case with the assistance of the BWIU, an assistance which the plaintiffs clearly do not have in the present case. That is what I mean when I say that the defendant in the present case has the greater means to produce evidence which contradicts the negative proposition for which the plaintiffs contend. In other words, provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof: compare Purkess v Crittenden (1965) 114 CLR 164 at 167-168, 171. The position is somewhat akin to the evidential burden placed upon an accused in a criminal trial who seeks to raise the issue of self-defence which the Crown must disprove: the authorities are collected, and one is quoted, in Spautz v Williams [1983] 2 NSWLR 506 at 532-533. It is also somewhat akin to the evidential burden placed upon the Commissioner of Taxation in an appeal against his assessment of taxation (in which the taxpayer bears the onus of proof) to raise a particular matter in evidence so as to require the taxpayer to deal with that issue in his discharge of his overall burden of proof … I do not, however, intend to suggest that only comparatively slight evidence is required for the plaintiffs to discharge their onus in this case as in the case where the facts are peculiarly within the knowledge of the defendant: compare Parker v Paton (1941) 41 SR (NSW) 237 at 243; 58 WN 189 at 192; Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. That is the so-called “scintilla” doctrine. Obviously, it does not apply to the position here. What I do intend to suggest is that the plaintiffs’ burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant’s greater means to produce evidence which contradicts that proposition. That is a pale reflection of the “scintilla” doctrine. It is but an application of the more general maxim, not restricted to cases where the facts are peculiarly within the knowledge of one party, that all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted … [at 566] In the present case, it has been established to my satisfaction that prefabricated shower screens are usually installed by the manufacturers, and not by building workers (to use a general term). [His Honour then considered further evidence in relation to the question and concluded:] Upon the evidence before me (relating as it does almost exclusively to the installation of prefabricated shower screens, with only Mr Husband’s thoughts concerning prefabricated aluminium windows in

Burden and Standard of Proof

CHAPTER 15

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation cont addition to that evidence), I find that the installation of these prefabricated aluminium products is not work usually performed by a carpenter. It follows that the installation of prefabricated shower screens is not work of a kind usually performed by a carpenter. That disposes of the first issue which I have to decide. [His Honour then considered whether this was work for which a rate of pay was fixed by an award in a manner not calling for report.]



STANDARD OF PROOF Civil proceedings [15.40] Section 140 provides for the standard of proof in civil proceedings, that is, the bal-

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ance of probabilities. Briginshaw v Briginshaw (1938) 60 CLR 336 is the “classic” common law case concerning the civil standard which is discussed in Qantas Airways Ltd v Gama. In Henderson v Queensland (2014) 89 ALJR 162; [2014] HCA 52 Gageler J stated: Proof: inference and probability [87] Two explanations of the ordinary civil standard of proof, although lengthy, are usefully recalled in this context. One is that of Dixon CJ in Murray v Murray, with reference to Briginshaw v Briginshaw: What the civil standard of proof requires is that the tribunal of fact, in this case the judge, shall be “satisfied” or “reasonably satisfied”. The two expressions do not mean different things but as in other parts of the law the word “reasonably”, which in origin was concerned with the use of reason, makes its appearance without contributing much in meaning. However, its use as a qualifying adjective seems to relieve lawyers of a fear that too much unyielding logic may be employed. But the point is that the tribunal must be satisfied of the affirmative of the issue. The law goes on to say that he is at liberty to be satisfied upon a balance of probabilities. It does not say that he is to balance probabilities and say which way they incline. If in the end he has no opinion as to what happened, well it is unfortunate but he is not “satisfied” and his speculative reactions to the imaginary behaviour of the metaphorical scales will not enable him to find the issue mechanically. The passages cited in Briginshaw’s Case ... show that in English law there never were more than two standards of persuasion ... But they show that from the beginning of the nineteenth century courts did not impose on the parties, or one may perhaps say claim from the parties, the same strictness or exactness of proof about all questions arising in a civil trial without regard to their triviality or importance, the unlikelihood or the probability of their occurring. In other words the tribunal might reason upon the evidence to a conclusion as a responsible and sensible man would in all the circumstances. [88] The other is the often repeated explanation of Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd: The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while [in] the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise.

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Part 4 — Proof

Applying those principles to the civil case before them, in which the plaintiff bore the legal burden of proving harm to have arisen from the defendant’s negligence, their Honours went on to explain: Once the plaintiff offers evidence which standing by itself raises a higher degree of probability that the harm arose from negligence for which the defendant is responsible that will support a verdict unless the defendant goes into evidence. ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. [89] Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel: One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed. [90] That description of the ordinary operation of the civil standard of proof applies equally to a case in which the legal burden of a party is to prove the non-happening of an event or the non-existence of a particular state of affairs as to a case in which a party’s legal burden is to prove the happening of an event or the existence of a particular state of affairs. As Davidson J earlier explained in the Supreme Court of New South Wales in Ex parte Ferguson; Re Alexander: In all legal proceedings the basic principle at common law is that in civil cases a plaintiff must prove the essential elements of his case even if that course involves establishing the assertion of a negative ... He must establish what is really the affirmative in substance, not what is merely affirmative in form ... But if the party bearing the onus furnishes some evidence which gives rise to a presumption or inference of fact in his favour or that presumption already exists, the onus shifts to the other party His Honour’s reference to evidence adduced by the party bearing the legal burden of proof giving rise to a “presumption or inference of fact” was to nothing more than an inference of fact drawn, in accordance with ordinary processes of inferential reasoning, in the absence of further evidence. His Honour’s reference to an “onus” then shifting to the other party was to nothing more than the practical need (sometimes referred to as a “tactical burden”) for an opposing party to adduce further evidence if that party wants to prevent such an inference of fact actually being drawn in the circumstances of the case. [91] The process of inferential reasoning involved in drawing inferences from facts proved by evidence adduced in a civil proceeding cannot be reduced to a formula. The process when undertaken judicially is nevertheless informed by principles of long standing which reflect systemic values and experience. One such principle, forming “a fundamental precept of the adversarial system of justice”, is that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. Another such principle, “reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”, is that “a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”. The reluctance of a court to infer fraudulent or criminal conduct is ordinarily somewhat stronger in respect of a person who is not a party to litigation and who is for that reason denied an opportunity to explain and justify his or her conduct as consistent with the conventional perception.

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Burden and Standard of Proof

CHAPTER 15

[92] To discharge his legal burden of proving that the jewellery was not illegally acquired property, Mr Henderson did not need to lead specific evidence affirmatively to establish that each owner in the chain of title to the jewellery had derived that title otherwise than as a result of some illegal activity. It was enough that he adduced evidence within his capacity to produce to establish facts sufficient to allow the opinion to be formed that the more probable inference was that the title to the jewellery was not so derived. [93] Mr Henderson adduced evidence by which he succeeded in proving to the satisfaction of the primary judge that the money was the proceeds of his own sale of jewellery given to him by his father. Those findings were not inevitable. But they were made. The State did not argue in the Court of Appeal, and does not argue in this Court, that they should be revisited. [94] On his Honour’s findings, Mr Henderson therefore succeeded in giving the innocent explanation that he came into possession of the jewellery as a gift from his father. He and his siblings went on to give an account, which they said they had been given by their mother and father, as to how their father came into possession of the jewellery. Having rejected that account as untrue, the primary judge might well have been justified in inferring that the account had been concocted, by Mr Henderson’s parents or more latterly by Mr Henderson and his siblings, as a cover for an inconvenient truth of the jewellery having come into Mr Henderson’s father’s possession as the proceeds of some undisclosed illegal activity by Mr Henderson’s father or someone else. But his Honour did not draw any such adverse inference. His Honour rather treated the evidence as a whole as providing no indication, one way or the other, as to how Mr Henderson’s father came into possession of the jewellery. There is no suggestion that Mr Henderson failed to call any other witness who might have provided another account. [95] Mr Henderson’s appeal to the Court of Appeal was an appeal by way of rehearing. His further appeal to this Court is an appeal in the strict sense. To discharge its appellate function, the Court of Appeal was, and this Court is, obliged to reach its own conclusion as to the inference to be drawn from the primary facts found by the primary judge if and to the extent that the correct inference to be drawn is put in issue in the appeal. [96] Mr Henderson’s grounds of appeal to the Court of Appeal were not framed in terms which unambiguously invoked that obligation. Understandably in that circumstance, the conclusion reached in the Court of Appeal, that the primary judge was “entitled” to conclude that Mr Henderson had not discharged the “onus” of persuading the primary judge that his father had not unlawfully acquired the jewellery, was not expressed in terms which unambiguously reflected that obligation. [97] Mr Henderson’s appeal to this Court does sufficiently put in issue the proper inference to be drawn from the primary facts found by the primary judge to permit and require this Court to reach its own conclusion. [98] When due weight is given to the conventional perception that persons do not ordinarily engage in criminal conduct, the primary judge’s findings of fact do not lead to the anomalous outcome to which his Honour considered himself driven. Absent some basis in the evidence for considering that conventional perception to be inapplicable to Mr Henderson’s father, or to any earlier owner of the jewellery, the absence of evidence as to how any of them acquired title to the jewellery leaves as the more probable inference that it was not as a result of some illegal activity. That is the inference appropriate to be drawn, to which this Court should now give effect.

In Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 at [51] Campbell JA (with whom Bergin  CJ in Eq and Sackville  AJA agreed) explained how the court assesses whether the burden of proof has been satisfied: … To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence. As well, both under the common law and also under s 140 Evidence Act 1995, the evidence must be enough to enable the court to feel actual persuasion that a particular fact is so: Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [136]; Communications, Electrical, Electronic,

Part 4 — Proof

Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACCC [2007] FCAFC 132; (2007) 162 FCR 466 at [31]; R v Galli [2001] NSWCCA 504; (2001) 127 A Crim R 493 at [55]; Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall  J at [55], McColl and Bell JJA agreeing. I respectfully agree with the observation in Cross on Evidence, 8th Australian edition (2010) LexisNexis [9130] and footnote 184 that “according to ALRC 26 [998], the provision does not require actual belief; but that is not what the language says”. What s 140(1) says is: In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities (emphasis added). It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.

In NOM v DPP (2012) 38 VR 618; [2012] VSCA 198 at [124] Redlich, Harper  JJA and Curtain AJA explained the civil standard of proof in this way: … whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact-finder must satisfy him or herself in proceedings of this nature. Mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.

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[15.50] Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273; [2008] FCAFC 69 Facts [On 8 December 2006 the Federal Magistrates Court ordered Qantas Airways Limited (Qantas) to pay William Charles Gama, a former employee, $71,692.70 as damages, including interest, for breach of s 9 of the Racial Discrimination Act 1975 (Cth) and s 15(2)(d) of the Disability Discrimination Act 1992 (Cth). The learned magistrate found in Mr Gama’s favour that certain racially discriminatory remarks had been directed to him in the course of his employment at Qantas and constituted unlawful conduct under the Racial Discrimination Act. The Court also found that certain of these remarks constituted discrimination under the Disability Discrimination Act. Many other complaints were rejected. The appeal should be allowed in respect of the disability discrimination findings. However, as essentially the same events underpinned the findings of racial discrimination, the damages order was not disturbed.] Judgment FRENCH and JACOBSEN JJ: ... [38] After setting out some of the background to the complaints made by Mr Gama his Honour set out his approach to the onus and standard of proof necessary to establish discrimination. He discussed the standard of proof in civil proceedings where serious allegations of misconduct are made. He referred to Briginshaw v Briginshaw (1938) 60 CLR 336 and what he called the “Briginshaw test”. He cited Sharma v Legal Aid (Qld) (2002) 115 IR 91 in which the Full Court, in a case involving alleged breaches of the Racial Discrimination Act, noted that it had been common ground at first instance that the standard of proof in such cases was the higher standard referred to in Briginshaw 60 CLR 336. In Sharma 115 IR 91 at [40], a passage which his Honour quoted at [13], the Court said: Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of

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Qantas Airways Ltd v Gama cont the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. His Honour noted that Briginshaw 60 CLR 336 had not been applied in every matter of racial discrimination and referred to Victoria v Macedonian Teachers Association of Victoria Inc (1999) 56 ALD 333. He also observed that there is no need to establish whether a respondent had an intention to discriminate on the grounds of race or disability. He referred to Waters v Public Transport Corporation (1991) 173 CLR 349 and Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [19]-[23]. He does not appear to have drawn from his discussion of the law any particular conclusions. ... Cross-appeal ground 1 – Briginshaw test [109] Mr Gama complains that his Honour erred by using the Briginshaw test when applying the balance of probabilities standard with respect to some of his allegations under the Racial Discrimination Act and the Disability Discrimination Act. [110] The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour’s reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]-[61], concerning the application of s 140(2)(c) of the Evidence Act 1995 (NSW) are consistent with her Honour’s reasons. The first ground of cross-appeal therefore fails. ... Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

BRANSON J: [122] I have had the advantage of reading in draft the reasons for judgment of French and Jacobson JJ. I agree with the orders proposed by their Honours and generally with their reasons for judgment but wish to express some views of my own on the issues of the appropriate standard of proof. The alleged Briginshaw test [123] The learned Federal Magistrate included in his reasons for judgment what his Honour described as a “discussion about the Briginshaw standard”. Mr Gama contended by his cross appeal that his Honour erred in using “the Briginshaw test” when applying the civil standard of proof. For the reasons set out below it seems to me that each of the expressions “the Briginshaw standard” and “the Briginshaw test” should be avoided because of its tendency to mislead. [124] It is appropriate to start by referring to the well known statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362: Fortunately … at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. [125] I note, incidentally, that in the above passage Dixon J speaks of “allegations” rather than, for example, causes of action. His Honour was concerned, as it seems to me, with the appropriate

Part 4 — Proof

Qantas Airways Ltd v Gama cont standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding. [126] More importantly for present purposes, Dixon J did not purport to identify any particular standard; rather his Honour made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not developed a third standard of persuasion; it acknowledges only the two standards – the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction. [127] Briginshaw v Briginshaw, of course, long pre-dated the enactment of the Evidence Act 1995 (Cth) (“the Evidence Act”) which now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s 140 as follows: (1) in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and

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(c) the gravity of the matters alleged. [128] In Employment Advocate v Williamson (2001) 111 FCR 20 at [65], in a section of my reasons for judgment with which Kenny J expressed her agreement (see [108]), I expressed the view that s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. I referred to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 (“Neat Holdings”) at 449450 per Mason CJ, Brennan, Deane and Gaudron JJ: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”. (footnotes and citations omitted) [129] I went on at [66]-[67] to question the accuracy of certain judicial observations to the effect that in cases of a particular kind a “standard of proof above mere satisfaction on the balance of probabilities is appropriate” and suggested that in every case it was necessary to consider not only the nature of the case but also the nature of the particular fact in issue, of which proof is required, including its inherent gravity and unlikelihood.

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Qantas Airways Ltd v Gama cont [130] It does not seem to me that the Full Court decision in Sharma v Legal Aid (Qld) (2002) 115 IR 91 is to be understood as adopting a different view from that which I expressed (with the agreement of Kenny J) in Employment Advocate v Williamson. As the Court noted in Sharma v Legal Aid (Qld) at [40], it was common ground at first instance in that matter “that the standard of proof for breaches of the RDA [Racial Discrimination Act 1975 (Cth)] is the higher standard referred to in Briginshaw v Briginshaw” and no contrary argument was put on the hearing of the appeal. [131] Nor do I understand the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [29]-[38] to have adopted a different view. Their Honours noted at [31] that Dixon J’s classic statement in Briginshaw v Briginshaw appositely expresses the considerations that s 140(2) of the Evidence Act now requires a court to take into account. They went on at [33] to draw attention to the judgment of the High Court in Rejfek v McElroy (1965) 112 CLR 517. I note that in that case at 521 the High Court made it plain that “the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused” (emphasis added).

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[132] The conclusions relevant to the proceeding the subject of this appeal that can be drawn from the above analysis of the authorities can be simply expressed as follows. The Federal Magistrates Court was required to find Mr Gama’s case proved if it was satisfied that his case had been proved on the balance of probabilities (s 140(1) of the Evidence Act). Mr Gama’s case in the relevant sense was comprised of the facts in issue on which he bore the onus of proof. In deciding whether it was satisfied of the facts in issue on which Mr Gama bore the onus of proof the Federal Magistrates Court was bound to apply s 140 of the Evidence Act. His Honour was therefore free to take into account any relevant matter but he was required to take into account the three matters specifically mentioned in s 140(2) of the Evidence Act. [133] I therefore turn to consider the three matters specifically mentioned in s 140(2) of the Evidence Act. The first of the three matters was, relevantly, the nature of the cause of action. As the gravity of the matters alleged constitutes the third of the matters specifically mentioned in s 140(2), it may be assumed that this is not the primary concern of the reference to the nature of the cause of action. Mr Gama’s cause of action was founded on s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) (“the HREOC Act”). It is not possible to identify exhaustively the factors to which the Federal Magistrate was entitled to have regard in taking into account any of the matters to which s 140 refers. However, in my view, his Honour was entitled to have regard to the fact that s 46PO only operates where a complaint has been terminated by the President of the Human Rights and Equal Opportunity Commission (“the President”). The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President reflects a recognition, as it seems to me, that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct. [134] The second of the three matters specifically identified in s 140(2) of the Evidence Act is the nature of the subject-matter of the proceeding. The nature of the subject-matter of the proceeding before the Federal Magistrates Court was a complaint that Qantas had done acts rendered unlawful by s 9(1) of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”). Among the factors that it would have been appropriate for his Honour to take into account in this regard was the fact that the Racial Discrimination Act was, as its preamble discloses, enacted to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination (“the Convention”). As Weinberg J observed in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 (“the Macedonian Teachers’ Case”) at p 29, “anti-discrimination legislation should be regarded as beneficial and remedial legislation”.

Part 4 — Proof

Qantas Airways Ltd v Gama cont [135] Additionally, s 9(1) of the Racial Discrimination Act is concerned with acts involving a “distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin”. That is, it is not concerned to proscribe only conduct motivated by an intention or purpose to discriminate. Moreover, s 9(1) reaches to conduct “based on” the factors identified by the subsection and not merely to conduct undertaken “by reason of” those factors (Macedonian Teachers’ case partic. at p 40). Each of these factors tends to diminish the opprobrium likely otherwise to attach to a finding that an act was unlawful by reason of s 9(1) of the Racial Discrimination Act. Together they tend to diminish the gravity of such a finding. [136] Sections 18 and 18A of the Racial Discrimination Act, where relevant, may also tend to diminish the gravity of a finding that an act was unlawful by reason of s 9(1) of the Racial Discrimination Act. Section 18 provides, in effect, that where an act is done for two or more reasons and one of the reasons is proscribed by the Act, then, even though that reason is not the dominant reason or even a substantial reason for doing the act, the act is to be taken to have been done for that reason. Section 18A of the Act imposes vicarious liability on a person whose employee or agent does an unlawful act in connection with his or her duties as an employee or agent unless it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

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[137] The final matter specifically identified in s 140(2) of the Evidence Act is, as mentioned above, the gravity of the matter alleged. Without wishing to diminish the significance of the factual allegations made by Mr Gama, which themselves varied in gravity, more serious allegations of racial discrimination can be brought to mind. [138] As identified above, in addition to taking into account the three matters specifically identified in s 140(2), it was open to his Honour to have regard to other relevant matters. Other relevant matters could include the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged (see the passage from Briginshaw v Briginshaw set out in [4] above) and the longstanding common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict (Medtel Pty Ltd v Courtney (2003) 130 FCR 182 per Branson J at [76]). [139] As I have already indicated, I agree with the conclusion of French and Jacobson JJ that the Federal Magistrate’s reasons for judgment do not disclose any error in the application of the applicable standard of proof to Mr Gama’s allegations. However, in my view, for the reasons given above, references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.

 Criminal proceedings [15.60] Section  140 provides for the standard of proof in criminal proceedings, namely “beyond reasonable doubt”. The suggested direction to a jury in the Judicial Commission of New South Wales’ Criminal Trial Courts Bench Book is: Let me now say something to you about the onus of proof. This is, as you have already been told more than once, a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused

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to prove [his/her/their] innocence but for the Crown to prove [his/her/their] guilt and to prove it beyond reasonable doubt. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. This is known as the “presumption of innocence”. This expression “proved beyond reasonable doubt” is an ancient one. It has been deeply ingrained in the criminal law of this State for almost two hundred years and it needs no explanation from trial judges. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt and I shall subsequently outline to you the elements of the charges. In a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “Yes”, the appropriate verdict is “Guilty”. If the answer is “No”, the verdict must be “Not guilty”.

This direction is distinguished from the position in England and Wales where a trial judge does not need to use the phrase “beyond reasonable doubt”, but rather directs the jury in the following way:

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How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of “Guilty”. If you are not sure, your verdict must be “Not Guilty”. [From Criminal Law, Specimen Directions, Judicial Studies Board, UK.]

In R v Dookheea [2017] HCA 36; (2017) 91 ALJR 960 Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ observed that “a reasonable doubt is not just any doubt that the members of a jury as a reasonable jury might entertain, but is rather what a reasonable jury considers to be a reasonable doubt” (at [39]). However, it was emphasised that, in directing a jury, it is generally speaking undesirable for a trial judge to draw this distinction to the attention of the jury. It was said at [37] to be undesirable to “invite a jury to consider the distinction between reasonable doubt and any doubt” because it “risks obfuscating the jury’s understanding of their task”, a reference to the observation in Green v The Queen (1971) 126 CLR 28 at 33 that the jury is not required to “analyse their own mental processes”, to “submit their processes of mind to objective analysis”. On the other hand, the High Court did not disapprove of both the Crown Prosecutor and defence counsel saying to the jury that they must be “sure” of the defendant’s guilt. Further, the Court also encouraged the common practice of contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities as “an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged” (at [41]). Shepherd v The Queen explains the standard applicable to circumstantial evidence. Shepherd v The Queen resolves the question of whether a jury may draw an inference of guilt from circumstantial evidence only where that evidence itself was established beyond reasonable doubt. In Chamberlain v The Queen (1983) 153 CLR 521, Mrs Chamberlain was convicted of the murder of her baby. The prosecution case relied on scientific evidence that blood stains found in the appellant’s car were from a child under six months. The evidence was disputed by experts called by Mrs Chamberlain. The majority of the High Court held that the jury required direction that they needed to be satisfied that the blood was foetal blood beyond a reasonable doubt before they could draw an ultimate inference of guilt beyond a reasonable

Part 4 — Proof

doubt. Shepherd v The Queen clarified Chamberlain v The Queen and found that it is not necessary in every circumstantial case to direct the jury that they may only draw inferences against an accused from facts which have been proved beyond reasonable doubt, before they can draw an ultimate inference of guilt beyond reasonable doubt. In Victoria, Pt 7 of the Jury Directions Act 2015 contains provisions dealing with directions on proof “beyond reasonable doubt”. Section 63(2) provides, in effect, that any “power” of a trial judge to give the jury an explanation of the phrase “proof beyond reasonable doubt” is not affected by the Act. However, the Act does regulate what the trial judge may say about the phrase if the jury ask a question that directly or indirectly raises its meaning (s 63(1)). Section 64 prescribes what the trial judge “may” say in that situation. Further, as regards what “must be proved beyond reasonable doubt”, s 61 provides: What must be proved beyond reasonable doubt Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are–

(a) the elements of the offence charged or an alternative offence; and (b) the absence of any relevant defence.

Section 62 provides:

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Abolition of common law obligation to give certain Directions Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

The effect of s 62 is that any common law obligation to direct a jury that an “indispensable link in a chain of reasoning towards an inference of guilt” must itself be proved beyond reasonable doubt is abolished. Equally, any common law obligation to direct a jury that “tendency” must be proved beyond reasonable doubt is also abolished.

Green v The Queen [15.70] Green v The Queen (1971) 126 CLR 28 Facts [Green and others were convicted of rape. Green appealed on the ground that the trial judge improperly instructed the jury as to the onus of proof. The trial judge said the following in his summing-up: Now I take you now to the burden of proof. The burden of proof, as you well know, is on the Crown, and it is on the Crown in respect of every issue in respect of every element of the crime. Well now, before you say you are satisfied for the purposes of a verdict about any issue, you of course have to reach a certain degree of satisfaction in your mind, and what degree of satisfaction must be reached? The answer is that you must be satisfied beyond reasonable doubt, and that is a time-honoured phrase and is usually thought to do very good work in seeing that nobody is convicted of a serious crime unless the court that tries him is satisfied of his guilt beyond reasonable doubt. And you may say, “Well, how do I know when I have got to a stage of being satisfied about something beyond reasonable doubt?” and the answer to that is that it is when you have reached the stage that you either have no doubt at all, because if you have got no doubt at all you must have got rid of all reasonable doubts; or if there is some thing nagging in the back of your mind which makes you hesitate as to whether you are satisfied beyond reasonable doubt, you have got to try and take it out and identify this thing which is causing the hesitation, causing the doubt if you like, and you have a look at it and you try to assess it and you say to yourself is this doubt that is bothering me,

Burden and Standard of Proof

CHAPTER 15

Green v The Queen cont does it proceed from reason; is it a rational doubt; is it something which raises a really sensible doubt; or is it a fantastic sort of doubt; is it something which arises from some prejudice that I may have; some quite unreasonable fear that I might go wrong; some perhaps reluctance to make an unpleasant finding. Well, if it is one of those doubts – merely one of those doubts, then of course it cannot be described as reasonable because it does not come from reason; it comes from something which is emotional or irrational or – at any rate it is not based upon reason, and if you have had a look at what is bothering you and you decide that it does proceed from something which is not reason but something fantastic or rising out of prejudice or one of these other things, then you should say to yourself, “The only doubt I’ve got is one which is not based on reason, I have therefore got rid of all doubts which are not based in reason, and the result of that is that I am satisfied beyond reasonable doubt, because the only things that are worrying me are things which I now assess after looking at them as not based in reason.” And of course it is a commonsense point of view before you find anybody guilty of a crime like this, you do need to feel comfortable about it; you do need to feel, “Very well, I’ve considered everything and I’m really satisfied. I am satisfied beyond reasonable doubt; I have given it the best consideration I can.” There it is. And then you go away from the court and you are comfortable, and that is the way you ought to be. You might not enjoy it, but you will nevertheless be comfortable, and unless you can make a decision of guilt and feel comfortable that it is the right decision, well then you do not make it.] Judgment THE COURT:

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[at 31] Sir Owen Dixon in Dawson v The Queen said of a summing-up in a criminal trial upon the onus of proof that in his view: … it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions. His Honour referred in this connexion to Thomas v The Queen. In Brown v The King Barton ACJ in reference to the traditional formula said: I fully recognize that one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury … as a well understood expression. [at 32] McTiernan J, in Thomas v The Queen, observed “But there is danger in venturing upon a novel elucidation of this principle of the criminal law”, that is of proof beyond reasonable doubt. Kitto J in the same case said: Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what “reasonable” means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable. Further, Windeyer J pointed out: Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary … It is said that it [“the time-honoured expression”] “was invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box” … The expression proof beyond a doubt conveys a meaning without lawyers’ elaborations.

Part 4 — Proof

Green v The Queen cont Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown. It is thus remarkable that in this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them. In consequence there must be a new trial not only in the case of Green but in that of each of the others tried with him for, as we have observed, the quoted passage of the summing-up was applicable to the case of each of them. Public time and expenditure has been wasted and the time elapsing between the making of the charges and their final disposal has been unnecessarily prolonged.

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In the first place, the passage in the summing-up which we have quoted must at best have been confusing to the jury. Indeed we are unable to feel any confidence as to what they would understand by the totality of what the judge told them. We point out later on what we think would have been their dominant impression. In the second place, the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the [at 33] particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. “It is not their task to analyse their own mental processes”: Windeyer J, Thomas v The Queen. A reasonable doubt which a jury may entertain is not to be confined to a “rational doubt”, or a “doubt founded on reason” in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing-up. Yet that is what they were directed to do in this case. But the error, in our opinion, does not end there. If the jury could get any clear picture from the trial judge’s directions, we think the predominant impression they would take to the jury room would be that a comfortable satisfaction of the accused’s guilt would be enough to warrant conviction. It seems to us that the language used in this portion of the summing-up equated satisfaction beyond reasonable doubt with that comfortable satisfaction felt by persons who have done their best and depart self-satisfied with their efforts. Such a standard of conduct on the part of a jury in a criminal trial would in our opinion be a denial of that traditional solicitude for certainty expressed in the traditional formula as to the onus of proof. If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt. In the passage which we have quoted from the summing-up in this case the trial judge did alert the jury to the impropriety of acting upon such possibilities. We do not know whether counsel for the accused had actually sought to influence the jury in an inadmissible way calling for the judge’s intervention. But in any case as we have indicated the judge did not confine his [at 34] remarks to restoring a proper balance in the mind of the jury. Compare Thomas v The Queen per Windeyer J. Lastly on this aspect of the summing-up, the language of the trial judge was calculated to lessen the sense of responsibility of the jury in the sense in which that expression was used by Isaacs and Rich JJ in Hicks v The King. It seems to us that its clear tendency apart from its obfuscation and inaccuracy was to blunt the jury’s proper sense of reluctance to act whilst what they might consider a reasonable doubt had not been removed. In our opinion, the jury were not properly instructed as to the onus of proof. For that reason alone there must be a new trial. See Thomas v The Queen.



Burden and Standard of Proof

CHAPTER 15

Shepherd v The Queen [15.80] Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Facts [Shepherd was convicted of conspiring to import heroin. He appealed on the ground that the trial judge erred in failing to direct the jury that, in so far as the prosecution case rested upon circumstantial evidence, they might only infer the applicant’s guilt where each fact upon which the inference was based was proved beyond reasonable doubt. It was possible to classify the evidence against the appellant into three broad categories. First, there was evidence given by two undercover policemen, who were present in a cell with Clark and the appellant whilst the latter were in custody. Their evidence was that Clark told the appellant that he would have to take over the reins of the organisation and that the applicant agreed to do so. Secondly, there was evidence from a number of persons involved in the activities of the organisation, who had been granted immunity from prosecution, that large quantities of heroin were imported into Australia and distributed here in a manner which implicated the applicant. Thirdly, there was evidence of financial transactions said to indicate that the appellant shared the profits of the organisation with Clark. The High Court decided that in a case resting upon circumstantial evidence, it is not correct that the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. However, if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt. Whether there is a need for a trial judge to identify such a conclusion and direct the jury as to that standard of proof will depend on the circumstances of the case.] Judgment DAWSON J (Toohey and Gaudron JJ agreeing): Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

[at 578] [2] The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge’s Case (1838) 2 Lewin 227 (168 ER 1136); Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ, speaking for the Court, observed in Grant v The Queen (1975) 11 ALR 503, at p 504: Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed. Similarly, in McGreevy v Director of Public Prosecutions (1973) 1 WLR 276; (1973) 1 All ER 503, the House of Lords refused to lay down a rule that any special direction should be given in relation to the use of circumstantial evidence. [3] I mention those cases, not to criticise the direction given by the trial judge, but to remark that in none of them was it suggested that, where the prosecution relies upon circumstantial evidence, an inference of guilt can properly be drawn only from facts which have been proved beyond reasonable doubt. Nor was it suggested that the jury should be given a direction to that effect. For my part,

Part 4 — Proof

Shepherd v The Queen cont I do not think that either of those propositions is correct, but it is submitted [at 579] on behalf of the applicant that both were laid down by a majority in Chamberlain. I believe that a close examination of the judgments in Chamberlain does not bear out the submission, but before turning to that case it is desirable that I indicate my own view.

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[4] Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. [5] On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. [6] As I have said, the prosecution bears the burden of proving all [at 580] the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. … [14] [at 585] The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognised in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

Burden and Standard of Proof

CHAPTER 15

Shepherd v The Queen cont [15] Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful. [16] This was not a case of that kind.

 Standard of proof relating to admissibility of evidence [15.90] Section 142 deals generally with the applicable standard of proof in relation to factual

findings which are a pre-condition to admissibility or “any other question arising under the Act”.

Questions

[15.100]

1.

Burden of proof

Who has it?

Exceptions?

Civil

 

 

Criminal

 

 

2. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Fill in the following table concerning the burden of proof in civil and criminal cases:

Fill in the following table, explaining the standard of proof in civil cases and that for the prosecution and accused. Explain what section of the Evidence Act 1995 is applicable, the requirements of that section and any other consideration that is relevant:

Standard of proof

Section

Requirements?

Consideration?

Civil

 

 

 

Prosecution

 

 

 

Accused

 

 

 

Admissibility of evidence

 

 

 

3.

Alex is on trial for importation of prohibited drugs into Australia. He was arrested at the airport when the drugs were found in his suitcase. Alex claimed another passenger in Bangkok asked him to take the suitcase because his luggage was overweight. At the conclusion of the trial, the judge began her summing-up by referring to the role of the jury in general terms and how they should go about their task. She summarised the elements of the offence and continued: In respect of the onus of proof, it is for the Crown to prove the accused is guilty, beyond reasonable doubt. The accused does not have to prove anything and you will find him not guilty unless you are satisfied beyond reasonable doubt that he is guilty. That means you should convict unless you have a rational doubt. You are defence counsel. What redirections do you seek?

4.

Consider R v Eagle in Chapter 20. Is the trial judge required to give the jury a circumstantial evidence direction? If yes, state the direction that a judge should give the jury.

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CHAPTER 16

Judicial Notice [16.10]

OVERVIEW ................................................................................................................ 663

[16.20]

JUDICIAL NOTICE...................................................................................................... 663 [16.30] Woods v Multi-Sport Holdings Pty Ltd ........................................... 663 [16.40] Aytugrul v The Queen ............................................................... 668 [16.50] Maluka & Maluka .................................................................... 670

OVERVIEW [16.10] Section 143 in Pt 4.2 permits a court to take judicial notice of certain matters of law, with-

out any need for formal proof by evidence of those matters. Section 144 permits judicial notice of facts which “are not reasonably open to question” and are either matters of “common knowledge” or capable of verification from authoritative documentary sources. Section 145 retains the common law principles relating to Crown certificates on a matter of international affairs.

JUDICIAL NOTICE

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[16.20] Section 143 of the Evidence Act 1995 deals with judicial notice of matters of law.

Section 144 deals with judicial notice of matters of fact. Section 145 retains Crown certificates on matters of international affairs. In Woods v Multi-Sport Holdings Pty Ltd, the High Court was asked to consider the law concerning judicial notice and how it might apply to issues and statistics concerning health. Not all the High Court judges were of the same opinion. The High Court in Aytugrul v The Queen considered an argument about judicial notice of DNA evidence. In Maluka & Maluka (2011) 45 Fam LR 129; [2011] FamCAFC 72, the Full Family Court considered an appeal where a trial judge considered social science material and whether s 144 was satisfied in providing the parties with an opportunity to make submissions to ensure that the parties are not unfairly prejudiced.

Woods v Multi-Sport Holdings Pty Ltd [16.30] Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Facts [Woods injured his eye when playing indoor cricket, losing 99 percent use of his right eye. He sued Multi-Sport for breaching the duty of care that it owed him by failing to provide a protective helmet or by failing to warn him of the danger of sustaining an eye injury while playing indoor cricket.] Judgment McHUGH J: ... [60] Upon these facts and this evidence, I am of the opinion that the respondent was in breach of the duty of care that it admittedly owed to Mr Woods. If a jury had tried the case, Multi-Sport

Part 4 — Proof

Woods v Multi-Sport Holdings Pty Ltd cont could not have obtained a verdict as a matter of law. Multi-Sport knew or ought to have known of the risk of an eye injury. On the expert evidence, it was reasonably foreseeable that such an injury could occur. Those who organise activities for reward to themselves must keep abreast of publicly available or expert knowledge concerning the risks of injury in such activities. The duty of reasonable care demands nothing less. If Multi-Sport did not know of the risk of eye injury from indoor cricket, it ought to have known of it. There was also evidence that could support a finding that a protective helmet was available as a reasonably practicable means of avoiding the risk. The trial judge held that, if a helmet had been available, Mr Woods would have worn it. [61] As a matter of law, therefore, it was open to the trial judge to find as a fact that Multi-Sport had breached the duty of care that it admittedly owed to Mr Woods. And as a matter of fact, the trial judge, sitting as a juror, ought to have found that Multi-Sport had breached its duty. The gravity of the risk, the degree of probability of it occurring and the small cost of avoiding it combined to make it unreasonable for Multi-Sport to fail to eliminate the risk. Accident prevention and the cost of injuries [62] Accident prevention is a major concern of Australian society. Injuries not only harm individuals – often permanently – they also place enormous demands on our health services, and this was the position in March 1996 when Mr Woods was injured. According to a report on the costs of the health system for the years 1993-1994, “the direct health system costs of injury and poisoning amounted to $2,601 million”. Given the number of injuries, the enormity of this figure is not surprising. According to a national health survey:

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In 1995, 2.8 million Australians (16% of the population) had a current injury or injury-related condition. This represented 18% of all people with a medical condition. The same survey showed that in 1995, 228,800 people “with a current injury or injury-related condition had been injured most recently due to a sport or recreation-related activity in the month prior to interview”. [63] In my view, it is legitimate and in accordance with longstanding authority and practice to refer to these statistics. They fall into the class of “legislative” facts that a court may judicially notice and use to define the scope or validity of a principle or rule of law. They are matters that “are not particular to the parties” and assist in defining the content of the principles that govern this case and others like it. (a) The doctrine of judicial notice: general [64] As a general rule, facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule. A court may judicially notice a fact whenever it “is so generally known that every ordinary person may be reasonably presumed to be aware of it”. The information which the court acquires by taking judicial notice of facts is not “evidence strictly so called”. Facts that may be judicially noticed fall into two categories: facts that can be judicially noticed without inquiry and facts that can be judicially noticed after inquiry. Facts that can be judicially noticed also fall into two other categories: (1) adjudicative facts and (2) legislative facts. [65] An adjudicative fact is a fact in issue or a fact relevant to a fact in issue. A legislative fact is “a fact which helps the court determine the content of law and policy and to exercise its discretion or judgment in determining what course of action to take”. In contrast with adjudicative facts, which always relate to the issues between the parties, legislative facts generally relate to the lawmaking function of the judicial process. As Brennan J pointed out in Gerhardy v Brown, a court that is considering the validity or scope of a law “is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties”. Whether the law is a Constitution, a legislative enactment or a principle or rule of the common law or equity, the “validity and scope of a law cannot be made to depend on the course of private litigation”. In R v Henry, Spigelman CJ said that the means of acquiring information “for the purposes of policy development should not be confined by the rules of evidence developed for fact finding with respect to matters that only concern the parties to a particular case”. As a result, as the learned author of Cross on Evidence has pointed out, “[i]t is clear from the cases that

Judicial Notice CHAPTER 16

Woods v Multi-Sport Holdings Pty Ltd cont judges have felt themselves relatively free to apply their own views and to make their own enquiries of social ethics, psychology, politics and history where relevant without requiring evidence or other proof”. And in Rendell v Paul, King CJ, with the approval of the other members of the Full Court of the Supreme Court of South Australia, said that judicial notice can be taken of “general economic trends, the effects of inflation, prevailing rates of interest and returns on investments”. Similarly, the Supreme Court of Victoria has taken judicial notice of prevailing economic conditions. (b) Notorious facts judicially noticed without inquiry [66] Facts that have been judicially noticed without inquiry include: • that cancer is a major health problem in the community and, despite research, little progress has been made in controlling it; • that HIV is a life-endangering disease; • that a child victim of sexual assault may be reluctant to resist, protest or complain about the sexual assault, due to fear of punishment or rejection; and • that many lawyers now charge hundreds of dollars an hour for their services, that legal aid is often unavailable to litigants in tort cases and that the cost of those services is substantially increased when lawyers cannot give advice to their clients because the law is unpredictable.

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(c) Notorious facts judicially noticed after inquiry [67] On countless occasions, Justices of this Court have used material, extraneous to the record, in determining the validity and scope of legal rules and principles. They have frequently relied on reports, studies, articles and books, resulting from their own research after the case has been reserved and parties have made their submissions. In Australian Communist Party v Commonwealth, Dixon J said: Just as courts may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians … and employ the common knowledge of educated men upon many matters and for verification refer to standard works of literature and the like … so we may rely upon a knowledge of the general nature and development of the accepted tenets or doctrines of communism as a political philosophy ascertained or verified, not from the polemics of the subject, but from serious studies and inquiries and historical narratives. We may take into account the course of open and notorious international events of a public nature. And, with respect to our own country, matters of common knowledge and experience are open to us … [68] In Timbury v Coffee, Dixon J, in the absence of any medical evidence, consulted a medical text on the extent to which acute alcoholism could affect the mental processes of the testator. In Alexander v The Queen, Stephen J relied on published works of psychology in reaching conclusions as to the reliability of identification evidence. In Jaensch v Coffey, Deane J referred to legal articles and medical journals, reports, bulletins and textbooks in explaining the causes of psychiatric injury. In Jones v The Queen, Kirby J referred to extraneous material to explain why children may delay in complaining about sexual assault. Similarly, in Ryan v The Queen, I referred to psychiatry journals and reports in discussing sentencing approaches for paedophiles. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Callinan J referred extensively to newspapers, books, lectures, academic papers, the journalists’ Codes of Ethics and a Senate Committee Report to show “the realities of the modern publishing, entertainment and media industries, as well as the activities of members of the Executive branch of government in this country”. (d) Use of statistics in judgments [69] Courts have also used published statistics to resolve issues vital to the resolution of litigation and to inform themselves on policy issues. In Aqua Max Pty Ltd v MT Associates Pty Ltd, Gillard J found that one party was entitled to recover a bonus by taking judicial notice of movements in the Consumer Price Index for Melbourne. In R v Henry, the New South Wales Court of Criminal Appeal used sentencing statistics to give a guideline sentencing judgment. In Wong v The Queen, this Court has recently queried the utility of statistics in sentencing. But Wong has nothing to say concerning the right of a court to take judicial notice of statistics in an appropriate case.

Part 4 — Proof

Woods v Multi-Sport Holdings Pty Ltd cont (e) Judicial notice and legislation [70] In three Australian States, legislative provisions enable the court to refer to certain published works considered to be of authority in matters of public history, literature, science or art. Section 72 of the Evidence Act 1906 (WA), for example, provides: All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps, or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate. ... CALLINAN J: Statistics: judicial notice [162] In Holland v Jones, Isaacs J discusses, and emphasises, the great caution with which courts must act in taking judicial notice of unproved matters:

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The only guiding principle – apart from Statute – as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court “notices” it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt. [163] I would resist any suggestion that the same degree of caution is not required when the extrinsic facts are so-called legislative facts, or facts a knowledge and understanding of which may assist the court to determine or develop the law, whether on grounds of policy or otherwise. With respect, it is no answer to say that the law as stated by this Court will on occasion have application to people and situations other than those before the Court in the proceedings in which resort is sought to be had to unproved facts. This Court has always insisted that it will not give advisory opinions. It has always refused to entertain cases in which there has not been a properly constituted matter with real issues and genuinely affected litigants before it. In short, there is always going to be one party who fails in this Court. It would be unfair and entirely unsatisfactory for such a party to learn, after the event, for the first time, that he or she lost because the Court resorted to extrinsic, allegedly notorious facts with which he or she had no opportunity to deal. [164] In Gerhardy v Brown, Brennan J said that the “validity and scope of a law cannot be made to depend on the course of private litigation”. I do not take that to be a warrant for the reception and use of material that has not been properly introduced, received, and made the subject of submission by the parties. What his Honour said cannot mean that the interests of the litigants before the court can be put aside. They retain their right to an adjudication according to law even if other, conceivably higher or wider, interests may ultimately be affected. [165] Contrary to the suggestion of the learned current author of Cross on Evidence, judges are not free to apply their own views and to make their own inquiries of social ethics, psychology, politics and history without requiring evidence or other proof. Two reasons why this is so are immediately apparent. The first is that the parties must be given an opportunity to deal with all matters which the court regards as material. The second reason is that rarely is there any universal acceptance of what are true history, politics and social ethics. Anyone with any knowledge of these will be aware that there is a huge, indeed probably immeasurable, range of differences as to what they legitimately are, and the ways in which they are to be identified, understood and applied. For example, resort by me to the very recent and very short history of post-modernism would, if I were uncritically to accept its tenets, lead me to hold that there is no such thing as true history: history itself is no more than a series of subjective interpretations by different historians. It is in the light of such wide divergences of modern opinion as to what is historical fact that the statement of Dixon J in Australian Communist Party v Commonwealth has to be understood today. There his Honour said that courts may use the general facts of history

Judicial Notice CHAPTER 16

Woods v Multi-Sport Holdings Pty Ltd cont ascertainable from the accepted writings of serious historians. It would only be if a very large measure of agreement could be obtained and, I would suggest, from the parties themselves, as to what are accepted writings and who are serious historians that the court would be entitled to resort to them. [166] In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, I referred (inter alia) to books, academic papers, a Senate Committee report, and other materials to show the realities of the modern publishing, entertainment and media industries as well as the activities of members of the Executive branch of government in this country. I also referred to a body of case law and State and federal legislation for the purpose of meeting assertions used in this Court as one of the foundations for the implication of a constitutional freedom of political expression. I concluded that there was no basis for such an implication. In so doing, I regarded myself as entitled to refer to the extrinsic materials mentioned because this Court in Lange v Australian Broadcasting Corporation relied upon statements about modern conditions which had been made by McHugh J in Stephens v West Australian Newspapers Ltd. It is unfortunate that the necessity to look at such extrinsic material arose in Lenah; but it did because a less incomplete and more rounded picture of relevant modern conditions was called for. It was because I was also concerned about the use of extrinsic facts generally that I prefaced my overview of modern conditions in Lenah with these observations:

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I embark upon a consideration of, and use the expression, “circumstances prevailing today” because it was recently, as will appear, used as a justification for the implication of a Constitutional right which had apparently been lying dormant for 90 or so years. Judges sometimes make assumptions about current conditions and modern society as bases for their decisions. Great care is required when this is done. An assumption of such a kind may be unsafe because the judge making it is necessarily making an earlier assumption that he or she is sufficiently informed, or exposed to the subject-matter in question, to enable an assumption to be made about it. That is why judges prefer to, and indeed are generally required to, act on evidence actually adduced, and are conservative about taking judicial notice of matters of supposed notoriety. It is not without significance to this appeal, however, that in a case on the related topic of defamation, three Justices of this Court referred to “the very different circumstances [prevailing] today” from 100 years before, and presumably had regard to them in reaching the decision which their Honours did, although the joint judgment does not identify the circumstances said to have changed. A unanimous High Court made a similar observation in Lange. There the only relevant considerations that were identified were those referred to by McHugh J in Stephens v West Australian Newspapers Ltd, who noted that bureaucracies are vast, intrusive upon daily life and affairs, and publicly funded. I should point out that in neither of these cases was any evidence called which bore upon the nature and size of modern bureaucracies, and, how in number, authority, power and intrusiveness, they differed from bureaucracies in earlier times. Indeed it is not immediately apparent how evidence of this kind could have been called in respect of the issue ultimately involved, whether the defendant in each case had an arguable defence to a defamation action. Nor was any reference made to legislation establishing the bureaucracies that their Honours had in mind which might have gone some way towards making the relevant point. Had some such reference been made, it might have provoked consideration of these matters: of other, modern legislation to which I later refer and which is designed to counter untoward intrusions, arbitrariness, secrecy and capriciousness on the part of bureaucracies; and whether, within the legislation by which such bureaucracies are established, there are provisions to ensure the propriety and transparency of their conduct. Accordingly, just as members of this Court in Stephens and Lange referred to perceptions and matters not in evidence, I, too, intend to refer to a number of the realities of the modern publishing, entertainment and media industries, as well as the activities of members of the Executive branch of government in this country. These are to some extent inseparably intertwined. [167] The same concerns provided reason for me, whenever I could, to refer in Lenah to various pieces of legislation, the fact and content of which demonstrated the existence of various relevant modern conditions and the cures for the mischief caused by some of them.

Part 4 — Proof

Woods v Multi-Sport Holdings Pty Ltd cont

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[168] In this case, however, resort to statistics contained in National Health Surveys is not only impermissible but also, with respect, unhelpful. The statistics in question do not fall into any of the categories of material which might properly influence the outcome of the appeal, or any other case; nor are they statistics going to the establishment of what has become, for many purposes, a conventional statutory yardstick and therefore a truly notorious fact, the Consumer Price Index. Nor is there any statutory basis for their reception. The statistics were not given in evidence at the trial. In my opinion, they would not have been admissible had they been sought to be tendered. The number and severity of sports-related injuries and the cost of treating them throw no light upon the incidence of injury to a batsman from a ricocheting ball off his own bat in the course of an innings in an indoor cricket match. They are irrelevant to that matter. Even if they were relevant, they would still constitute evidence, and this Court has held that it will not receive evidence in the exercise of its appellate jurisdiction. The respondent has had no opportunity, here or elsewhere, of dealing with the surveys, either by leading evidence explaining them, distinguishing them or contradicting them, or by making submissions in any court about them or their relevance. Nor do such statistics provide a basis in policy for the formulation of any principle or rule to apply to cases in which negligence in the playing or conducting of sporting contests is alleged. Just as the respondent has had no opportunity of dealing with the surveys, by evidence or submissions, this Court has not had any opportunity of considering any cost–benefit analysis which may or may not show that the overall advantage to the community, in terms of fitness, occupation of leisure time, and community health generally, of participation in sport, or indoor cricket particularly, equals or outweighs the costs of the provision of health services to people injured playing sport. [169] Reference to such statistics in this Court in turn invites and, regrettably, necessitates some further reference to them and like matters in the same way as the reference in Stephens and Lange to modern conditions provoked further reference and consideration of other aspects of modern conditions by me in Lenah. The Australian Bureau of Statistics’ National Health Survey: Injuries, Australia does indeed record that 2.8 million Australians (16% of the population) had a current injury or injuryrelated condition, and that 228,800 of these people had been injured most recently due to a sport or recreation-related activity in the month prior to interview. These statistics are, however, unhelpful to the appellant’s cause or indeed generally. The percentage involved, somewhat less than 10 percent of injured people, is a relatively small percentage. The expression “due to a sport or recreation-related activity” is a very imprecise one. A leisurely or a brisk walk can be recreation. The sense in which “recreation-related” is used in the statistics is unclear. The statistics show that persons aged 55-64 had the highest incidence of injury-related conditions. I doubt whether many people in that age group owe their injuries to indulgence in indoor cricket. And, far and away, dislocations, sprains and strains represented the leading type of current injury in 1995, being injuries rather removed from the sorts of injuries likely to be sustained by ordinarily healthy indoor cricketers. It was suggested by Dixon J in Australian Communist Party that judges may refer to standard works of literature and the like. In conformity with his Honour’s invitation to look to literature, I would conclude on this topic by referring to Disraeli’s disdain for statistics by equating them with falsity.



Aytugrul v The Queen [16.40] Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15 Facts [The appellant was convicted of murder. The deceased and the appellant (both of Turkish origin) had been in a relationship but that relationship had ended more than two years before the deceased was stabbed to death. The prosecution case at trial was circumstantial. The prosecution alleged that the

Judicial Notice CHAPTER 16

Aytugrul v The Queen cont motive for the killing came from the failure of the appellant’s relationship with the deceased and her having formed a relationship with another man. In order to establish motive, the prosecution relied on evidence that about five months before the deceased was killed the appellant had published a poem in the Turkish Weekly News declaring that he could not give up his love for the deceased. The prosecution further relied on evidence suggesting the appellant stalked the deceased for months before her death. The High Court appeal concerned the admissibility of evidence of a hair found on the deceased’s thumbnail that had been subjected to mitochondrial DNA testing. The results of that testing showed two things: first, that the appellant could have been the donor of the hair and, second, how common the DNA profile found in the hair was in the community. This second aspect of the results was expressed in evidence both as a frequency ratio and as an exclusion percentage. The expert who had conducted the test gave evidence to the effect that 1 in 1,600 people in the general population (which is to say the whole world) would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that 99.9 percent of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage). It was argued that the evidence the witness gave in the form of an exclusion percentage was not admissible, and that judicial notice could be taken in relation to exclusion percentages.] Judgment FRENCH CJ, HAYNE, CRENNAN AND BELL JJ:

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... [19] …Argument in the Court of Criminal Appeal appears to have proceeded on the footing that that Court was being asked to establish, as a general legal proposition, that evidence expressing the results of DNA analysis as an exclusion percentage would in every case be inadmissible because its probative value is always outweighed by the danger of unfair prejudice to the defendant. In this Court the appellant urged that, despite both the infrequent mention made at trial of exclusion percentages and the close juxtaposition of that evidence with clear explanations of how exclusion percentages are calculated, Ms Pineda should not have been permitted to give the evidence she did that (a) pointed out that a frequency ratio of 1 in 1,600 entails that 1,599 of the 1,600 would not be expected to have the relevant DNA profile and (b) expressed that result as a percentage. A general rule? [20] No sufficient foundation was laid, at trial or on appeal (whether to the Court of Criminal Appeal or this Court), for the creation or application of a general rule of the kind described. It may readily be accepted that, as McClellan CJ at CL demonstrated, research has been undertaken into whether some “forms of expressing [DNA] statistics carry greater persuasive potential than others”. It is evident that numerous articles have been published in well-respected journals setting out the opinions of authors who have undertaken study of and experiments in relation to questions of this kind. But it is important to recognise that the relevant field of study is not the law but psychology. And it was not demonstrated (whether at trial, in the Court of Criminal Appeal or on appeal to this Court) that the methods used in the studies that have been made, or the results expressed in the articles to which reference was made, are methods or results that have attained such a degree of general acceptance by those skilled in the relevant disciplines as would permit a court to take judicial notice of some general proposition about human understanding or behaviour said to be revealed by the published literature. [21] Before a court could take judicial notice of such a general proposition, the provisions of s 144 of the Evidence Act would have to be met. As the majority of this Court noted in Gattellaro v Westpac Banking Corporation, “[i]n New South Wales there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW), s 144”. In this case, knowledge of the proposition in question could not be said to be “not reasonably open to question” and “common knowledge” or “capable of verification by reference to a document the authority of which cannot reasonably be questioned”. And whether, in accordance

Part 4 — Proof

Aytugrul v The Queen cont with s 144(4), a sufficient opportunity was given to the parties to make submissions and to refer to relevant information such as was necessary to ensure that neither party was unfairly prejudiced by the court acquiring or taking into account “knowledge” of this kind need not be decided. [22] No proof was attempted, whether at trial or on appeal, of the facts and opinions which were put forward (by reference to the published articles) as underpinning the adoption of some general rule that expressing the results of DNA analysis as an exclusion percentage will always (or usually) convey more to a hearer than the evidence allows regardless of what other evidence is given about frequency ratios or the derivation of exclusion percentages. Yet that was the basis on which it was asserted that a general rule should be established to the effect that evidence of exclusion percentages is always inadmissible. And absent the proof of such facts and opinions (with the provision of a sufficient opportunity for the opposite party to attempt to controvert, both by evidence and argument, the propositions being advanced), a court cannot adopt such a general rule based only on the court’s own researches suggesting the existence of a body of skilled opinion that would support it. [23] The question that was presented for consideration in this matter must be identified with greater specificity than is permitted by general reference to how the human mind can or commonly will deal with statistical information.



Maluka & Maluka [16.50] Maluka & Maluka (2011) 45 Fam LR 129; [2011] FamCAFC 72

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Facts [The case concerned an appeal against parenting orders by the father, the father contended that his Honour erred in relation to his assessment of the gravity of the risk of family violence if there was any time between the children and the father, in particular if the children only had supervised time with him at a contact centre. Allied to this challenge is the father’s contention his Honour erred in relation to his assessment of the nature of the children’s relationship with him. The father appealed on a number of grounds including that the trial judge denied the father procedural fairness by taking into account published social science material and failing to disclose what part of the material, for what purpose and in what respect the trial judge proposed to take the identified material into account in reaching his decision or provide adequate reasons as to how the social science material provided the court with further evidence.] Judgment BRYANT CJ, FINN AND RYAN JJ Use of social science material [84] Grounds 4-6 inclusive challenge the use by the trial Judge of social science material. This comprised three articles published in the Family Court Review 46(3) July 2008. The articles are identified in a letter from the trial Judge’s Associate to the parties’ lawyers and ICL on 10 June 2009 and at par 373 of the trial Judge’s reasons. They relate to family violence and parenting arrangements. Essentially, these grounds were argued on the basis of lack of procedural fairness and failure to provide reasons in relation to the use of the material. [85] As mentioned earlier, his Honour invited submissions about what use, if any, he could make of this material. In the course of hearing those submissions his Honour said: … I can do as I have done in this case and say, “Look, here it is. In terms of my knowledge of domestic violence, this adds to my general knowledge of domestic violence and how it

Judicial Notice CHAPTER 16

Maluka & Maluka cont operates.” I still have to make findings, don’t I, in terms of your client. But isn’t it a common knowledge type matter? (Transcript, 22 June 2009, p 3) [86] Counsel for the father responded: … As I have said there can be absolutely no objection to your Honour adding to your Honour’s knowledge of that particular issue or concern, but it doesn’t entitled [sic] your Honour to either, on the basis of that material, make a finding against – sorry, not against anyone – with respect to domestic violence. That has to be made on the basis of the evidence before you … (Transcript, 22 June 2009, p 3) [87] His Honour then said: … Aren’t I entitled, though, to have regard if I make findings of fact and say, “Here are the findings of fact which these papers can’t assist me and make that findings of fact, but once I have made the findings of fact aren’t I then able to say, if I choose to, that these findings of fact are such that I can conclude that in accordance with some writings of learned authors, that this amounts to coercive domestic violence?” (Transcript, 22 June 2009, p 4)

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[88] Discussion continued during which his Honour explained that he contemplated applying to the facts, definitions used in the material, namely, “coercive intimate violence” and “reactive violence”. Counsel for the father invited his Honour to articulate how categorisation of family violence typology in accordance with the systems adopted by the various authors would influence his decision. His Honour repeated his earlier observations that there appeared to be two types of violence alleged in this case, namely “coercive intimate violence” and “reactive violence”. His Honour then said: It just seems to me that that is the context in which I would be using those papers. But I wouldn’t be limiting myself as broadly and, hence, the matter has been re-listed. (Transcript, 22 June 2009, p 5) [89] Although it is not entirely clear what his Honour there intended to convey, it is tolerably clear he said he would not be limited to merely categorising family violence typology. [90] Counsel for the ICL then addressed his Honour. Reference was made to s 144 of the Evidence Act as the guiding provision in relation to this issue. Section 144 of the Evidence Act provides: (1)

Proof is not required about knowledge that is not reasonably open to question and is: (a)

common knowledge in the locality in which the proceeding is being held or generally; or

(b)

capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2)

The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3)

The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4)

The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

[91] Repeatedly counsel for the ICL counselled caution in relation to the trial Judge’s proposed use of the social science material. It was his submission that the trial Judge could use the material in aid of his own general learning in relation to which he submitted “but that is the extent of it”. It was strongly argued this social science material could not constitute “common knowledge” about the impact of family violence. [92] With these submissions counsel for the mother agreed. She went on to say: … Now, your Honour, my concern with respect to that is there has been nine days of evidence and submissions, and there is more than enough evidence, in my submission, for you to make a finding as to whether these things [that is acts of violence by the father] have occurred.

Part 4 — Proof

Maluka & Maluka cont … In my submission this article is a tick a box: if this, then that; then that. Now, that is my major concern with respect to this article. But if your Honour was still minded to take it into account, naturally there is four learned authors – HIS HONOUR: I can’t – I can’t diagnose that, though, can I? (Transcript, 22 June 2009, pp 11-12) [93] Counsel for the mother agreed with the trial Judge that he could not “diagnose” which we understand to mean: determine by reference to the material, the impact of the violent conduct as found by his Honour on this mother and these children. Counsel for the mother went on to submit that if the trial Judge sought further input into the evidence in relation to family violence, he should make factual findings and, if still troubled about matters, such as the likely effect of that violence, it was open to his Honour to recall Dr F to supplement the expert evidence already given by her. [94] Thus it will be seen there was no enthusiasm from any party for his Honour to have regard to the social science material. All counsel were content with the state of the evidence and none sought to recall Dr F. They were agreed the material did not constitute “common knowledge”. Each impressed upon his Honour the need to be cautious and mindful of the constraints imposed by s 144 of the Evidence Act.

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[95] Turning then to his Honour’s reasons, in relation to how this material was to be used in reaching his decision, the trial Judge made the following comments: 381. Common knowledge is at the end of the day evidence. Facts that come before the court such as expert reports are evidence. If learned papers are before a court they must form part of the body of evidence. It is not a separate category of its own, however, the way such evidence is being applied and the weight given to it are the fundamental considerations. 382. In this case the material provided by the learned authors (whose expertise was accepted by counsel for all parties as being of a high level) cannot be used to establish whether the father did or did not commit the acts of violence, abuse, intimidation or the like to the mother and to the children. 383. Such material cannot generally be used to determine the particular impact of particular violence upon the mother and/or the children, that was more a matter for Dr [F]. She interviewed the parties and saw and interviewed the children. However, such papers can be used to categorise the nature of the violence and provide a clearer understanding of the overall nature of that violence and to give context to the behaviour and its impact on the mother and the children. 384. The court can come to a conclusion (as it has in this case) that the father has engaged in violent, controlling and abusive behaviour in the past both, prior to and subsequent to separation. The father has either denied, minimised or endeavoured to trivialise those complaints. The court is entitled to determine (as it does in this case) that the past history of the father is indicative of his future behaviour and make findings, as it does, that the children and the mother are at unacceptable risk of both physical, emotional and psychological injury into the future. [96] Then at par 385, his Honour said: What the material does do is enable categorisation of the father’s violent pre-disposition and provide the court with further evidence of the likelihood of the continuation of that violence. (our emphasis) [97] It is the bolded component of par 385 which is under challenge in Ground 4. So that it is clear, when his Honour sought submissions in relation to this material he did not indicate it potentially constituted “further evidence of the likelihood of the continuation of that violence”. [98] We agree the use of social science material is governed by s 144 of the Evidence Act. This provision is not excluded by s 69ZT of the Family Law Act (the provisions of which we will later explain).

Judicial Notice CHAPTER 16

Maluka & Maluka cont [99] Andrew Ligerwood & Gary Edmond, in Australian Evidence (2010, 5th ed, LexisNexis Butterworths) when discussing judicial notice and the consultation by judicial officers with authoritative works, state (at [6.66]): Where judicial notice is taken on inquiry the mode of inquiry is left to the courts and the ordinary rules of evidence (for example, the hearsay rule) do not apply. Nevertheless, the court should give the parties the opportunity to comment upon the propriety of taking judicial notice and the appropriate method of enquiry, before it embarks upon an inquiry of is own. And where that inquiry consists of consulting authoritative works or experts, there is authority for the view that this should take place in the presence of parties, allowing opportunity for comment. These principles appear to lie behind the uniform legislation. It allows the court to acquire knowledge subject to notice “in any way the judge thinks fit” but provides in s 144(4) that: The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. Only if the court decides that the fact is indisputable and not practicably susceptible to adversary proof in the ordinary way, and that acting on that knowledge will not result in unfair prejudice to a party, can judicial notice be taken … (footnotes omitted)

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[100] These writings are consistent with comments made by the Full Court in McCall v Clark (per Bryant CJ, Faulks DCJ and Boland J), in which their Honours observed at par 126: … Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term “common knowledge” in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act. [101] The importance of notice and procedural fairness was emphasised by this Court in Lamereaux & Noirot [2008] FamCAFC 22; (2008) FLC 93-364. We agree where reliance is placed by a judge on evidence other than evidence regularly adduced by the parties to the litigation, procedural fairness issues are particularly significant. [102] Before us, counsel for the ICL agreed the trial Judge erred in relation to his use of the social science material. It was submitted that while his Honour gave notice of the material he intended to use, there is substance in the father’s complaint about lack of notice of how that material might be and ultimately was used. It was submitted his Honour clearly used the material as evidence of a fact in issue (namely the risk of continuation of violence by the father). According to the ICL, in both respects his Honour erred. In relation to this issue, counsel for the mother submitted it would have been tedious and probably impossible for his Honour to point to the specific pages in the material he wished to take account of. We understand the gravamen of this submission to be that in this case there was so much extrinsic material it would have been difficult for his Honour to specify matters of common knowledge and too time-consuming to do so. [103] His Honour’s remarks, at par 381, reveal that he treated this social science material as “common knowledge”. In order to be “common knowledge” the social science material needed to comprise material “that is not reasonably open to question” (s 144(1) of the Evidence Act). It will be recalled his Honour relied upon a number of articles, which together traverse many matters. Nowhere in his Honour’s reasons did he disclose the matters of common knowledge which he took from this material, nor did he identify beforehand the manner in which he proposed to use the material beyond categorisation. [105] We also agree with counsel for the father and the ICL that the forensically sensitive nature of his Honour’s use of the material required him to provide clear reasons as to how it influenced his reasons for judgment, in relation to both weight and the formulation of specific findings. We do not agree with

Part 4 — Proof

Maluka & Maluka cont the contention made on the mother’s behalf that his Honour did no more than use the material to categorise the father’s violence or that his factual findings guided his use of the material. This submission does not grapple with the use which his Honour unambiguously said, at par 385, he made of the social science material. It is with regret we observe that nowhere in his Honour reasons does he explain how. [106] Accordingly, we find Grounds 4-6 are established. … [150] The father has established error by the trial Judge. We agree that his Honour’s treatment of the social science material, misunderstanding of the evidence in relation to the children’s relationship with the father, risk assessment and failure to consider the father’s application to spend time with the children at a contact centre are material errors which permeate his judgment. We have expressed our reservations about other aspects of his Honour’s fact finding. We agree with the father’s contention that the errors render his Honour’s decision unsafe. (A rehearing was ordered.)



Questions

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[16.60]

1.

Explain how s 143 of the Evidence Act 1995 operates.

2.

What matters of common knowledge need not be proved under s 144 of the Evidence Act 1995?

3.

Consider the case of Woods v Multi-Sport Holdings Pty Ltd and answer the following: (a) What were the facts involved? (b) What was the issue concerning judicial notice? (c) How did McHugh J explain judicial notice? (d) What examples did McHugh J give of the different types of judicial notice? (e) How did McHugh J resolve the dispute in relation to judicial notice on the facts? (f)

How did Callinan J explain judicial notice?

(g) What are the interests a court must consider when deciding whether to take judicial notice of a fact? (h) How did Callinan J resolve the dispute in relation to judicial notice on the facts? (i)

How was Callinan J’s judgment different from McHugh J’s judgment? Which do you prefer, and why?

4.

In light of the decision of Maluka & Maluka (2011) 45 Fam LR 129; [2011] FamCAFC 72 explain how s 144 operates.

5.

Consider Strom v Council of the Shire of Cremorne in Chapter 20. If it were relevant, could the court take judicial notice of the following: • the fact that the day on which Jack was injured was the day that school broke up; • the location of the wharf; • the average height of Australians according to the 1995 National Health Survey data (see Document 6)? If not, how could this be proved and how would it be relevant?

CHAPTER 17

Facilitation of Proof [17.10]

OVERVIEW ................................................................................................................ 675

[17.20]

PRESUMPTIONS ........................................................................................................ 676

[17.30]

FOREIGN LAW ........................................................................................................... 676

[17.40]

CONVICTIONS, ACQUITTALS AND OTHER JUDICIAL PROCEEDINGS ........................ 676

[17.50]

EVIDENCE OF JUDGMENTS AND CONVICTIONS ...................................................... 676 [17.60] Gonzales v Claridades ............................................................... 677

[17.70]

FORMAL ADMISSIONS .............................................................................................. 678

[17.80]

INFERENCES FROM ABSENCE OF EVIDENCE ............................................................. 678 [17.90] Jones v Dunkel ......................................................................... 680

[17.100]

INFERENCES FROM A FAILURE TO CALL EVIDENCE IN AN ACCUSED’S CASE ............ 682 [17.110] Weissensteiner v The Queen........................................................ 683 [17.120] Azzopardi v The Queen ............................................................. 685 [17.130] Dyers v The Queen ................................................................... 695

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OVERVIEW [17.10] Part 4.3 of Ch 4 of the Evidence Act 1995 creates a number of rebuttable presump-

tions as to the reliability of certain signatures, seals, documents, processes and devices (Div 1, ss 146-152), as well as in relation to official documents (Div 2, ss 153-159) and matters relating to post and communication (Div 3, ss 160-163). The common law also creates a number of evidentiary presumptions. Part 4.6, Div 1 (ss 166-169) contains provisions setting up a request procedure designed to give procedural protection to parties against whom hearsay, documentary or conviction evidence may be adduced. Division 2 (ss 170-173) encourages the use of written evidence, in the form of affidavits and statements, to prove formal and routine matters. Division 3 (ss 174-176) facilitates the proof of foreign law. Division 4 (ss 177-181) provides for a number of matters (including expert evidence and results of judicial proceedings) to be proved by certificate or affidavit. A party to civil proceedings may, in pleadings or in answer to a notice to admit, formally admit facts for the purposes of the proceeding. Similarly, s 184 permits a defendant in criminal proceedings to make formal admissions. However, the formal admission does not preclude evidence on the fact admitted being adduced. However, if the parties make an agreement as to facts under s 191, evidence may not be adduced to contradict or qualify an agreed fact unless the court gives leave. In civil proceedings, under the common law, adverse inferences may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. As a general proposition, one would reasonably expect a party to call a person as a witness if such a person is likely to be able to speak on some fact in issue, one would have

Part 4 — Proof

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expected that party (rather than another party) to call the person, and the failure to call the person is not satisfactorily explained. Assuming particular evidence would reasonably have been expected then, as a general rule, the adverse inference that may be drawn from the failure to adduce it is that the evidence, if adduced, would not have assisted the party’s case. On the other hand, it cannot be inferred that the evidence would have been unfavourable to the party’s case. Put differently, while it may (depending on all the circumstances) be appropriate to conclude that evidence already adduced by an opponent which might have been contradicted by the uncalled evidence may be more readily accepted, and inferences open on the opponent’s evidence more readily drawn, the failure cannot fill an evidentiary gap in the opponent’s case. In criminal proceedings, the common law position is different. Only in “the most unusual circumstances” will such reasoning be available against the defence. It appears that such circumstances would arise “only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the [person not called by the defence], that a comment” on the failure of the defence to call the witness may be available (Azzopardi v The Queen (2001) 205 CLR 50 at [64]). As regards the drawing of an adverse inference from the failure of the prosecution in a criminal trial to call a particular person as a witness, similar constraints apply. Only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses would it be permissible to infer that the evidence of that person would not have assisted the prosecution (Dyers v The Queen (2002) 210 CLR 285). In Victoria, Div 6 of Pt 4 of the Jury Directions Act 2015 (Vic) contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials.

PRESUMPTIONS [17.20] Part  4.3 of the Evidence Act 1995 creates a number of presumptions designed to

facilitate the admission of certain categories of evidence and facilitate proof of certain facts (ss 146-163). The common law creates a number of evidentiary presumptions. Division 2 of Pt 4.6 (ss 170-173) permits evidence of a fact that is required to be proved in relation to a document or thing for the purposes of Pt 4.3 to be given by affidavit (or written statement in the case of a public document) by a person permitted under s 171 to give such evidence.

FOREIGN LAW [17.30] Sections 174-176 facilitate proof of foreign law.

CONVICTIONS, ACQUITTALS AND OTHER JUDICIAL PROCEEDINGS [17.40] Sections 178-180 provide a procedure whereby evidence may be adduced in certif-

icate form of the fact of a conviction, acquittal, sentence, court order or “the pendency or existence … of a civil or criminal proceeding”.

EVIDENCE OF JUDGMENTS AND CONVICTIONS [17.50] Part  3.5 (ss 91-93) excludes, with exceptions, evidence of judgments and findings

of fact when adduced to prove the existence of a fact that is in issue in proceedings. The

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judgment or findings of fact from prior proceedings will not be “in issue” in other proceedings if admitted for a credibility purpose. The common law also excludes such evidence as it considers it to be merely proof of another court’s opinion. The provisions in the Act are discussed in the case extracted at [17.60].

Gonzales v Claridades [17.60] Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 Facts [The plaintiff was on trial for the murder of his parents and sister. He sought an order that the executrix from his father’s estate pay him sufficient money to finance his defence of the criminal charges. In refusing the application, Campbell J considered the effect that a criminal conviction or acquittal would have on the distribution of the estate.] Judgment CAMPBELL J:

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... [62] If there is a dispute about whether the forfeiture rule has operated, it is necessary for the unlawful killing to be proved to the satisfaction of a civil court engaged in deciding whether the benefit has, or has not, been forfeited. If a court trying such an issue is convinced by evidence brought before it that there are circumstances which result in forfeiture, it can so decide, even if there has never been a criminal trial – such an event arises if the killer dies before there is any such trial, as happens when there is a murder-suicide: Re Plaister, Perpetual Trustee Company v Crawshaw (1934) 34 SR(NSW) 547; Re Dellow’s Will Trusts [1964] 1 WLR 451. Further, the civil court trying such an issue can hold that there are circumstances resulting in forfeiture, even if the person who receives the benefit has been tried and acquitted in criminal proceedings: Helton v Allen (1940) 63 CLR 691 at 710. [63] The admissibility and significance, in such civil proceedings, of a conviction for an offence involving unlawful killing, underwent some change in the course of the 20th century. In In the Estate of Crippin [1911] P 108, [1911] All ER Rep 207 the executrix of a murderer was held not entitled to take out letters of administration of the intestate estate of the wife of the murderer. Evidence of the conviction of the murderer for the murder of his wife was admitted not merely as proof of the conviction, but also as presumptive proof of the commission of the crime. In In the Estate of Julian Bernard Hall deceased; Hall v Knight and Baxter [1914] P 1 a probate suit was on foot, the issues in which concerned which of several testamentary scripts was the last will. The woman who had killed the testator and had been convicted of his manslaughter sought to appear and uphold those wills under which she received benefits. She was dismissed from the suit at an interlocutory stage, on the basis of her conviction, and that she had appealed against the conviction to the Court of Criminal Appeal and the conviction was upheld “and therefore that is a fact which is conclusively proved” (at 4). [64] The English Court of Appeal in Hollington v F Hewthorn & Co Ltd [1943] KB 587 disapproved Crippin (at 600) and held (at 601) that a conviction did not even provide prima facie evidence of the facts on which it was based. [65] The effect of Hollington v F Hewthorn & Co Ltd [1943] KB 587 has been overcome in New South Wales, in some but not all civil litigation, by s 92 of the Evidence Act 1995. [Sections 91 and 92 are reproduced.] [66] It was the hearsay rule, and possibly the opinion rule, which underlay Hollington v F Hewthorn & Co Ltd [1943] KB 587. That the accused was guilty of whatever crime he had been held to have committed was a representation made otherwise than in the course of giving evidence in the civil proceedings in which evidence of the conviction was sought to be adduced, and which the appropriate participants in the criminal trial (judge and/or jury) intended to assert by that representation, and hence, were it not for s 92(2)(c), the hearsay rule, as defined in s 59 of the Evidence Act 1995

Part 4 — Proof

Gonzales v Claridades cont and as expanded by the definition of “previous representation” in the Dictionary to that Act, would apply to it. Further, that the person was guilty of the crime of which he had been convicted is, at least arguably, an opinion of the relevant participants in the criminal trial, and so, were it not for s 92(2)(c) might possibly fall within the opinion rule as defined by s 76 of the Evidence Act 1995. Section 92(3) thus removes the basis for continuing to apply Hollington v F Hewthorn & Co Ltd [1943] KB 587 in this State in civil proceedings where the person convicted is a party, or a party through or under whom a party claims, and where none of the exceptions in s 92(2)(a)-(c) applies. The effect of s 92(2) is to impose an evidentiary onus on anyone who disputed the correctness of the conviction to produce evidence that it is incorrect, but s 92(2) does not alter the legal onus of proof of the facts underlying the conviction – see Australian Law Reform Commission Interim Report on Evidence (ALRC No 26, 1985), vol 1, par 773-778. [67] Thus, if the outcome of Sef’s trial were to be a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father’s Estate. However, anyone who was contending, in such proceedings, that a forfeiture had occurred would still bear the legal onus of so proving, and it would be open to Sef to call evidence, if he wished, with a view to showing that any such conviction was erroneous. [68] It follows that, whether the outcome of Sef’s trial is a conviction or an acquittal, that outcome will not be determinative of any civil proceedings to which he is a party in which there is an issue about whether Sef’s benefit under his father’s Will has been forfeited.

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FORMAL ADMISSIONS [17.70] Section 191 provides that, where parties agree that a fact is not to be disputed, evi-

dence is not required to prove it and it cannot be disputed without leave of the court. Section 184 provides that a defendant in criminal proceedings may formally admit facts and give consent.

INFERENCES FROM ABSENCE OF EVIDENCE [17.80] The Act does not, in general, attempt to regulate the drawing of inferences from the

unexplained failure of a party to call particular evidence where such evidence would reasonably have been expected to be called. However, the common law does: see Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. Jones v Dunkel is concerned with inferences that can be drawn from a party’s failure to adduce evidence. The inference that may be drawn is that the evidence, if called, would not have assisted the party’s case. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Heydon, Crennan and Bell JJ explained the rule in the following way: [63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a

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party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff’s counsel did ask the plaintiff relevant questions. [64] The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. But the conclusion by the trial judge that the plaintiff – a party-witness – deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness’s duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness’s evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.

Such inferences can be drawn in criminal and civil hearings; however, a Jones v Dunkel inference cannot be applied to a defendant in a criminal trial: see Dyers v The Queen (2002) 210 CLR 285. In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 the High Court considered the principle of Jones v Dunkel in the context of a prosecution by ASIC and explained the principle as follows: [165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC. [166] Lord Mansfield’s dictum in Blatch v Archer that “[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for “it would have been very improper to have called” the person whose account of events was not available to the court. [167] This Court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver’s dependants. The plaintiff’s case depended upon demonstration that the other driver’s negligence was a cause of

Part 4 — Proof

the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant’s vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held “that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.

Jones v Dunkel [17.90] Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

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Facts [The plaintiff, Jones, brought an action under the Compensation to Relatives Act 1897 (NSW) for the negligence causing the death of her husband. The case was heard by a judge sitting with a jury. The plaintiff alleged that there was a collision with a truck driven in the opposite direction by Hegedus, an employee of the defendant, Dunkel. There were no witnesses and few signs on the road to indicate what had happened, so it was not possible to infer any probable cause of the collision. On such facts, it was possible that the deceased’s truck was on the correct side of the road and that Hegedus was in the wrong. At trial, Hegedus was not called by the defence to give evidence. The jury in the course of its deliberations inquired of the judge as to whether they were able to draw an inference from the driver’s failure to give evidence. The trial judge did not answer “yes”; rather he told the jury that the facts proved by the plaintiff were uncontradicted, “but the question then is whether you should find negligence as a matter of inference to be drawn from those facts”. The jury delivered a verdict for the defendant and the plaintiff appealed on the inadequacy of the trial judge’s direction.] Judgment MENZIES J: [at 310] [4] Nearly all that is known about what Hegedus did either before or after the collision appears from a statement that he dictated to a policeman and signed three days after the collision while he was still in hospital. This statement is as follows: “I am a lorry driver and I reside at Hume Highway, Mittagong. At about 8.10pm on the 15th of January 1953 I was driving a Seddon diesel truck No. AGY 109 in a southerly direction on the Hume Highway about 12 miles south of Berrima. The truck is owned by J Dunkel of 12 Hereward Street, Maroubra Beach. The truck was empty and I was on my way to Marulan to load limestone. I was travelling down a slight grade at a speed of about 35 miles per hour and had just taken a right hand bend in the roadway when I saw a vehicle [at 311] coming from the opposite direction. The lights of the on-coming vehicle appeared to be bright. I applied my brakes and I do not remember anything further. Light rain was falling at the time and the roadway was wet and slippery. I have been driving heavy vehicles for about 2½ years and I have not previously been involved in an accident.” The only additional information is that he was taken away from the place of the collision in an ambulance and that near a spot off the roadway and 40 feet distant from his truck there was found the nearside door of his truck and blood upon the ground. [5] The summing-up proceeds, and I think correctly proceeds, on the footing that Hegedus might have been called as a witness, and had he been called, he might have been able to give information beyond that which appears from the statement I have quoted. [6] In the course of his summing-up the trial judge said two things upon the use the jury might make of Hegedus’s failure to give evidence. The first was that counsel for the defendants upon whom the responsibility for the conduct of the defendants’ case rested was within his rights in not calling

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Jones v Dunkel cont

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Hegedus, and secondly, to use his own language, “the fact that Mr Hegedus has not been called does not absolve the plaintiff from adducing some evidence of the facts. The onus is upon her to prove the facts but very slight evidence pointing to their existence may be treated as sufficient to justify you in holding that they do exist”. [7] After the judge had finished summing-up a juryman asked a direct question seeking further guidance upon the significance of the fact that the defendant Hegedus could have given evidence and did not. His question was: “Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?” The judge said: “Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you.” Counsel for the plaintiff then intervened and in the course of doing so referred to what Jordan CJ had said in De Gioia v Darling Island Stevedoring and Lighterage Co Ltd (1941) 42 SR (NSW) 1; 59 WN 22, and submitted “when the matter goes to the jury then I do submit that the jury are entitled to take into consideration that here was a case where on the merits there was one person who could have told them the facts and they have no answer from that person”. Counsel for the defendants then submitted that the plaintiff had the onus of [at 312] proof “and the fact that the defendant does not call any evidence does not absolve the plaintiff from proving her case”. The trial judge then gave a further direction as follows: “This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff’s evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant.” [8] I regard this direction as incomplete and because the trial judge gave it as part of his answer to the juryman’s question and after counsel for the plaintiff had objected to the earlier part of that answer … [9] In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. [10] Taking the summing-up as a whole, I think the first and second matters to which I have referred were covered adequately, but I do not think that the third was referred to at all and in giving the guidance that the juryman sought not only was no reference made to it but the distinction made in the course of the summing-up between “proved facts” and “inferences” was emphasised and the impression was conveyed that once the jury came to the point of drawing inferences the defendant’s absence from the witness box could have no significance. To use the words of Smith J in Black v Tung (1953) VLR 629: “The charge therefore withdrew from their consideration a matter which, if there was evidence proper to be submitted to them, [at 313] they were entitled to regard as rendering more probable the inferences as to negligence and causation contended for by the plaintiffs” [Black v Tung (1953) VLR, at pp 634, 635]. In my opinion this entitled the plaintiff to a new trial. [11] The Full Court was, it appears, inclined to think that there was no case to go to the jury and being of that view it rejected the argument that the failure of Hegedus to give evidence could be relied upon to supply the deficiency of evidence. I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or to convert suspicion into inference, but I treat this as a case

Part 4 — Proof

Jones v Dunkel cont where the failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw. [12] For the foregoing reasons I think the appeal should succeed and that a new trial should be ordered.

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KITTO J (at 308): … Whether that inference ought to be drawn was, of course, a question for the jury. But they should not have been sent away to consider that question without proper guidance as to the relevance of the defendants’ failure to put Hegedus into the witness box. On that question a juryman actually asked the trial judge to supplement his summing-up, and counsel for the plaintiff submitted that if there was evidence to go to the jury they were entitled to take into consideration (meaning, obviously, on the question whether they should infer negligence) that “there was one person who could have told them the facts and they have no answer from that person”. In my opinion, the direction which the judge proceeded to give was insufficient, and, because of its incompleteness, was incorrect. His Honour told the jury that the fact that Hegedus had not gone into the box left them in this position, that they could accept the facts given by the plaintiff as proved, and that the question for them then was whether they thought that from the proved facts an inference of negligence ought to be drawn. It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff’s evidence. In my opinion what his Honour said on the point amounted to a misdirection. (Windeyer J delivered a separate judgment expressing the same view as Menzies and Kitto JJ. Appeal allowed.)

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INFERENCES FROM A FAILURE TO CALL EVIDENCE IN AN ACCUSED’S CASE [17.100] Where a defendant in criminal proceedings fails to testify, or a member of the

defendant’s family fails to testify (pursuant to s 18), s 20 regulates permissible comment to the jury (except in Victoria). However, it is clear that the common law also limits the scope of permissible comment. In Azzopardi v The Queen, the High Court reconsidered the issue confronted in RPS v The Queen (2000) 199 CLR 620 and attempted to reconcile it with the earlier decision of Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65. In Dyers v The Queen, the High Court considered the principal reasons for not giving a Jones v Dunkel direction against the appellant. In Victoria, s 20 has been deleted from the Victorian Act, and the Jury Directions Act 2015 (Vic) contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials. In respect of the failure of the accused to give evidence or call a particular witness, s 42 provides that “the trial judge, the prosecution

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and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that” the jury may: (a)

conclude that the accused is guilty from that fact; or

(b)

use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or

(c)

draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

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This prohibition applies generally and there is no provision in the Act qualifying it. If a party breaches the prohibition in this provision, the trial judge must “correct” the “statement or suggestion” (s 7). However, s 7(2) provides that the trial judge need not correct the statement or suggestion “if there are good reasons for not doing so” and gives the example of where “counsel has already corrected a prohibited statement or suggestion at the invitation of the trial judge”. Section 41 provides that defence counsel may request under s 12 that the trial judge give the jury a direction which “must explain” a number of matters specified in s 41(2): (a)

the prosecution’s obligation to prove that the accused is guilty; and

(b)

that the accused is not required to give evidence or call a witness (as the case requires); and

(c)

that the jury should not guess or speculate about what might have been contained in the evidence; and

(d)

that the fact that the accused did not give evidence or call a witness (as the case requires)– (i) (ii) (iii) (iv)

is not evidence against the accused; and is not an admission by the accused; and must not be used to fill gaps in the evidence adduced by the prosecution; and does not strengthen the prosecution case.

Section 14(1) requires the trial judge to give the “requested direction unless there are good reasons for not doing so”. Section 14(2) specifies matters the trial judge must have regard to in determining whether there are such “good reasons”. It would also be material to consider the prohibition in s 42. In giving a direction to the jury, the trial judge need not use any particular form of words: s 6 (see also s 5(4)). However, the direction must not breach the prohibition in s 42 (see above). Any rule of common law under which a trial judge is required to direct the jury regarding the failure of accused to give evidence or call a particular witness is abolished: s 44.

Weissensteiner v The Queen [17.110] Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Facts [The appellant was convicted of murdering a couple (Bayerl and Zack). The couple had plans to marry, were expecting a baby and planned to sail in the “Immanuel” from Cairns across the Pacific. The appellant answered an advertisement for labour placed by the couple. The three set off in the boat. Months later the appellant was found in possession of the “Immanuel” and the couple had disappeared. The appellant did not give any explanation to the authorities about the couple or why he had their boat. He had also given inconsistent accounts as to the identity of the owners of the boat

Part 4 — Proof

Weissensteiner v The Queen cont while he travelled. The couple made regular contact with their family before they disappeared and their possessions remained on the boat, which supported the inference that they had died. At the trial, the appellant did not give evidence nor call any evidence. The trial judge directed the jury that the onus of proof was on the prosecution and that they could not infer the appellant’s guilt simply from his failure to give evidence; however, an inference of guilt could more safely be drawn from proven facts relied on by the prosecution when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge.] Judgment MASON CJ, DEANE and DAWSON JJ: [at 227]

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[28] [I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a [at 228] criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. [29] Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly. [30] Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them. … [32] However, the appellant argued that, just as it is impermissible for the trial judge to suggest that inferences adverse to the accused may be drawn from a previous exercise of the right to silence, so it is impermissible for the trial judge to suggest that inferences adverse to the accused which are available to be drawn from the facts proved by the Crown may be drawn more safely when the accused does not give evidence of relevant facts which must be within his or her knowledge. We do not agree. There is a distinction, no doubt a [at 229] fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge. In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence. [33] The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation when an answer might reasonably be expected can amount to an admission by conduct … But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled

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Weissensteiner v The Queen cont to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a makeweight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused’s failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence. That was recognised in R v Kops. But it is not to deny the right; it is merely to recognise that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right. [34] We think that the trial judge was correct in his view that this was an appropriate case in which to direct the jury as to the manner in which they might take into account the failure of the accused to give evidence. The prosecution case was that the jury should draw from the evidence the inference, not only that Bayerl and Zack were dead, but that they were murdered by the appellant. Clearly those were inferences which were open upon the evidence. [35] Bayerl and Zack disappeared without trace, having last been seen [at 230] together with the appellant on the boat. Soon after their disappearance the appellant was seen, and held himself out to be, in sole possession of the boat.

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[36] The circumstances were not consistent with the couple having voluntarily relinquished the boat to the appellant. They had spent a great deal of money on it. They had well-developed plans to use the boat for the purpose of cruising the Pacific. Their possessions, including camping equipment and items of an intimate nature, were still on board the boat when it was discovered in the appellant’s possession. If they had left the boat intentionally, it is unlikely that they would have left all of those possessions behind. [37] These facts are not merely evidence calling for an explanation of possession of the “Immanuel” and its contents. A person using property which belongs to another who recently disappeared may be implicated not only in the theft of the property, but in the disappearance of that other. The inference is open that involvement in the disappearance provided the opportunity for the theft. Clearly that inference was open to the jury in this case. (Appeal dismissed.)



Azzopardi v The Queen [17.120] Azzopardi v The Queen (2001) 205 CLR 50 Facts [The appellant was charged with soliciting Papalia to murder Gauci. At the appellant’s trial, Papalia gave evidence that he had shot Gauci with intent to murder him. He gave evidence that he shot Gauci at the request of the appellant. Evidence was also called from Knibbs and Madigan which, if accepted, supported Papalia’s evidence that the appellant had given him the gun which he used to shoot Gauci. The appellant did not give evidence at his trial. In the course of his charge to the jury, the trial judge told the jury “that an accused may give evidence on his or her trial, but is not under any obligation to do so because the prosecution bears the onus of proving beyond reasonable doubt the guilt of the accused of the offence or offences with which the accused is charged”. The judge went on to remind the jury that because the appellant had decided not to give evidence, the jury:

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Azzopardi v The Queen cont must not think that he decided not to give evidence because he is, or believes himself to be, guilty of the offence with which he stands charged. It would be completely wrong of you to think that. His decision not to give evidence must not be thought by you to be an admission of guilt on his part. There may be many reasons why an accused person may decide not to give evidence. I tell you, members of the jury, that you must not speculate as to why the accused decided not to give evidence. He went on to say, in the passage of his charge which now is impugned, that: However, members of the jury, when assessing the value of the evidence presented by the Crown, you are entitled to take into account the fact that the accused did not deny or contradict evidence about matters which were within his personal knowledge and of which he could have given direct evidence from his personal knowledge. This is because, members of the jury, you may think that it is logic and common-sense that, where only two persons are involved in some particular thing – the complainant and/or a witness and the accused – so that there are only two persons able to give evidence about the particular thing, and where the complainant’s evidence or the witness’s evidence is left undenied or uncontradicted by the accused, any doubt which may have been cast upon that witness’s evidence may be more readily discounted and that witness’s evidence may be more readily accepted as the truth.] Judgment GAUDRON, GUMMOW, KIRBY and HAYNE JJ:

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... [30] The Court is again asked to consider statements made by a trial judge in instructing a jury in a criminal trial about the significance which the jury may attach to the fact that the accused did not give evidence. Those questions were considered most recently in RPS v The Queen (2000) 199 CLR 620. Similar questions are now raised in two matters, the trial in each of which took place before RPS was decided. In one, Azzopardi v The Queen (2001) 205 CLR 50, special leave to appeal has been granted. In the other, Davis v The Queen, the application for special leave to appeal has been referred for consideration by the whole Court. Both arise out of criminal proceedings for indictable offences that were conducted in the District Court of New South Wales. In both trials, therefore, s 20 of the Evidence Act 1995 (NSW) applied. Sub-section (2) of that section provides: The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned. [31] In RPS, the Court considered the application of s 20 of the Evidence Act, and the more general questions which arise if an accused does not give evidence at trial. All six members of the Court who heard RPS referred to, and considered, the earlier decision of this Court in Weissensteiner v The Queen (1993) 178 CLR 217. However, it was not necessary in RPS to consider whether and, if so, in what way s 20(2) affected the decision in Weissensteiner. [32] In each of the present matters, the respondent submitted that the trial judge’s directions were founded on, or could be supported by reference to, Weissensteiner. The respondent submitted that there was a tension between the decision in RPS and the decision in Weissensteiner which should be resolved. As will be explained, s 20 requires some modification of the language used in the remarks approved in Weissensteiner but, properly understood, there is no tension between the two decisions. General principles [33] Before dealing with the particular facts and circumstances which give rise to the present matters, it is convenient to say something about the general principles which inform the development of the law in this area and the consequences that follow from those principles.

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Azzopardi v The Queen cont [34] The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a makeweight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding. As was pointed out in the joint reasons in RPS: In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case.

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[35] The courts have, nevertheless, sometimes appeared to struggle with what may be said to the jury if an accused does not give evidence at trial. Like so many aspects of the criminal law, these are not questions that are rooted in the history of the common law. They are questions that stem most immediately from legislative provisions first made in the late 19th century. Nevertheless, they must be answered against the background of the common law principle that an accused person should not be compelled to incriminate himself or herself. [36] The history of the common law concerning the immunity from self-incrimination and the “right to silence” has taken a meandering course over many centuries. It has been influenced by the practices of ecclesiastical and other courts, by legal and general history, by the changing procedures of the English criminal trial and by differing statutory provisions enacted in particular jurisdictions at particular times. [37] In several jurisdictions the common law today is influenced by constitutional norms and by principles reflected in international and regional conventions of human rights. Whilst English and local legal history are undoubtedly of much interest, they do not, in our view, dictate the emerging law on the subject of this judgment as it now applies in Australia. [38] Nor would it be safe to assume that the repeal of legislative provisions prohibiting judges from commenting on the failure of an accused to testify automatically restored the common law as it stood on this subject nearly a century ago when such legislation was first enacted. In the intervening years the accusatorial character of the criminal trial has become deeply embedded in the common law of Australia, whatever that law might earlier have provided. Indeed, that character is one of the most important features of the criminal trial in contemporary Australia. Due account must be taken of that character in considering both what the common law now provides on the subject of judicial comment and legislation regulating it. The accused as witness [39] In New South Wales, a person charged with an indictable offence was not competent to give evidence at trial until the enactment of the Criminal Law and Evidence Amendment Act 1891 (NSW), s 6. By that section an accused was made a competent, but not compellable, witness at the trial of an indictable offence. [40] As Innes J pointed out in R v Kops, making an accused a competent, but not compellable, witness at trial presents certain problems. If an accused gives evidence, what use, if any, can be made in crossexamination of the accused’s past criminal history? Does permitting an accused to give evidence on oath simply invite the accused to commit perjury? What is to be done to ensure that the choice to give evidence or stay silent at trial remains a real choice and not simply a disguised obligation to give evidence? Providing an opportunity to answer a charge or deny an accusation could easily become an obligation to give evidence if silence could be treated as an admission of guilt.

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Azzopardi v The Queen cont [41] Early legislation making the accused a competent but not compellable witness at trial of an indictable offence dealt with some, but not all, of these problems. Particular attention was given in the early legislation to the problem of cross-examining an accused who did give evidence, and the legislation identified, with more or less specificity, some subjects about which the accused could not be asked questions. For example, s 6 of the 1891 New South Wales Act provided that the accused was not “to be questioned on cross-examination without the leave of the Judge as to his or her previous character or antecedents”. Other legislation made more elaborate provision. The several paragraphs in s 1(f) of the Criminal Evidence Act 1898 (UK) and its Australian equivalents, which dealt with the cross-examination of an accused who gave evidence, led to many reported cases. [42] For a time, however, the question of what might be said to the jury about the fact that an accused did not give evidence was not dealt with by the New South Wales legislation. In Kops, the Supreme Court of New South Wales, sitting in banco, held that a trial judge had not erred in telling the jury: first that the law permitted an accused to give evidence on his own behalf; secondly, that he need not do so unless he wished; and thirdly, in respect of evidence that an item said to be owned by the accused was found at the scene of the crime, that if it was not his, “why does he not deny it … why does he not explain how it got there?” The Privy Council refused special leave to appeal from this decision, saying that they saw no reason to doubt the correctness of the conclusion at which the Supreme Court of New South Wales had arrived. In the course of very short reasons for its conclusion, the Privy Council said that:

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There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to their Lordships that such comments may be both legitimate and necessary. The Privy Council gave no guidance, however, about how to distinguish between the two kinds of case that were mentioned. [43] Following Kops, judges could, and presumably did, comment to juries if the accused did not give evidence. In New South Wales, however, the legislature intervened again, less than five years after the decision in Kops. By the Accused Persons’ Evidence Act 1898 (NSW) it was provided that “[i]t shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf”. Thereafter, in some other Australian jurisdictions, legislation was passed forbidding the judge or the prosecutor, and in some cases both, from commenting on the absence of sworn evidence from the accused. These statutory prohibitions were seen as necessary to ensure that an accused’s choice about whether to give sworn evidence was a real choice and not a disguised obligation to give evidence. Provisions of this kind fell for consideration in several decisions of this Court. The provisions were construed broadly. In Bataillard v The King, which concerned the application of s 407(2) of the Crimes Act 1900 (NSW) (the legislative successor to the Accused Persons’ Evidence Act), Isaacs J said that there would be a contravention of the prohibition against comment by any “reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up … to the fact that the prisoner had the power or right to give evidence on oath, and yet failed” to do so. [44] Reading the statutory prohibitions against comment on an accused’s failure to give evidence in this way led to an unfortunate and unintended consequence. As jurors came to understand that it was open to an accused person to give sworn evidence at trial, the jury would sometimes ask a judge what they were to make of the fact that the accused had not given evidence in that way. Because of the prohibition on judicial comment on the subject, trial judges were left to tell the jury that they could not answer the question. Judicial comment on silence at trial [45] By the 1980s, the legislative provisions in the Australian States which governed judicial comment on a failure to give evidence differed greatly. In some Australian jurisdictions there was no prohibition

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Azzopardi v The Queen cont on judicial comment, and it may be assumed that judges in those jurisdictions did make comment on the fact the accused had given no sworn evidence in answer to the charge made. In others, however, the prohibition on comment remained. [46] What the jury could or should be told about the absence of sworn evidence from an accused was made no less complex by the fact that, until relatively recently, an accused could make an unsworn statement to the jury. Until the right to make such a statement was abolished, if a trial judge were to comment upon a failure to give sworn evidence, it would more often than not be in a context where the accused had made an unsworn statement which a trial judge would tell the jury formed part of the evidence before them. Moreover, the choices which accused persons made about the course to be taken at trial were affected by many considerations other than whether the accused could give evidence that would answer the charge made. Those considerations included not only such obvious matters as how good a witness the accused would make, but also whether, because of the course the accused had taken in challenging the prosecution case, the accused would be exposed to crossexamination as to credit including, in particular, as to any prior convictions. [47] Against this background, then, it is not surprising that a frequently referred to form of judicial comment on failure to give sworn evidence was that of Lord Parker CJ in R v Bathurst, who said that in the normal case:

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the accepted form of comment is to inform the jury that, of course, he [the accused] is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box. It will be noticed that no reference is made in that comment to any consequences adverse to the interests of the accused which might be thought to follow from a failure to give evidence. That there was no reference of that kind reflects recognition of the many considerations which an accused, and counsel for the accused, may have had to take into account in deciding whether to give sworn evidence, to make an unsworn statement, or to stand mute. Those considerations extend well beyond whether the accused has some answer to the charge. [48] The choices available to an accused are now more limited than they were. Even so, the decision whether to give evidence or, for example, to rely on a record of interview with police which, in very serious cases, is often a video record, remains a difficult choice. It is not a choice which is affected only by an assessment of whether the accused can give a convincing account which would contradict or deny the allegations made. In any event, that assessment, referring as it does to a “convincing account”, is complex. It would, therefore, be wrong to treat the choice as having been made by reference only to whether the accused was guilty. Comment or direction? [49] It is also to be noticed that Lord Parker referred in Bathurst to the “accepted form of comment” rather than to any accepted form of judicial direction. This reflects the language used in relevant legislation (like the Accused Persons’ Evidence Act) which also spoke of “comment” on a failure to give evidence. The distinction between a matter for comment and a matter for judicial direction reflects the fundamental division of functions in a criminal trial between the judge and the jury. It is for the jury to decide the facts of the case. It is for the judge to explain to the jury so much of the law as they need to know in deciding the real issue or issues in the case. In the course of directing the jury, the judge must give the jury such warnings as may be called for by the particular case, not only against following impermissible paths of reasoning, but also about the care that is needed in assessing some types of evidence such as evidence of identification. [50] It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge’s task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be

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Azzopardi v The Queen cont appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge. Because it is a comment, the jury may ignore it and they should be told they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow. [51] In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused’s silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence. [52] As will later appear, there may be cases where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure. However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Evidence Act 1995 [53] Section 20(2) of the Evidence Act falls for consideration against this background. It is a section which regulates comments by the judge and by the prosecution. The prosecution may say nothing about the fact that the accused did not give evidence. That being so, it would indeed be surprising if s 20(2) were to be given a construction which would permit the judge to point out to the jury that the failure of the accused to give evidence is an argument in favour of the conclusion for which the prosecution contends. If the prosecution is denied the argument, why should the judge be permitted to make it? [54] The effect of the sub-section is that the judge, the accused and any co-accused may comment on the fact that the accused did not give evidence, but the judge may not, by that comment, “suggest” that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty, of the offence charged. It is very improbable that the accused would ever wish to make such a suggestion. That a co-accused may do so is hardly surprising. If only one of two accused persons gives evidence at their joint trial, it is inevitable that the accused who has given evidence will want to urge the jury to contrast that with the course taken by the other accused. It is well-nigh inevitable that in urging that the evidence given by the accused demonstrates innocence, the suggestion will be made, explicitly or implicitly, that the co-accused stayed silent because, unlike the accused who did give evidence, he or she was guilty. [55] It is right to note that s 20(2) deals only with an accused not giving evidence at all and does not deal with the case of some failure by an accused who does give evidence to deal with a particular topic. That this is so is not surprising. If a topic is important, it will be explored in cross-examination of the accused. If it is not, it may be assumed that the topic is not important to the issues at trial. [56] “Suggest” is a word of very wide application. It was held in RPS that the prohibition in s 20(2) should be given no narrow construction, that “s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation”. If s 20(2) is not interpreted in that way, the opportunity to exculpate has become an obligation to self-incriminate.

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Azzopardi v The Queen cont RPS and Weissensteiner

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[57] We turn then to note certain important distinctions between RPS and Weissensteiner. It was held in RPS that the trial judge had erred by giving directions which contained five particular elements: (1)

that the accused’s election not to contradict certain evidence given by a witness for the prosecution of what was said to be a partial admission of the accused could be taken into account by the jury in “judging the value of, the weight of”, that evidence;

(2)

that in the absence of denial or contradiction of the evidence of the partial admission the jury could “more readily” discount any doubts about that evidence and “more readily” accept it;

(3)

that if it was reasonable, in the circumstances, to expect some denial or contradiction of the prosecution evidence, the jury were entitled to conclude that the accused’s evidence would not have assisted him at his trial and that the absence of denial or contradiction was a circumstance which could lead them more readily to accept the evidence given by the witnesses for the prosecution;

(4)

that the accused’s election not to give evidence could not fill any gaps in the prosecution case but could enable the jury to feel more confident in relying on the evidence tendered by the prosecution; and

(5)

that the absence of evidence from the accused meant that the version of events put in crossexamination of the witnesses for the prosecution was not supported by evidence.

[58] Of the last of the elements it was said that, although factually accurate, it was at least unwise to give such a direction because “it took its significance largely, if not entirely, from the other directions”. The third of these elements was held to contravene s 20(2). The other elements were held to be in error as contrary to more fundamental principles, the prosecution case against the accused not depending upon the jury drawing inferences from proved facts and it not being reasonable to expect some denial or contradiction by evidence from the accused. [59] This may be contrasted with Weissensteiner, which, as Callinan J pointed out in RPS, was decided in a jurisdiction where there is no statutory prohibition against comment by the trial judge on the failure of an accused to give evidence. In that case, the prosecution alleged that the accused’s guilt was to be inferred from circumstances, particularly his setting out on a voyage with those whom it was alleged he had murdered, the unexplained disappearance of those persons, and his unexplained possession of their boat and personal possessions. The accused gave no evidence in court which would explain how or when he came to be in possession of the property of those whom it was alleged he had murdered or how and when he had parted company with them. [60] The critical part of the trial judge’s direction which fell for consideration in Weissensteiner was: The consequence of that failure [of the accused to give evidence] is this: you have no evidence from the accused to add to, or explain, or to vary, or contradict the evidence put before you by the prosecution. Moreover, this is a case in which the truth is not easily, you might think, ascertainable by the prosecution. It asks you to infer guilt from a whole collection of circumstances. It asks you to draw inferences from such facts as it is able to prove. Such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge. You might, for example, think in this case it requires no great perception that the accused would have direct knowledge of events which can be canvassed only obliquely from the point of view of seeking to have you draw an inference from the evidence which has been led by the Crown. The use that you make of the fact that there is no evidence given or called by the defendant in these proceedings is that. [61] What was important in Weissensteiner, and what warranted the remarks that were made to the jury in that case, was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could

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Azzopardi v The Queen cont not be the subject of evidence from any other person or source. In other words, Weissensteiner was not a case in which the accused simply failed to contradict the direct evidence of other witnesses. If that were sufficient to warrant a direction of the type given in that case, there would be, in truth, no right to silence at trial.

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[62] The unusual circumstances of Weissensteiner stand in sharp contrast with the not uncommon case in which an accused is charged with a crime, such as a sexual assault, in which the prosecution case depends largely, if not entirely, upon the evidence of the alleged victim. In that kind of case, while the defence will usually contradict the account given by the victim, there is no basis for concluding that there is any additional fact known only to the accused, and therefore not the subject of evidence at trial if the accused remains silent, which would explain or contradict the evidence given by the victim. The central issue in such a case is whether the evidence called by the prosecution persuades the jury to the requisite standard of the elements of the offence. That will largely depend on the jury’s assessment of the evidence of the alleged victim. It does not depend upon the jury inferring that any event or fact took place which was not the subject of evidence. In the words of Mason CJ, Deane and Dawson JJ in Weissensteiner, this type of case would not, therefore, be a case “call[ing] for explanation or contradiction in the form of evidence from the accused”. Nor, adopting the language of Brennan and Toohey JJ in Weissensteiner, would it be a case “where the facts which [the jury] find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming”. The reference by Mason CJ, Deane and Dawson JJ to “explanation or contradiction in the form of evidence from the accused” is important. It refers to more than bare contradiction by denial of what is alleged. The accused’s plea of not guilty stands as that denial. What is important is that the accused, and only the accused, can shed light on what happened, not just by making a sworn denial of the allegation but by giving evidence of facts which, if they exist, would explain or contradict the evidence tendered by the prosecution. [63] Another important matter to be noted with respect to Weissensteiner is that, as mentioned earlier, that case was decided in a context in which there was no prohibition on judicial comment with respect to an accused’s failure to give evidence. That is not the case with s 20(2) of the Evidence Act. That sub-section enables comment to be made, but it contains a prohibition against suggesting that the accused failed to give evidence because he or she is, or believes that he or she is, guilty of the offence charged. [64] There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused’s failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. [65] In RPS, McHugh J expressed the view that, if the circumstances of a case are such that some comment is permissible, the preferable course is for comment to be made in terms of a failure to offer an explanation, rather than a failure to give evidence. That was the approach that Gaudron J and his Honour endorsed in Weissensteiner, saying: it is the failure to provide an “explanation or answer … as might be expected if the truth were consistent with innocence” … which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of

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Azzopardi v The Queen cont evidence … Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case … or the failure to answer questions from investigating police. [footnotes omitted] [66] In Weissensteiner, Gaudron and McHugh JJ were in dissent. Subject to one important qualification, however, the approach taken by their Honours in that case is one that conforms to s 20(2) of the Evidence Act. More to the point, to refer to the failure of an accused to give evidence, rather than his or her failure to offer an explanation is to risk contravention of the prohibition in s 20(2) against suggesting that the accused failed to give evidence because he or she was guilty or believed himself or herself to be so.

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[67] The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution’s proofs and is not to be used as a makeweight. And the comment should not go beyond that made in Weissensteiner, as adapted to refer to the failure to offer an explanation rather than the failure to give evidence. [68] It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner, the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS, there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case. [Callinan J agreed with the majority. Gleeson CJ and McHugh J dissented. The following is extracted from the judgment of McHugh J.] McHUGH J: [114] It is not easy to see any logical reason why a distinction should be made between an expectation that the defendant will give evidence in a civil case and an expectation that the defendant will give evidence in a criminal case. Nor logically does the difference in the standard of proof throw any light on the issue. In a civil case, the plaintiff must prove the case according to the balance of probabilities. The defendant is not obliged to give evidence in a civil case. Experienced trial counsel know that the defence case is often weaker at the close of the defence case in a civil trial than it was at the close of the plaintiff’s case. But if the defendant is not called, that person runs the risk of the tribunal of fact more readily drawing adverse inferences or accepting the plaintiff’s case. What difference can it make that, in a criminal case, the standard of proof is beyond reasonable doubt? In some civil cases, the Briginshaw standard will require satisfaction of proof to a standard almost as high as in a criminal case. But that does not prevent the tribunal of fact from drawing adverse inferences from silence. [115] It is not easy to accept that the difference between proof beyond reasonable doubt and proof on the balance of probabilities makes the difference in every case. That difference cannot be sufficient to deny the availability of the ordinary common-sense modes of reasoning that people employ when a person fails to contradict statements or negative inferences that he or she has an opportunity to answer, if the contrary be true. If the directions of the trial judge in RPS and those of the judges in the present cases erred, it cannot be because of the standard of proof in criminal cases. [116] If the distinction between civil and criminal cases is valid, it must be because in a criminal case the accused cannot be compelled to give evidence. It must be because, in some way, directions about

Part 4 — Proof

Azzopardi v The Queen cont silence are inconsistent with “the right to silence” being an incident of the rule that the accused in a criminal trial cannot be compelled to testify. Indeed, this appears to be the true basis of the judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS. Their Honours said: The trial judge’s directions to the jury proceeded from the premise that it may be “reasonable … to expect some denial or contradiction to be forthcoming from the [appellant] if such a denial or contradiction is available”. But for the reasons given earlier, that premise is wrong. It is contrary to fundamental features of a criminal trial: features to which the trial judge alluded earlier in his charge. [117] But as I will seek to show neither historically nor now has the law recognised a “right to silence” that prevents a trial judge from commenting in the manner that occurred in the present cases. Nor does the immunity from compulsion to give evidence prevent such comments. In addition, once it is conceded that the silence of the accused may be taken into account in some cases, as the majority in RPS, and in the present cases, concede, the point of principle is decided in favour of Weissensteiner. Once the concession is made that “the right to silence” and the immunity from compulsion do not prevent the judge from making some adverse comments, the debate must be about details. And it is not easy to see how or why the comment should be as limited as RPS suggests. If comment is justified when the accused probably knows of additional facts that could deny inferences that can be drawn from the evidence, why is comment denied when the accused fails to rebut or explain evidence about matters that the accused knows are true or false? The reasoning that justifies comment in one case seems just as applicable in those cases where RPS denies the right of comment.

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[118] In my opinion, there is no general common law right to silence that is infringed by the directions of the judges in the present cases. With one possible exception, the so-called right to silence is merely an incident of or a consequence of certain immunities enjoyed by a person accused of an offence. Those immunities are derived from the privilege against self-incrimination. [119] Until recently, most common lawyers believed that that privilege and the incidental right to silence were longstanding principles of the common law. They thought that the privilege against selfincrimination had been developed by common lawyers in the first half of the 17th century as a result of the reaction to the procedures in the Star Chamber and the ecclesiastical courts. Most common lawyers also thought that the privilege had been developed to ensure that European inquisitorial procedures would have no place in the common law adversary system of criminal justice. These beliefs were chiefly based on the writings of Professor JH Wigmore in his great work on evidence and on Professor Leonard Levy’s influential book, Origins of the Fifth Amendment. [120] It now turns out that the views of Wigmore and Levy concerning the origin and development of the self-incrimination privilege were dead wrong. In the last 25 years, research by modern scholars has demonstrated a very different – almost opposite – view of the history and origin of the principle. Modern researchers have had access to much material that was not available to Wigmore and earlier historians and scholars. In particular, they have had access to the manuscripts of proceedings in the ecclesiastical courts, the Old Bailey Sessions Papers, the records of proceedings at Assizes and numerous contemporary pamphlets which contained journalistic-type accounts of criminal trials during the 18th century. [121] The result of the modern research is summarised in a remarkable book, published in 1997, by a group of distinguished lawyers and historians. Much of the account of the development of the selfincrimination principle, which follows, is drawn from the research summarised in that book and in an illuminating article by Justice Davies. Drawing on this research, these lawyers and historians have convincingly demonstrated that the self-incrimination principle originated from the European inquisitorial procedure and that it did not become firmly established as a principle of the criminal law until the mid-19th century or later. Its entrenchment into the criminal law at that time was the consequence of counsel being increasingly permitted to appear for the accused from the late 18th century. Until the appearance of counsel, the common law system of criminal justice, at least so far as it concerned

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Azzopardi v The Queen cont felonies, was in substance an inquisitorial system. An accused person had no right to silence in any meaningful sense. (Appeal allowed. Conviction quashed. New trial ordered.)



Dyers v The Queen [17.130] Dyers v The Queen (2002) 210 CLR 285

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Facts [The appellant was charged in 1999 with indecently assaulting a 13-year-old girl in 1988, 11 years earlier. The complainant and her mother were members of a sect known as “Kenja”. The mother and the complainant travelled to Sydney to meet with Dyers and to participate in “energy conversion sessions”. The alleged indecent assault occurred on the morning of 29 July 1988 while the complainant and Dyers were doing an “energy conversion session”. Dyers gave evidence at trial that on the morning of 20 July 1988 he was having an “energy conversion session” with Wendy Tinkler, not the complainant. Dyers acknowledged that he had seen the complainant that morning, but he said that it was only in the company of her mother, and while he was otherwise engaged in meetings with others. Dyers’ appointment diary was tendered in evidence by the defence. It recorded a number of appointments for the appellant during the day. No appointment with the complainant was recorded. There were, however, references to a meeting at 9.30am with two other persons, a meeting between 1pm and 3pm with several other persons, including the complainant’s mother, and what was described as a “processing session” with a Ms Tinkler between 9.30am and 11.30am in a room called the “energy conversion room”. The complainant swore that Dyers had indecently assaulted her in that room at the end of a “processing session” with her in the morning of 29 July 1988. Neither Ms Tinkler nor others who were recorded in the diary as having appointments at 9.30am and 1pm gave evidence at the trial. The principal issue in the appeal was whether the trial judge misdirected the jury by telling them that, first, if they concluded that any of these persons was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and secondly, that there was no satisfactory explanation for the failure of that party to call the person to give evidence, then “you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness”. Gaudron and Hayne JJ gave the leading judgment in the High Court. Kirby J and Callinan J agreed. McHugh J dissented. The majority held that a Jones v Dunkel direction should not have been given.] Judgment GAUDRON and HAYNE JJ: ... [5] As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence. [6] Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to

Part 4 — Proof

Dyers v The Queen cont infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses. [7] There are three principal reasons for concluding that a Jones v Dunkel direction should not have been given against the appellant in this matter.

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[8] First, the trial judge’s direction invited the jury to consider two questions: would one party be expected to have called a witness to support that party’s assertions, and was there a satisfactory explanation for the party’s failing to call the evidence? The trial judge gave no direction that would have helped the jury in deciding how to answer these questions. In particular, the jury were given no instructions about when a party would be expected to call a witness, or what would be a satisfactory explanation for not calling that person. And, as it happens, there had been little examination of these matters in evidence given at the trial. Reference was made in cross-examination to Ms Tinkler being available to give evidence but there was no reference to whether any of the others mentioned in the appointment diary were available. More importantly, there was no evidence which would have provided the jury with a basis for concluding that one or more of these witnesses could have been regarded as being in the camp of one party to the matter rather than the other. Rather, the final address for the prosecution asserted (in effect) that there were persons whom it could be expected that the defence would call, but the basis for making that assertion had not been established in evidence. These would be reasons enough to hold that the direction should not have been given in this case. But the problem with the direction (to the extent to which it is properly understood as having been directed at the appellant) is more deep-seated than any deficiency in the evidentiary basis which the direction assumed. [9] As was pointed out in RPS, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled. [10] The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt. [11] The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act “with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one”. That

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Dyers v The Queen cont requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person. [12] If, in a particular case, the prosecution chooses, for good reason, not to call a witness (as, eg, on the basis that the evidence which would be given by that witness would be “unreliable, untrustworthy or otherwise incapable of belief”), it would be quite wrong to invite the jury to conclude that the accused could be expected to have called that person. Yet if the jury are to be invited to draw some conclusion adverse to the accused from the fact that a witness has not been called, it can only be on the basis that it would be expected that the accused would call that person unless the evidence that would be given would not assist the accused. But if the evidence was important and credible, why was it not adduced by the prosecution?

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[13] The third of the principal reasons, for concluding that a Jones v Dunkel direction should not have been given, arises out of the direction that the jury should not speculate about the evidence that might have been given by those who were not called. The reasoning of which Windeyer J spoke in Jones v Dunkel was the drawing of inferences from proved facts and the confidence with which such inferences could be drawn. The central issue for the jury in the present matter was whether they were persuaded, to the requisite standard of satisfaction, that the events described by the complainant had happened. To those events there were said to be only two witnesses – the complainant and the accused. It may, therefore, be doubted that the drawing of inferences loomed large in the jury’s deliberations in this case. At most, there might have been some questions of inference about peripheral issues. … [16] The three reasons we have given are all concerned with giving a Jones v Dunkel direction about evidence which the accused might have adduced. The directions given in this matter were described in the Court of Criminal Appeal as having been intended as “bipartisan”. That is, they were understood as permitting, if not inviting, the jury to conclude that there were witnesses whom the prosecution could and should have called. Again, the trial judge having given the jury no guidance about who could be thought to fall into this group, or why that was so, the directions given were either of no assistance to the jury or were apt to mislead. But again, there are more deep-seated reasons for saying that, save in very exceptional circumstances, a direction of this kind should not be given about witnesses whom the prosecution ought to have called. [17] As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic. [18] In this matter, the relevant chain of inquiry stopped at the first of the points identified earlier, there having been no inquiry of the prosecution about why a particular person was not called as part of the prosecution case. In the circumstances of this case there was no occasion to make any such inquiry. The persons to whom reference was made in the appointment diary were not material witnesses. Their evidence was not “necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”. That is reason enough to conclude that a Jones v

Part 4 — Proof

Dunkel direction aimed at the prosecution should not have been given in this case. Had the direction been aimed only at the prosecution, it may be that its giving would not, in this case, have worked any injustice. But given that the direction would have been understood as aimed also at the appellant, the Jones v Dunkel direction was a material misdirection of the jury. [19] Lastly, it is necessary to deal with the suggestion, made in the course of oral argument, that some of the persons named in the appointment diary were properly to be considered to be alibi witnesses and, for that reason, warranted the giving of a Jones v Dunkel direction. In his unsworn statement, the appellant said that he was otherwise engaged during the time the complainant said he was alone with her. Whether this is a suggestion of alibi, as that expression is to be understood for the purposes of statutory provisions requiring the giving of notice of alibi evidence, is not to the point in considering whether giving a Jones v Dunkel direction amounted to a misdirection. Even if the unsworn statement of the appellant was evidence of alibi, the absence of evidence of those whom the statement, or other evidence, revealed might support the applicant’s contention that he was engaged otherwise does not lead to some different conclusion about the application of Jones v Dunkel. Even in such a case it would be wrong to invite the jury to conclude from the absence of those persons that their evidence would not support some contention of the appellant. The attention of the jury should remain focused upon the central question for their decision – whether they were persuaded beyond reasonable doubt that the appellant had committed the acts described by the complainant. They should not have been distracted by being invited to make what amounted to inquiries about whether the appellant had made out a case. The appellant had no case to make; the prosecution did. In assessing that central question the jury had to take into account the appellant’s unsworn, and therefore untested, evidence from the dock. They should have been told that they should not speculate about what others may or may not have said had they been called to give evidence. Those conclusions do not depend upon the fact that in this case the appellant was able to, and did, make an unsworn statement. If the appellant had elected to give sworn evidence (but not call those whom it might be thought would have supported his assertions in evidence), a like direction should have been given. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(Appeal allowed. Conviction quashed. New trial ordered.)



[17.140]

Questions

1. Refer to Strom v Council of the Shire of Cremorne in Chapter 20. In par 15 of the judgment, there is mention of Michael Brown, who was sitting with Jack Strom before the fall. Assume that the plaintiff does not call Michael Brown as a witness. What are the consequences of this? 2. Refer to R v Eagle in Chapter 20. As defence counsel for Eagle, advise your client as to the consequences of him not giving evidence in the trial. 3. Refer to R v Eagle in Chapter 20. Discuss the other directions in respect of proof that the trial judge may be required to give to the jury. Evidence of convictions and judgments 1. Can an accused’s criminal record be relevant to: • attack credit (see ss 103, 104, 106); • rebut good character (see s 110); • prove a tendency (see ss 97, 101); • prove lack of coincidence (see ss 98, 101)?

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2. Is there a distinction in s 91 between: (a) proving the fact of the judgment or conviction; and (b) proving the existence of the facts implied (or the facts which support) the judgment or conviction? 3. Can a party tender a criminal record to prove the fact of a conviction? 4. Can a party tender a criminal record to prove the existence of the facts that support a conviction? If a party is unable to tender a criminal record for such a purpose, how would a party prove the existence of facts that support a conviction? 5. Does an acquittal prove innocence of the crime charged? 6. What does s 178 of the Evidence Act 1995 provide? Failure to give evidence

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1. Delete the incorrect phrase in each of the following: • Absence of the defendant as a witness can/cannot make up a deficiency in the plaintiff’s case. • If the defendant fails to give evidence, evidence led by the plaintiff that the defendant might have contradicted (had he or she testified) can be more readily accepted by the finder of fact/taken to be admitted by the defendant. • A defendant’s unexplained failure to give evidence can be used to draw an inference that the evidence would not have assisted that defendant/would have been unfavourable to the defendant. • Jones v Dunkel principles apply to only civil/civil and criminal cases. • Jones v Dunkel inferences can be drawn in respect of any evidence/only where a party fails to testify. • A failure to give evidence amounts to/does not amount to an admission of guilt. • A judge should/should not instruct the jury that the accused does not have to give evidence. • A judge should/should not instruct the jury that a failure to give evidence will make it easier to accept or draw inferences from the Crown’s case. • A judge should/should not warn the jury that there may be no reasons/good reasons why an accused has not given evidence. 2. Consider s 20 of the Evidence Act and answer the following: (a) Does s 20 apply to civil or criminal cases? (b) What do sub-ss 20(2) and (3) provide? 3. Fill in the following table concerning the possible comments allowed under s 20. Section 20 Who can comment? Can the comment suggest guilt?

Judge

Prosecution

Other Party

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CHAPTER 18

Corroboration and Warnings [18.10]

OVERVIEW ................................................................................................................ 701

[18.20]

JUDICIAL WARNINGS FOR UNRELIABLE EVIDENCE .................................................... 702 [18.30] R v Flood ................................................................................ 702 [18.40] R v Stewart ............................................................................. 703

[18.50]

COMMON LAW OBLIGATIONS ................................................................................. 705 [18.60] Longman v The Queen .............................................................. 707 [18.70] Crofts v The Queen ................................................................... 710

[18.80]

WARNINGS IN RESPECT OF CHILDREN’S EVIDENCE ................................................. 713 [18.90] CMG v The Queen.................................................................... 713

[18.100]

WARNINGS IN RESPECT OF DELAY IN PROSECUTION ............................................... 717 [18.110]

Robbins (a Pseudonym) v The Queen ............................................ 718

OVERVIEW

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[18.10] Some types of evidence may be unreliable and a judge may be required to warn

the jury about the dangers of the evidence. The obligation to give a warning or comment exists under s 165 and the common law. Section 164 abolishes (with the sole exception of the rules relating to perjury) the common law requirements in respect of corroboration of certain categories of evidence. In their place, s 165 in Pt 4.5 imposes general warning requirements in respect of evidence that may be unreliable, including several broadly described categories of evidence (although, in Victoria, it only applies in civil proceedings, with the Jury Directions Act 2015 (Vic) dealing comprehensively with warnings to juries in criminal proceedings). A  party must request a warning under s 165. However, a trial judge need not give a warning if there are “good reasons” not to in the particular circumstances of the case. The required contents of the warning are listed in s 165(2). The judge must: (a)

warn the jury that the evidence may be unreliable;

(b)

inform the jury of matters that may cause it to be unreliable; and

(c)

warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of a particular witness, but the judge is never under a duty to do so. In Victoria, s 32 of the Jury Directions Act 2015 provides: Direction on unreliable evidence

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(1)

The prosecution or defence counsel may request under s 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.

(2)

In making a request referred to in sub-s (1), the prosecution or defence counsel (as the case requires) must specify– (a) the significant matters that may make the evidence unreliable; or (b) if the request concerns evidence given by a child, the significant matters (other than solely the age of the child) that may make the evidence of the child unreliable.

(3)

In giving a direction referred to in sub-s (1), the trial judge must– (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of– (i) the significant matters that the trial judge considers may cause the evidence to be unreliable; or (ii) if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and

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(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. Section 31 provides that “evidence of a kind that may be unreliable includes” specified categories of evidence that correspond in substance to the specified categories in s 165(1)(a), (c), (d), (e) and (f). Section 165(1)(b) “identification evidence” is not included because Div 4 deals with “identification evidence”. Section 39 deals with directions to a jury regarding a “significant forensic disadvantage” suffered by an accused person. Except in Victoria, common law obligations to give appropriate warnings and directions to a jury remain except where they have been limited in respect of the evidence of children by s 165A and in respect of forensic disadvantages suffered by a defendant because of delay by s 165B. An example of a common law direction is the direction given to a jury in respect of the failure to complain of sexual assault at the earliest opportunity: see Crofts v The Queen extracted at [18.70].

JUDICIAL WARNINGS FOR UNRELIABLE EVIDENCE [18.20] Section 164 of the UEL abolishes the common law requirements in respect of corroboration of certain categories of evidence – with the sole exception of the rules relating to perjury. Section 165 imposes an obligation on a trial judge to warn a jury in respect of certain categories of evidence. For example, an accomplice’s evidence (see R v Stewart extracted at [18.40]). There is no obligation on a judge to give a warning under s 165 if it is not requested by a party: Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 per Heydon J at [232].

R v Flood [18.30] R v Flood [1999] NSWCCA 198 Facts [The appellant was convicted of the sexual assault of a woman who, following a car accident in July 1973, suffered brain damage and was left with a serious physical disability. The appeal was on the

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R v Flood cont. basis that a warning based on s 165(1)(c) should have been given in relation to the complainant’s evidence at the trial on the basis that her evidence might have been unreliable because of her disability.] Judgment SPIGELMAN CJ: ... [3] The scheme of s 165(1) is to apply a test of possibility, that is, “may be unreliable” to evidence. For present purposes the relevant paragraph is (c) which plainly turns on an issue of possibility, namely that the evidence “may be affected by … ill health … injury”, relevantly mental ill health or injury. [4] A fact-finding exercise on the part of the trial judge was required as to whether or not the reliability of the complainant’s evidence in the instant case “may be affected” by a mental condition. His Honour had to make this finding on the balance of probabilities in accordance with s 142 … [5] Even if the threshold is reached and the trial judge makes a finding that the reliability of the complainant’s evidence “may be affected” by a mental condition, the judge is nevertheless empowered by s 165(3) not to give the stipulated warning “if there are good reasons for not doing so”. [6] … In my opinion it was open to the trial judge to find that there were “good reasons for not” giving the warning that evidence may be unreliable because, in all of the circumstances, including the evidence given as to the mental condition of the complainant and her own performance in the witness box, his Honour could best deal with the matter of her reliability in terms of detailed directions rather than in terms of a s 165(2) warning. This was, in my opinion, a discretionary decision for the trial judge which it was open to the trial judge to make and this court should not intervene. …

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SMART AJ: [52] It is not for the trial Judge to decide whether her evidence as to the consent issues was unreliable. The phrase used in s 165(a) is “may be unreliable”. That test involves a low threshold as a precursor to giving the required warning. More is required than some general argument that the evidence may be unreliable. Some reasonable basis must appear from the evidence to support the conclusion that the evidence may be unreliable. Such a basis may emerge from the evidence of the complainant or some other lay witness. It may emerge from medical evidence, which, while not necessary, will often be given. [53] If a reasonable basis appears that the evidence may be unreliable, the judge tells the jury that the evidence may be unreliable, the reasons why and warns the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The judge will tell the jury that it is for them to consider the evidence and assess its reliability after taking into account the matters mentioned, for example, the memory and cognitive impairments of the particular complainant or other witness. These are matters for them to decide. The unreliability must relate to the issues in the trial or facts relevant to the issues. It will usually not be sufficient if there may be unreliability in relation to minor or peripheral matters. (Appeal dismissed.)

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R v Stewart [18.40] R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 Facts [The appellant was convicted of a charge of aggravated break, enter and steal from a dwelling house. The Crown case was that the appellant had committed the crime with a co-offender, Braddick.

Part 4 — Proof

R v Stewart cont. Braddick pleaded guilty and gave an undertaking to give evidence against the appellant and as a result his sentence was reduced. If he did not give evidence the Crown had the right to appeal his sentence.] Judgment HOWIE J (Spigelman CJ and Hulme J delivered separate judgments with different reasoning): ... [70] Before considering the provisions of the Evidence Act, some reference should be made to the position at common law. It will not always be helpful, and at times it may be positively misleading, to consider the common law rules of evidence when construing the provisions of the Evidence Act. However, s 165 has its origins in the common law requirement that the trial judge give a warning to the jury in respect of potentially unreliable evidence and s 165(5) recognises that a trial judge has power to make comments and give warnings to the jury in respect of the evidence in the trial in addition to those required by the section. … [87] The content of the warning will depend upon the circumstances of the particular case including any aspect of the trial, such as cross-examination and counsel’s addresses: R v Johnson (1998) 45 NSWLR 362 at 369. In Bromley Brennan J said (at 325): The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content.

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[88] However, s 165 is concerned only with those occasions where the possibility of a miscarriage arises because there is evidence before the jury “of a kind that may be unreliable”. Because any evidence given in a court may be unreliable, it is necessary to consider the scope of the section in order to determine, not only when a warning should be given, but also what its content should be. … [94] Where there is evidence that falls within the scope of s 165 but no request is made by a party for a warning, the trial judge may still give a warning relying upon the power recognised in s 165(5). The combined effect of ss 164 and 165 is to provide the trial judge with the flexibility to give a warning appropriate to the case in light of the issues raised and the factors which might affect the reliability of the evidence. In R v Spedding (unreported, NSWCCA, 11 December 1997), this Court noted that the terms of ss 164 and 165 sought to express and give practical application to the common-sense approach which had been adopted in other jurisdictions as exemplified in the following statement of Dickson J in Vetrovec v The Queen [1982] 67 CCC (2d) 1 (at 17): Because of the infinite range of circumstances which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. … [99] In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone “evidence of a kind that may be unreliable”. However, as I will indicate later, these types of matters might be made the subject of comment by a trial judge, and, in the case of a crucial Crown witness, a summing-up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused. …

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R v Stewart cont. [125] The term “accomplice” is not used in s 165(1). Sub-section 165(1)(d) refers to a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. Whether the witness falls into that category is initially a matter of fact to be determined by the trial judge, although a finding that there is no evidence that the witness falls into that category is a question of law: Taranto at [7] and [38]. [126] It may be preferable that a trial judge avoids using the word “accomplice” during his or her warnings to the jury. The use of that word may convey, inadvertently, that the trial judge believes that the witness is an accomplice of the accused and, therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury. … [145] In my opinion, the fact that there is evidence in the trial that the witness has actually received a benefit for giving evidence against the accused diminishes the necessity for the judge to bring that matter to the attention of the jury and to warn them of its possible effect on the reliability of the witness. A warning is required where the jury might not be able to ascertain that there is any benefit to be gained by the witness in giving evidence. There is, in such a case, a danger that the jury may give the evidence significant weight simply because they cannot perceive a motive for the witness to fabricate evidence implicating the accused in the offence before them. As I have already indicated, part of the rationale for the accomplice warning at common law was to alert the jury to the fact that the accomplice may have reason to implicate the accused even though the reason may not have been obvious. (Appeal dismissed.)

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COMMON LAW OBLIGATIONS [18.50] A trial judge’s general powers and obligations under the common law to give appro-

priate warnings and directions remain, although s 165A controls what a judge may say about the evidence of children and s 165B limits what a judge may say about the potential significance of delay in prosecution. Under the common law, such directions may be “necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”: Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 at 86. This is due to the trial judge’s “overriding duty … to ensure that the accused secures a fair trial”: Crofts v The Queen (1996) 186 CLR 427 at 451. In Longman v The Queen, the High Court held that there was a need to specifically direct the jury on the forensic disadvantage occasioned to the accused as a result of delay in complaint. Now, under the uniform Evidence Acts, a direction in the form of a warning regarding any forensic disadvantage to the accused is to be given under s 165B if the court is satisfied that the defendant has suffered a “significant forensic disadvantage” because of the consequences of delay. At common law, there is no closed list of such situations in which a comment or warning may be required. Further, the common law obligation to comment or warn extends beyond the situation where evidence is unreliable under s 165. The common law duty on a trial judge to give warning may arise even if it is not requested: R v Stackelroth (unreported, NSWCCA, Gleeson CJ, Powell JA and Smart J, 9 April 1998). Whether a comment or warning is required and the content of such comment or warning will depend on the circumstances of the case, including whether the jury may not, from its own experience, fully appreciate the particular matter said to call for comment or warning. This is contrasted to the content of a warning under s 165 which only requires compliance with the terms of s 165(2).

Part 4 — Proof

The situations that may call for a comment or warning at common law include: (a)

The prosecution case depends on one witness (Tully v The Queen (2006) 230 CLR 234).

(b)

Events have occurred which have limited the opportunity of the defence to obtain relevant evidence, test the prosecution case or put the defence case, for example: (i) there has been substantial or significant delay in complaint (as in Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60), but now see s 165B; (ii) there is little detail in a complaint (R v DGB (2002) 133 A Crim R 227 at [37]-[38] per Howie J);

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(iii) evidence has not been made available to the defence for expert testing (R v Slattery [2002] NSWCCA 367). (c)

The prosecution relies on conduct of the defendant (such as lies told to the police) as demonstrating consciousness of guilt of the crime charged (R v Edwards (1993) 178 CLR 193).

(d)

The prosecution relies on disputed police evidence of an alleged admission (McKinney v The Queen (1991) 171 CLR 468).

(e)

Part of a complainant’s evidence is given by means of the playing of a videotape and the tape is to be replayed or the transcript of the tape provided to the jury (the judge should caution the jury in terms to the effect that “because they are hearing the evidence-in-chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case” (R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 at [208]-[210] and Gately v The Queen (2007) 232 CLR 208 at [96]).

Under the common law, substantial or significant delay in the making of a complaint of criminal conduct by the complainant may require a warning to the jury. A trial judge can direct the jury that delay in complaining of sexual assault may be taken into account in deciding whether or not to believe the complainant’s testimony: Kilby v The Queen (1973) 129 CLR 460. In Kilby v The Queen, Barwick CJ stated at 465: It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape, and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given.

The assumption that a sexual assault complainant will complain at the first reasonable opportunity has been doubted: Suresh v The Queen (1998) 72 ALJR 769 at [5] per Gaudron and Gummow JJ; R v Markuleski (2001) 52 NSWLR 82 at [244] and R v LTP [2004] NSWCCA 109 at [123]. In addition, legislation (eg s 294 of the Criminal Procedure Act 1986) may require that a judge give specified balancing directions (this section and its predecessor were enacted in response to Barwick CJ’s judgment in Kilby). Section 294(2) provides that in circumstances where an issue is raised about delay in making a complaint, the judge: (a)

must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b)

must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

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must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.

The decision of Crofts v The Queen (extracted at [18.70]) found that provisions such as s 294 did not exclude a Kilby direction (namely that delay can be taken into account by the jury to make an adverse assessment of the credibility of the complainant). Crofts also extended the Kilby v The Queen direction to child complainants. It should be noted that a judge must not warn a jury, or make as suggestion to a jury, that sexual assault complainants as a class are unreliable witnesses:  s 294AA of the Criminal Procedure Act 1986 (NSW).

Longman v The Queen [18.60] Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60 Facts [The appellant was convicted of two counts of sexual assault which were alleged to have commenced when the complainant was asleep. The complainant was aged 32 at the time of trial, but was six years old at the time of the first count and 10 years old at the time of the second count. She was the accused’s stepdaughter. The complainant testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant’s bed she went back to sleep (count 2). She could not remember whether she went back to sleep after the incident in the truck (count 1). The complainant did not allege that penetration occurred or was attempted. Both offences were alleged to have occurred more than 20 years before the trial.]

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Judgment BRENNAN, DAWSON and TOOHEY JJ: ... [30] [at 90] There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother. … The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient. DEANE J: ... [16] [at 98] The evidence of the complainant reads convincingly. It is not surprising that the jury accepted her as an honest witness. The same could not be said of the evidence of the applicant. Two members of the Western Australian CIB (Detective Sergeant Page and Senior Detective Stevens) gave evidence of a conversation they had with the applicant a little more than a year before the trial. Their evidence was completely unchallenged in cross-examination. Indeed, counsel for the defence made clear that absence of challenge by agreeing that the police officers remain in court during the evidence of other witnesses and of one another and by allowing Detective Stevens’ evidence to be led in the form of a general expression of his agreement with the evidence of Detective Sergeant Page. The two detectives swore that, in the course of their interview of the applicant, they read to him the whole of the statement which had been made to them by the complainant and that the applicant’s response had been that that statement was correct “except where she states I have been touching

Part 4 — Proof

Longman v The Queen cont.

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her genitals”. The applicant’s attention had been drawn by Detective Sergeant Page to a part of the complainant’s statement in which she gave details of an occasion when the applicant had required her to watch a stallion serve a mare on his property. His response, when asked about that incident, had been that it was probably correct and that those sorts of things occur on farms. He suggested to the detectives that the [at 99] complaints against him were deliberate falsehoods invented for some ulterior purpose. He said: “I’ve got papers at home. It will come out in court.” And later: “No, it will come out in court. I want everybody to know about it.” In cross-examination at the trial, the applicant denied that the complainant’s statement had ever been read to him. He denied that he had ever made the statement attributed to him about the incident with the horses. Effectively, he asserted that the incident must have been a complete fabrication and that the complainant’s evidence about there having, at any relevant time, been a stallion on the property was simply wrong. He swore that the police officers had disclosed no details at all of the complainant’s allegations. He denied any recollection about mentioning “papers at home” or swearing that things “will come out in court”. In circumstances where, as has been said, the detectives’ evidence had not been challenged at all in cross-examination and had obviously been accepted by defence counsel as accurate, it is not surprising that the jury plainly rejected the applicant as a witness. [17] All that having been said, however, the fact remains that the only evidence of the applicant’s guilt of the offences with which he was charged was the oral evidence of the complainant. On the trial, counsel for the applicant supported his application for a warning (pursuant to s 36BE(1)(b)) by reference to a number of suggested considerations. Those suggested considerations have been relied upon in this Court in support of the submission that, in the absence of an appropriate warning about the need for careful scrutiny of the complainant’s evidence, the applicant’s convictions were unsafe and unsatisfactory. They include: absence of contemporaneous complaint: that it is “very easy to make a complaint” but “very difficult … to prove … innocence”; and, the extraordinary period between the second of the alleged offences on the one hand and the first complaint and subsequent trial on the other. To them, in this Court, there was specifically added the circumstances of the alleged offences, including the age of the complainant at the time and the fact that the offences allegedly occurred after the complainant had been asleep and while she pretended to be still asleep. [18] Some of those suggested considerations can be shortly dealt with. The absence of contemporaneous complaint by the complainant to her mother was explained by the complainant in her evidence. She swore that she was frightened of the applicant who was her stepfather and that she was concerned about the effect complaint would have had upon her mother, upon the family unit and, by clear implication, upon the relationship between herself and her mother. In the context of the express statutory recognition (the Act, [at 100] s 36BD(b)) that there may be good reasons for the absence of contemporaneous complaint in a case such as the present, the absence of such contemporaneous complaint could not properly be seen as of itself requiring that the judge be satisfied that a warning was justified. The same can be said of the assertion that “(i)t’s very easy to make a complaint … and it is very difficult … for an accused person to prove his innocence”. Not only, in the context of the likely ordeal of a complainant and the advantage which the criminal onus confers upon the accused, is the substance of that assertion open to question. The generalisation involved in it underlay the rule of practice which s 36BE(1) has abolished. [19] The long effluxion of time (more than 20 years) between alleged offences and complaint and alleged offences and trial is of much greater significance. However, it would not, in my view, suffice of itself to produce the consequence either that it was not open to the learned trial judge to fail to be satisfied that a warning of the kind described in s 36BE(1)(a) was justified or that the verdict was unsafe and unsatisfactory in the absence of such a warning. True it is that such delay can be disadvantageous to an accused. In the context of the criminal onus of proof, it can be even more disadvantageous to the prosecution. Be that as it may, it does not seem to me that those possible disadvantages to an accused necessarily require a warning of the kind described in s 36BE(1)(a). The direction which would ordinarily be appropriate to deal with them would be one aimed at drawing attention to the particular difficulties facing the accused in presenting his case so long after the alleged offences. No

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Longman v The Queen cont.

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direction in that regard was, however, sought by the applicant at the trial. It would seem likely that any difficulties which the applicant faced would have been thoroughly covered by his counsel in the course of his closing address since the learned trial judge expressly commented, in refusing to give a warning under s 36BE(1)(b), that “in relation to the effluxion of time comment from counsel can be made”. [20] The real force of the applicant’s case lies, however, in the combination of: (i) the circumstances of the alleged offences, and (ii) the possible effect, in the context of those circumstances, of the extraordinary lapse of time before complaint and trial. The gravamen of both offences was the alleged placing or pressing by the applicant of his hand on or against the complainant’s genitalia. There was no suggestion of penetration, of violence or of contact with other than the applicant’s hand. One of the alleged offences occurred when the complainant was six. The other when she was 10. On each occasion, the complainant was asleep immediately before the alleged offence. More than 20 years later, her [at 101] recollection is that, on each occasion, she awoke to find the alleged offence being committed but pretended to remain asleep. She cannot remember whether she went back to sleep after the incident in the truck. After the other incident, the applicant carried her to her bed where she went back to sleep. It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance. The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored. The borderline between fantasy and reality can be an uncertain one. Contemporaneous questioning of the child may distinguish fantasy from reality. The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality. So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy. It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant’s evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinised with very great care indeed. It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not. It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the applicant’s guilt. [21] I am prepared to assume, in the absence of argument to the contrary, that a warning to the jury of the need, in the particular circumstances of the case, to scrutinise the evidence of the complainant with great care and to exercise considerable caution before convicting the applicant upon the basis of it alone would have been a warning of the kind referred to in s 36BE(1)(a) even though it did not involve the use of the word “danger”. That being so, the question arises whether the circumstances of the case were such that it was not open to the learned trial judge, within the scope of a proper exercise of discretion, to fail to be “satisfied” that such a warning was “justified”. For the reasons which I have given, it seems to me that, in the particular circumstances of this very unusual case involving a prosecution for non-violent “touching” offences within a family more than 20 years after their alleged occurrence, his Honour was in error in refusing to give such a warning to the jury when he was requested by the applicant’s counsel to do so. There remains for consideration the ultimate question whether the effect of the absence of such a warning is, in all the circumstances, that the applicant’s convictions are unsafe and unsatisfactory. In my view, it is. ... McHUGH J: ... [17] [at 107] The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and [at 108] is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), at pp 269-270.

Part 4 — Proof

Longman v The Queen cont. [18] No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, 20 years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant’s attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, “I don’t hate him but I do hate what he’s done and the problems it’s caused in my life”. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant’s honest recollection of events concerning the applicant was not distorted by this hatred.

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[19] To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony. [20] Accordingly, the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant’s testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over 20 years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of [at 109] the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge.

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Crofts v The Queen [18.70] Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Facts [The High Court considered the law concerning the instruction to be given to a jury in a trial of an accused for a sexual offence, where the complainant had failed to complain at the earliest reasonable opportunity. Crofts was convicted of child sexual assault. The offences were alleged to have been committed between March 1987 and January 1993. The complainant first told her mother about the sexual assaults in June 1993. There was delay of some six years from the occurrence alleged in the first count in the indictment and six months after the last count. The trial judge directed the jury about the delay in complaint in the following terms: … I am now giving you the formal direction, relates to the delay in making the complaint. The law requires me to give you this advice, but again, when fully considered, it is a matter that accords with commonsense and human experience. Delay in complaining in sexual abuse cases does not necessarily mean the allegations are false; there may be good reasons why victims of sexual assaults hesitate in making complaints about them. The experience of

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Crofts v The Queen cont. the law confirms that complaints are often not made immediately after sexual assaults. [The prosecutor], in his address to you, suggested that she was young, confused, [had] feelings of guilt, fear of disbelief, fear of family upheaval, fear of accusation against a family friend. [These] were all suggestions that were put forward that may explain such a delay, and there may well be others. Experience has shown that it is not uncommon for such a delay and the law requires me to say that it does not necessarily mean the allegations are false. [at 444] The above direction was given in accordance with s 61 of the Crimes Act 1958 (Vic) (materially similar to s 294 of the Criminal Procedure Act 1986 (NSW)). At the trial, defence counsel asked the judge to balance the instruction to the jury by a direction that the absence of recent complaint might be considered by them in assessing the credibility of the complainant. The judge refused on the basis of s 61.] Judgment (footnotes omitted) TOOHEY, GAUDRON, GUMMOW and KIRBY JJ: ... [at 446]

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[In Kilby v The Queen] it was suggested that the complainant had consented to sexual intercourse with a group of youths, including the accused. The complainant in that case did not make a complaint “until she told her mother of the events … some considerable time later”. At the trial, counsel for the accused asked for a direction that because there was no fresh complaint, that fact was evidence of consent. The direction was refused. The refusal was affirmed by the Court of Criminal Appeal of New South Wales. This Court [at 447] refused special leave to appeal but provided extended reasons which dealt with delay in complaints more generally. In the course of his reasons, Barwick CJ explained the proper practice to be observed by a judge, where the evidence establishes delay in the making of a complaint: It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given. In tracing the course of legal history on the relevance of timely complaints in trials of persons accused of sexual offences, Barwick CJ referred to, and quoted from, Wigmore on Evidence: Down to the beginning of the 1800’s, evidence of this sort was received by the courts as a matter of old tradition and practice, with little or no thought of any principles to support it. The tradition went back by a continuous thread to the primitive rule of hue-and-cry: and the precise nature of the survival is more fully explained in dealing with the hearsay exception of “res gestae”. But as more and more attention began to be given, in the early 1800’s, to the principles underlying every sort of evidence, there came to be felt a need of explaining on principle this inherited and hitherto unquestioned practice; and thus the various aspects of its significance began to be thought of. In England, complaint, or the absence of it, was admissible in the trial solely for the effect it had on the credit of the prosecutrix. In R v Lillyman, Hawkins J, citing Blackstone, said: … but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offence, and made search for the offender … these and the like are concurring circumstances, which give greater probability to her evidence. But, on the other [at 448] side, if she be of evil fame, and stand unsupported

Part 4 — Proof

Crofts v The Queen cont. by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place, where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned. It was after an examination of this line of reasoning that Barwick CJ (with the concurrence of McTiernan, Stephen and Mason JJ) rejected the assertion for Mr Kilby that a want of complaint provided affirmative evidence of consent to the intercourse: In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman’s account and accordingly is clearly relevant to her credibility in that respect. Although the actual decision in Kilby turned upon a disputed confession signed by the accused, the statement of common law principles contained in the judgment of Barwick CJ, as to the significance of a want of timely complaint, was accepted thereafter as stating the applicable law. In appropriate cases juries were told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant’s evidence. There might be “many reasons” to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining.

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… Delay in complaining may not necessarily indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false. … [at 450] Here, the delay was objectively substantial, being a matter of years. Delays of that order require a trial judge to give “the jury a direction which [is] meaningful, and which [is] adequate to enable the jury to make a responsible evaluation of the matter”.… As the Victorian Court of Appeal pointed out in Miletic, no other approach to the construction of s 61 of the Act would be compatible with the approach of this Court in Longman. That decision makes it clear that the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed “human experience” and the “experience of courts”, judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to “sterilise” complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts. … [at 451] Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant’s evidence is false. So long as the purpose of the legislation, to rid the law of such stereotypes, is kept in mind, and the [at 452] terms in which the legislation is expressed are followed, judges striving to assist juries in their consideration of the facts are unlikely to fall into the kind of error that occurred in this case.

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Crofts v The Queen cont. The Crown sought to sustain the appellant’s convictions upon the arguments that the directions given had to be understood in context; that the provision of a Kilby warning is not mandatory in every case but depends upon all of the circumstances; that the instruction complained about was given as a mere illustration of the process of drawing inferences; and that the Court should respect the advantages enjoyed by the trial judge to assess the need for a Kilby warning in the context of the facts elicited at the trial. None of these arguments adequately meets the complaints of misdirection and of the lack of balance in the judge’s remarks to the jury. This is hardly surprising given that the judge appears to have thought, erroneously, that after the enactment of s 61, the warning previously required in appropriate cases by Kilby was not only not appropriate but was no longer permissible. In that conclusion, his Honour erred. The resulting instruction was therefore unbalanced. Moreover, it was incorrect in so far as it directed the jury, as a matter of law, that they could not take the considerable delay in complaining into consideration in weighing the credibility of the complainant. ... (Appeal allowed. Convictions quashed. New trial ordered.)

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WARNINGS IN RESPECT OF CHILDREN’S EVIDENCE [18.80] Section 165A deals with jury warnings about the evidence of children. The cur-

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rent form of s 165A was as a result of recommendations in ALRC Report 102 where it was reported at [18.64]: Despite the fact that research shows that the evidence of children is not inherently less reliable than that of adults, it has been found that the credibility of children’s evidence is still often underestimated by juries and the community generally. Given that such misconceptions still appear to be prevalent, the Commissions consider that there are grounds for adopting a provision prohibiting judges from giving general warnings about the unreliability of child witnesses, as provided in s 165A of the Evidence Act 1995 (NSW). However, given that statutory prohibitions on the giving of general warnings in relation to particular categories of witness have not successfully displaced the common law practice of doing so, it is also necessary to adopt a specific warnings provision, similar to that provided in s 165B of the Evidence Act 1995 (NSW).

The Explanatory Memorandum to the Commonwealth amending Act states: Juries often underestimate the credibility of child witnesses under the misconception that the evidence of children is inherently less reliable than that of adults. … Research conducted in recent years demonstrates that children’s cognitive and recall skills are not inherently less reliable than those of adults.

Section 165A makes it clear that age is not a basis for making an assessment that a child’s evidence in unreliable.

CMG v The Queen [18.90] CMG v The Queen [2011] VSCA 416 Facts [CMG was convicted of three charges of committing an indecent act with a child under the age of 16 (he was acquitted of three charges). The alleged offences occurred in January 2009 when the appellant was entrusted with the care of a seven-year-old girl, to whom he was distantly related by marriage. A rough itinerary for the occasion was agreed with the child’s mother. When, a day or two

Part 4 — Proof

CMG v The Queen cont. later, the child informed her mother that the appellant had taken her to his home, the mother’s suspicions were aroused. The mother questioned her daughter and as a result she reported the matter to police. The focus on the appeal was on the trial judge’s comments about the reliability of the child’s evidence (see [11] of the judgment further).] Judgment HARPER JA (Ashley and Weinberg JJA agreeing): ... [7] The prosecution case depended upon the jury accepting the evidence of the complainant. The appellant called no evidence. It was against this background that counsel for the appellant delivered his closing address to the jury. The credibility of the complainant as a witness was, naturally, one of his themes. Having, quite properly, told the jury that they should carefully scrutinise the complainant’s evidence, counsel turned to matters which they should “bear in mind”. He continued: These matters in my submission are relevant to that particular scrutiny. The complainant is not an adult. She’s not an adult witness who brings the maturity of life experience and intellect to respond and be aware of the events of life and the court room process including the giving of necessarily accurate and responsive answers as opposed to towing the line. The line being, this just happened.

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Next, the complainant was a seven year old girl at the time of these allegations and [at the time of] ... her VATE interview. ... She was not able to be cross-examined at that point in time, that’s just not the process we have. But she now presents as a nine, almost 10 year old girl, still a very young girl. Still a very young complainant. Next, in my submission the complainant, the young child, may blend fantasy and reality. She’s a young child. A young child may say things to appease, to please, to placate her mother and/or family that’s upset, emotional and furious. Bring your common sense to these issues. We know ... of these things in my submission from our experience of life and our observations and interaction with young children. A young child is open to suggestions. Next, the cognitive ... functioning of a child is more important to the testimony than with an adult witness because of developmental issues. In my submission, a child who has not reached her full adult intellectual capacity can – not necessarily, but can – be less reliable than an adult witness because the child does not have a full intellectual adult maturity. Why? An example is, in my submission, the child does not ... appreciate the full consequences of lies and of telling lies and giving inaccurate statements as compared to an adult does appreciate the full consequences of lies and if the full consequences of telling lies is not appreciated, with respect, it is all too easy to make an allegation that is not based in fact. Next, a young child, in my submission, can be more easily influenced by adult questioners, questions from relatives, close relatives such as mother, father, sister; and respond more to leading-type questions. [8] It was proper for the trial judge to refer in her charge to the jury to this portion of counsel’s final address. As part of her summary of the defence case, it would also have been proper for her to point out that the gravamen of counsel’s submission to the jury was that “a child who has not reached her [or his] full adult intellectual capacity can – not necessarily, but can – be less reliable than an adult witness because the child does not have a full intellectual adult maturity [and] ... does not ... appreciate the full consequence of telling lies ... as compared to an adult does appreciate the full consequence of telling lies”. [9] The learned trial judge rightly perceived that the jury would probably have read into this segment of the final address that which counsel doubtless intended that they should: the message being that the complainant would not appreciate how important it was to give accurate evidence – or, if she had some understanding of the necessity to tell the truth, her grasp of the content of that necessity

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CMG v The Queen cont. would be less than that of an adult. The complainant would be “open to suggestions” by adults who were “upset, emotional and furious” (although whether with the appellant, or the complainant, or both, is not clear). She may, in these circumstances, have sought to placate those angry adults. In order to achieve that goal, she would have been prepared to toe the adult line. A false account of the appellant’s behaviour towards her would have been the result, because if the adults were to be placated a story had to be invented; and because a child does not have an adult’s appreciation of “the full consequences of lies and of telling lies and giving inaccurate statements”, a child finds “it all too easy to make an allegation that is not based in fact”.

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[10] Although it was within the province of a final address by counsel to make these submissions, as counsel repeatedly described them, the judge was entitled to conclude that the jury needed to be presented with a more nuanced picture. She was certainly entitled to point out to the jury that these statements by counsel were not evidence; and they were to be put to one side if the jury disagreed with them. She was, in addition, entitled to tell the jury that, as the Court of Appeal (England) emphasised in R v Barker [2010] EWCA Crim 4 (Court of Appeal, Criminal Division) (Lord Judge CJ, Hallett LJ and Macur J) the collective experience of the courts is that “the age of a witness is not determinative of his or her ability to give truthful and accurate evidence”. ([40]) In R v Barker, the Court of Appeal continued: Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children, carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. ... In a trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence. [11] I do not put forward the passage quoted earlier from Barker as a template. At the same time, had the trial judge responded to counsel’s address by charging the jury in terms such as those used by the Court of Appeal in that passage, no complaint could have been made. Having repeated that the prosecution case “stands or falls on [the complainant’s] evidence”, however, her Honour said: Children are not inherently unreliable as witnesses. [Counsel for the appellant] put to you that they can be less reliable because they do not have the full intellectual capacity of adults and because they are children they do not appreciate the full consequence of telling lies. He also said the children are more easily influenced and respond to leading-type questions, that is, questions which suggest the answers. He also said that people do lie and some children, not all, lie habitually until their lies are exposed. While it is true to say that children do not have the intellectual capacity of adults, I need to draw to your attention that the rest of those comments are common misconceptions about children as witnesses. Indeed, the Chief Justice of the Supreme Court of New South Wales said in a case in 2006, there is a substantial body of psychological research indicating that children, even very young children, give reliable evidence. Therefore I need to caution you against making any false assumptions about children’s evidence generally or about [the complainant’s] evidence in particular. Each child witness will have strengths and vulnerabilities that may potentially bear upon his or her ability to give evidence. The same may be said of adult witnesses. Whether the strengths and vulnerabilities have any impact at all is a matter to be considered in the circumstances of each case, and that is what you should do here. Consider the particular context of [the complainant] as a person in the circumstances of this case. While you cannot ignore that she is a child and must take that into account, you should consider how she gave her evidence and what she said in the context of all of the evidence and not on

Part 4 — Proof

CMG v The Queen cont. the basis of misconceptions about children as witnesses. A study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information, especially when the events are personally experienced and highly meaningful. Other studies have reached conclusions which you may find of assistance to you in evaluating the arguments put forward by each side in this case. First, any assumption that children have a greater or less a tendency to lie than adults has not been able to be proven, and there is no evidence that indicates that honesty of children is less than adults. Next, the published research suggests that children are capable of telling deliberate lies from the age of four. Next, young children may lie when they anticipate punishment or when they are threatened by someone not to disclose the truth. Next, as they grow older, they may gain additional reasons for lying: to obtain a reward, to protect their self-esteem, to regulate the dynamics of their relationships with others and to conform to norms and conventions. And children aged nine to 10 years are not likely to report an incident they have been asked to keep secret, but are more likely to report under direct questioning than children aged five or six.

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Some other things to consider are that the published literature indicates that by the age of five, most children’s speech sounds a lot like that of adults. However, simply because a child sounds like an adult does not mean that she or he has an adult’s cognitive development or command of language. By cognitive development, I mean the development of the brain and its intellectual and emotional functions. Cognitive and language development continues throughout childhood and into adulthood. For example, studies show that children do not understand questions put in the negative until around the age of 11 or 12, and children under 12 have problems when questions ask more than one thing at a time. You need to take these things into account when devaluating the arguments on [the complainant’s] evidence. I am not giving you this information to suggest that I think [the complainant] is a reliable and truthful witness. What I think has got absolutely nothing to do with your decision. Whether she is or is not truthful and reliable are questions for you to determine, but you should determine them taking care not to make any false assumptions about children’s evidence generally or about [the complainant’s] evidence in particular. [12] Counsel for the appellant took exception to this part of her Honour’s charge. Having heard argument on the point, including submissions from the prosecutor opposing the applicant’s request for a discharge of the jury, her Honour said: I have reviewed what it was that I said to the jury, and I say at the outset that there was some discussion yesterday as to what category they could be put in. I confirm that they are directions of law, and that within those, information is contained. They are not comments, and they are not evidence. It is not unusual for a judge to expand on directions of law, to give jury information, in order to perform the task the judge has, which is to provide assistance to the jury enabling them to properly approach their task of deciding the facts. In further reviewing what I have said, I am satisfied that the directions were balanced. I included, for example, information about the ability of children to lie from a certain age, deliberately lie that is, and other aspects as to lying which are directly referable to the submissions that have been made in this case, such as reward, or conforming to norms or conventions, or regulating dynamics of relationships. ... As I have said, I accept that it would have been preferable had I raised this whilst [counsel for the appellant] was still within his address, but even accepting that would have been a preferred course, I am satisfied that not having done so has not led this to be an unfair trial.

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CMG v The Queen cont. [13] A real difficulty, however, remains. Her Honour was either giving evidence, or she was charging the jury on the law. But a judge cannot give evidence. He or she may of course comment on such evidence as is placed before the jury, but only after ensuring that the jury are aware that they must disregard those comments if they do not find them helpful. [14] The judge herself categorised what she had said to the jury as directions of law. If so, they were binding on the jury. The very real danger, therefore, is that the jury understood, for example, that they were bound to accept that a study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information; or that there is no evidence that indicates that the honesty of children is less than that of adults. As Latham LJ said in D (R v D [2008] EWCA Crim 2557): The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. ... But any comment must be uncontroversial. It is no part of the judge’s task to put before the jury [a relevant expert’s] learning without [that expert] having been called as a witness.

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[15] Of course, nothing in this judgment should be taken as providing guidance about the proper construction of s 37B of the Crimes Act 1958 (Vic), which provides that, in interpreting and applying those sections of that Act which deal with sexual offences, courts are to have regard to the facts to which that section refers: that there is a high incidence of sexual violence in society; that sexual offences are significantly under-reported; that a significant number of these offences are committed against vulnerable persons (such as children); that the offenders are commonly known to their victims; and that sexual offences often occur without physical signs of injury. [16] The common law refused to allow the reception into evidence of opinions about matters about which an ordinary member of the public (and therefore an ordinary member of a jury) could, from his or her own experience and knowledge of the world, form a sound judgment. This included the commonly exhibited behavioural characteristics of children. [17] On the other hand, there are aspects of children’s behaviour – such as that of child victims of sexual assault – that are not a matter of ordinary knowledge (HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, 432 (Gaudron J)). Opinion evidence may therefore be given about child development and child behaviour (including the impact of sexual abuse on children, and their development and behaviour during and following abuse) once the conditions prescribed by the Evidence Act 2008, and in particular s 79 of that Act, have been met. I also note that, by s 108C, the credibility rule (which is found in s 102, and provides that credibility evidence about a witness is not admissible) does not apply to evidence given by a person concerning the credibility of another witness if the first (expert) witness meets the criteria set out in s 108C, and the court gives leave to adduce the evidence. [18] Such evidence was not called in the present case. It was not within the limits of the judicial function for the judge to attempt to fill the gap. The comments of her Honour were not properly within the scope of directions of law, and they were controversial. They took the judge into the arena. This is prohibited territory. In these circumstances, the appeal in my opinion had to be allowed.

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WARNINGS IN RESPECT OF DELAY IN PROSECUTION [18.100] Section 165B deals with jury warnings about the delay in prosecution. Delay in

complaint (usually in sexual assault trials) may disadvantage the defence as the accused’s prosecution has been delayed. As discussed at [18.50], delay may also require the trial judge

Part 4 — Proof

to direct the jury that, “in evaluating the evidence of the complainant and in determining whether to believe her they could take into account her failure to make a complaint at the earliest reasonable opportunity as reducing her credibility” (see Kilby v The Queen (1996) 186 CLR 427; [1996] HCA 22), but as noted at [18.70], s 294 of the Criminal Procedure Act 1986 (NSW) imposes obligations on a judge to give a balanced direction. The case of Robbins (a Pseudonym) v The Queen [2017] VSCA 288 explains warnings about delay, including s 39 of the Victorian Jury Directions Act 2015, which deals with directions to a jury regarding a “significant forensic disadvantage” suffered by an accused person. Section 39 provides: Direction on significant forensic disadvantage (1)

Defence counsel may request under s 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused.

(2)

The trial judge may direct the jury as referred to in sub-s (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.

(3)

In giving a direction referred to in sub-s (1), the trial judge– (a) must inform the jury of– (i) the nature of the disadvantage experienced by the accused; and (ii) the need to take the disadvantage into account when considering the evidence; and (b) must not say, or suggest in any way, to the jury that–

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(i) it would be dangerous or unsafe to convict the accused; or (ii) the complainant’s evidence should be scrutinised with great care. Section 38 defines a “forensic disadvantage”: forensic disadvantage means a disadvantage (that is more than the mere existence of delay) to the accused in– (a) challenging, adducing or giving evidence; or (b) conducting his or her case – because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial.

Section 12 provides that the prosecution and defence counsel must each request that the trial judge give or not give particular directions.

Robbins (a Pseudonym) v The Queen [18.110] Robbins (a Pseudonym) v The Queen [2017] VSCA 288 Facts [Robbins was on tried on 12 charges of taking part in an act of sexual penetration of a child under the age of 16 in his care between 2008 and 2011. The complainant was a member of Robbins’ extended family. Three juries had to be empanelled and the first two discharged before verdict. Some of the evidence before the third jury was presented by replaying recordings of evidence which had been led before the second jury. Robbins was convicted of six of the charges.

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Robbins (a Pseudonym) v The Queen cont. One ground of appeal was that the trial judge erred in failing to warn the jury of the forensic disadvantage experienced by the applicant as a result of the delay of the complaint.] Judgment TATE, WHELAN JJA and MACAULAY AJA: [169] Proposed ground 4 asserts that the trial judge erred in failing to direct the jury on the forensic disadvantage experienced by the applicant as a result of the delay in complaint. The proposed ground further asserts that it was not open for the trial judge to arrive at the conclusion he did, that he erroneously considered that the defence complained of no more than the existence of delay, and that he erred in his treatment of the disputed evidence concerning the complainant’s complaint to his sister. [170] The applicable legal principles were not addressed in any detail before us, but it is necessary to briefly review them. [171] The common law rules in relation to directions concerning delayed complaint derive from Longman v The Queen. Longman concerned a prosecution for sexual offences alleged to have occurred more than 20 years prior to the first report to the police. In those circumstances Brennan, Dawson and Toohey JJ concluded that:

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The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. 172. The application of what was then referred to as the “Longman warning” changed in 2006 with the enactment of s 61(1A)-(1F) of the Crimes Act 1958. The new provisions applied to trials for specified sex offences. In broad terms, they required a judge to give certain directions to the jury, on application by the accused, if the judge was satisfied that the accused had suffered “a significant forensic disadvantage because of the consequences of the delay in making a complaint”: s 61(1A). The passage of time alone was not to be taken to cause a significant forensic disadvantage: s 61(1C). The new provisions also provided, in effect, that the judge was not to give the Longman warning and was to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining. In 2010 the position changed again with the commencement of s 165B of the Evidence Act 2008. Section 165B of the Evidence Act was broadly similar to s 61(1A)-(1F) of the Crimes Act but it applied to any criminal proceeding involving a jury. Like s 61(1A)-(1F), it required a direction to be given where the court was satisfied that the accused had suffered “a significant forensic disadvantage because of the consequences of delay”. … [174] The issue of what constituted a “significant forensic disadvantage” was considered by this Court in PT v The Queen. The applicant had been convicted of sexual offences against a young member of his family which were alleged to have occurred in 1990 and 1992. The first complaint to police had been made in 2005. At the trial, a forensic disadvantage direction had been requested. The trial judge had refused to give that direction because she was not satisfied that the accused had suffered a significant forensic disadvantage. [175] The disadvantages which it was contended had been suffered in PT were an inability to prove whether the family had been living in the house where the complainant said the offending had occurred at the time, an inability to confirm the layout and design of the house at the time, an inability to conduct inquiries of the family doctor at the relevant time, an inability to conduct inquiries of the complainant’s teachers at the relevant time, and an inability to establish an alibi.

Part 4 — Proof

Robbins (a Pseudonym) v The Queen cont. [176] This Court upheld the trial judge’s decision. The Court said: The phrase “significant forensic disadvantage” requires examination of the consequences of the delay for the accused in relation to the particular case. Such disadvantage arises not because of delay itself, but because of the consequences of delay. For example, it may be that potential witnesses have died, or are not now able to be located. Alternatively, potential evidence may have been lost or is otherwise unavailable. What is clear, however, is that the defendant who seeks the warning carries the onus of satisfying the Court that he or she has in fact suffered a significant forensic disadvantage, and that this arises because of the delay that has occurred. A hypothetical disadvantage will not be sufficient. A leading text on the Evidence Acts cites the joint view of the Australian, New South Wales and Victorian Law Reform Commissions, which was reflected in the Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth), to the effect that: A warning should not be given unless the delay has placed the defendant at a significant forensic disadvantage and the particular risks of prejudice must be identifiable. The learned authors further note the view of the Law Reform Commissions that “… the general or nebulous disadvantage” that a defendant might suffer could be raised by counsel in closing address and need not be underscored by the trial judge. …

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As noted in Odgers, Uniform Evidence Law, the provision does not preclude the Court from deciding, in the circumstances of a particular case, that the delay is of such magnitude that significant forensic disadvantage is a matter of necessary inference. But the clear focus of the provision is on identification of the particular consequences of the delay which give rise to significant disadvantage. [177] When dealing with the specific disadvantages contended for in PT this Court again emphasised the need for precise identification. The Court found that the requirements of the legislation were not met. In substance, the asserted disadvantages were found to be speculative or matters as to which there could be no confidence that the defence case would have been assisted had an earlier complaint been made. [178] This Court considered the matter again in Greensill. That was another case of alleged sexual offences. The delay between the alleged offending and the trial was 30 years. This Court indicated fairly clearly, in our view, that a forensic disadvantage direction ought to have been given in that case. The problem confronted by the appellant there was that the direction had been eschewed by her counsel at trial. The circumstances in that case which ought to have led to the giving of the direction (putting to one side the position adopted by trial counsel) were threefold. Firstly, in that case the Court appeared to take the view that the passage of time itself (30 years) meant that it was “next to impossible” to explore the circumstances surrounding the complainants’ accounts. Second, the offending was alleged to have occurred between two eight-year-old boys and a 28-year-old woman. Given the passage of time, it was not possible to obtain medical evidence as to whether what the complainants alleged was physically possible. Finally, a witness who might have been important had died. [179] This Court considered the issue again in Jurj v The Queen. This appeal concerned convictions for rape and related offences said to have been perpetrated upon a 14-year-old girl in a deserted factory by two men who met her for the first time on the night of the offences. The offences were alleged to have occurred on 5 April 2009. The initial complaint to police was not made until July 2009. The delay between the offences and the complaint was approximately three months. The delay between the offences and the first trial was approximately two and a half years. The matters which were said to constitute a significant forensic disadvantage were the absence of a medical examination which might have revealed the presence or absence of injuries which the complainant maintained that she had sustained, and the loss of the opportunity to forensically examine and obtain DNA from clothing, bedding, or other objects at what was alleged to be the crime scene. A forensic disadvantage direction was given, and the issue before this Court was the adequacy of that direction and as to whether

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Robbins (a Pseudonym) v The Queen cont. its impact had been impermissibly reduced by additional observations made by the trial judge. For present purposes, it is noteworthy that it was accepted that, in the circumstances of that case, forensic disadvantage constituted by a lost opportunity for a medical examination and forensic testing was a significant forensic disadvantage. [180] In this context reference should also be made to this Court’s decision in Pate (a Pseudonym) v The Queen. Again the issue in that case was the adequacy of the direction that was given, an issue upon which the judges of the Court disagreed. For present purposes, it is noteworthy that the absence of evidence as to a contemporaneous medical examination was one of the circumstances which had led the trial judge to give the relevant direction in that trial. In that case the complainant’s evidence was that she had been taken to the doctor by her mother the day after the alleged offence after complaining of soreness which was consistent with the offending which she contended had occurred. The delay in complaint had meant evidence of that examination was not available. [181] The legislative position changed again in 2015 with the introduction of the Jury Directions Act. The position is now governed by ss 38 and 39 of that Act which provide as follows: 38 Definition In this Division– forensic disadvantage means a disadvantage (that is more than the mere existence of delay) to the accused in– (a) challenging, adducing or giving evidence; or (b) conducting his or her case–

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because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial. 39 Direction on significant forensic disadvantage (1) Defence counsel may request under section 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused. (2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage. (3) In giving a direction referred to in subsection (1), the trial judge– (a) must inform the jury of– (i) the nature of the disadvantage experienced by the accused; and (ii) the need to take the disadvantage into account when considering the evidence; and (b) must not say, or suggest in any way, to the jury that– (i) it would be dangerous or unsafe to convict the accused; or (ii) the complainant’s evidence should be scrutinised with great care. [182] Section 14 of the Jury Directions Act requires a trial judge to give the jury a requested direction unless there are good reasons for not doing so. [183] Division 2 of Pt 5 of the Jury Directions Act, amongst other things, requires trial judges to direct juries in a sex offence case where delayed complaint is raised that people react differently to sexual offences and that delay in complaint is a common occurrence. The trial judge gave those directions in this case. [184] These provisions in one respect further restrict the circumstances in which a forensic disadvantage direction can be given. Whereas previously the direction had to be given if a significant forensic disadvantage was found, but could be given in other circumstances, s 39 provides that the direction can be given “only if” the judge is satisfied that the accused has experienced a significant forensic disadvantage.

Part 4 — Proof

Robbins (a Pseudonym) v The Queen cont. [185] In May of this year this Court considered the new legislation in Mulligan (a Pseudonym) v The Queen. This was an appeal from convictions for rape and related offences which were alleged to have occurred in late 2012. The trial was in September 2015. The issue in that case was not delay in complaint. The Court observed that there had been “no long delay between the alleged offences and the complaint being made. The applicant, in facing the complaint evidence of [the complainant], was not asked to defend himself against allegations concerning events that occurred long ago”. The concern in that case was that in the course of the complainant’s evidence-in-chief she had suggested a different specific date upon which the offences had occurred (19 November 2012) to the date she had previously maintained (2 December 2012). It was suggested that a significant forensic disadvantage had been suffered as a result because certain telephone and Facebook records, upon which the accused relied, had thereby had reduced impact and because the opportunity to obtain similar material about the earlier date had been lost. The trial judge was not satisfied that there had been a significant forensic disadvantage and this Court upheld that decision.

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[186] In the light of this review, it seems to us that the relevant principles applicable here are as follows: (1)

The origins of the relevant concern are to be found in historic sex offence cases and the decision of the High Court in Longman.

(2)

The forensic disadvantage governed by s 39 is a disadvantage occurring because of the consequences of delay between the alleged offence and the trial.

(3)

The disadvantage must be of a forensic nature; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused’s case.

(4)

The direction can only be given if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.

(5)

There are disadvantages as a consequence of delay which do not warrant a direction under s 39. These disadvantages can be adequately dealt with in counsels’ addresses and do not require a judicial direction.

(6)

The accused has the onus of establishing that the consequences of delay give rise to a significant forensic disadvantage.

(7)

It is incumbent upon the accused to identify the particular risks of prejudice which constitute the significant forensic disadvantage.

(8)

A loss of opportunity to obtain evidence of a contemporaneous medical examination which had occurred (Pate), or medical or other scientific investigations which might have been undertaken (Jurj), or expert medical opinion which might have been obtained (Greensill), could, in a particular case, constitute a significant forensic disadvantage.

[187] In this case defence counsel at the trial requested under s 12 of the Jury Directions Act the direction provided for in s 39. Initially, the need for the direction was put to the trial judge on the basis that delay had caused the complainant to be unable to remember the circumstances of the alleged offences in detail and that this had had the consequent effect that the accused was unable to explore those circumstances in detail. The trial judge suggested to defence counsel that the complainant’s explanation for his inability to recall details was the multiplicity of offending acts rather than delay. Defence counsel also identified the following specific disadvantages: the inability to identify an alibi, the absence of forensic scientific examination of the accused’s shirts for semen and the carpet in the accused’s home for vomit, and the diminished impact of evidence given that pornographic material had not been found on the accused’s computer. The trial judge expressed a tentative conclusion against giving the direction but deferred a final decision until after final addresses. [188] In the course of the submissions made to the trial judge before the final addresses, the judge made reference to the disputed evidence as to the complainant’s complaint to his older sister. [189] In the course of his final address, defence counsel dealt with the issue of delay in complaint at some length. He said that as a result of delay the complainant had been unable to recall details of

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Robbins (a Pseudonym) v The Queen cont. the alleged offending and the accused had lost the chance to identify the occasions of the alleged offending with precision. He said that the accused had lost the chance to establish an alibi and that the accused had lost the chance to obtain forensic evidence, and more contemporaneous evidence as to the absence of pornographic material on the accused’s computer. [190] The overall contention put to the jury on behalf of the accused in final address was that the complainant had fabricated his evidence and that he was unable or unwilling to give details of the offending because he was lying. [191] After final addresses, the issue of forensic disadvantage was revisited. Defence counsel adopted the arguments he had put to the jury in support of a submission that the judge should give the direction provided for by s 39. [192] The trial judge ruled as follows: I decline to make a direction in respect of significant forensic disadvantage for, in my assessment, there is no significant forensic disadvantage to the accused. True it is that the time to be considered is between the alleged offence and the trial, but an added complication in this case to my mind is the evidence of the complainant and his sister of complaint being made to the accused man when the complainant was 14. The standard direction in respect to forensic disadvantage is predicated upon there being a delay in complaint being brought to the attention of the accused man, and to my mind that the evidence of complaint by [the complainant’s sister] to the accused makes this issue a vexed one.

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Ultimately it is my view that there is nothing by way of forensic disadvantage that is more than the mere existence of delay in this case. [193] In the submissions made in support of the proposed ground of appeal, the relevant forensic disadvantages were said to be the following: (1)

Loss of the chance to adduce forensic evidence which might tend to throw doubt on the complainant’s account, the complainant having testified that the applicant ejaculated under his shirt on four occasions, and on the complainant’s back on one occasion, and that the complainant vomited on the applicant’s penis and on the carpeted floor on one occasion.

(2)

Loss of the chance to explore the circumstances of the alleged offending in detail.

(3)

Loss of the chance to identify the occasions of the alleged offending with specificity.

(4)

Inability to make any defence other than a simple denial.

(5)

Inability to establish an alibi.

(6)

Inability to call evidence contradicting the broader evidence of the complainant.

[194] It was submitted that the circumstances referred to “individually or in combination” constituted a significant forensic disadvantage and that it was not open for his Honour to reach the contrary conclusion. It was submitted that his Honour had erred in stating that the defence complained of no more than the existence of delay. It was submitted that his Honour had proceeded on the erroneous basis that the evidence of complaint made to the complainant’s sister meant that the applicant had been put “on notice from that point”. It was submitted that the direction required by Div 2 of Pt 5 of the Jury Directions Act, which had been given (amongst other things, that delay in complaint is a common occurrence) had exacerbated the error made by the judge in failing to give the s 39 direction. [195] We do not accept that the judge proceeded on the basis that the evidence of the complaint made to the complainant’s sister meant the applicant had been put on notice from that point. That evidence was contentious. The applicant denied that it had occurred. The judge did not make a finding that it had occurred. What he said was that the existence of the evidence of that earlier complaint was a “complication” which rendered the issue a “vexed one”. The judge was correct about that. In fashioning a significant forensic disadvantage direction in this case, the judge would have had to

Part 4 — Proof

Robbins (a Pseudonym) v The Queen cont. address the issue that, on the evidence of the complainant and his sister, a complaint was made to the applicant during the course of the offending conduct itself. [196] The basis upon which the judge declined to give the requested direction was that he was not satisfied that a significant forensic disadvantage existed. We are unpersuaded that he made an error in reaching that conclusion. [197] This is not a case where the delay in itself might lead to an inference that a significant forensic disadvantage had been suffered. This is not a case of historic sexual offending. [198] The submissions made concerning the loss of the chance to explore details and to establish a possible alibi were, to adopt expressions used in PT, in the “realm of speculation” and “nebulous”. The potential for the existence of forensic disadvantages was there, and counsel addressed them in his closing address, but the accused did not identify and demonstrate particular risks which constitute a significant forensic disadvantage in this context.

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[199] Given that the applicant’s case at trial was that the complainant was entirely fabricating his evidence, the way in which this aspect of the matter was initially put to the trial judge was misconceived. Suggesting that delay had affected the complainant’s memory was inherently inconsistent with the proposition that his evidence was fabricated. In the course of oral submissions before us, counsel for the applicant accepted that proposition and submitted that the true substance of the disadvantage was that the applicant had been deprived of an opportunity to expose the complainant’s fabrications because the elapse of time meant his lack of detail was explicable. As the trial judge pointed out in the course of argument, the complainant did not rely on the lapse of time for his inability to give specific details but rather he relied upon the fact that the relevant incidents were part of a series of innumerable similar incidents and that sexual activity between him and the applicant “became the norm”. The complainant in his evidence also said he had made a conscious attempt to suppress memories of the incidents. [200] In relation to what is said to have been a loss of opportunity to obtain forensic evidence, we are also unpersuaded that the judge was in error in concluding that the applicant had not established a significant forensic disadvantage. [201] The presence of ejaculate on the applicant’s shirt would have been equivocal even if that evidence had been obtained. The presence of his own ejaculate on his own clothing would not necessarily either confirm or undermine the complainant’s evidence. The absence of ejaculate would be significant only if an immediate complaint had been made. [202] Similarly, the presence or absence of vomit on the carpet in the applicant’s house would not necessarily confirm or undermine the complainant’s account. [203] The presence of the applicant’s ejaculate on the complainant’s back or of vomit on the applicant’s penis would have been significant, as would its absence, if testing were carried out immediately after the alleged offending. In that context, the relevant “delay” in complaint is a matter of hours or even minutes. This consideration amounts, in substance, to a forensic disadvantage said to be constituted by the failure to make an immediate complaint. It is a long way from the issue addressed in Longman. In our view a failure to make an immediate complaint, the relevant delay being measured in hours or minutes, is not a “delay” of the kind addressed in s 39. [204] The cases where loss of an opportunity to obtain medical evidence or other scientific evidence have constituted a significant forensic disadvantage are different to this one. In Greensill medical evidence obtained closer to the alleged offending could well have revealed that the offences were physically impossible. In Pate there was evidence that a medical examination had been undertaken very soon after the offending but the delay meant that evidence had been lost. In Jurj forensic examination of the deserted factory where the 14-year-old claimed she had been repeatedly raped by two virtual strangers could well have powerfully confirmed or undermined her evidence. We do not consider the circumstances here to be relevantly analogous.

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Robbins (a Pseudonym) v The Queen cont. [205] If a s 39 direction were required here, it would be required in any case where there is a delay sufficient to preclude an immediate medical examination of the victim and the alleged offender or an immediate forensic investigation of the alleged place where the offending occurred. We do not accept that s 39 creates that position. If that were the position, that disadvantage would have arisen in PT, but there is no suggestion that that was the case. [206] What is said to have been the reduced impact of evidence as to the absence of pornographic material on the applicant’s computer could not, in our view, constitute a significant forensic disadvantage. The evidence about the applicant’s computer supported his case. It is not a significant forensic disadvantage that an earlier examination may have increased its cogency. [207] The submission made about the direction required by Div 2 of Pt 5 exacerbating the miscarriage of justice caused by the absence of a significant forensic disadvantage direction under s 39 is not well founded. If the statutory requirements for the direction under Div 2 of Pt 5 exist, the required direction must be given. If the statutory requirement which must exist before the direction under s 39 may be given is not found to exist, the direction cannot be given. [208] We will grant leave to appeal on proposed ground 4, but we reject this ground.

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[18.120]

Questions

1. Refer to R v Eagle in Chapter 20. Consider the warnings that ought be given in respect of each of the witnesses that have provided statements to police. Identify the warning that ought be given by the trial judge. 2. For each of the cases extracted in this chapter, answer the following questions. (a) What was the evidence that was subject of a direction or warning? (b) What warning was necessary in respect of the evidence? (c) Was the warning required because of a common law obligation or was it required under the Evidence Act 1995? 3. You are a judge hearing a sexual assault trial. Defence counsel cross-examine the complainant by questioning him about the two-month delay between the alleged sexual assault and the first time he told another person about the sexual assault. Defence counsel have requested you to direct the jury that that the delay in complaint can be taken into account when the jury assesses the complainant’s credibility. What direction should you give to the jury? 4. You are a judge hearing a trial for sexual offences that are alleged to have occurred on 10 March 1996 when the complainant was 10 years old. The accused gives evidence that he was admitted to hospital on 9 March 1996 and was discharged five days later. The accused also gives evidence that his lawyer subpoenaed the hospital records but received a letter from the hospital advising that a fire destroyed all records in March 1996 (the letter and subpoena are tendered). Defence counsel request a direction about the forensic disadvantage suffered by the accused due to the delay in prosecution. What direction should you give to the jury?

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CHAPTER 19

Prima Facie Case [19.10]

Overview .................................................................................................................. 727 [19.20] May v O’Sullivan...................................................................... 727 [19.30] Doney v The Queen .................................................................. 729

OVERVIEW [19.10] The Evidence Act 1995 does not deal with the allocation of the burden of proof in

respect of facts in issue, nor with the test for when an opponent has a “case to answer”. This is left to the common law. At the close of a party’s case in civil proceedings, the defendant may submit that there “is no case to answer”, that is, that the plaintiff has failed to establish a prima facie case. May v O’Sullivan (1955) 92 CLR 654; [1955] HCA 38 considers the impact of the defendant not leading evidence where there is a “case to answer”. Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 considers whether a court should find that there is “no case to answer” and direct a verdict in circumstances where it is likely that an appellate court will set aside a conviction on the ground that it is unsafe and unsatisfactory.

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May v O’Sullivan [19.20] May v O’Sullivan (1955) 92 CLR 654; [1955] HCA 38 Facts [May was convicted on two charges related to betting at a hotel. If May’s evidence had been believed it would have established that he was not present when all but one of the alleged bets had been made, and with regard to that one bet, serious doubt would have been cast on the evidence of the prosecution that the convictions would not have been justifiable. The magistrate did not believe May’s evidence and instead accepted without qualification the evidence of the chief prosecution witness. During the appeal process statements were made about the burden of proof that the High Court, while refusing May leave to appeal, wished to clarify.] Judgment DIXON CJ, WEBB, FULLAGAR, KITTO and TAYLOR JJ: [at 656] [4] The question which is actually raised is whether, when the prosecution has made out what is called a “prima facie case” or [at 657] a “case to answer”, the burden of proof shifts to the shoulders of the accused person or defendant, with the consequence that, if he fails to displace that prima facie case by denial or explanation, he ought to be convicted. It is, of course, clear that there is no such shifting of the burden in such a case. The burden of proving guilt beyond reasonable doubt rests on the prosecution from first to last, and, even though the defendant remains silent after a prima facie case has been launched against him, it may very well be that he ought to be acquitted. That the contrary view should be entertained at all is perhaps due to R v Lovett (1908) 1 Cr App R 111. [5] In O’Halloran v Crafter (1940) SASR 29, Richards J said: “The position created in a criminal proceeding by a prima facie case of guilt was dealt with in Lovett’s Case (1908) 1 Cr App R 111. The Recorder, in directing the jury, had told them that the onus was on the prosecution, and later said: ‘If you come

Part 4 — Proof

May v O’Sullivan cont.

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to the conclusion to your satisfaction that the prosecution have made out a prima facie case, and the prisoners have not satisfactorily answered it, it is your duty to find them guilty.’ The Court (the Lord Chief Justice and Darling and Phillimore JJ) held that that was not a substantial misdirection” (1940) SASR 29, at pp 39, 40. The same learned judge in Giles v Dodd (1943) SASR 132, at p 140, quoted the same passage from Lovett’s Case (1908) 1 Cr App R 111 and said that the Court of Criminal Appeal had “held it not to be a misdirection”. If Lovett’s Case (1908) 1 Cr App R 111 is to be regarded as authority for saying that the passage quoted is not a misdirection, it must, in our opinion, be taken to have been wrongly decided. What the recorder said seems to us to have been a palpable and serious misdirection. It would seem, however, that the reason why the conviction was not quashed was that the recorder had already told the jury distinctly that the onus lay on the prosecution. It was with reference to the recorder’s charge as a whole, and not with specific reference to the passage quoted by Richards J, that the Court of Criminal Appeal said that there had been “no substantial misdirection”. [6] It seems desirable also to refer to what was said in the judgment of the Full Court, delivered by Napier J (as he then was), in Wilson v Buttery (1926) SASR 150. The court there said: “It is therefore necessary to consider whether the evidence before the justices disclosed what is referred to as a prima facie case. Of course, the charge was one of an offence, and when the evidence came to be finally considered it was necessary that it should be such as enabled the Court to come to a conclusion, free from any reasonable doubt. But, for the [at 658] purpose of raising a prima facie case and thereby throwing upon the defendant the onus of making an answer, or giving an explanation for facts which he may be presumed to know, we cannot find that there is any distinction between civil and criminal cases” (1926) SASR, at pp 153, 154. In the next paragraph their Honours say: “When this stage has passed, and the defendant has been called upon for his explanation or answer, and no evidence has been forthcoming, the Court or jury is entitled to take into consideration the probable means of knowledge on either side. If the truth is not easily ascertainable by the prosecution, but is probably well known to the defendant, then the fact that no explanation or answer is forthcoming as might be expected if the truth were consistent with innocence, is a matter which the Court or jury may properly consider. They have, then, to say whether in this state of the evidence they have any reasonable doubt of the guilt of the accused. If they have they must acquit” (1926) SASR, at p 154. If the words italicised above were omitted, the passages quoted would seem to be unexceptionable and to contain an accurate statement of the law. We think, however, with respect, that the introduction of those italicised words (which were not essential to the reasoning of the learned judges for the purpose in hand) is apt to be misleading. It is not really correct to say that the “raising of a prima facie case” throws upon the defendant “the onus of making an answer”. [7] When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a “case to answer” has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v Buttery (1926) SASR 150 for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it [at 659] might otherwise possibly appear: cf Morgan v Babcock & Wilcox (1929) 43 CLR 163 at p 178, per Isaacs. But to say this is a very different thing from saying that the onus of proof shifts. A magistrate who has decided that there is a “case to answer” may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made “a prima facie case”, but it does not follow that in the absence of a “satisfactory answer” the defendant should be convicted.

Prima Facie Case CHAPTER 19

May v O’Sullivan cont. [8] We have thought it proper to make these observations in view of the cases cited by Mr Alderman. But, for the reasons given, special leave to appeal from the order of Abbott J should, in our opinion, be refused.



Doney v The Queen [19.30] Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 Facts [Doney was convicted of importing cannabis resin. The prosecution case depended on the evidence of an accomplice, Freeman, whose evidence was flawed, not only because it was evidence given by an accomplice, thus requiring warning, but also because he admitted to telling lies at various stages from the time he was first interviewed by police. The trial judge had an unfavourable view of Freeman’s veracity. One ground of Doney’s appeal was that the trial judge erred in holding that he had no power to direct the jury to enter a verdict of not guilty on the ground that such a verdict would be quashed by an appellate court on the basis that it would be unsafe and unsatisfactory.] Judgment DEANE, DAWSON, TOOHEY, GAUDRON and McHUGH JJ:

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[at 212] [11] The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v The Queen (1983) 152 CLR 657, at p 689. There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict. See, for example, Plomp, at p 246; Reg v Prasad (1979) 23 SASR 161, at p 162; Reg v R (1989) 18 NSWLR 74, at p 77. And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed. See, as to the discretion to reject technically admissible evidence, R v Christie (1914) AC 545, at p 560; Harris v Director of Public Prosecutions (1952) AC 694, at p 707; Driscoll v The Queen (1977) 137 CLR 517, at p 541; Harriman v The Queen (1989) 167 CLR 590, at p 619; and, as to the withdrawal of evidence and the subsequent direction of a verdict of not guilty, Reg v R (1989) 18 NSWLR 74, at p 76. However, the question raised when, for whatever reason, the [at 213] evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of Freeman, if believed, is itself sufficient to sustain the applicant’s conviction. [12] There appear to have been two distinct notions allowing a power to a trial judge to direct a verdict of not guilty other than in circumstances where the evidence will not support a verdict of guilty. The earlier notion, adopted by some judges in Victoria prior to the decision in Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 410, was that a verdict of not guilty might be directed if there were but a scintilla of evidence. A more robust view to the effect that a trial judge should stop a trial if, in his or her opinion, a verdict of guilty would be unsafe or unsatisfactory appears to have developed in the United Kingdom following the passage of the Criminal Appeal Act 1966 (UK) which allowed for the setting aside, on appeal, of unsafe or unsatisfactory verdicts. See Reg v Falconer-Atlee (1973) 58 Cr App R 348, at p 357, and Reg v Mansfield (1977) 1 WLR 1102 at pp 1106-1107; (1978) 1 All ER 134, at p 140. The argument that a similar power in the trial judge derives from the common criminal appeal provisions in Australia has been rejected in South Australia in Prasad, in Victoria in AttorneyGeneral’s Reference (No 1 of 1983) (1983) 2 VR 410 and in New South Wales in Reg v R (1989) 18

Part 4 — Proof

Doney v The Queen cont. NSWLR 74. The current view in the United Kingdom is stated in Reg v Galbraith (1981) 1 WLR 1039, at p 1042; (1981) 2 All ER 1060, at p 1062, in these terms: “(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

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[13] It is convenient to approach the argument in the present case by [at 214] reference to the view enunciated in Galbraith, noting, however, that there is some difficulty in reconciling proposition 2(a) (which has some similarity with the position earlier adopted in Victoria) with proposition 2(b). [14] The acceptance or rejection of evidence involves an inference as to its truth, which inference is, at least in part, based on “a principle of faith in human veracity sanctioned by experience”: Wigmore, Evidence, vol 1A (1983), p 954, referring to an unverified citation from Starkie’s Evidence, (1824). It is usual not to so categorise the inferences involved in the acceptance of direct or testimonial evidence and to treat the process of inference as confined to circumstantial evidence. But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful. That means that not only is proposition 2(b) in Galbraith correct but, so far as it refers to “inconsistent” evidence, proposition 2(a) cannot be accepted. [15] The question whether, in the words used in Galbraith, evidence has a “tenuous character” or an “inherent weakness or vagueness” may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial judge must consider whether some warning should be given. And, as earlier noted, there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded as a matter of discretion, it should be withdrawn from the jury’s consideration. [16] Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury’s collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning. [17] It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of [at 215] guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. [18] It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Morris v The Queen (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v District Court (NSW) (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The

Prima Facie Case CHAPTER 19

Doney v The Queen cont. power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process. [19] The Court of Criminal Appeal was correct in upholding the trial judge’s ruling that he had no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory. [20] The matters raised by this application warrant the grant of special leave to appeal. However, the appeal must be dismissed.



[19.40]

Questions

1. What is the test for determining whether there is a “case to answer” in civil hearings? 2. What is the test for determining whether there is a “case to answer” in criminal trials? 3. List the various applications that an accused can make to prevent the jury deliberating a verdict.

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4. What is the consequence of making a “no case to answer” submission in a civil case? 5. What is the consequence of a defendant making a “no case to answer” submission in a criminal trial?

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PART 5 — CASE FILES AND ANSWERS TO QUESTIONS

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21 Answers to Questions ................................................................................. 777

PART5

20 Case Files ........................................................................................................ 735

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CHAPTER 20

Case Files CIVIL CASE FILE: JACK STROM V COUNCIL OF THE SHIRE OF CREMORNE

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Document 1: Statement by Plaintiff obtained by Plaintiff’s solicitor

Name:

Jack Strom

Date of statement:

7 May 2015

1.

I reside at 7 Cambridge Street, Cremorne, 2090. Telephone number 02 9123 4567.

2.

I was born on 2 December 1996 and I am now 18 years of age. I live at home with my parents.

3.

I have one brother and one sister. My father works at a mattress factory. My mother is a barrister.

4.

I was involved in an accident which occurred at about 1 am on 19 December 2014. I am sure that my accident happened on a Friday night, Saturday morning situation. I was 18 at the time of the accident.

5.

I had been at the Crazy Horse Bar in Circular Quay during the evening of Friday 19 December 2014 with my friends from school. I was drinking beers and I had quite a few beers. I had had quite a few Jim Beam and Cokes. I was quite happily intoxicated but quite in control of myself so far as I can remember. I was not driving. We left about 11.55 pm.

6.

I walked from the bar with my friends to Circular Quay and caught a ferry. We got off at the Cremorne Point Wharf. We walked to the park and lookout at the Point. I felt a bit sick but I was not going to be sick then and there. I bent down and put my arms and leant over the railing which was not a very high railing. I leant on the railing and somehow or another I lost my balance and careered over.

7.

I do not remember anything after that moment. My next memory is when I woke up in Royal North Hospital. I was told that I had lost consciousness for several minutes. I stayed in hospital for three months.

8.

I have severe spinal injuries.

9.

The police were at the scene of the accident. I fell a distance of about 5 metres. I believe that the causative factor in my fall was the height of the railing. There was no pushing or shoving. There was no intention on my part to throw myself over.

10.

I was not going to vomit there and then in the sense that I was not taking any action to induce vomiting. Had the railing been of a standard dimension nothing that I did would have resulted in the accident. Because of the unusually low height somehow or another I lost my balance whilst leaning over and tumbled over.

11.

There were a number of us in position at the railing having a cigarette.

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cont. 12.

I left school at the age of 16 years after the completing the school certificate. Since then I have basically done casual labouring work.

13.

Before the accident I was in good health. I had a motor bike accident resulting in a minor injury to my right foot and ankle for which I had a total recovery.

Case Files CHAPTER 20

Document 2: Statement of Claim This case file is designed to focus on evidential issues rather than the complexities of the Civil Liability Act 2002 NSW therefore readers should assume that the statement of claim was filed prior to the commencment of that Act (that is, 20 March 2002). In addition, an amended statement of claim was filed after the introduction of the Uniform Civil Procedure Rules 2005 NSW. Readers should note that a statement of particulars was filed with the statement of claim.

AMENDED STATEMENT OF CLAIM COURT DETAILS Court

SUPREME COURT OF NSW

Division

COMMON LAW

Registry

Sydney

Case number

6 of 2016

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TITLE OF PROCEEDINGS [FIRST] PLAINTIFF

JACK STROM

**Number of plaintiffs

1

[FIRST] DEFENDANT

COUNCIL OF THE SHIRE OF CREMONE

**Number of defendants

1

FILING DETAILS / ADDRESS FOR SERVICE Filed for

JACK STROM

Address for service

C/- STRAIT & CO 1 Elizabeth Street Sydney 2000

**DX address

DX123 SYDNEY

** Telephone

9123 3333

** Fax

9123 4444

** Email

[email protected]

** Court user number ** Reference number

STRAIT456

VENUE Intended hearing venue

SYDNEY

RELIEF CLAIMED The plaintiff claims damages, costs together with interest thereon pursuant to section 94 of the Supreme Court Act 1970.

Part 5 — Case Files and Answers to Questions

cont.

PLEADING AND PARTICULARS The plaintiff relies on the following facts and assertion: 1.

The Defendant is a statutory body corporate liable to be sued in its corporate name.

2.

At all material times the Defendant was responsible for the design and construction of the railing around the Cremorne Point lookout located at Cremorne Point in the State of New South Wales.

3.

At all material times the Defendant was responsible for the care, control and management of the park and lookout.

4.

On Saturday 19 December 2014 at approximately 1 am the Plaintiff, who was at the lookout, leaned over the railing in order to vomit, at which time he lost his footing and overbalanced, falling approximately 5 metres to the coastal rocks below.

5.

As a result of the said fall the Plaintiff was injured. PARTICULARS OF INJURIES

6.

(a)

Severe spinal injuries resulting in paraplegia.

(b)

Shock.

As a result of the injuries sustained by him the Plaintiff has suffered and will continue to suffer loss and damage. PARTICULARS OF MONEYS WHICH THE PLAINTIFF HAS PAID OR IS LIABLE TO PAY The Plaintiff has incurred expenses for hospital, medical and other treatment, detailed particulars of which will be supplied in due course.

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PARTICULARS OF OTHER LOSSES SUSTAINED BY THE PLAINTIFF The Plaintiff has suffered and will continue to suffer a total loss of earning capacity and has a need for carers and other assistance as a result of his injuries, detailed particulars of which will be supplied in due course. 7.

The Plaintiff’s injuries, loss and damage resulted from the negligence of the Defendant. PARTICULARS OF NEGLIGENCE OF THE DEFENDANT (a)

Having a horizontal railing of such a shape and width that it was foreseeable that persons who leaned over the top of the rail would place the top part of the body well over the inner edge of the rail and extend their centres of gravity into such a position that they would overbalance and fall forward over the railing.

(b)

Failing to provide a railing with a sufficient hand hold in that the railing was of such a large perimeter that it could not be sufficiently gripped by the hand so as to prevent the person falling if the person began to overbalance.

(c)

Failure to modify the rail so as to provide an adequate hand hold.

(d)

Failure to modify the rail, as was done following the accident, by welding inverted angle iron on to the top of the rail so that its sharp edge would make it uncomfortable to lean across the railing and so that the natural shape of the angle iron would allow a person to rest against the railing without causing the person to have his centre of gravity extending over the railing and so as to minimise the danger that the person would lose traction with his feet thereby rendering a fall over the rail inevitable.

(e)

Failure to increase the overall height of the rail by welding on a length of pipe suspended about 6 inches above the existing rail so as to reduce the likelihood

Case Files CHAPTER 20

cont. of an overbalance occurring and so as to provide a rail which was capable of being easily and securely gripped in the hands.

8.

(f)

Failing to conduct an adequate risk assessment in relation to the rail.

(g)

Failure to provide appropriate warning signs.

(h)

Failure to design the lookout to include provision for a substantial barrier to contain pedestrians.

(i)

Failure to design and/or build a suitable pedestrian barrier rail to an effective height to contain pedestrians.

(j)

Failure to adequately provide for the safety of pedestrians using the lookout.

(k)

Failure to comply with the guidelines in force at the relevant time and in particular to ensure a pedestrian railing with a minimum height above the surface of the roadway.

(l)

Res ipsa loquitur.

And the Plaintiff claims: (a)

Damages

(b)

Interest

(c)

Costs

SIGNATURE

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Signature Name

Anika Salme Mankin

Capacity

Solicitor belonging to the same firm as plaintiff’s solicitor

Date

11 April 2016

**CERTIFICATE – SECTION 347 OF THE LEGAL PROFESSION ACT 2004 I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success. Signature Name

Anika Salme Mankin

Capacity

Solicitor

Date

11 April 2016

PARTY DETAILS PLAINTIFF Family name OR company

STROM

name Given names OR ACN

JACK

Address

7 CAMBRIDGE STREET

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cont. **PLAINTIFF’S REPRESENTATIVE **Solicitor on the record Name

Anika Salme Mankin

Practising certificate number

6823

Firm

STRAIT & CO

Address

1 Elizabeth Street

Sydney 2000 Telephone

9123 3333

Fax

9123 4444

Email

[email protected]

Agrees to electronic service

Yes

DEFENDANT Family name OR company name

COUNCIL OF THE SHIRE OF CREMORNE

Given names OR ACN Address

WELLDONE ROAD CREMORNE NSW 2090

HOW TO RESPOND You can respond by: Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• Agreeing to the claim • Filing a defence and/or making a cross-claim against the plaintiff • If money is being claimed, paying the plaintiff all of the money and any interest claimed • If money is being claimed, signing an agreement with the plaintiff to pay the money. You can get further information about the forms you need to file to respond to this statement of claim from: • The registry • A legal practitioner • LawAccess NSW on 1300 888 529 or at http://www.lawaccess.nsw.gov.au. NOTICE TO DEFENDANT You will be in default, if you do not file a defence within 28 days of being served with this statement of claim. The court may enter judgment against you without any further notice to you. The judgment may be for the relief sought in the statement of claim and for the plaintiff’s costs for bringing these proceedings. REGISTRY ADDRESS Street address

LAW COURTS BUILDING, QUEENS SQUARE 184 PHILLIP STREET, SYDNEY

Postal address

GPO BOX 3, SYDNEY, 2001

Telephone

(02) 9230 8111

Case Files CHAPTER 20

Document 3: Defence

AMENDED DEFENCE COURT DETAILS Court

SUPREME COURT OF NSW

**Division

COMMON LAW DIVSION

Registry

Sydney

Case number

6 of 2016

TITLE OF PROCEEDINGS PLAINTIFF **Number of plaintiffs

1

DEFENDANT

1

**Number of defendants

FILING DETAILS / ADDRESS FOR SERVICE Filed for

Defendant

Address for service

Bent & Co, Solicitors

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1 George Street, Sydney **DX address

DX 4321 Sydney

** Telephone

9222 3333

** Fax

9255 7777

** Email

[email protected]

** Court user number ** Reference number

LBentCDF266

PLEADING AND PARTICULARS The defendant relies on the following facts and assertions: 1.

The Defendant admits the allegations contained in paragraph 1 of the Statement of Claim in so far that they relate to the Defendant.

2.

The Defendant denies paragraphs 2 and 3 in so far as any allegations are pleaded against it.

3.

The Defendant does not admit paragraphs 4, 5 and 6 of the Statement of Claim.

4.

The Defendant denies paragraph 7 in respect of the particulars of negligence pleaded against the Defendant.

5.

The Defendant denies that it is liable to the Plaintiff in the terms pleaded in paragraph 8 or at all.

6.

The Defendant denies that it or any of its servants or agents has been negligent as alleged in the Statement of Claim or at all.

Part 5 — Case Files and Answers to Questions

cont. 7.

No admissions are made as to the Plaintiff’s alleged loss, injury and damage and it is denied that the same were caused by anything done or omitted to be done by the Defendant.

8.

The Defendant denies that the Plaintiff is entitled to damages or interest.

9.

The Defendant says that the alleged accident was either caused or alternatively materially contributed to by the Plaintiff’s own negligence.

PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a)

The Plaintiff failed to keep a proper lookout.

(b)

The Plaintiff failed to take reasonable care for his own safety in the circumstances.

(c)

Leaning or attempting to lean over railing of the lookout while the Plaintiff was in an intoxicated state.

(d)

Leaning or attempting to lean over the railing of the lookout when the Plaintiff knew or ought to have known that there was a danger or potential danger, if the Plaintiff leant over too far and thus overbalanced, of falling from the lookout and thereby sustaining injury.

(e)

The Plaintiff failed to hold on to the railing.

(f)

The Plaintiff failed to take any or adequate precautions for his own safety having regard to the position, condition and location of the lookout.

SIGNATURE

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Signature Name

Liam Bent

Capacity

Solicitor for defendant

**CERTIFICATE – SECTION 347 OF THE LEGAL PROFESSION ACT 2004 I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the defence to the claim for damages in these proceedings has reasonable prospects of success. Signature Name

Liam Bent

Capacity

Solicitor

Date

18 April 2016

HOW TO RESPOND You can respond by: • Filing a reply if the proceedings are in the Supreme Court or the District Court • Seeking leave to file a reply if the proceedings are in a Local Court. You can get further information about the forms that need to be filed to respond from: • The Registry • A legal practitioner • LawAccess NSW on 1300 888 529 or at http://www.lawaccess.nsw.gov.au.

Case Files CHAPTER 20

cont. REGISTRY ADDRESS

LAW COURTS BUILDING, QUEENS SQUARE

Street address

184 PHILLIP STREET, SYDNEY

Postal address

GPO BOX 3, SYDNEY, 2001

Telephone

(02) 9230 8111

PARTY DETAILS Parties to the proceedings PLAINTIFF

DEFENDANT

Jack Strom

Council of the Shire of Cremorne

FURTHER INFORMATION ABOUT DEFENDANT[S] FILING THE DEFENCE Defendant Family name OR company name

Council of the Shire of Cremorne

Given names OR ACN Address

Welldone Road, Cremorne NSW 2090

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DEFENDANT’S[S’] REPRESENTATIVE **Solicitor on the record. Name

Liam Bent

**Practising certificate

789

number Firm

Bent & Co

Address

1 George Street, Sydney

Telephone

9222 3333

** Fax

9255 7777

** Email

[email protected]

Agrees to electronic service

No

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Document 4: Letter from expert engineers THOMPSON & Co FORENSIC ENGINEERING

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22 June 2015 Strait & Co Dear Sirs, RE: Jack Strom Your instructions re the above matter have been received and noted. A view was held at Cremorne, on 18 June 2015, and a conference was held with both the solicitors and counsel for Mr Strom. I have read the code of conduct for expert witnesses and I agree to be bound by it. The history of this matter, in short, is that Mr Strom attended the Crazy Horse Night Club on 19 December 2014, and availed himself of the entertainment at the club. Mr Strom left at about midnight with a number of other people and caught a ferry to Cremorne Point. At this time, Mr Strom is said to have been “happily intoxicated” but “quite in control of myself” having consumed a number of beers and “quite a few Jim Beam and Cokes”. Mr Strom decided to walk with his friends to the lookout at the Point. Upon reaching the lookout, Mr Strom is said to have leant over the railing, at which time he lost his footing and overbalanced, falling some 5 metres to the rocks below. As a result of that fall Mr Strom is said to have suffered injury leading to paraplegia. The railing is constructed of a rectangular steel section which is 125 mm wide across its top and which is 50 mm in depth. The railing is approximately 1100 mm high from the bottom to the top of the rail. Photographs of the railing, supplied with the writer’s instructions, indicate that the rail was of the rectangular cross-section whereas it was noted on inspection that the rail had 90 mm angle iron welded to its top surface so as to form a sharp (triangular) surface at the top of the rail. It would therefore appear that the rail has been modified since the accident of Mr Strom. Dimensionally, the railing would certainly appear to conform with generally recognised design parameters but the combination of height and cross-section of the top rail, if it were to be classified as a hand rail, would not. In noting the position of the lookout, ie within recreational facilities and near to residential areas, the writer is of the view that it would be certainly foreseeable that the top rail would be used as a handrail. For example, the writer would expect that persons, such as the Plaintiff, would lean out over the top of the rail, whether sober or not, to look at whatever was below. When this occurs the top of the body of the person will be well over the inner edge of the rail, as will that person’s centre of gravity. For the person to not then overbalance, and fall forward and over the railing, as in the case of Mr Strom, there is a reliance of friction at feet level, as well as a firm handgrip at railing level. In this case the dimensions of the rail are such that a firm handgrip would be very difficult to obtain due to the large perimeter dimension and should foot level grip be lost then an accident, such as that which occurred, becomes highly likely. The modifications to the rail that appear to have been implemented following the accident of Mr Strom would certainly assist in preventing a similar occurrence, and certainly remove the incentive for young persons to attempt to walk along the rail, as the writer understands has happened with similar dire consequences, as it would simply be very uncomfortable to lean across the sharp edge formed by the inverted angle iron welded onto the top of the rail. This modification, however, does not address the problem of a lack of hand hold.

Case Files CHAPTER 20

cont. The writer is of the view that, bearing in mind the location of the lookout and its environs and expected pedestrian traffic, a far better rail design would have been such that a conventionally dimensioned handrail (two-inch diameter water pipe, for example) be fixed above the existing top rail. This could be very easily incorporated at very little cost (a few hundred dollars should be sufficient) and consist simply of a length of the pipe suspended about six inches above the existing rail and supported from below by off-cuts of pipe welded to the existing railing. This would then have the benefit of increasing the overall height of the rail by about 8 inches and so reducing the likelihood of an overbalance occurring in the first instance, but also providing a rail that is easily and securely gripped in the hands. There is then less reliance on stability being necessarily generated from foot level. Trusting that the above is of assistance. Yours faithfully Thompson & Co Forensic Engineering M M Thompson

Curriculum Vitae: Michael Murray Thompson

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Précis Mike Thompson is a Professional Engineer with 45 years experience in Civil Engineering and Accident Reconstruction, including 27 years with local authorities and 16 years as a consulting engineer. He is currently the principal of Thompson & Co Forensic Engineering, a firm of consulting civil, structural and accident reconstruction engineers. While experienced in a range of engineering fields, he has special competence in relation to road and drainage engineering, road safety matters and accident reconstruction. Mike has been qualified to give expert testimony in the Land & Environment Court, Local Court, District Courts (NSW and QLD) and Supreme Courts of New South Wales and South Australia. Qualifications and Education Diploma of Civil Engineering (ASTC), 1969 Bachelor of Engineering (Civil) UNSW, 1971 Local Government Engineer, 1973 Local Government Administration, UNSW, 1989 Traffic Accident Reconstruction, Institute of Police Technology and Management, University of North Florida, 2003 Crash Injury Biomechanics, Institution of Engineers, Australia, 2005 Biomechanics – Epidemiology Interface, Institution of Engineers, Australia, 2006 Biomechanics of Impact Injury, UNSW, 2007 Professional Affiliations Fellow, Institute of Engineers, Australia Fellow, Institute of Municipal Engineers, Australia Member, Forensic Engineering Association, Australia Member, Australasian & South Pacific Association of Collision Investigators Associate Fellow, Australian College of Road Safety Employment History Thompson & Co Forensic Engineers Principal, 1994 – present Longwood & Mackeen Pty Ltd, Berrima (Civil, Structural, Environmental, Geotechnical Engineering and a NATA Registered Materials Testing Laboratory

Part 5 — Case Files and Answers to Questions

cont. Associate Director, Engineer Manager, 1990–1994 Bega Shire Council, Engineering and Town Planning Department Shire Engineer and Shire Planner, 1987–1990 Newcastle City Council, Engineering Department Municipal Engineer, 1972–1986

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Assistant Engineer, 1965–1971 Over the periods of employment he has gained professional experience in a wide range of areas. The following areas are of particular relevance: Roads and Bridges Design and construction of more than 130 km of Main Roads, Trunk Roads and Local Roads and associated facilities (such as footpaths, kerb and gutter, street lighting and signposting). This includes multi-lane divided carriageways, heavy traffic roads and urban streets. Design and construction of more than 10 road bridges. Publications and Presentations Mike has provided driver training to high school students as a principal instructor for a Community Driver Training Scheme. The standard training course was extended to provide advanced training in accordance with classroom notes. He has lectured about civil engineering and related physical sciences at Mitchell College of Advanced Education (now Charles Sturt University) for the School of Applied Science. He has given the courses of “Concrete Technology” and “Engineering Construction” at the Bathurst College of TAFE for the Associate Diploma course in Civil Engineering. Presented the following papers at a seminar titled Accident Investigation & Reconstruction – An Update in March 2005: Preservation of Physical Evidence and Accident Photography Time and Distance Relationships

Case Files CHAPTER 20

Document 5: Report from Expert Engineers Stream & Co Pty Ltd Civil, Structural and Accident Investigative Engineers Dear Sirs According to your instructions we have investigated the accident and now provide a report that sets out our opinion. We understand that Jack Strom was at the Cremorne Point Lookout on 19 December 2014, when he leant over the railing to vomit. The accident occurred as he lent over the railing and lost his balance. Subsequently he fell 5 metres onto the rocks below and sustained significant injuries. This report has been prepared after examination of the following material: 1.

Statement of Claim – Supreme Court of Sydney

2.

Defence of Defendant

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The site of the accident was inspected on 4 February 2015 at which time photographs and measurements of the bridge were taken. The attached photographs show the lookout and barriers. We understand the Council modified the railing shortly after the accident. It is understood that Jack Strom is 1935 mm high and it is our assessment that the location of his centre of mass is 1150 mm above ground level. From our analysis of the accident location, the following comments are made: 1.

The lookout is located in a community recreational facility in Cremorne.

2.

An adequate barrier for pedestrians for the high level drop hazard should be such that it is not easily mounted and of height well above waist level of pedestrians. Note that the centre of mass of most people is at waist level (at vertebra L1). For Jack Strom this would be at 1150 mm high.

3.

A suitable railing height (above waist level) is 1.2 metres.

4.

The top rail should discourage use as a platform. A section with a sharp vertex or small circular section is considered suitable. This was the type of modification that Council carried out to the railing.

Standards for lookout barriers are not prescribed. For comparison, throughout New South Wales it is common practice for lookouts to be provided with a 1.2 m high timber diamond rail barrier fence. Also, the recent Building Code of Australia (NSW D2.16) requires 1.2 m external balustrades for buildings used as places of public entertainment. It is our opinion that 1.2 m is the minimum height of a suitable barrier rail for the Cremorne Point Lookout.

Opinion It is my opinion that the barrier on the Lookout is not suitable as: 1.

the unmodified top rail is only 910 mm above ground level;

2.

the barrier has a lower rail on which a person could stand so the effective height of the top rail is only 750 mm;

3.

1.2 m is the minimum height of a suitable rail for the Cremorne Point Lookout.

It is my opinion that the lookout does not adequately provide for the safety of pedestrians. Yours faithfully Erik Browne

Part 5 — Case Files and Answers to Questions

Document 6: Letter from Statistical Expert Dear Sir, Re: Strom and Council of Shire of Cremorne I am responding to your request to confirm statistics provided by Professor Irvine on heights of Australian males. The data given to Professor Irvine were based on analysis of the 1995 National Health Survey data conducted by the Australian Bureau of Statistics (ABS). These analyses were provided by personal communication from Mr Brian Richtings at the ABS in Canberra. Heights were self-reported by approximately 54,000 respondents to the survey throughout Australia. Of the male respondents 1.6% reported their height as at least 1.9 metres and 0.7% reported their height as at least 1.94 metres. I hope this provides sufficient detail for this matter. Yours sincerely Dr Emily Biss Senior Lecturer School of Community Medicine University of the Southern World

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17 September 2015

Case Files CHAPTER 20

Document 7: Transcript of Examination in Chief of Jack Strom on 4 June 2018 Plaintiff (12.37 pm) Sworn and Examined

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Nair SC: Is your name Jack Paul Strom? A.

Yes.

Q.

Do you live at 7 Cambridge Street, Cremorne, 2090?

A.

Yes.

Q.

Are you a single man?

A.

Yes.

Q.

Were you born on 2 December 1996 in Sydney?

A.

Yes.

Q.

That makes you 21 now?

A.

Yes.

Q.

You left school at the end of year 10?

A.

Yes.

Q.

From that time up until the time of the accident did you essentially perform labouring type work and other casual work?

A.

Yes.

Q.

At the time of the accident you were temporarily unemployed?

A.

Yes.

Q.

Had you made arrangements to commence an apprenticeship beginning January 2015 as a painter decorator with a Mr G George at Cheltenham?

A.

Yes.

Q.

Because of your injuries in the accident you did not take up or commence that apprenticeship?

A.

No.

Q.

Before 19 December 2014 were you in good health?

A.

Yes.

Q.

And had you had a motor vehicle accident at some time before that time in which you suffered some injuries?

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cont.

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A.

Yes.

Q.

Had you recovered from that injury prior to December 2014?

A.

Yes.

Q.

How tall are you?

A.

Approximately 180 cm.

Q.

Back in December 2014 what was your approximate height?

A.

Yes, about that.

Q.

Are you aware of the lookout at Cremorne Point?

A.

Yes.

Q.

And on Saturday 19 December 2014 you suffered injuries when you fell from the lookout?

A.

Yes.

Q.

I am just going to show you a map of Cremorne and can you see the reserve at the Point? (Exhibit A shown)

A.

Yes.

Q.

How would you describe the area around the point?

A.

There is the park and then there are houses, mainly units.

His Honour: Is there any real dispute that the general recreational area included the lookout? (Conceded by defendant) Q.

On Friday nights for some time before December 2014 there were social gatherings in town that you would go to?

A.

Yes.

Q.

And you often would go to the lookout with your friends afterwards?

A.

Yes.

Q.

What would you do there?

A.

Mainly talk and just hang out.

[Luncheon adjournment] His Honour: All counsel at the bar table, at lunch time I accompanied my work experience student, who is here, over to the Leagues Club where I was seated facing the plaintiff for

Case Files CHAPTER 20

cont.

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some period and had occasion to observe him for some period. I am not saying whether that is good or bad or indifferent, I just disclose that fact. It was just one of those circumstances that one endeavours to avoid. Q.

On Friday 19 December 2014 did you get together with a number of friends including those who had just left school?

A.

Yes.

Q.

So where did you all start up?

A.

At a friend’s place in Neutral Bay.

Q.

At what time did it start?

A.

About 2 pm.

Q.

And at what time did you have your first drink?

A.

About 2.30 pm.

Q.

Did you have some dinner?

A.

Yes, a cheese sandwich.

Q.

So after meeting at a private house did the group of you go drinking in town?

A.

Yes.

Q.

During the afternoon and evening, what sorts of things did you drink?

A.

Beer, spirits, types of port and that’s about it.

Q.

By the time you were catching the ferry to Cremorne what time was it?

A.

The last ferry leaves a bit after midnight.

Q.

How were you feeling then?

A.

Very good.

Q.

What about your state of intoxication?

A.

I felt like I had had a fair few but I was very willing for more. I felt like I hadn’t had my quota.

Q.

Were you able to control yourself and walk normally?

A.

Yes.

Q.

When you got off at Cremorne, what did you do?

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cont. A.

We decided to walk to the park and the lookout.

Q.

And what was your intention in terms of going home at the stage when you were at the lookout?

A.

I don’t think I comprehended going home yet because we were talking about where we could go and basically drink some more.

Q.

So what were you doing at the lookout?

A.

I was talking to – at first I was talking to a friend I hadn’t seen in a long while but basically just communicating, so to speak, talking.

Q.

Were you sitting down or standing up?

A.

I was sitting at first.

Q.

I will show you Exhibit B. (Shown). Can you see on photograph B1 the lookout and the place you were sitting?

A.

Yes.

Q.

Are you able to indicate in biro the spot you were sitting?

A.

Approximately there I would imagine. (Witness marked photograph)

Q.

Can you remember who you were talking to?

A.

Yes.

Q.

Who was it?

A.

Richard Nevill.

Q.

So you talked to him for a while, did you?

A.

Yes.

Q.

Eventually did you stand up?

A.

Yes.

Q.

After you stood up, what did you feel like?

A.

Nauseous.

Q.

What did you do?

A.

I walked directly to the railing.

Q.

How fast did you do that?

Case Files CHAPTER 20

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cont. A.

I didn’t run, but it was a fairly – sort of like I wanted to get to the railing pretty quickly.

Q.

What did you do?

A.

I basically rushed to the railing and I sort of went to grab the rail and lean over to be sick and I’ve just fallen.

Q.

When you fell did you try and save yourself, in effect, as you were falling?

A.

I put my hands out just sort of like (demonstrated) to stop myself.

Q.

How did you land?

A.

I landed exactly like that. (Demonstrated)

Q.

And then you landed, in effect, with your hands across each other, your wrists across each other protecting the top of your head, is that right?

A.

Yes.

Q.

In fact you suffered fractures of both bones in both wrists, is that right?

A.

Yes.

Q.

At any stage before you fell was there any horsing around or mucking around with any other person?

A.

No.

Q.

Did anyone push you?

A.

No.

Q.

Did anyone throw you?

A.

No.

Q.

After you landed did you realise that you were seriously injured?

A.

Yes.

Q.

Did you have any feeling in your arms and legs?

A.

I’m not too sure. As far as I knew I could feel everything but the ambulance guys were touching me and I couldn’t feel that.

Q.

How soon after you fell did the ambulance officers arrive?

A.

Within minutes.

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cont. Q.

Then I think they attended you for quite a while, did they?

A.

Yes.

Q.

Then you were winched out of there by helicopter?

A.

By the SES, they winched me up.

Q.

Then you were taken to Royal North Hospital?

A.

Yes.

Q.

You understand you are permanently incapacitated, that being a condition of incomplete quadriplegia, is that right?

A.

Yes.

Q.

At any stage before you fell did you believe there was any risk by going over to the railing and leaning over?

A.

No.

Q.

Was there any warning sign anywhere at the lookout warning people not to lean over the bridge or lean on the railing?

A.

No.

Q.

Over the years how frequently have you been to the lookout?

A.

Close to every weekend.

Q.

If there had been any sign there warning Do not lean over the side of the railing would you have acted upon that warning?

A.

I would say so, yes.

Q.

Would you consider yourself a good citizen?

A.

Yes, I obey the law.

Case Files CHAPTER 20

Document 8: Witness Statement – Mr Samuel Ross Name:

Samuel Ross

Date:

25 May 2015

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I live at 3/15 Bent Street, Sydney NSW 2000. I am an accountant. On 19 December I was having a picnic with some friends at Cremorne Lookout. There were about five of us. We had taken cold meat and salads and bread and a few bottles of wine. We watched the sunset and then just sat around talking. At about midnight a group of young adults arrived. They all looked in their late teens. I guessed they had just finished school, going by their conversation. Most of them were quite intoxicated. They all were hanging around the railing overlooking the water. One particular tall young man, with a blue shirt, came over to us to ask for a cigarette. Soon after that he fell over the railing. I heard him call out and ran to see what had happened. He had fallen over and could not move. I quickly used my mobile phone to call an ambulance, which arrived in about 10 minutes. I tried to talk to the guy. His friends told me his name was Jack. He could hardly talk because he was so drunk. I think he was really quite intoxicated and I am not surprised he fell over the railing. He was being pretty stupid.

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Document 9: Witness Statement – Miriam Strom Name:

Miriam Strom

Date:

7 May 2015

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I reside at 7 Cambridge Street, Cremorne 2090. Telephone number 02 9123 4567. I was born on 5 April 1994. I live at home with my parents. I am Jack Strom’s sister. On 19 December 2014, I went to school as usual. I invited my friend Sarah Wills over to stay the night. We had dinner at home and were just chatting and watching videos. At about midnight we decided to go for a walk to the lookout. When we got there we found that my brother, Jack, was there with some of his friends. We talked to Jack about what they had been doing. He said they had been in town and had been dancing and things. He said he had had a few drinks, but he was very coherent in his speech and I would not have said he was drunk at all. Sarah and I decided to walk around the Point a little bit. When we went back to the lookout there was a lot of commotion. Then someone told me Jack had fallen over the edge and was hurt very badly. I quickly ran home to tell my parents.

Case Files CHAPTER 20

Document 10: Judgment

New South Wales Supreme Court Citation:

Strom v Council of the Shire of Cremorne [2001] NSWSC 12345

File Number(s):

6 of 2016

Hearing Date(s):

4, 5, 6, 7 & 8 June 2018

Judgment Date:

2 July 2018

Parties:

Jack Strom Council of the Shire of Cremorne

Judgment of:

Clever J

Counsel:

P: M Nair SC with P Nguyen D: X Sanchez SC with S Chen

Solicitors:

P: Strait & Co Solicitors D: Bent & Co Solicitors

Catchwords:

Negligence – duty of care – liability of public authority – contributory negligence – alcohol consumption by plaintiff

Cases cited:

Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580

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Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 State Rail Authority v O’Keefe (NSW CA, unreported, 16 March 1995 Decision:

Verdict for the plaintiff; Plaintiff contributed 50%

IN THE SUPREME COURT OF NEW SOUTH WALES (COMMON LAW DIVISION) CLEVER J JACK STROM v COUNCIL OF THE SHIRE OF CREMORNE [2001] NSWSC 12345 JUDGMENT 1.

The plaintiff sued the defendant, the Council of the Shire of Cremorne, claiming it was responsible for the design and control of the lookout located at Cremorne Point lookout in the State of NSW.

2.

The plaintiff who had fallen from that lookout, had leant over a railing, lost his foothold and fell some 5 metres onto rocks below, and suffered severe spinal injuries resulting in paraplegia.

3.

The negligence alleged against the Council was that the horizontal railing was of such a shape and width as to make it foreseeable that persons would easily overbalance and fall and also failing to provide an adequate hand holding structure. The plaintiff further alleged that the Council was also negligent in failing to construct the pedestrian barrier rail to an adequate height and failure to comply with the guidelines in force for the erection of such railings.

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cont. 4.

The Council denied negligence, but said that if it were negligent, the plaintiff contributed by failing to keep a proper lookout and to take reasonable care for his safety. The Council further alleged that the plaintiff leant over the railing while intoxicated knowing that there was a potential danger in failing to hold on to the railing of the bridge.

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The FACTS 5.

The plaintiff. The plaintiff who lives with his fiancée in Sydney, was born on 2 January 1996. He was on 19 December 2014 18 years, living in Cremorne with his parents.

6.

The plaintiff had left high school at 16 years after the School Certificate. Since then he carried out labouring and casual work at different times for a supermarket, but was, at the time of sustaining the injury unemployed. He was to commence an apprenticeship as a painter/decorator in early 2015. This was prevented by the injuries from the accident.

7.

The plaintiff was at the time of the accident in good health other than an injury to his right ankle from a motorcycle accident, from which he had fully recovered. The plaintiff is 180 cm tall.

8.

On 19 December 2014, there was a railing at the Cremorne Point lookout. Near the Point there is a park and an outdoor swimming pool. The area was used by the public for picnics, walks and general leisure activities. As the Point had a good view, people would go there to watch events on the harbour, both during the day and at night. Often people would drink alcohol in the area. It was common for young people to go to the Point in the evenings and nights.

9.

The plaintiff had on the night of 19 December 2014, being the end of the school year, joined many friends who had left school in 2014. The plaintiff, in evidence in chief, said that during the afternoon he had been drinking Jim Beam, Jack Daniels and beer.

10.

By the time he was leaving the city he said he felt very good: “I felt like I had had a fair few but I was very willing for more. I felt like I hadn’t had my quota”. He said he was able to control himself and walk normally. He had had a cheese sandwich for dinner.

11.

In cross-examination, the plaintiff conceded that he had been drinking much more than he had said in his evidence in chief. He was not paying for any drinks. Everyone else was providing him with drinks because he had no money. His evidence was: Q: Do you say you were feeling well stewed at that stage? A: No, I wasn’t feeling … Q: You think you could be mistaken about the way that you were gauging the effect of alcohol at that point? A: Yes. Q: If I suggest to you that at that stage of the night you were well affected by alcohol, would you agree with me? A: Yes. Q: Would you agree with this proposition that you may well be mistaken about whether or not you had consumed beer whilst you were at the club? A: It’s quite possible, yes. Q: Did you consume anything other than beer and one or two cans of Jim Beam at the club? A: It is very, quite possible I could have had anything to drink because they sell alcohol, but to my knowledge to answer your question, yes, it is possible. Q: I suggest that while you were speaking to the ambulance officer Rocky you told him “I have drunk three glasses of wine”. Would you agree with that?

Case Files CHAPTER 20

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A: I don’t remember what I said. Q: Is that because you were affected by alcohol at the time? A: Yes. Q: Is your memory now refreshed as to the consumption of wine in addition to beer and Jim Beam? A: I don’t remember drinking wine, but that’s not to say I didn’t, but I don’t remember. Q: I take it during the hours you left the club and were at the Point you continued to drink? A: Yes. Q: That would have been fairly constant? A: I could imagine so, yes. Q: You were, to use the vernacular, pretty much on a roll at that stage, weren’t you? A: Yes. Q: I suggest you did drink wine on that night. A: I don’t like wine, but it is quite possible, but I don’t remember drinking wine. Q: It would have been an understatement if you told ambulance officer Rocky that you had only had one beer and three wines, wouldn’t it? A: Yes. Q: And you were, by the time this accident occurred, either “blotto” or as close to “blotto” as could be, isn’t that right? A: Yes, I was very intoxicated. 12.

The other witnesses who gave evidence on behalf of the plaintiff, Mr Ross and Mr Jones, both indicated that the plaintiff had been drinking a lot. The ambulance officers and the policeman who attended the scene were, however, able to communicate quite readily with the plaintiff. He was not so affected as to have lost coherent speech. He was quite lucid and clear in communication after the fall, considering his injuries.

13.

On the whole of the evidence, I find that the plaintiff was heavily affected by alcohol at the time of his fall from the lookout and his capacity to control his physical actions would have been significantly impaired.

14.

The railing. The lookout was constructed in 1970 by Crush & Sons Pty Ltd. It was designed by the Public Works Department, an emanation of the State of NSW. It had a railing with a height of 912 mm, at the base of which there was a step with a height of 152 mm. The Council did not build the lookout, but checked that the lookout complied with the plans accepted by the Public Works Department.

15.

The fall. The plaintiff had been sitting in the picnic area at the lookout. He had been talking to an acquaintance, Michael Brown. He felt as though he was going to vomit. He stood up and moved fairly quickly across to the railing. As he went to vomit he attempted to grab the railing but went over the railing and fell with his hands raised above his head crossed over with his wrists protecting the top of his head. He landed on rocks.

16.

There were about 10 or 15 people standing or walking around the area at the time of the plaintiff’s fall. Two friends of his were standing either side of him as he fell over the railing. The plaintiff’s evidence in chief was that he was sitting, that he moved across to the railing quickly and that as he approached the railing he put his foot on a concrete step, that step adjoining the railing. He said he would not have stood on the concrete step if there had been a warning sign.

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cont. 17.

The evidence of the plaintiff’s friends was that he had moved quickly towards the railing saying that he was going to vomit and that he had moved at a jogging pace and in one continuous movement reached the railing and proceeded over the railing, his friends standing by the railing remembering seeing the soles of his feet as he fell from the lookout.

18.

The plaintiff in cross-examination was asked and answered the following questions: Q: May I take it that what you knew before the night of the accident was that if you stood next to a railing which was a barrier between where you were standing and where you might otherwise fall to you would need to exercise some care in leaning against that barrier, is that right? A: Personally I didn’t think of nothing but, you know, to be sick. I wasn’t thinking of safety or anything like that. Q: I am not asking about the night of the accident, I am asking about previously. I am asking you about your conscious appreciation about the matters before the night of the accident, do you understand? A: Yes. Q: You knew, did you not, before the accident, that when you were standing next to barriers like that you needed to be careful if you leant on the barrier to make sure you did not overbalance and fall? A: Yes. Q: At six foot three, may I take it that you were amongst the tallest of your friends and acquaintances? A: Yes, I was amongst the tallest, yes. Q: May I take it that a matter that you had a conscious appreciation of before the accident was that you were physically quite tall? A: Yes. Q: And that being physically quite tall it was easier for you to overbalance if you leant improperly against the barrier? A: Yes. Q: And you knew you were a tall individual and therefore someone more likely than others shorter to fall by overbalancing? A: Yes. Later he said: Q: What do you say you were doing with your hands? A: Securing myself so to speak. Like reaching for the rails or grabbing the rails. Q: Is this right, that what you did and tell me if this description is inaccurate, was to position your hands over the railing with your palms on the top of the railing? A: That is what I had planned to do but whether I actually grabbed the railing or if I had missed the railing I can’t comment. I don’t know. Q: Doing the best that you now can you cannot recall whether your hands endeavoured to grip the railing or not? A: Whether they went to, is that what you are asking, or did they? Q: Doing the best that you now can to remember what happened you cannot say whether you went to grip the railing or not? A: I can remember trying to grab the railing, the top rails. Q: What part of it did you try to grip? A: The top part. Q: And how did you do that?

Case Files CHAPTER 20

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A: I don’t know. With my hands, like that, whether that is the exact position or not I don’t know but I went to grab the rail like any other able-handed person would. Q: As I understand from what you were saying earlier, although you went to grip the rail you cannot now recall whether your hands came into contact with the rail before you started to fall? A: Yes, I can’t. 19.

From the plaintiff’s evidence and the evidence of the witnesses and examination of the photographic evidence and the court’s view of the site itself, I am unable on the onus the plaintiff must establish to find that the plaintiff in fact put his foot on the step in his progress towards the railing. He did not remember the event specifically in his originally statement. Although I accept that he is endeavouring to give the best of his recollection, it appears to me that there has been a degree of reconstruction in the plaintiff’s mind in respect of his foot going on the step before he fell over the railing. I do accept the evidence that he moved quickly across the roadway and that there was a degree of momentum in that movement. The fact of the step existing on the railing edge of the footpath adjoining the railing would mean that it would be necessary for him even if he leant over the railing to in fact extend his centre of gravity forwards in order to lean over the railing with his feet on the footpath.

20.

The injuries. The plaintiff suffered multiple fractures of ulna and radius in both wrists and a fracture dislocation of the c5/c6 vertebral area of his neck. Shortly afterwards the ambulance officers arrived. At that time he thought he could feel his arms and legs but he could not feel the ambulance officers touching his body. He was taken by ambulance to Royal North Hospital and then spent three months in Ryde Rehabilitation Unit. He is a quadriplegic as a result of the injuries.

21.

Engineering evidence. A considerable amount of time of the trial was taken with the evidence of various experts as to the construction and safety dimensions of the railing.

22.

The plaintiff first called a Mr Erik Browne who is a consulting engineer who has expertise in engineering ergonomics and provides forensic services as to the relationship between human beings and the structures that surround them. Mr Browne described the step adjoining the railing as six inches or 150 mm square, which if a person stands on it effectively reduces the height of the railing in that it forms a natural step and the remaining height of the railing would be 910 mm or three feet. His evidence was that, in the light of the risk involved, and the height of the railing, a human being could subconsciously step on to the step, and that it is a foreseeable risk that a person could overbalance if they were to lean on it.

23.

His evidence was that a practical means of solving the risk problem is to increase the height of the top rail by adding an additional rail to the top of the existing railing in the form of a cylindrical pipe suspended on some form of fixture.

24.

Mr Browne’s evidence was that if the plaintiff had run at the railing in the manner described and went over it in a continuous motion, that a height of 1065 mm or about 42 inches, that being the necessary standard, would not be adequate to contain him. The height of 1065 mm exceeded the necessary National Australian Association of Parks Standard. Mr Browne said that it would be a combination of the height of the railing and the plaintiff’s actions which caused his toppling over.

25.

In cross-examination, the evidence of Mr Browne was: Q: The step of the pedestal has a height of 150 mm? A: Yes.

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cont.

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Q: You say on top of that there should be a balustrade which has an approximate height of about 1100 mm? A: Yes. Q: So the combined height of step on the one hand and the balustrade itself on the other hand would be about 1250 mm? A: Yes. Q: If someone was standing on this lookout designed the way that you have suggested would be appropriate, if they had a centre of gravity which was at or below 1250 mm, the railing would protect them? A: Largely, yes. Q: If they had a centre of gravity which was above 1250 mm there would continue to be a risk of overbalancing which has not been removed by the height of the railing? A: Yes. 26.

The evidence of Mr Browne also was that the risk involved from a fall creates a greater need for the increase in height of a railing. His evidence was that if there was an 80 foot drop as against a six foot drop the risk is much greater and a railing would be higher such as in a bridge crossing where there would be a greater calamity from a fall. His evidence was that the magnitude of the risk is a factor as well as frequency or probability.

27.

The thrust of Mr Browne’s evidence, which I accept, is that all of the relevant circumstances in the construction of the railing must be examined, taking into account the risk, the potential damage for someone falling over that, but that the risk should accommodate the risks to the large proportion and that the likely consequences such as a fall on to a railway line or a rolling stop is of a different magnitude than from a lookout. His evidence was that the NAASPA Standards used by the Department of Parks prescribed minimum heights and did not prescribe standards which governed every circumstance of every lookout.

28.

The plaintiff called Mr Michael Thompson, a civil, structural and accident investigation engineer, whose report was admitted and who gave evidence. His evidence was:

29. Q: Is there any difference between the expression “minimum height” and the concept of “preferred height” or “desired height”? A: Yes. Q: Can you explain this to his Honour? A: Firstly, taking a minimum dimension, it is a suggestion to the designer that one has to evaluate what the real requirement is in a particular case. But it is giving guidance that it should be not less than that particular dimension or requirement set out. When the guidelines suggest a desirable height, it is more, it is indicating in normal circumstances that it is a better design criteria than a minimum. However, it is up to the designer to properly consider all of the factors for the particular case to come up with the desired height. Q: What kind of factors in a case of a lookout? A: Well, the risks or hazards that may arise from the use of the particular lookout in certain ways. The likely effects of somebody, say, falling over the railing in this particular case would be a factor to be taken into account; whether the drop over the railing was large or very small; onto what surface one would likely fall below the lookout. They are the basic parameters. Q: What are the factors in relation to the location of the lookout, or the degree of pedestrian use, or the type of user?

Case Files CHAPTER 20

cont.

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A: Certainly the expected quantity of pedestrian movements would be a factor to be considered. If the lookout was remote from an urban area, for argument’s sake, and pedestrian activity was expected to be low or unlikely, one would not need to take special consideration of a higher than minimum railing. Q: And what if the relevant lookout was near a picnic area where it could be expected people would be drinking alcohol? A: One would expect pedestrians moving around the lookout to be intoxicated to various levels and that their actions need to be protected. 30.

I accept this evidence of Mr Browne and Mr Thompson that the standard set by NAASPA publications do not prescribe for all lookouts in all circumstances.

31.

Duty of care. It is the duty of a public authority to safeguard the public against foreseeable risk of injury: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. That duty extends to each occupier, whether affected by alcohol or not: State Rail Authority v O’Keefe (NSW CA, unreported, 16 March 1995).

32.

The Council had a duty to exercise such care as would reasonably protect a person in the circumstances of the plaintiff from reasonably foreseeable consequences of his condition including that by inadvertence or inattention he might expose himself to injury.

33.

Although the Council took the view at the time of the construction of the lookout through its engineer that its role was merely to ensure compliance with the plans and specifications, the Council knew or must be deemed to have known the activities that were carried on in the recreation areas near the lookout would also lead to use of the lookout by pedestrians who had consumed alcohol.

34.

It is clearly foreseeable that the users of the lookout might lean over the railings for a number of purposes, including to be sick.

35.

Counsel for the Council submitted that the Council had acted reasonably and is not negligent in light of the fact that when the lookout was designed and constructed in about 1970, it conformed to relevant guidelines then in circulation and further that since Council was not on notice of any prior accident occurring, the Council was not on notice of any person having suffered any injury through the use of the lookout, and therefore not required to upgrade the lookout and its railing.

36.

However, it is irrelevant whether or not the lookout was designed and constructed in accordance with the relevant guidelines, since as the High Court said in Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580 per Latham CJ at 589: The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent.

37.

It is quite clear that the Council had a duty of care to pedestrian users of the lookout, and that that duty was not extinguished by the fact that they had followed the relevant guidelines even if those guidelines were mandatory, not just prescribing minimum requirements. The Council, by their own admission, and on the evidence were not only responsible for the management and control of the bridge, but also in part for the construction of the bridge. The Council cannot rely on the protection of the nonfeasance rule when it clearly acts as both a highway authority and public authority simultaneously.

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cont. 38.

Breach of duty. The events that happened are as I have found, namely, that the plaintiff was intoxicated at the lookout, the plaintiff is tall and well above the average height but not inordinately so, the use of the lookout as a meeting place for young people has occurred for some time. Many of these young people would normally have consumed more alcohol than is reasonable or sensible, but it is a fact that it has repeatedly happened. I do not consider that it is established that the plaintiff put his foot on the step near the railing before falling over, but I find that he did rush fairly quickly towards the railing and that notwithstanding his height, and in his alcoholic state with the involuntary compulsion to vomit, that in fact what occurred was not a remote possibility. In my view the defendants ought to have foreseen the accident which was reasonably foreseeable and taken steps to alleviate the damage which existed.

39.

I am satisfied on the evidence before me for the expenditure of a sum between $10,000 and $20,000 an appropriate railing could have been added to the existing railing. The problem with the existing railing was that it did not permit a convenient grip which is a significant part of any railing. It has not been suggested by anyone that the proposed two-inch rail set six inches above the existing railing was not a safe measure. The cost of constructing the additional railing could not be unreasonably high considering the short length of the railing.

40.

It is also my view that the erection of warning notices was a reasonable measure that the Council might have taken to warn people not to lean over the railing. Whether the plaintiff would have complied with a warning of that type or not, such warnings have as a matter of practice had some cogent effect on reducing risk of injury in most circumstances. I find that the Council as the authority responsible for the construction, care and management of the lookout were in breach of the duty they owed to the plaintiff in failing to erect a proper handrail at an appropriate height and to erect notices which even if the plaintiff had not seen them on the night he would inevitably have seen them on other occasions.

41.

I find that the Council is thus guilty of negligence as alleged by the plaintiff.

42.

Contributory negligence. Counsel for the Council submitted that the plaintiff’s injury was caused solely by his failure to take reasonable care to protect himself; that it was the plaintiff’s actions which led him to become well intoxicated, attempting to lean over the railing to vomit and the manner in which he approached the railing which led him to fall from the lookout. It is submitted that these acts amount to a failure on the part of the plaintiff to take reasonable care for his protection.

43.

Contributory negligence is established when the plaintiff’s conduct demonstrates a complete failure to meet the standard of care to which she or he is required to conform for his or her own safety and that failure, in conjunction with the negligence of the defendant, constitutes a material contributing cause of the plaintiff’s injury. A plaintiff clearly has an obligation to take care of his or her own safety. Where the conduct of a plaintiff shows a failure to take reasonable care for his or her own safety and that failure together with the negligence of the defendant was a cause of the plaintiff’s injury, contributory negligence is established. This issue is causation.

44.

Counsel for the plaintiff submitted that contributory negligence cannot be established because the plaintiff’s action of being sick over the railing was an involuntary action and that it was perfectly natural. Furthermore, the plaintiff was entitled to assume, whether drunk or not, that the railing was of such a height as to offer him reasonable protection from overbalancing. It was contended that the only question of contribution that arises is whether the plaintiff’s earlier consumption of alcohol constitutes a want of care for his own safety.

Case Files CHAPTER 20

cont. 45.

In SRA v O’Keefe (unreported, NSWCA 19 November 1994) the Court reversed the finding of the trial judge and held that a degree of contributory negligence had been established by a plaintiff who had been drinking. In that case the plaintiff, who had been intoxicated, was attempting to cross a railway crossing when his foot became caught in one of the rails. Justice Kirby, in delivering the judgment of the court held as follows at p 7:

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Clearly, a sober alert pedestrian has a much lower risk of falling and a greater chance of avoiding harm from the defects in the pedestrian crossing as found in this case. A heavily intoxicated person, particularly one who is “drunk”, is more likely to fall and meeting an impediment, is less likely to prevent serious damage occurring. 46.

Persons who are tall or particularly tall learn to live in a different environment from people of average height or shorter people. A tall person as a matter of general living has to take into account that safety measures for the average person do not constitute the same level of safety for a tall person.

47.

The plaintiff, therefore, in choosing to cause himself to be intoxicated significantly increased his risk of injury from falling or by misjudgment or misadventure. His action in rushing towards a railing whether he is drunk or sober, whatever its perceived height, is something which is partly involuntary but partly a conscious action of wanting to vomit with fewer consequences arising and in making that choice to rush towards a railing on the other side of which is a precipitate fall he chose an action which was fraught with danger.

48.

The plaintiff, on his own evidence, clearly admitted that he had had too much to drink. He was aware of the amount that he had drunk and how such an amount could affect his behaviour. The plaintiff was also conscious of his height and was familiar with the lookout railing. On each of these counts the plaintiff failed to take reasonable care to protect himself from harm.

49.

Notwithstanding the breach of duty that I have found on the part of the Council, I consider the plaintiff has contributed to the terrible injuries which he has sustained by his actions and I consider in the circumstances of the case that the extent of the contribution is 50%.

50.

Findings and Orders. In summary I make the following orders: (a)

That the defendant breached the duty of care which it owed to the plaintiff;

(b)

That the plaintiff in the causation of the injuries he has sustained contributed to the negligence of the defendant as to 50%;

(c)

That costs be reserved;

(d)

That as requested by the parties damages be reserved;

(e)

That the parties have liberty to apply as to these orders or any matter unresolved between the parties.

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CRIMINAL CASE FILE: R V ROBERT EAGLE Document 1: Police Statement of Facts

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IN THE MATTER OF ROBERT EAGLE The deceased, Abby Star, was found unconscious in her bed at home at 5.00 am on Friday, 21 January 2015. She was found by her housekeeper, Ms Maria-Rosa Dominguez. An ambulance was called by Ms Dominguez to the premises and the deceased was taken to St Luke’s Hospital. The deceased died at approximately 3.00 pm on the same day; she was 35 years old. Due to the suspicious nature of her death an autopsy was conducted on the deceased. The autopsy revealed that the deceased died as a result of an injection of insulin. The autopsy also revealed syringe marks on the deceased’s right arm. The autopsy report has concluded that the cause of death was an overdose from insulin administered by an intravenous injection. At the same time the police were conducting investigations into the death of Ms Abby Star, the deceased’s daughter, Mia Star, engaged a private detective named Cliff East. As a part of his private investigations, Mr East searched the car of Mr Robert Eagle, the accused. Mr Eagle is the husband of the deceased. In Mr Eagle’s car Mr East found a red bag containing five hypodermic needles and a vial of clear liquid. Mr East sent the vial of clear liquid for testing. The liquid was found to be insulin. Mr East also conducted his own fingerprint testing on the bag and has matched the accused’s fingerprints as being on that bag. Police enquiries have established that on the night prior to her death, the deceased and the accused had had an argument. Enquiries have also revealed that the deceased has an estate worth approximately $150 million, of which the accused is entitled to receive half pursuant to the deceased’s will. Police investigations reveal that the deceased had entered into a pre-nuptial agreement prior to her marriage to the accused in 2012, by which the accused was not to receive any money in the event of a divorce. Police believe that the accused persuaded the deceased to change her will during the course of their marriage to entitle the accused to half the estate of the deceased. Police enquiries revealed that the deceased and accused were regular users of illicit drugs and this would include the use of hypodermic needles. There is evidence that they both enjoyed injecting drugs. The deceased’s housekeeper has informed police that, after undergoing hypnosis, she was able to remember that the accused left the premises he shared with the deceased approximately one hour prior to the housekeeper discovering the deceased unconscious. The deceased sent a letter to a friend, apparently written on the evening of 20 January 2015. This letter was destroyed by the friend. This letter is equivocal, but may provide some evidence to support a suggestion that the deceased committed suicide. Despite this letter, police believe that the accused murdered the deceased. On 28 February 2015 the accused attended at the police station and participated in an electronically recorded interview with police. During the course of this interview the accused denied murdering his wife. After the interview the police charged the accused with murdering his wife, Ms Abby Star.

Case Files CHAPTER 20

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Document 2: List of Police Exhibits 1.

Pre-nuptial agreement which provides that “in the event of a divorce, Robert Eagle does not receive any money”.

2.

Financial report prepared by Star’s accountant that states that Star’s wealth is $150 million.

3.

Autopsy report which states that the cause of death was intravenous injection of insulin.

4.

Autopsy photo depicting the syringe mark on the deceased’s right arm.

5.

Eagle’s red bag. The bag contains the needles and the vial of insulin.

6.

Expert certificate that the vial found in the bag contains insulin.

7.

Hospital records showing that the deceased was admitted to hospital in 2006, 2008 and 2009 for drug overdose caused by intravenous use of heroin.

8.

The will. This shows that the accused will inherit one half of the deceased’s estate.

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Document 3: List of Subpoenas Issued by Defence 1.

Subpoena issued on the Commissioner of Police to produce “all documents relating to the investigation of the death of Abby Star”.

2.

Subpoena issued on the Commissioner of Police to produce all documents relating to ongoing investigations into the supply of prohibited drugs to the “rich and famous”.

3.

Subpoena issued on Dr Psychiatrist to produce all documents relating to the counselling sessions with Abby Star. (These notes reveal that Star sought counselling for cocaine and heroin dependence.)

4.

Subpoena issued on East Investigation Services to produce all notes of interviews with Jade and Dominguez in relation to the death of Abby Star.

5.

Subpoena issued on Abby Star’s record company for unreleased work on her forthcoming album titled “Suicide Brunette”.

6.

Subpoena issued on Abby Star’s doctor (the records show that Abby Star had a prescription for insulin in 2000 in an attempt to suppress her appetite).

Case Files CHAPTER 20

Document 4: Statement of Detective Blue

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Statement in the matter of Death of Abby Star

Place: City Crime Scene Unit Date: 29 January 2015

Name:

Detective Sergeant Bill Blue

Address:

City Crime Scene Unit

Occupation:

Police officer

1.

This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.

2.

I am 37 years of age.

3.

I am a Detective Sergeant attached to the City Crime Scene Unit. I am the officer in charge of the investigation into the death of Abby Star.

4.

On 26 January 2015 at approximately 5:55 pm, Mia Star and Cliff East attended the City Police Station. I spoke with them briefly in the foyer of the Police Station. I then went with them to an interview room. Constable Vicky Sky was also present.

5.

Cliff East said “I am a private investigator and was retained by Mia Star to look into the death of Abby Star. Mia Star retained me on 22 January 2015 to investigate the cause of death. As a result of my investigations I have found some information that may assist police in their investigations of the death of Abby Star.”

6.

Mr East handed to me a red bag. I placed the red bag into a crime scene investigation bag and sent the bag to the evidence analysis section of the squad for testing.

7.

Mr East then handed to me a document that contained the test result for the testing of a vial of liquid.

8.

I interviewed Mr East. I took a statement from Mr East. Mr East then signed his statement.

9.

I then interviewed Ms Mia Star. I took a statement from Ms Star. Ms Star then signed her statement.

10.

I then obtained a search warrant for the premises at Star Estate.

11.

At approx 9.00 am on 27 January 2015 I attended the premises at Star Estate. Senior Constable Sky also attended the premises. I took photographs of the home and a car in the driveway. Samples were taken of the fibres in the boot of the car and placed in a police exhibit bag.

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Document 5: Statement of Maria-Rosa Dominguez Statement in the matter of Death of Abby Star

Date: 26 February 2015

Name:

Maria-Rosa Dominguez

Address:

Known to police

Occupation:

Housekeeper

1.

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Place: Sydney Crime Scene Unit

This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.

2.

I am 62 years of age.

3.

I have worked for Ms Star for 15 years.

4.

Ms Star and Mr Eagle argued during the night on 20 January and she was upset.

5.

On 21 January 2015, Mr Eagle left the house in the morning at about four and I went to wake Ms Star at five because she does her exercise class in the mornings at 5:30 am. I found her on the floor and I couldn’t wake her up, so I called the ambulance.

6.

I told Ms Star and she called the lawyer, Cliff East.

7.

Mr East interviewed me and I couldn’t remember what exactly happened on that morning, so I was hypnotised by a doctor. Once I was hypnotised, I could remember everything very clearly.

8.

We looked in Ms Eagle’s car. We found a bag with needles and a bottle.

Case Files CHAPTER 20

Document 6: Statement of Cliff East Statement in the matter of Death of Abby Star

Date: 26 January 2015

Name:

Cliff East

Address:

East Lawyers

Occupation:

Private Investigator and lawyer

1.

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Place: Sydney Crime Scene Unit

This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.

2.

I am 56 years of age.

3.

I was instructed by Mia Star on 22 January 2015 to investigate the causes of Abby Star’s overdose.

4.

I spoke to Jade and Maria-Rosa on 23 January 2015.

5.

On 25 January 2015, I broke into Robert Eagle’s car and found a red bag containing five hypodermic needles and a vial of clear liquid.

6.

I sent by courier to a private pharmaceutical company the vial of clear liquid for analysis.

7.

In the morning of 26 January 2015 I received the analysis certificate back from the pharmaceutical company. The certificate confirmed that the liquid was insulin.

8.

On 25 January 2015 I downloaded from the internet a do-it-yourself fingerprint test kit. I then lifted fingerprints from the red bag and from a toothbrush given to me by Mia Star. Mia Star told me that this was the toothbrush used by Mr Eagle.

9.

I compared the fingerprints on the red bag with those on the toothbrush using the kit from the internet. I found that they matched.

10.

On 26 January 2015, on instruction from Mia Star, I told Detective Blue about my investigations.

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Document 7: Statement of Jade Statement in the matter of Death of Abby Star

Date: 29 January 2015

Name:

Jade

Address:

Known to police

Occupation:

Stylist

1.

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Place: Sydney Crime Scene Unit

This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.

2.

I am 33 years of age.

3.

I met Abby Star during the Milan shows in the Spring of 2010. I was modelling for Pucci. Mario Pucci introduced me to Abby Star at the party after the show. I was thrilled to meet Abby, I am a huge fan of her music. Abby and I hit it off instantly. We became great friends. I was her bridesmaid at her wedding to Robert Eagle in 2012. I would see Abby at least once a week and I spoke to her frequently.

4.

Abby was very happy to have met Robert and they appeared to have a good relationship but I know that there was trouble. Robert has a bad drug problem. Abby was constantly telling me that she wished Robert would stop taking drugs so much.

5.

Whenever I have gone out socially with Robert he snorts cocaine. I have seen Abby use cocaine and I have used cocaine with Abby. I have also seen him take ecstasy on perhaps 20 occasions. I have also seen him inject cocaine and heroin at a party on 12 December 2012 at their house on Camel Crescent in the cabana. Robert said “this is the best way to take it”. Robert also injected Abby and me with cocaine. I have never seen Abby inject herself with a needle. I remember that Abby asked Robert to inject her because she didn’t know how to do it. Abby has told me that she hates needles. I don’t think Abby would ever in a million years inject herself with needles.

6.

I remember that just after Robert and Abby were married, Robert asked Abby to change her will. Abby told me that she had amended her will from leaving everything to her daughter, Mia, to a will that left half her estate to Mia and the other half to Robert.

7.

I spoke on the telephone to Abby on 20 January 2015. She said that “Robert is taking too many drugs”. She also told me that they had been fighting as Robert had lost money in bad investments. She said that Robert had become angry and said, “let’s just finish it now”. Abby told me that “life goes on” and she would go away for the weekend. I told her to go away to Tasmania for the weekend. She agreed that was a good idea.

8.

Abby sent me a letter. I received it after she died. The letter was written on 21 January 2015 and Abby wrote “I just want to end the pain”. I no longer have the letter; I threw it in the fire.

Case Files CHAPTER 20

Document 8: Statement of Jeremy Eagle Statement in the matter of Death of Abby Star

Date: 28 February 2015

Name:

Jeremy Eagle

Address:

Known to police

Occupation:

Student

1.

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Place: Sydney Crime Scene Unit

This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.

2.

I am 17 years of age.

3.

Robert Eagle is my father. I am his only child from his first marriage.

4.

My father came to visit me on 21 January at 7:00 am. He was very upset. He said, “I’ve had a fight with Abby and things are very bad, I don’t know what to do.” I tried to calm him down. He was crying. He looked regretful.

5.

I received a phone call at about 7:15 am from Mia at the hospital. Mia said “Something terrible has happened to mum, come quickly to the hospital.” I gave the phone to dad and his face went white.

6.

I then drove him to the hospital.

Part 5 — Case Files and Answers to Questions

Document 9: Electronically Recorded Interview with Mr Robert Eagle

IN THE MATTER OF ROBERT EAGLE Q1. This is an electronically recorded interview between Detective Sergeant Bill Blue and Robert Eagle at the Central Police Station. Do you agree that the time is now 8 minutes past 2.00 pm? A. Yes. Q2. Also present is Senior Constable Sky. Do you agree that apart from the people that I have mentioned that there are no other people present in this room? A. Yes. Q3. As I have explained to you I am investigating the death of your wife. I am going to ask you some questions in relation to her death. Please understand that you do not have to say anything if you don’t want to. Do you understand that? A. Yeah. Q4. We will record what you say or do and we can use that recording in court and you understand that? A. Yes.

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Q5. Do you agree that prior to this interview I told you I intended asking you some questions about this matter? A. Yes. Q6. Do you agree that I told you that my questions and any answers you give would be electronically recorded on both video and audio as the interview took place? A. Yes. Q7. Is it true that I told you that at the conclusion of the interview you would be given a master tape of the interview? A. Yes. Q8. Are you taking part in this interview of your own free will? A. Yes. Q9. Has any threat, promise or inducement been held out to you to take part in this recorded interview? A. No. Q10. Do you agree that you have been advised of your right to have a legal representative present whilst you are participating in this interview? A. Yes. Q11. Do you wish to have a legal representative present? A. I think I should. Q12. Well, what we shall do is we will ask you some questions and in a little while if you still think you need a solicitor then you should tell us. A. I think I should speak to someone before I participate in this interview.

Case Files CHAPTER 20

cont. Q13. Well, you’re entitled to do that, but they will only tell you not to answer any questions. Do you still want to get a lawyer here? A. Okay. Maybe it will be a waste of time. I’ll just answer the questions. I suppose I will be home sooner if I answer these questions. Q14. As you know, I am the officer in charge of this matter and I will be making the decision whether you are charged with your wife’s murder. You should make sure that you only tell me the truth. Do you understand? A. Yes. Q15. The police believe that you are responsible for your wife’s death. Do you have anything to say about that? A. I had nothing to do with it. I was as shocked and as upset about her death as anybody was. I am an honest man, I would never do anything wrong. I can’t believe that I am sitting here. Q16. The police have been informed that you are a regular user of illicit drugs. Do you have anything to say about that? A. I don’t think I should answer that question.

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Q17. Have you ever injected someone with a needle? A. Maybe. Q18. Can you remember when that was? A. I can’t remember at the moment. Q19. Found in your car was a red bag containing five hypodermic needles and a vial of liquid. This liquid has been identified as insulin. What can you tell us about those things? A. I don’t know anything about any insulin, but the needles were mine. Q20. What would you be doing with those needles? A. Sometimes I would use them and sometimes my wife would as well. Q21. What would you use the needles for? A. Well, I think it’s probably obvious. Q22. Well, why don’t you tell us? A. Drugs. Q23. I should advise you that your wife was killed by an overdose of insulin administered with a hypodermic needle. Did you use a hypodermic needle to inject your wife with insulin? A. No. Q24. I have been informed by your housekeeper that you left the house in a hurry at approximately 4.00 am on 21 January 2015. Is that correct? A. No.

Part 5 — Case Files and Answers to Questions

cont. Q25. Can you think of any reason why your housekeeper would lie about that? A. Maybe she doesn’t like me. Q26. Can you tell us where you were in the early hours of the morning of 21 January 2015? A. I woke up at approximately 4.00 am. I haven’t been sleeping that well so I woke up early. I went downstairs and had a cup of coffee and did some things around the house. I then walked down the road to get the morning newspaper. As it was such a nice morning I decided to go for a walk and eventually ended up at my son’s house. I was a bit upset because Abby and I had been having some problems so I discussed them with my son. Whilst I was at my son’s place he got a phone call from Mia and I found out that Abby was in hospital. My son then drove me to the hospital. Q27. You said that you had been having some problems with your wife. Do you want to tell us about them? A. No. I think that’s really a matter between my wife and I. I am very upset about her dying, but I think the things that we discussed between ourselves should remain between us.

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Q28. You don’t seem that upset about your wife dying. Is there any reason why you’re not upset? A. I am extremely upset. Although we had our problems she was everything to me. Q29. If you didn’t kill your wife then do you have an opinion as to what may have happened? A. I think she committed suicide. She had seemed quite down lately and she has, in the past, told me that she had considered committing suicide. Q30. Mr Eagle, shortly I am going to take you to charge you with the murder of Abby Star. As the officer in charge I have a large say as to whether you will get bail and be able to go home after you are charged. Is there anything else that you have not told me which you think you should about this matter? Keep in mind that your assistance and cooperation may make it more likely that I recommend that you get bail. A. I didn’t tell you about the one time that I hit Abby in the head. I got really angry at her because she was refusing to include me in her will so I punched her once. That was over a year ago now. Q31. Thank you Mr Eagle – that now concludes the interview. I will now take you to be charged with murder.

CHAPTER 21

Answers to Questions For ease of reference, the questions are reproduced before the answers.

CHAPTER 2 Read the material above, together with the relevant sections of the Evidence Act 1995. Then answer the following: Witnesses generally

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1.

Are the following propositions about witnesses true: • witnesses testify on oath; Answer: Yes, but not always, as they may give unsworn evidence. • witnesses testify to facts not opinions; Answer: Yes, but there are exceptions concerning lay and expert opinion in ss 76 – 80. • witnesses testify orally from memory; Answer: Yes, but there are provisions for reviving memory in ss 32 – 34. • out-of-court statements by witnesses are inadmissible; Answer:  A witness can give evidence of an out-of-court statement (referred to in the Evidence Act as a “previous representation”) if such evidence is admissible or an exception to the hearsay rule or credibility rule or is being admitted to prove the accused's character. Other statutory exceptions could also apply, for example, a child’s pre-recorded statements in a child sexual abuse trial is admissible. • witnesses testify through being examined in chief and cross-examined? Answer: Yes, and there may also be re-examination, and witnesses may provide written statements or may depose affidavits.

Calling witnesses 1.

Read ss 11 and 26 of the Evidence Act 1995. What effect do they have? Answer: They give the judge the power to hear cases in a manner that is appropriate and ensures fairness. The court has power to control proceedings (s 11) and control questioning of witnesses (s 26).

2.

What are the prosecutor's ethical obligations outlined in Apostilides (1984) 154 CLR 563? Answer: These are listed in R v Kneebone (1999) 47 NSWLR 450, extracted at [2.50]: (i) The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

Part 5 — Case Files and Answers to Questions

(ii) The trial judge may, but is not obliged to, question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He or she is not called upon to adjudicate the sufficiency of those reasons. (iii) Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as they appear to the judge at that stage of the proceedings, he or she cannot direct the prosecutor to call a particular witness. (iv) When charging the jury, the trial judge may then make such comment as he or she then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, would be affected by such information as to the prosecutor's reasons for his or her decision as the prosecutor thinks it proper to divulge. (v) Save in the most exceptional circumstances, the trial judge should not call a person to give evidence. (vi) A decision of the prosecutor not to call a particular person as a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. 3.

How should a prosecutor proceed if he or she is of the view that a witness should not be called?

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Answer: A prosecutor may not call a material witness if he or she forms the view that the witness is unreliable. The prosecutor should “be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability”. It is “necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion” (see R v Kneebone (1999) 47 NSWLR 450 at [49]). The prosecutor should confer with the witness to determine the witness's capability to give relevant and truthful evidence. McC v The Queen [2007] NSWCCA 25 considered the situation where the prosecutor did not call certain witnesses and the defence did not wish those witnesses to be called. McC's appeal was based on the failure of the prosecutor to call the accused's two children (J and A) as witnesses at the trial. J and A were present at the crime scene when the crime occurred. At the trial, the prosecutor asked defence counsel whether the defence required either child to be called. The defence counsel answered “no”. In dismissing the appeal, Bell J (Spigelman CJ and Howie J agreeing) held at [16]: Defence counsel's decision, that he did not wish either J or A  to be called in the Crown case, was a rational forensic choice … Nothing in the principles enunciated in Apostilides, upon which the appellant relied, supports the contention that the Crown Prosecutor was obliged to call J (or A) in circumstances in which defence counsel did not wish either to be called. The contention that the Crown was subject to an overriding obligation to place J's version before the jury, notwithstanding the stance taken by the defence, is inconsistent with a recognition of the adversarial nature of the criminal trial process: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.

4.

Why did the majority in Velevski v The Queen (2002) 76 ALJR 402 rule that there had not been a miscarriage of justice in the prosecution's failure to call all expert witnesses?

Answers to Questions

CHAPTER 21

Answer:  The prosecutor did not call expert witnesses who agreed with the defence expert. Gleeson CJ and Hayne J distinguished the calling of expert witnesses from calling witnesses to give evidence of facts. They found that the prosecution was not bound to obtain opinions from the experts who agreed with the defence case. Gummow and Callinan JJ held that the prosecution should have called all experts; however the trial judge's direction cured any disadvantage to the appellant. Gaudron  J (minority) held that the prosecutor's failure to obtain statements (expert reports) and call the expert witnesses resulted in a miscarriage of justice. 5.

Alison has been convicted of a drug offence. During the trial, the prosecutor refuses to call any of Alison's flatmates, Fred, Ginger and Harry. The prosecutor does not wish to ask them any questions, as she was sure Alison was guilty. Alison's counsel asks the judge to call them as witnesses, but the judge refuses and so Alison's counsel is obliged to call them. The prosecution cross-examines them to attack their credit. Can Alison appeal?

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Answer:  This question calls for a consideration of the law following R v Kneebone (1999) 47 NSWLR 450. Is this a situation where the prosecution had an ethical obligation to call the flatmates? Should the trial judge have questioned the prosecutor's decision to not call a witness and invite the prosecutor to reconsider the decision at the conclusion of the Crown case? Did the prosecutor have an adequate basis for not calling the flatmates? Has a miscarriage of justice resulted from the failure of the prosecution to call the flatmates? Competence and compellability 1.

What does “competence” mean in relation to witnesses giving evidence? Answer:  Competence means a person is legally capable of giving evidence in a court hearing. For competency to give sworn evidence see requirements in s 13(1) and (3), and unsworn evidence see s 13(1) and (5).

2.

What does “compellability” mean in relation to witnesses giving evidence? Answer: Compellability means a witness can be forced or compelled to give evidence, even if they would rather not.

3.

What were some reasons why witnesses were incompetent at common law in the past? Answer: In the past, persons who were parties to the case, people who did not believe in God, etc could not give evidence.

4.

What is the effect of s 12? Answer: The starting point for every witness is that they are competent and compellable. If a witness is competent then they are compellable.

5.

When can a witness give unsworn evidence? Answer:  A witness can give unsworn testimony when they are not competent to give sworn testimony (if the witness is incapable of understanding that in giving evidence he or she is under an obligation to give truthful evidence: s 13(3)) and providing s 13(5) is satisfied. Of course, s 13(1) also needs to be satisfied.

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6.

How does a witness give sworn evidence? Answer: They must either make an oath or affirmation (see s 21 and the Schedule to the Act for the appropriate form).

7.

Does sworn testimony need to be on oath? Answer: No, it can be on affirmation instead.

8.

What can unsworn evidence be used for? Answer: Unsworn evidence is used in the same way as sworn evidence, that is it can be used to prove the facts in issue in the proceedings, or it may be relevant to the credit of a witness.

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9.

Fill in the following table indicating whether each section of the Evidence Act 1995 applies to civil or criminal cases, the effect of each section and the applicable test.

Section

Crim/civil

Effect

12

Both

Presumption of competence and compellability

Test

13(1)

Both

Not competent to give evidence (either sworn or unsworn)

The person does not have the capacity to understand a question about the fact or the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome

13(3)

Both

Competent to give sworn testimony

Unable to understand obligation to give truthful evidence. Note requirements of s 13(1)

13(5)

Both

Competent to give unsworn evidence

The court tells the person: • that it is important to tell the truth; • if the witness does not know, can’t remember or does not know the answer then the witness should tell the court; and, • that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. Note requirements of s 13(1).

14

Both

Not compellable

Substantial cost or delay to overcome problems with hearing or communication and sufficient evidence from other sources

17(2)

Criminal

Defendant not competent

To give evidence for prosecution

10. Refer to Strom v Council of Cremorne in Chapter 20 and answer the following: • At [12] of the judgment, there is a reference to Mr Jones, who was called as witness for the plaintiff. Assume Mr Jones is Jack Strom's step-brother and did not want to give evidence for him. How could Jack force Mr Jones to testify? Answer: This requires a consideration of compellability of witnesses. As the case is a civil case, not a criminal case, s 18 will not apply. Therefore, Mr Jones can be compelled to testify. Section 12 presumes all witnesses are competent and compellable. • Refer to Document 9 in Chapter 20, the statement by Miriam Strom, Jack's sister. Assume the defendant objected to her giving evidence on the basis that she was not competent. When she was called to give evidence by the judge the following was said:

Answers to Questions

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Judge: Miriam, do you think you are competent to testify here today? Miriam: I know what happened to Jack. Judge: Will you tell the truth, or will you lie to help your brother? Miriam: Of course I want to help him. But I will tell the truth. Judge: I do not think that Miriam Strom is competent to testify. Is there any problem with what the judge did? If so, what should have happened? Answer: This question requires an understanding of s 13. The judge should not ask a witness whether they are “competent”. The judge should first decide whether the witness is competent to give sworn testimony: s 13(1) and (3). If not satisfied as to this, the judge should then tell the witness the matters under s 13(1) and (5). 11. In R v Gulam Mohammad Khan (unreported, NSW Sup Ct, Hidden J, 22 November 1995), the defendant had been charged with murder. There was a strong possibility that provocation would be a major issue in the case. Hidden J was asked to compel the wife of the accused, who had witnessed the events leading up to the murder, to give evidence. Read the case, and answer the following: • Which sections of the Evidence Act 1995 were relevant to the case? Answer: The case primarily concerned s 18, in particular the balancing exercise in s 18(6). • What considerations did Hidden  J take into account in accordance with those sections? Answer:  Hidden  J looked at s  18(7), which provides guidance as to how s  18(6) should be applied. In particular he looked at the gravity of the offence (murder is very serious); the substance and importance of Mrs Khan's evidence (she was a primary witness) and the weight that would be attached to it (it would not have carried much weight, considering their relationship); the nature of the relationship between the accused and Mrs Khan (their marriage was continuing despite this incident and Mr Khan was the father of her children). • Were there other considerations that he took into account? Answer:  He was concerned that Mr  Khan was her husband of 10  years and the father of her children. Hidden J did not consider whether Mr and Mrs Khan's religion would have had an impact on their relationship, as no evidence was led as to this. • Did Hidden J compel Mrs Khan to give evidence? Do you agree with his decision? Answer: No, he did not. Hidden J held that if Mrs Khan was required to give evidence, this would be likely to cause harm to her relationship with the accused of a nature and extent which outweighed the desirability of having her give evidence. 12. Complete the following table, explaining whether the sections apply to civil or criminal cases, the effect of each section, and the appropriate test. Section

Crim/civil

Effect

15

Both

Sovereign and others not compellable

16

Both

Judges and jurors not competent

Test

To give evidence in proceedings in which they were involved unless come within small exceptions

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Section

Crim/civil

Effect

Test

17(3)

Criminal

Associated defendant not compellable

To give evidence against defendant, unless being tried separately

18

Criminal

Some relatives of accused may object to giving evidence

Court considers the harm that might arise from the that might arise from the witness giving evidence and whether this harm is outweighed by the desirability of having the evidence given

19

Criminal

Some relatives of accused are compellable

Must come within an exception to s 18, which concerns specific breaches of Children (Care and Protection) Act 1987 (NSW) or Criminal Procedure Act 1986 (NSW)

13. Thomas and Eric are charged with the sexual assault and murder of Tulip. The prosecution counsel seeks advice as to what the outcome is likely to be if the defence objects to the prosecution plan to call as witnesses in chief the following witnesses: • the eight-year-old brother of Tulip who witnessed the crime; Answer: This concerns whether the brother is competent to give evidence. A consideration of ss 12 and 13 is required. • the 85-year-old grandmother of Tulip who also witnessed the crime but who was so shocked by the event that she suffered an irreversible mental breakdown so that she does not now recognise the members of her own family; Answer: This concerns whether the grandmother is competent to give evidence. In particular a consideration of ss 12 and 13 is required. • the wife of Thomas who may or may not be willing to testify but who would be able to give evidence about two matters: – a conversation she overheard between Thomas and Eric; Answer: There is a presumption that the wife is competent: s 12. There is a question of whether she is compellable. A consideration of ss 18, 19 and the case of R v Gulam Mohammad Khan (unreported, NSW Sup Ct, Hidden J, 22 November 1995) is required.

– her seeing Eric disposing of the murder weapon when her husband was not present. Answer: The wife would not be able to apply not to give evidence under s 18 in relation to this fact, as it does not concern her husband.

14. Read the following and discuss the evidentiary issues that arise. M, whose name has been suppressed to protect the victim of the offence, is charged with having sexually assaulted his nine-year-old daughter, Anna. The marriage between M and Anna's mother ended in divorce but all questions including custody, access and maintenance were resolved by agreement. The assault is said to have occurred during a weekend when Anna was staying with her father and his mother on an access visit. At the trial, Anna is called to testify for the prosecution. The prosecution asks that she should be sworn in the same manner as an adult witness but the trial judge rules that she should instead simply make a promise to tell the truth. Over defence objection Anna is seated behind a screen which prevents her from seeing the accused while testifying.

Answers to Questions

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Counsel for the prosecution asks the following questions: PQ1: You are nine years old, aren't you? PQ2: You went to visit your father last September, didn't you? The defence objects to these questions but the judge overrules the objections. PQ3: On the Saturday night, your father did something you didn't like. Isn't that correct? The defence objects again and this time the judge upholds the objection. The examination-in-chief of Anna continues, information about the offence is elicited and the defence commences cross-examination. Among the questions defence counsel asks are: DQ1: You told us that your father was watching a cowboys and Indians movie on TV when you entered the room. That's not right, is it? A: I think that's what he was watching. DQ2: I put it to you that there was no cowboy and Indians movie shown on television that night. A: I don't know.

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The prosecution objects to this line of questioning on the grounds of relevance, but the judge allows the questions to stand when assured that the defence will introduce evidence that the movies shown by the television channels on that night did not include any westerns. The prosecution also calls Mrs  M, Anna's grandmother. She was living with her son at the time of the alleged assault. Mrs M speaks very broken English, as she immigrated to Australia very late in life. She applies to the judge for permission to use an interpreter but this permission is refused. Mrs M tells the court that on the evening in question her son was watching television alone in the lounge room. She had gone to bed early because she had a headache. Anna was playing with her dolls in her bedroom when Mrs M went to bed. In cross-examination by the defence Mrs M is asked: DQ3: Is your son a good father? A: Oh, yes, he loves Anna very much. DQ4: Do you think your son would ever do anything to hurt his child? A: He would not hurt a hair on her head. Answer: In relation to Anna: There is a question of whether she is competent to testify. A consideration of ss 12 and 13 is required. As to the use of the screen, this is sanctioned by the Criminal Procedure Act 1986 (s 306ZH) and it is noted that children have a right to give evidence by closed-circuit television facilities. Chapter 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) defines a “vulnerable person” as “a child”. A vulnerable person is entitled to give evidence in chief in the form of a recording made by an investigation official (ss 306U and 306V). A vulnerable person is also entitled to give evidence by means of closed-circuit television

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(“CCTV”) and if CCTV is not available, they have a right to alternative arrangements for giving evidence (ss 306ZB, 306ZC and 306ZH). Vulnerable persons also have a right to the presence of a supportive person while giving evidence (s 306ZK). In relation to the prosecution questions, PQ1 and PQ2 would be allowed as they are introductory, even though they are technically leading questions: see s 37(1)(b). However, PQ3 is correctly not allowed as it is leading and relates to the main issue for Anna's testimony: s 37(1). In relation to the defence questions (DQ), the defence is attempting to answer the rule in Browne v Dunn (1893) 6 R 67, by providing Anna with an opportunity to explain a fact, which the defence is going to seek to disprove, thereby attacking her credibility and also her account of what occurred (that is, her evidence of the facts in issue). If Anna goes back on her original statement, then the defence is taken to have already discredited her and attacked her factual account. However, if she reaffirms her original statement, then the defence will be allowed to bring in evidence (that is, the television guide) to disprove what she has said. The television guide may be admissible under s 106 (if relevant only to credibility) or as an exception to the hearsay rule (if relevant to prove the television show that was actually on television: see Chapters 7 and 11.

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In relation to Mrs M: There is a question of whether the grandmother is competent and compellable. The grandmother may have reduced capacity to understand and for that reason not be competent: s 13. She may also not be compellable due to this reduced capacity under s 14. Under s 18, she may be able to object to giving evidence, as she is the mother of the accused. The judge must be sure that she understands her right to object: s 18(3). Then the judge must balance the harm that might be caused to their relationship and the importance of the evidence: see s 18(6) and (7). However, as this offence probably comes within one of the offences concerning abuse of children, the right to object to giving evidence under s 18 may well be lost under s 19. In relation to the interpreter, s 30 provides that a witness may use an interpreter, unless they can understand and speak English sufficiently. From the answers given by Mrs M, it would seem she can understand and speak English sufficiently and the refusal of the interpreter was correct. As to the questions asked of Mrs M, these questions introduce M's good character, which would then allow the prosecution to introduce evidence of his bad character: s 110. The prosecution will need to apply either s 110(2) or (3): see Chapter 12 at [12.10]. 15. Refer to R v Eagle in Chapter 20, and consider the evidentiary issues that arise from the following. The prosecution calls Jeremy Eagle as a witness. Jeremy has made a statement to police. The defence counsel objects to him giving evidence because of his incompetence. The trial judge states: I am satisfied that Jeremy can give evidence, any seventeen-year-old knows the difference between truth and lies and I direct that Jeremy gives evidence in the Crown case.

Answers to Questions

CHAPTER 21

The trial judge directs that Jeremy swear on the bible. Jeremy swears on the bible. The Crown Prosecutor commences examination-in-chief of Jeremy. Crown Prosecutor: Are you Jeremy Eagle? Jeremy: Yes. Crown Prosecutor: What happened on 21 January 2015? Jeremy: I don't know, I can't remember, I don't want to give evidence. Crown Prosecutor: Jeremy, did you read the statement that you made to the police officer on 28 February 2015? Jeremy: No. Crown Prosecutor: Your Honour, I seek leave for the witness to refer to his statement and read it aloud. Answer:  The assumption by the judge that a seventeen-year-old is competent should have been tested. Section 13(1) and (3) needs to be considered on the voir dire. The prosecutor seeks leave under s 32 for Jeremy to revive his memory in court. Also consider s 38 (and s 192) if, after referring to his statement, Jeremy is an unfavourable witness. Refreshing memory 1.

What does s 32 provide?

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Answer: Documents may not be used to revive memory in court unless the court gives leave. Also consider s 192. 2.

When would a witness need to revive memory? Answer: If s 32(2)(a) and (b) are satisfied. Also, note that s 192 should be considered in granting “leave”.

3.

How could memory be revived? Answer: Under s 32(3), the witness can read the document aloud to revive memory in the witness box. Under s 33(1), police officers in criminal proceedings can also read aloud a statement made by the police officer at the time or soon after the occurrence of the events to which the statement refers. Memory can also be revived by things outside of court, for example, reading a document or undergoing hypnosis.

4.

What are the consequences if a witness attempts to revive his or her memory out of court? Answer: This requires a consideration of s 34. The court can require documents used to refresh memory to be produced to another party.

5.

Cindy has defaulted on a loan given to her by Big Bank. Cindy claims she is not liable, as Big Bank misled her as to the terms and conditions of the loan. Her father, Colin, was with her when she went to Big Bank and signed the documentation. He is called by Big Bank to give evidence. In examination-in-chief he is asked: “What discussions did you have with your daughter concerning the loan?” He replies: “I don't know. I don't remember that time at all. I'm getting a bit old and my mind is a blank.” When questioned further he persists in saying he is unable to recall anything.

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In examination-in-chief, what steps can the lawyer for Big Bank take to try to overcome Colin's apparent lack of memory? What steps can the lawyer for Cindy take in response to the steps the lawyer for Big Bank takes to overcome Colin's apparent lack of memory? Answer: The lawyer can seek leave under s 32 for Colin to refresh his memory from any documentation he may have made. This would require a consideration of the factors a court takes into account when deciding whether to grant leave: s 32(2). The other side may then request the document is produced to them. It will not be necessary for it to be tendered as evidence: s 35. Alternatively, the lawyer could seek leave to cross-examine Colin under s  38, if it is thought that he is not genuinely trying to recall the information. Examination 1.

What was the result of the trial judge's questioning of the accused in R v Esposito (1998) 45 NSWLR 442? Answer: The New South Wales Court of Criminal Appeal found that the trial judge's intervention and questioning of Ms Esposito was inappropriate and excessive. It risked a fair trial, in appearance and fact. The appeal succeeded, the conviction was quashed and a new trial ordered.

2.

What is a leading question? Read the questions asked by the trial judge in R v Esposito (1998) 45 NSWLR 442 and identify whether they are leading or not.

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Answer: See definition in the Dictionary to the Evidence Act. The questions at page 462 of the judgment are not leading. The questions at page 465 of the judgment are leading. 3.

What are the limits on the examination of witnesses? Answer: See mainly s 37. Of course, the answer to the question must be admissible under Ch 3 of the Act.

4.

When does s 37(1)(e) apply? Answer: It applies to expert witnesses when asked a question about a hypothetical.

“Unfavourable” witnesses 1.

What does “unfavourable” mean in the Evidence Act 1995? Answer: “Not favourable”, according to R v Lockyer (1996) 89 A Crim R 457.

2.

Does s 165 have any role to play in relation to s 38? Answer: Evidence given by an “unfavourable” witness may be “unreliable” and therefore need a warning under s 165. The Judicial Commission of New South Wales’ Criminal Trial Courts Bench Book suggested direction is as follows: [If the judge wishes to explain the usual circumstances under which crossexamination occurs the following may be said: In the usual case the party who calls a witness is not permitted to cross-examine the witness:  that is, the party cannot seek to test the honesty or accuracy of the witness about the evidence given by [him/her]. In the usual case it is the opposing party who has the right to test a witness by cross-examination.]

Answers to Questions

CHAPTER 21

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However, in relation to the witness, [name of witness], I  permitted the Crown to ask [him/her] questions concerning the evidence given by [him/her] in light of a statement that [he/she] had previously made. This was because it appeared to me that there was some inconsistency between the evidence given initially by [name of witness] when called by the Crown and what [he/she] said in the statement. As with all witnesses, it is a matter for you to decide what if any of [name of witness] evidence you accept as honest and reliable. You can conclude that, in spite of the previous statement made by [name of witness], the evidence given by [him/her] in Court should be accepted, either wholly or in part, and be used by you in reaching your verdict. On the other hand you may, having regard to all the circumstances in which [name of witness] statement was made, choose to accept it either wholly or in part instead of the evidence given by [him/her] in Court. You can also choose to accept some part of what [name of witness] said in Court and what [he/she] said in the statement as long as you make your decision logically, rationally and by applying your common sense. You can also reject everything [name of witness] has said about this matter. As I said earlier it is a matter for you to decide what, if any, of [name of witness] evidence that you accept as honest and reliable. [If necessary add In relation to the statement made by the witness you will take into account that it was of course not on oath. Further, I warn you that it may be unreliable because [state reasons by reference to s 165 Evidence Act].] (http:// www.judcom.nsw.gov.au/ publications/ benchbks/ criminal/ unfavourable_ witnesses.html). 3.

What is the procedure to be followed when using s 38? Answer: The party who has called the witness examines the witness in chief. The party may seek leave to cross-examine the witness under s  38(1). The judge may then hold a voir dire to consider whether leave should be granted following s  38(6) and taking into account the factors in s 192(2). If leave is granted, then the witness will be crossexamined by the party. The witness will then be cross-examined by the other side. Reexamination may be possible: s 39.

4.

What discretion is given to the judge in relation to s 38 in s 38(6) and s 192? Answer: The court must consider whether to grant leave or not. Section 38(6) and s 192 provide considerations that should be taken into account.

5.

If a party has called an “unfavourable” witness and has a prior inconsistent statement made by that witness, can the statement be introduced into evidence if it is only relevant to credibility? If so, how? (See ss 38(1)(c), 102, 103, 43, 106.) Answer:  If the unfavourable witness has made a prior inconsistent statement, they should be asked about that statement and whether there is an explanation: see s 43. This will be to attack the credibility of the witness. If the witness continues to deny the prior inconsistent statement, then according to s 43 the prior inconsistent statement, if written, can be produced to the witness. If they continue to deny it, then the statement can be tendered to the court: s 106.

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6.

Read R v Hogan [2001] NSWCCA 292 and answer: (a) What was the ground of appeal that concerned s 38? Answer:  The Crown should not have been allowed pursuant to s  38 to crossexamine the two Crown's witnesses and introduce evidence that was inconsistent with parts of their testimony. (b) How did the trial judge apply s 38 to Colby's evidence, ie: (i) why did s 38 apply to Colby's evidence; (ii) what cross-examination was allowed by the trial judge? Answer: Rachel Colby's evidence in chief was inconsistent with her statement to police, it was also unfavourable. Kathleen Colby's evidence in chief was unfavourable. The judge did not specify the ambit or bounds of cross-examination. (c) Did the Court of Criminal Appeal (CCA) find that the cross-examination pursuant to s 38 was permissible? Answer:  No, the cross-examination should have been limited. The judge should have considered the ambit of cross-examination when granting leave. (d) What did the CCA find that the trial judge should have done?

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Answer:  The judge should have applied ss  38 and 192. The judge should have analysed whether s 38(1)(a), (b) or (c) were the bases or basis of leave, and applied s 38(6). The judge failed to address the statutory criteria and this was an error that gave rise to a miscarriage of justice. 7.

Read R v Le (2002) 130 A Crim R 44; 54 NSWLR 474 and answer: (a) What did the appellant submit was an error in the trial? Answer:  Section  192 was not applied when granting leave under s  38 to crossexamine. (b) Did the CCA allow the appeal? Why? Answer: No, because failure to apply the provisions in the circumstances of the case did not result in a miscarriage of justice. (c) What is the effect of [67] of the judgment? Answer: Cross-examination under s 38 can be directed to one of the three subjects described in s 38(1) or on matters relevant to attacking the witness's credibility in the s 38(1) subjects.

Cross-examination 1.

What does s 40 provide? Answer: If a witness is called in error and not questioned, that person cannot be crossexamined by the other party.

2.

What is an improper question in cross-examination? Answer: Section 41 provides that a court will disallow a question that is misleading or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

Answers to Questions

3.

CHAPTER 21

Can leading questions always be used in cross-examination? See s 42. Answer:  Generally leading questions are permissible in cross-examination. However, according to s 42 a court may disallow them in certain circumstances.

4.

Can a cross-examiner raise matters which have not been raised by the witness in examination-in-chief? Answer: Yes, any matters may be raised in cross-examination.

5.

Are there limits on the way a cross-examiner questions a witness? Answer: There are limits provided by ss 41 and 42. A barrister also has ethical and professional restrictions on his or her behaviour provided in the Bar Rules.

6.

Identify the types of documents that could be used to cross-examine a witness. Answer: A document made by the witness (it may contain a prior inconsistent or consistent statement) or a document not made by the witness (it may contain a previous representation of another person).

7.

What provisions in the Evidence Act 1995 apply to the adducing of cross-examination on documents? Answer:  Sections  42, 43 and 44 apply to the adducing. Chapter  3 sections apply to admissibility.

Browne v Dunn

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1.

What is the rule in Browne v Dunn (1893) 6 R 67? Answer: If a party is going to contradict a witness's testimony, then the witness must be given the opportunity to explain the seeming contradiction.

2.

Why does the rule exist? Answer: It is a rule of procedural fairness. It permits the denial of case on oath. It provides an opportunity to call corroborative evidence which in the absence of a challenge is unlikely to be called. It also allows the explanation or qualification of other evidence upon which the challenge is based.

3.

What are the remedies for a breach of the rule? Answer: Section 46 provides that where there is a breach of the rule, a party may be given leave to recall a witness. However, there are other possible remedies, such as excluding evidence adduced in breach of the rule, limiting use of evidence adduced in breach of the rule, adverse inferences may be drawn from breach of the rule, the party in breach may be prevented from contradicting the testimony in the closing address. In Scalise v Bezzina [2003] NSWCA 362, Mason P (Santow JA, Brownie AJA agreeing) stated at [97]: The rule in Browne v Dunn is not a preclusive rule of evidence. Its breach does not necessarily dictate that evidence may be not be called in contradiction. Rather, if it appears during the course of the trial that the rule has been offended and that unfairness may result, the judge has a discretion as to how best to remedy the unfairness so that the trial does not miscarry. The steps available to the judge include permitting witnesses to be recalled (Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556; Archer v Richard Crookes Constructions Pty Ltd, 1997, 15 NSWCCR 297 at 303). This is not to deny that one remedy available in a proper case is to preclude the party in

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default from addressing on a particular subject upon which the opposing party was not cross-examined (Payless).

4.

How was the rule breached in Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551? How was it breached in Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362? Answer: There was no challenge during cross-examination of O'Gara to her evidence that there were grapes on the floor. Later the defendant sought to disprove the plaintiff's evidence that there were grapes on the floor by the store manager's evidence that there was “nothing on the floor”. Thus O'Gara was not given the opportunity of answering the claim that there were no grapes on the floor. In Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, the defendant did not cross-examine the plaintiff about her evidence that she intended to work until age fifty-five, and therefore the jury were bound to accept the plaintiff’s evidence on that point.

5.

How was the rule breached in R v Birks (1990) 19 NSWLR 677? Answer: Inexperienced defence counsel failed to put the accused's version of the facts to the complainant. When the accused testified, he was cross-examined extensively concerning his version of events on the basis that it was a recent invention that had not been suggested to the complainant when she testified.

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6.

Which remedy was applied in Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551? Which one in R v Birks (1990) 19 NSWLR 677? Which remedy in Khamis v Regina [2010] NSWCCA 179? Answer: In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551, the evidence was excluded by a trial judge direction to the jury. In R v Birks (1990) 19 NSWLR 677, the jury were invited to draw an adverse inference from the failure of defence counsel to cross-examine the complainant about two matters. In R v Birks (1990) 19 NSWLR 677, a new trial was ordered, as there had been a miscarriage of justice by the trial judge applying the rule in Browne v Dunn (1893) 6 R 67 because the breach was due to the incompetence of the defence counsel. In Khamis v Regina [2010] NSWCCA 179, the trial judge cured the breach of rule by excluding the evidence that was not put to the witnesses. The appellate court found that this evidence was critically important and should have been lead and the witnesses could have been recalled under s 46 or under the court’s general power. In Khamis v Regina [2010] NSWCCA 179, Whealy J stated at [42] that “a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it”.

7.

What factors might be relevant to explain the difference between the outcome in Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 and the outcome in R v Birks (1990) 19 NSWLR 677? Answer: In Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551, the court was only in town for a short period, and there was not sufficient time to allow a witness to be recalled. R v Birks (1990) 19 NSWLR 677 was a criminal case, where the liberty of an individual was at stake. Furthermore, the mistake was due to the inexperience of the accused's counsel, and so the accused should not suffer from this.

Answers to Questions

8.

CHAPTER 21

How should a trial judge determine the consequences for a breach of the rule in Browne v Dunn (1893) 6 R 67 in criminal cases where defence counsel has breached the rule? Answer:  The rule needs to be applied with care when considering the conduct of the defence in a criminal trial; see R v Birks (1990) 19 NSWLR 677 and MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74. Further, “in each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country”: per Gummow, Kirby and Callinan JJ in MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 at [41].

9.

What does s 46 provide? Answer: It provides that where there is a breach of the rule a witness may be recalled.

10. Who recalls a witness under s 46? Answer: The party recalls the witness, with leave of the court. The party that originally called the witness recalls the witness under s 46. 11. Does s 46 replace the rule in Browne v Dunn (1893) 6 R 67?

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Answer: No. Other remedies exist at common law such as: •

Allow party who called the witness to re-open its case to lead evidence to rebut the contradictory evidence or corroborate the evidence of the witness. While not falling within the scope of this provision, there is no doubt that a court may permit this under the common law. In a criminal case, it may not be appropriate to grant leave to re-open if to do so would breach the obligation of the prosecution not to split its case.

•

Excluding evidence adduced by the party in breach of the rule. Under the common law, there is authority that a court may reject evidence adduced by the party in breach of the rule (Payless). It appears to have been the intention of the ALRC that a court would not be entitled to take this course. However, the provision does not expressly prohibit it and it might be argued that the general powers of a court to control the conduct of a proceeding and ensure fairness (maintained in s 11) would permit evidentiary exclusion (without breach of s 56). Alternatively, reliance might be placed on the discretions to exclude evidence (particularly evidence which might be “unfairly prejudicial”) in Pt 3.11 [See R v McCormack (No 3) [2003] NSWSC 645]. Certainly, the Full Court of the Federal Court has proceeded on the assumption that, in appropriate circumstances, evidence may be excluded on this basis (even where the party in breach of the rule was unrepresented [Eastman v The Queen (1997) 76 FCR 9]). Similarly, the NSW Court of Appeal considers that rejection of evidence is possible, although it has observed that there is no “absolute proposition that evidence may not be called in contradiction of an opponent’s case unless that opponent’s witnesses were relevantly cross-examined” [Fleet v District Court of NSW [1999] NSWCA 363 at [64]]. The position in criminal cases was considered by the NSW Court of Criminal Appeal in Khamis v The Queen (2010) 203 A Crim R 121; [2010] NSWCCA 179, where it was held that defence evidence may be excluded where there has been a breach of the rule, but only where alternative less drastic remedies had been considered and rejected on the basis that they could not

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prevent unfairness (at [45], [48]). It is the “last resort” (at [53]). One situation where it might be appropriate to consider exclusion would be if the witness not properly cross-examined could not be recalled [See Khamis v The Queen (2010) 203 A Crim R 121; [2010] NSWCCA 179, Whealy J (Campbell JA and Simpson J agreeing) at [52]]. Consideration of alternative less drastic remedies (such as witness recall pursuant to this provision) would also be appropriate in civil proceedings [See Pasqualotto v Pasqualotto [2013] Aust Torts Reports 82-125; [2013] VSCA 21, Osborn JA at [271]]. •

Limiting use of evidence adduced by the party in breach of the rule. For example, where hearsay evidence of a particular event has been admitted and there has been no cross-examination regarding the truthfulness of the person who made the outof-court representation or the witness giving evidence of it, it may be appropriate to allow contrary evidence of the event but (using s 136) to prevent its use to challenge the truthfulness of either person.

•

Cross-examination of the party in breach. A  party who testifies may be crossexamined on apparent differences between his or her evidence and the case as presented in his or her counsel’s cross-examination of opposing witnesses [R v Scott [2004] NSWCCA 254 per Hulme J at [60] (Sully and James JJ agreeing); Paterson v The Queen [2004] WASCA 63; Oldfield v The Queen (2006) 163 A Crim R 242; [2006] NSWCCA 219 at [40] – [45]]. Indeed, in cases where it is intended to contrast that failure with evidence subsequently given by a party (see (h) below), the rule in Browne v Dunn (1893) 6 R 67 itself makes it obligatory to put to the party the inferences or conclusions which it will be suggested should be drawn, in order that the party may provide such explanation as he or she is able to provide [R v Scott [2004] NSWCCA 254 at [62]]. However, the circumstances must justify proposed cross-examination on an apparent inconsistency [R v Dennis [1999] NSWCCA 23]. Further, the cross-examination must be relevant to an issue or, if relevant only to the credibility of the party, there must be compliance with the requirements of Pt 3.7 [R v Scott [2004] NSWCCA 254 at [72] – [73]]. Questions of client legal privilege may arise [See Llewellyn v The Queen [2011] NSWCCA 66, Garling J at [140]; Lysle v The Queen [2012] NSWCCA 20 at [33]–[44]]. A suggestion should not be put in cross-examination of the party in breach that the mere failure to cross-examine an opposition witness on some topic necessarily leads to an adverse inference to the party [Picker v The Queen [2002] NSWCCA 78]. Any cross-examination that has been permitted may require, in a jury trial, careful directions to the jury (see (h) below). Re-examination may be permitted on the issue whether there has been a breach and, if there has, any issue of credibility arising.

•

Prevent the party in breach of the rule from relying on the challenge to the testimony not put to the witness in cross-examination [Reid v Kerr (1974) 9 SASR 367 at 375 per Wells J; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 (CA) at 221–223 per Glass JA; R v Birks (1990) 19 NSWLR 677 at 690; Knight v Maclean [2002] NSWCA 314, Heydon JA at [34]; SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132, per McColl JA at [140] (Gleeson JA and Sackville AJA agreeing).]. It would appear from the judgment of the High Court in MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 that this consequence would not be available in a criminal proceeding where the defence had failed to cross-examine the prosecution witness in breach of the rule [MWJ v The

Answers to Questions

CHAPTER 21

Queen (2005) 80 ALJR 329; [2005] HCA 74 per Gleeson CJ and Heydon J at [19]; Gummow, Kirby and Callinan JJ at [39]. See also R v Rajakaruna (No 2) (2006) 168 A Crim R 1; [2006] VSCA 277 at [54] fn 43; CMG v The Queen (2013) 234 A Crim R 455; [2013] VSCA 243 at [64]–[74]]. On the other hand, the breach of the rule may be “taken into account” (see below).

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•

Taking into account the failure to cross-examine. In the absence of a challenge, the court is entitled to treat the party as taking no issue with the accuracy of the witness’s account (thereby adopting it) [Chong v CC Containers Pty Ltd [2015] VSCA 137 at [201]–[204]]. Where evidence is subsequently given contrary to the evidence of the witness, the tribunal of fact should take into account the fact that the witness has been unfairly deprived of the opportunity to give evidence (and the court to receive evidence) dealing with the particular matter not cross-examined upon [Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1983] 1 NSWLR 1; R v McNamara (unreported, NSW CCA, 15 December 1995); R v McDowell [1997] 1 VR 473 at 482; R v Foley [2000] 1 Qd R 290; (2000) 105 A Crim R 1; Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773 at [51]–[53] (Fed Ct FC); McDonald v Livestock Transport (Sydney) Pty Ltd [2003] NSWCA 166 at [25]; R v Rajakaruna (No 2) (2006) 168 A Crim R 1; [2006] VSCA 277 at [49]; R v SWC (2007) 175 A Crim R 71; [2007] VSCA 201 at [15]; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; [2010] VSCA 30; CMG v The Queen (2013) 234 A Crim R 455; [2013] VSCA 243 at [64]– [74]. In MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74, Gummow, Kirby and Callinan JJ stated at [39]: “One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it” [See also Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773 at [51]]. Prima facie, unchallenged evidence should be accepted by a tribunal of fact, although a court is not bound to accept such evidence [Precision Plastics Pty Ltd v Demir 132 CLR 362; [1975] HCA 27; Hull v Thompson [2001] NSWCA 359; see also Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [38], citing Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 per Kirby P at 590; Ashby v Slipper (2014) 219 FCR 322; 312 ALR 551; [2014] FCAFC 15, Mansfield and Gilmour JJ at [78]]. In Knight v Maclean [2002] NSWCA 314, Heydon JA (with whom Meagher JA and Young CJ in Eq agreed) observed (at [35]) that “it would not be unreasonable” to accept the evidence of a witness who has not been challenged in cross-examination, even if contradictory evidence has been adduced [See also SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132, per McColl JA at [140], [145]]. The tribunal of fact may give no, or less, weight to evidence adduced to contradict the witness and no, or less weight to an inference sought to be drawn which was not put to the witness [Smith v The Queen [2012] VSCA 187 at [53]]. A criticism of the evidence of the witness may be given significantly less weight where it was not raised with the witness [Wilson v Tasmania [2017] TASCCA 11 at [41]–[45]]. Of course, the court is not required to prefer the evidence of the witness to the contradictory evidence [Bulstrode v Trimble [1970] VR 840 at 849; Spencer v Bamber [2012] NSWCA 274 at [134]; WAQ v Di Pino [2012] QCA 283 at [30], [37]]. Where there is no contradictory evidence, the Victorian Court of Appeal observed in

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Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; [2010] VSCA 30 at [20] that the evidence of the witness “ought” to be accepted, “in the absence of a good reason not to”. As regards such a “good reason”, the opinion evidence of an expert, for example, may be rejected where it is illogical or inherently inconsistent, or where it is based on an incorrect or incomplete history, or where the assumptions on which it is founded are not established [Hull v Thompson [2001] NSWCA 359 at [21]; Roach v Page (No 37) [2004] NSWSC 1048 at [374]; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; [2010] VSCA 30 at [20]; Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 4) [2010] FCA 482 at [90]–[91]]. However, principles of procedural fairness may require the party that called the witness to be given notice that the unchallenged evidence may be rejected and the reasons for that (so that the party has the opportunity to argue to the contrary [Nominal Defendant v Saleh (2011) 57 MVR 412; [2011] NSWCA 16 at [142]].

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On the other hand, where an application was made to have the witness recalled so that the matter could be put to the witness, and the application refused, this must also be taken into account [R v Burns (1999) 107 A Crim R 330 per Muir J at [38], Pincus JA at [11]]. A submission based on a failure to cross-examine will be “very much weakened” if an offer to permit the re-call of the witness for further crossexamination is not taken up [Gruber v Blake (2003) 39 MVR 465; [2003] NSWCA 256 at [16]; Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 at [147]]. A  failure by the opposing party to complain about the breach may have implications for how the tribunal of fact approaches the matter [See Bale v Mills (2011) 81 NSWLR 498; 282 ALR 336; [2011] NSWCA 226 at [62]–[68]]. •

Adverse inferences may be drawn [R v Robinson [1977] Qd R 3877; R v Birks (1990) 19 NSWLR 677 (CCA); R v Foley [2000] 1 Qd R 290; (2000) 105 A Crim R 1; R v Morrow (2009) 26 VR 526; 213 A Crim R 530; [2009] VSCA 291; Chong v CC Containers Pty Ltd [2015] VSCA 137 at [203]–[204]]. The terms in which a party’s counsel cross-examines a witness for the opposite side may be taken to reveal the version of events with which the party has instructed that party’s counsel. If the party testifies inconsistently with that inferred version, it might then be inferred that the party’s account has changed. However, this should be approached with caution, particularly in criminal trials. In R v Birks (1990) 19 NSWLR 677 at 691, [See also R v Von Rijssen (1995) 77 A Crim R 566 (NSWCCA); R v Burns (1999) 107 A Crim R 330 at [40]–[41] per Muir J; Oldfield v The Queen (2006) 163 A Crim R 242; [2006] NSWCCA 219 at [40]; Turnell v The Queen [2006] NSWCCA 399 at [50]. Gleeson CJ adopted the following remarks of King CJ in R v Manunta (1989) 54 SASR 17 at 23:  It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned.

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Answers to Questions

CHAPTER 21

The Victorian Court of Appeal accepts that only “rare cases” warrant a direction “suggesting that non-compliance with the rule could support recent invention and thereby affect the credibility of the accused” [R v Morrow (2009) 26 VR 526; 213 A Crim R 530; [2009] VSCA 291 at [62]–[70]; RR v The Queen [2011] VSCA 442 at [68]]. Thus, a judge should not normally suggest to any jury that the mere failure to cross-examine necessarily leads to an adverse inference to a party, for there may be other explanations for the failure [R v Manunta (1989) 54 SASR 17 at 23 per King CJ (FC); R v Birks (1990) 19 NSWLR 677 (CCA); RWB v The Queen (2010) 202 A Crim R 209; [2010] NSWCCA 147 at [101]; Giourtalis v The Queen [2013] NSWCCA 216 at [45]]. If the suggestion is made to the jury, they should usually [See R v Banic [2004] NSWCCA 322 at [27]; R v SWC (2007) 175 A Crim R 71; [2007] VSCA 201 at [19]; R v Smart [2010] VSCA 33 at [114]] be warned that other inferences that are not adverse to the defendant (such as misunderstanding or error on the part of the defendant’s counsel) might be drawn [R v Manunta at 23; R v Birks (1990) 19 NSWLR 677; R v McLachlan [1999] 2 VR 553; [1999] VSCA 127 at [50]; R v Abdallah [2001] NSWCCA 506; R v GED (2003) 141 A Crim R 135]. Indeed, the defendant’s counsel may submit in final address “that the omission might be explained by oversight or error on his part or by other reasonable explanations that bore upon whether the jury should draw the inference that the applicant’s evidence was an afterthought” [R v Thompson (2008) 21 VR 135; 187 A Crim R 89; [2008] VSCA 144 at [121]]. The nature of the permissible inference should be carefully identified [In R v Burns (1999) 107 A Crim R 330 the only permissible adverse inference related to the evidence of the defendant’s father, not the defendant]. The jury should not be directed that counsel necessarily is acting on instructions – they should be cautioned that counsel has a wide discretion as to the manner in which a trial is conducted and is not a mere “mouthpiece” for the client [R v Birks (1990) 19 NSWLR 677 at 691–692]. They should not be directed that counsel only puts allegations in cross-examination where he or she knows or is confident that evidence will be given to support the allegations [R v Lawrence (unreported, NSW CCA, 19 April 1979); R v Statham (unreported, Qld CA, 28 April 1994); R v Abdallah [2001] NSWCCA 506]. The circumstances may also require a jury to be directed that no burden of proof is cast upon the defendant. Where a defendant is not legally represented, it would ordinarily be inappropriate to apply the normal rule [R v Zorad (1990) 19 NSWLR 91; R v Birks (1990) 19 NSWLR 677 at 688 per Gleeson CJ. However, for a far from ordinary case, compare Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 at 82–103 (Fed Ct FC)]. Equally, no inferences should be drawn from any such failure by the defence at a committal hearing [R v Birks (1990) 19 NSWLR 677 at 689 per Gleeson CJ]. It would be inappropriate to permit an adverse inference where there was an opportunity to put the suggested inference to the party and it was not taken (thus depriving the party of the opportunity to provide such explanation as he or she is able) [R v Thompson (2008) 21 VR 135; 187 A Crim R 89; [2008] VSCA 144 at [66], [116]–[119]; R v Morrow (2009) 26 VR 526; 213 A Crim R 530; [2009] VSCA 291 at [70]. Where there has been cross-examination of the party in breach of the rule, and the party concedes that there was a breach because his or her counsel was not informed of the account ultimately given in evidence, there is no need for cautionary directions [Parsons v The Queen [2016] VSCA 17 at [36], [47]].

Part 5 — Case Files and Answers to Questions

•

Discharge jury. In some circumstances, problems created by breach of the rule may be incurable, so that nothing can be done to prevent a miscarriage of justice arising from the breach [R v SWC (2007) 175 A Crim R 71; [2007] VSCA 201 at 76; [24]; Reza v Summerhill Orchards Ltd (2013) 37 VR 204; [2013] VSCA 17 at [46]–[74]]. In other circumstances, breach of the rule may be curable by, for example, directions to the jury given by the judge [De Vries v The Queen [2013] VSCA 210 at [21]–[39]; CMG v The Queen (2013) 234 A Crim R 455; [2013] VSCA 243 at [194]–[216]; Mitchell v The Queen [2016] VSCA 197 at [74]–[75]].

The above is extracted from Odgers, Uniform Evidence Law 13th Edition [EA.46.150]. 12. What is a common way in which a lawyer phrases a question to cover the effect of the rule? Answer: “I put it to you, that …” 13. Does the Evidence Act 1995 permit the court to direct the jury to reject relevant evidence due to the breach of the rule? Answer: Under s 11 the court has power to run a case to ensure it is run fairly. 14. You are defence counsel in a sexual assault trial. After you have completed crossexamining the complainant, you realise that you have forgotten to put a vital part of your client's instructions to the complainant in cross-examination. What should you do?

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Answer: You should inform the judge at the earliest opportunity, and seek leave to recall the witness under s 46. 15. Refer to Strom v Council for the Shire of Cremorne in Chapter 20. If the Council planned to call Mr Sam Ross (see Document 8), should they mention the substance of his testimony to Jack Strom when they are cross-examining him? Would there be any consequences if the Council does not, and then wants to call Sam Ross? Answer:  There could be a breach of the rule in Browne v Dunn (1893) 6 R 67. The Council may not later be able to call Sam Ross to contradict the evidence. Alternatively, Jack Strom may have to be recalled under s 46. Interpreters 1.

Read R v Eagle in Chapter 20. What application should the Crown Prosecutor make due to the fact that Maria-Rosa Dominguez speaks “broken English”? Answer: Under s 30, a request could be made for an interpreter. However, an interpreter cannot be used for some parts of testimony and not others. So, if Maria-Rosa understands and speaks English sufficiently to make “adequate” replies to questions, she will not be entitled to an interpreter.

Re-examination 1.

How can a witness be re-examined? Answer:  Section  39 provides that a witness may be questioned about matters arising from cross-examination.

2.

At what stage in the proceedings is a witness re-examined?

Answers to Questions

CHAPTER 21

Answer: This usually occurs directly after cross-examination. However, witnesses can be recalled to be re-examined and this can occur not directly after cross-examination. 3.

Can leading questions be asked in re-examination? Answer: Generally, no. The party must ask questions in the same way they would ask questions in examination-in-chief.

Reopening the case 1.

In what circumstances can a party reopen its case in civil proceedings? Answer:  Where the “interests of justice” allow it. See Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471.

2.

What is the test for the prosecution being able to reopen its case? Answer: Generally, the prosecution is not allowed to reopen the case after the defence has completed its evidence. R v Chin (1985) 157 CLR 671 provides a basic rule that the prosecution should present its case completely and not split its case by calling evidence in reply to the defence case where it could have anticipated that the defence would raise such an issue.

3.

Give examples of the circumstances where the prosecution may seek leave of the court to reopen its case. Answer: The defendant may raise evidence of good character and the prosecution may seek to call evidence of the defendant's bad character in a case in reply. The prosecution may also seek to reopen its case in circumstances to recall a witness: see s 46.

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4.

When can a defendant in a criminal trial reopen its case? Answer: Before there is a verdict and when the interests of justice so require it.

CHAPTER 3 1.

What does s 51 do? Why? Answer: Section 51 abolishes the “best evidence” and original document rules, because it is thought there is no longer the concern with having the originals. For example, today's technology allows accurate copies. However, it is noted that in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15, Gummow, Callinan and Crennan JJ observed at [4]: Despite criticism of it [see Wigmore on Evidence (1972), vol 4, §§1173–1175], the “best evidence rule” [Omychund v Barker (1744) 1 Atk 21 at 49 per Lord Hardwicke LC [26 ER 15 at 33]: “The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit.”] has not fallen completely into desuetude. Subject to the exigencies of litigation, the circumstances of the parties [see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454 [36] per Gleeson  CJ, Gummow and Callinan  JJ], and the other settled and statutory rules of evidence, it has vitality. An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available.

2.

How is “document” defined in the Evidence Act 1995? Answer: “Document” is defined very broadly. The Act's Dictionary provides that a document includes any record of information. A reference to a document is defined to include

Part 5 — Case Files and Answers to Questions

“any copy” etc of the document. Section 48 further provides that a copy of a document can be a “document”. 3.

What must be the purpose of introducing a document for the rules under the Evidence Act 1995 to apply? (See s 47.) Answer: The purpose of introducing a document is to prove its contents. So the party is interested in what the document says.

4.

If you are using documentary evidence for identification purposes, do the rules for introducing a document still apply? Answer: Not if you are using the document, not for its contents, but rather because it exists as a thing.

5.

Consider the different parts of s  48. How can the contents of a document be proved under s 48? Answer: The original may be produced, or any of the following: a copy, a tape, a transcript, a business record, a public document.

6.

If you have a transcript of a tape, can you play the tape in court? Answer: Generally, yes.

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7.

What did Butera v DPP (1987) 164 CLR 180; [1987] HCA 58 decide in relation to the admissibility of tape recordings and transcripts? Answer: A tape should be played for the trier of fact to hear it. Where the tape is indistinct, a transcript may be used to assist the trier of fact in the understanding of what is recorded on the tape. Where a tape is indistinct, a transcript made by an “ad hoc expert” may be used for this purpose. The transcript should be used as an aide-memoire, but priority should be given to what is heard on the tape.

8.

How did the different judges approach the admissibility of transcripts of foreign language that had been translated in Foreign Media v Konstantinidis [2003] NSWCA 161? Answer: Handley JA held the translation was “admissible” under s 48(1)(c). Tobias JA rejected a “literal” approach that might prevent a translated transcript from being admitted. Giles JA doubted that s 48(1)(c) applied, but concluded that the evidence was relevant and therefore admissible because no exclusionary rule excluded it.

9.

What can you do to prove a document if the original document is not available or is not in dispute? See s 48(4). Answer: A copy or oral testimony can be used to provide evidence of the contents of the document.

10. What does “unavailable” mean in s 48? Answer: The Act's Dictionary provides what is meant by “unavailability of documents or things”. A document will not be unavailable unless the relevant party has made reasonable inquiries or searches. A document may also be unavailable if it has been destroyed by the party (not in bad faith), or it would be impractical to produce the document, or it is not possible for the party to get possession of the document.

Answers to Questions

CHAPTER 21

11. What are the requirements of authentication? See NAB v Rusu (1999) 47 NSWLR 309 and Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355. Answer: See para [34] in particular of the judgment in NAB v Rusu (1999) 47 NSWLR 309, where the court stresses the need for a human witness for authentication. The Air New Zealand case takes a different approach, and Perram J considers that authentication can be dealt with in the context of relevance. 12. What does s 50 say about proof of voluminous or complex documents? Answer: These may be proved in summary form, if the court allows. 13. Are the following admissible as documents? Why/why not? •

•

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•

a photo of a letter; Answer: If the contents of the letter are sought to be proved then the photo could be adduced under s 48(1). Admissibility would be determined by Ch 3 of the Act. a tape recording; Answer: The tape can be adduced: see s 48(1)(c). Admissibility would be determined by Ch 3 of the Act. a CD-ROM containing business records? Answer: The CD can be adduced: see s 48(1)(d). Admissibility would be determined by Ch 3 of the Act.

14. Refer to R v Eagle in Chapter 20 and consider whether the following exhibits would be admissible in light of Ch 2 of the Evidence Act 1995: • hospital records produced on subpoena;

•

•

•

•

•

Answer: Records could be adduced: see s 48(1). Admissibility would be determined by Ch 3 of the Act. photographs of the samples of the fibres from the car; Answer:  Photographs could be adduced:  see definition of “document” in the Dictionary to the Act, s 48(1). Admissibility would be determined by Ch 3 of the Act. copy of Abby Star's will; Answer: The will could be adduced because its contents are sought to be proved, and a copy is acceptable under the definitions of document and s  48(1). Admissibility would be determined by Ch 3 of the Act. video security surveillance from 21 January 2015 in video tape form; Answer: The video could be adduced under s 48(1)(c). Admissibility would be determined by Ch 3 of the Act. English translation of Dominguez's taped conversation (in Spanish) to the police on 21 January 2015; Answer: The translation could be adduced: see s 48(1)(c) and Butera v DPP (1987) 164 CLR 180; [1987] HCA 58. Admissibility would be determined by Ch  3 of the Act. autopsy photos;

Part 5 — Case Files and Answers to Questions

•

•

•

Answer:  The photos could be adduced:  see definition of document and s  48(1). Admissibility would be determined by Ch 3 of the Act. copy of accountant's calculations which form basis of report; Answer: The copy could be adduced because its contents are sought to be proved, and a copy is acceptable under the definitions of document and s 48(1). Admissibility would be determined by Ch 3 of the Act. Abby Star's demo tapes from “Suicide Brunette”; Answer: The tape could be adduced: s 48(1)(c). Admissibility would be determined by Ch 3 of the Act. prescription from chemist for insulin. Answer: The prescription could be adduced: s 48(1). Admissibility would be determined by Ch 3 of the Act.

CHAPTER 4 1.

What is “real evidence”? Answer: Real evidence is evidence of things or places. It includes evidence that is not testimony and not documents.

2.

Does the common law have any operation for real evidence? See s 52 and Evans. Answer: Section 52 provides that the common law still operates.

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3.

Section 53 is titled “Views”. Does it deal with anything else? Answer: Section 53 also deals with demonstrations and experiments.

4.

What are “views”, “experiments”, “demonstrations” and “inspections”? Answer: Views are where the court visits a site that is relevant, eg the murder site. An experiment is where evidence is tested. A demonstration is where evidence is explained to the court in a visual way. An inspection is similar to a view.

5.

When will a judge order a demonstration, experiment or inspection? Answer: A party can apply for an order for a demonstration, experiment or inspection. These will be ordered if s 53 is satisfied.

6.

What must the judge at least consider? See s 53(3). Answer:  Section  53(3) provides a list of things a judge must consider when making a decision. The considerations listed include:  (a) whether the parties will be present; (b)  whether the court will be assisted in resolving issues or understanding evidence; (c)  dangers of prejudice, that the court might be misled or that time will be wasted; (d) the extent to which a demonstration will properly reproduce the conduct or event; (e) whether the place or thing inspected has materially altered.

7.

Can there be a view if the accused does not choose to be present? See R v Ivan Robert Marko Milat (unreported, NSWSC, 12 April 1996) and give reasons for your answer. Answer:  In R v Ivan Robert Marko Milat (unreported, NSWSC, 12 April 1996), the accused did not want to be present. The judge did not think that this would cause any unfairness. The presence of the parties is only one consideration to be taken into account.

Answers to Questions

8.

CHAPTER 21

Does s 53 apply to in-court demonstrations, experiments or inspections? What are the common law requirements? Did Heydon J hold that they applied to what happened in court in Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59? Answer: Section 53 does not apply to in-court demonstrations, experiments or inspections. The requirements are that the in-court demonstrations are relevant and not to be excluded by s 135 or s 137. Heydon J held that the events in court took place relatively quickly and were reasonably necessary for the prosecution’s case. So far as they were prejudicial, the prejudice lay in their probative value

9.

Can the jury experiment with evidence? See Kozul v The Queen (1981) 147 CLR 221; [1981] HCA 19 and give reasons for your answer. Answer: The jury can test evidence, but not experiment with it. In Kozul, the jury were allowed to test the ballistic’s expert’s evidence by holding the gun. The trial judge was permitted to test the pistol but the jury should not have conducted an experiment to discover the extent to which a blow to the hand might cause the trigger to move, because reactions of persons would be different depending on whether they were calm or under stress.

10. Can one party carry out experiments in court and present the results to the jury? Explain.

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Answer: No, experiments can only be carried out in court (or out of court but as part of the proceedings) after an order by the judge. If an out of court experiment was performed before the trial commenced then the judge may need to consider ss 55, 135 and/ or 79 to determine the admissibility of the results as evidence in the trial. 11. Was the conduct in R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 part of the deliberations? Why/ why not? Answer: No. 12. Was the conduct inappropriate? Give your reasons. Answer. Yes. The misconduct of the jurors caused the trial to miscarry. What the jurors did was not part of the deliberations of the jury. Neither was it evidence, which the parties could test and explain to the jury. The court could not be satisfied that the irregularity did not affect the result. 13. What use can be made of charts? See s 29(4). Answer: Evidence may be given in the form of charts, summaries or other explanatory material, if it appears to the court that this would help understanding of the facts. 14. Scott is on trial for the murder of Brown. In 1999, Brown was stabbed outside a cinema in Bourke. A witness saw Scott stab Brown in the arm and kick him in the stomach. The prosecution wishes the court to go and see the cinema. Scott is in custody for another offence. The defence will object to the view being conducted. Should the trial judge allow the view to take place? Answer: The benefit of the view would need to be explained. If identification of Scott is in issue, there may be some assistance gained by viewing the location. The fact that the murder took place in 1999 may also be a relevant factor. However, if there is a question of the light at the time of the murder, it may be difficult to ensure that the situation is replicated sufficiently: see s 53. The view may be prejudicial to the accused as Scott would

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be handcuffed as he is in custody: s 53(3)(c). Note that a view is evidence and the jury can draw any inference from what they see on a view: s 54. 15. Lee is on trial for kidnapping and attempted sexual assault upon a young boy named S. S alleges that while he was walking home from school, Lee forced him into a car and handcuffed him to the steering wheel. S also states that when Lee went out of the car to buy a drink he was able to escape from the handcuffs and run to a nearby police station. The handcuffs, over defence objection, are tendered into evidence. In summing up, the trial judge directs the jury that they should examine the handcuffs and “see if they could escape their hold”. Discuss. Answer: The handcuffs are real evidence. They may be relevant to prove the identity of Lee. It would be irrelevant for the jury to see whether they could escape the handcuffs as they would have different size wrists to S. The judge's direction is asking the jury to conduct an experiment in the jury room and is not permitted: s 53(4). 16. In the judgment in Strom v Council of the Shire of Cremorne (see Chapter 20) the judge mentions that the court took a view of the lookout. What would have been involved?

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Answer: A party must have made an application under s 53. The judge must then have been satisfied that the parties would have been given a reasonable opportunity to be present: s 53(2). Furthermore, the judge must have been satisfied that the view would have assisted the court in resolving the issues, the view would not have been unfairly prejudicial or have misled the court or wasted time. Also, the judge must have considered that the place would not have materially altered since the event. 17. In R v Eagle (see Chapter 20), the Crown Prosecutor makes an application for the judge and jury to take a view where the alleged murder is said to have occurred. The basis of the application is to enable the court to have an understanding of the dimensions of the house. Provide reasons for the permitting or refusal of a view. Answer: The court must consider s 53(2)(a) and (b). The view may assist the court in resolving issues of fact or understanding the evidence: see s 53(3)(c). On the other hand, a view may be unfairly prejudicial or waste time:  see s  53(3)(c). The court must also consider whether the place has materially altered: see s 53(3)(e). It does not appear that a view of the house is necessary for the court to understand the evidence; noting that police took photographs of the house, the application for a view would probably be refused.

CHAPTER 5 1.

To what must the test of relevance be applied? Answer: All pieces of evidence must be relevant to be admissible.

2.

Why do we have a test of relevance? Answer: To limit the amount of evidence that can be admitted, in the interests of cases being decided quickly and efficiently.

3.

What are the basic propositions about relevance adopted in s 56? Answer:  Evidence that is relevant is admissible. Evidence that is not relevant is not admissible.

Answers to Questions

4.

CHAPTER 21

To what must evidence be relevant? See s 55. Answer: Evidence must be relevant to the facts in issue, credibility of witnesses, admissibility of evidence or failures to adduce evidence.

5.

What other sections of the Evidence Act 1995 play a role in relation to relevance? Answer: Those sections dealing with discretions to exclude evidence, namely ss 135, 136, 137, 138. Note that other exclusionary rules in Ch 3 may also need to be considered.

6.

What does s 57 provide? Answer: Section 57 concerns provisional relevance. Basically, it is possible for a court to hold that evidence is relevant for the time being, until some additional evidence is proved.

7.

What does s 58 provide? Answer: A court can make any reasonable inference from documents or things, including inferences as to authenticity and identity.

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8.

Suncorp Pty Ltd is suing Jack Green for breach of contract. Suncorp wishes to tender the contract, a receipt book, a transcript of a tape recording and a photo. How can these documents be adduced as evidence? Answer: All of these pieces of evidence would be documentary evidence. Suncorp would need to show that the contract is relevant because it is the contract in question. The receipt book would only be relevant if it helped show there was a breach of contract. It is difficult without further facts to know whether this is the case. The transcript of the tape recording is a document and admissible under s 48(1)(c), if it is relevant. We would need to know what the tape recording concerned to decide if it is relevant. The photo again would only be admissible if it were relevant.

9.

Refer to R v Eagle in Chapter 20, and consider whether the following exhibits are relevant: •

autopsy photo depicting the syringe mark on the deceased's right arm; Answer: Relevant to cause of death but could probably be proved by autopsy report rather than photograph.

•

pre-nuptial agreement which states that “in the event of a divorce, Robert Eagle does not receive any money”; Answer: Relevant to motive for the murder.

•

financial report prepared by Star's accountant that states that Star's wealth is $150 million; Answer: Relevant to motive.

•

autopsy report which states that the cause of death was intravenous injection of insulin. The accused does not dispute the cause of Abby Star's death; Answer: Relevant to cause of death.

•

the red bag containing the needles and the vial of insulin; Answer: Relevant to linking accused with murder – the bag was found in his car. As an aside, do you think that the actual fibres collected from the car are relevant?

•

expert certificate that the vial found in the bag contains insulin; Answer: Relevant to cause of death.

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•

hospital records showing that the deceased was admitted to hospital in 2006, 2008 and 2009 for drug overdose caused by intravenous use of heroin. Answer: Relevant to defence case of suicide. Discloses the tendency of the deceased to self-inject.

CHAPTER 6 1.

Section

Effect

Requirements

Criminal/Civil

135

Judge may exclude

If probative value outweighed by danger of being unfairly prejudicial, misleading/confusing or might cause undue waste of time

Both

136

Judge may limit use of evidence

If use might be unfairly prejudicial or misleading/ confusing

Both

137

Judge must exclude prosecutor's evidence

If probative value outweighed by danger of unfair prejudice to accused

Criminal

138

Judge must exclude

If improperly or illegally obtained unless desirability of admitting outweighs undesirability of admitting evidence so obtained

Both

139

Judge must exclude statement given during questioning under s 138(1)(a)

If person under arrest, and not cautioned

Criminal

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Fill in the table below, providing the effect of the discretion, the requirements for the exercise of the discretion and whether the discretion applies to a civil or criminal case.

Consider the discretions and answer the following questions. • What are the types of “unfairness” giving rise to a discretion to exclude evidence? Answer: Unfairness can arise in circumstances where the evidence can be used in a way that is not the basis of the tender of the evidence. For example, a photograph of the deceased may be relevant to proving the cause of death, however the tender may produce unfairness to the accused as the jury may be emotionally swayed by the photograph. • As “unfairness” is not defined in the Act, what sort of meaning should it be given in the discretions to exclude evidence? Answer: It should be considered in terms of the fairness of the trial, in the sense that the trial does not involve a perceptible risk of a miscarriage of justice. • What does “unfair prejudice” mean in s 137? Answer: It means there is a real risk that the evidence will be misused by the jury in some unfair way, such as where a decision is made on an improper or emotional basis. • How is s 137 different from s 135? Answer: Section 137 applies only in criminal cases, and the judge must exclude the evidence if it is unfairly prejudicial to the accused. Section 135 covers issues such as the evidence being misleading or wasting time, in addition to evidence being unfairly prejudicial. • What are some examples of material that might be excluded under s 137? Answer: Very explicit photographs of a murder victim, multiple photographs of a victim's wounds. Bad character evidence that may be used as tendency evidence (and the evidence is not admissible under s 97).

Answers to Questions

3.

CHAPTER 21

Read the following and advise the DPP. Sam Brown is to be tried for murder. The prosecution will suggest that Brown abducted and murdered a 12-year-old boy named Jamie Green. Jamie was last seen on the morning of 1 July 2016 when he left home to go fishing. The Crown case is that Brown stopped Jamie as he was riding his bike and forced him into his van. There are witnesses who saw Brown talking to Jamie. It is alleged that Brown then drove Jamie to the park and murdered him about four hours later.

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You are working for the DPP and you must advise on the issues that arise out of the following facts:

4.

•

The body of Jamie Green was found in the Blue Mountains National Park. The photos were taken by Dr Wells from the Coroner's office. The photos show that Green had been mutilated. The defence have indicated that they agree that the deceased died in the way the prosecution allege. However, the defence have indicated they are strongly opposed to the photos being admitted in trial. A murder weapon has not been found. Answer:  The argument for admitting the photos is to prove the way Jamie died. However, since the defence agrees as to the manner of death, there is little to be gained by admitting the photos. The defence would argue that the photos are unfairly prejudicial under s 137, in that they might cause an emotional response from the jury, who would be distressed by what they have seen, and this might cloud their minds as to the possibility that Brown is not guilty.

•

After Brown was arrested the police searched his house without obtaining a search warrant. They found a helmet with the word “Jamie” on it. Answer: This real evidence would be relevant to prove that Jamie had been abducted by Brown as alleged. The evidence may be excluded under s 138 as the police did not obtain a warrant.

•

When the police arrested Brown he was watching an X-rated video. Answer: This evidence is not relevant to the prosecution case. It would only be relevant to Brown's character, and cannot be admitted unless Brown introduces evidence of his good character: see s 110. Even then, there is arguably little connection between the character of a person who watches X-rated videos and a murderer, and so it still may not be admissible, as it is too prejudicial; that is, its probative value is outweighed by its possible prejudicial effect.

Read the following and comment on the issues of relevance and admissibility that arise. Sam and Toby Ingraham are on trial charged with assault causing grievous bodily harm to Jack Vangs and the murder of Jack's wife and three children. These charges arose out of a home invasion perpetrated on the evening of 30 March 2017. Jack Vangs testifies that he and his family were at home watching TV when a man holding a black torch opened the door, hit him, held a gun at his head and produced a pair of handcuffs which he forced Jack to put on. Toby allegedly then demanded that the Vangs hand over all the money they had in the house. Although Jack Vangs quickly complied with the demand the assailants used the black torch to search the crawl space under the house and the area under the roof. It appears that they had inside knowledge because that was where the Vangs hid certain art objects which they had recently inherited from Jack's father. The assailants then shot everybody in the house before fleeing. Although badly wounded, Jack Vangs survived.

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The prosecution call Constable Woods who produces a black torch which he testifies was found in the Ingraham house. The defence objects to the introduction of this evidence on the basis that there is nothing to connect this black torch with that used by the assailants but the judge allows the testimony to stand and accepts the torch in evidence. Constable Woods also introduces 10 photographs showing the naked bodies of the murder victims as they appeared just before postmortem examination. The defence objects. The prosecution also intends to call six witnesses who will testify to the fact that a week after the assault Toby Ingraham travelled from Perth to Sydney using a fake identity. Answer: The torch is relevant, as the fact that the Ingrahams have a black torch makes it possible that they were involved. However, if there is nothing else to connect this torch with the crime, then arguably the torch's probative value is outweighed by its prejudicial effect: see s 137. The photographs are relevant, as they prove the wounds causing death. However, the photos would be highly prejudicial, especially the photos of the children. It is likely they would be excluded under s 137. The six witnesses' evidence is relevant to show Toby's state of mind, fleeing the scene, and also to show a criminal character. However, even if admissible, there is no reason why there should be six witnesses giving the same testimony. This would be excluded under s 135 as being a waste of time.

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5.

Andre was convicted of supplying a prohibited substance, namely ecstasy, at a rave party on 1 January 2015. Should the prosecution have been allowed to tender a photo of the bag of ecstasy tablets? The photo was taken in the kitchen of the share house in which Andre lives. In the photo the kitchen is very messy, and rubbish and cockroaches can be seen. There are also posters on the wall that depict naked women and vulgar comments. Answer: While the photo of the drugs is relevant, the background scene is not relevant, and would be prejudicial to the accused. The photo may therefore be excluded on the basis of s 137, that it is unfairly prejudicial to the accused.

6.

Consider the case file of Strom v Council of the Shire of Cremorne. Suppose the defendant wanted to bring in 20 witnesses who will say that the plaintiff was drunk on the night in question. Could the plaintiff object? If so, on what grounds? Answer: This evidence would be excluded on the basis of s 135, as it is likely to waste time, and could be confusing.

7.

Refer to R v Eagle in Chapter 20, and consider whether the following exhibits would be excluded pursuant to the trial judge's discretion: •

•

autopsy photo depicting the syringe mark on the deceased's right arm and four other photos of the deceased's face; Answer: May be unfairly prejudicial: ss 135 and 137. There may be little forensic assistance provided by the photos as the pathologist's report provides evidence of the cause of death. pre-nuptial agreement which states that “in the event of a divorce, Robert Eagle does not receive any money”; Answer: Admissible, subject to exception to s 59.

Answers to Questions

•

•

• • •

•

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•

CHAPTER 21

financial report prepared by Star's accountant that states that Star's wealth is $150 million; Answer: Admissible, subject to exception to s 76. The report may be inaccurate and the judge may exercise s 135(b) to exclude it. autopsy report which states that the cause of death was intravenous injection of insulin. The accused does not dispute the cause of Abby Star's death; Answer: Discretion under s 135 may apply. the red bag containing the needles and the vial of insulin; Answer: May produce prejudice if the bag contains other items: s 137. expert certificate that the vial found in the bag contains insulin; Answer: Admissible subject to exception to s 76. hospital records showing that the deceased was admitted to hospital in 2006, 2008 and 2009 for drug overdose caused by intravenous use of heroin; Answer: Admissible, subject to exception to ss 59 and 76. Also see s 97. a fingerprint of the accused obtained from the accused's car; Answer: This is the fingerprint obtained by East and s 138 may apply as the evidence was improperly obtained. a fingerprint that matches the accused and was found on all of the five hypodermic needles found in the red bag. Note that the prints were obtained without a warrant. The police officer with carriage of this case instructs the DPP that this was due to a fear that the accused would destroy the evidence. Answer: Section 138 may provide a basis for excluding evidence of the fingerprint.

CHAPTER 7 The hearsay rule 1.

What is “hearsay” evidence? Answer: Hearsay evidence is where a witness reports in court a representation (often an oral statement) that was made (usually by another) out of court. The representation is hearsay when it is admitted to in court to prove the truth of the fact that the maker of the representation intended to assert by the representation. Documents are also frequently admitted for a hearsay purpose. Evidence is hearsay and inadmissible when the object of evidence is to establish the truth of what is contained in the statement. Evidence is not hearsay and it is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made.

2.

What happened in Subramaniam v Public Prosecutor [1956] 1 WLR 965? Who made the previous representation and what was it? Answer: The “classic” explanation of hearsay was provided, which depends on the reason for which evidence is introduced. The previous representations (the threats) were made by the terrorists. If the statements by the terrorists were being introduced to prove

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that they were true (that is, that the threats were actual), then this would have been hearsay. However, as they were admitted to prove Subramaniam's state of mind (that is, that he might have been afraid because statements like these were made to him), they were admissible, because the court was not concerned with whether they were actually true. 3.

On what basis was the “out-of-court” statement in Subramaniam v Public Prosecutor [1956] 1 WLR 965 admitted into evidence? What should have been the trial judge's direction in relation to this evidence? Answer: To show Subramaniam's state of mind and establish his defence of duress. At common law, the trial judge would need to direct the jury that they could only use the out-of-court statements to prove the fact that they were made. The statements could not be used to prove the truth of the facts asserted by the terrorists.

4.

What are some of the reasons for hearsay evidence being excluded? Answer: The evidence is considered unreliable, as it cannot be tested in court. The maker of the representation may also not be available for cross-examination so this can create unfairness. Furthermore, the person reporting the evidence in court may have forgotten exactly what was said, or may be lying. Also, hearsay evidence is not the best evidence. There is also a danger of inaccuracy and risk of fabrication

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5.

Does the Evidence Act 1995 retain the rule against hearsay? See s  59. What is a way to identify whether s  59 applies? What happens if s  59 does exclude a previous representation? Answer:  Yes. However, it is slightly different from the common law test. It provides “evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation”. “Previous representation” means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. “Representation” is also defined in the Dictionary. An approach to s 59, is to first identify the previous representation, second to ask what is the intended asserted fact in the representation, and third to determine whether the previous representation is being tendered to prove the asserted fact in the previous representation. If yes, then s 59 applies to exclude the evidence because the previous representation is relevant and being admitted to prove the intended asserted fact made by the maker of the previous representation. An exception may apply to admit the evidence (ss 63 – 75, 81).

6.

Does the definition catch: •

• •

implied assertions; Answer: This is controversial. If the maker intended to imply something it will be caught. conduct; Answer: Yes, conduct is part of “representation”. evidence of intention or state of mind? Answer: It is unclear. It probably does not matter, as s 66A allows evidence of state of mind as an exception to the hearsay rule.

Answers to Questions

7.

Consider Walton v The Queen (1989)166 CLR 283 and answer the following questions: • • •

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8.

CHAPTER 21

Who made the previous representation? Answer: Child. What is the asserted fact in the representation? Answer: Greeting to father. Is the previous representation being tendered to prove the asserted fact, or something else? Answer: No, applying the Evidence Act 1995, the previous representation is admitted to prove the identity of the caller (ie to prove that the father was the caller on the phone). The child did not intend to assert the fact that the other person on the phone was his father. The intended assertion of the child was to greet his father. (Note that in the actual case of Walton v The Queen (1989)166 CLR 283, Mason CJ admitted the child's previous representation as an exception to the hearsay rule on the basis that it was reliable because it was implied assertion. However, the majority of the High Court held that the child's previous representation was inadmissible due to the hearsay rule.)

What is the effect of s 60? Answer: Section 60 provides that if a previous representation is relevant and admitted for a non-hearsay purpose, then it is also admissible for a hearsay purpose (ie to prove the truth of the representation). Thus, if a statement is relevant to discredit a witness, it will then also be available to be used to prove the facts asserted in the previous representation (ie, the truth of the statement).

9.

In what circumstances could a previous representation be admitted for a non-hearsay purpose? • • •

When it is admitted to prove the fact that the previous representation was made (Subramaniam v Public Prosecutor [1956] 1 WLR 965). When it is admitted for credit purpose (Adam v The Queen (2001) 207 CLR 96). When it is admitted to prove the basis of an expert's report (Quick v Stoland (1998) 87 FCR 371).

In all the above, the previous representations are admitted for non-hearsay purpose and s 60 applies. However, the trial judge may use his or her discretion to limit the use of the evidence to its non-hearsay purpose: see s 136. 10. Read the case of Lee v The Queen (1998) 195 CLR 594. In class, students can “act out” the facts using this script: Scene 1: In King's Cross Calin: Hey man. Where's the 80 bucks you owe me? Lee: No, leave me alone, leave me alone. Calin:  I'm not f***ing going to leave you alone til you give me my 80  bucks. Where is it? Lee: I haven't got it, leave me alone, cause I'm running because I fired two shots.

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Calin: What do you mean you fired two shots? Lee: I did a job and the other guy was with me bailed out. Scene 2: In court Prosecution: We call Mr Calin as our next witness. Mr Calin, what happened on the night in question? Calin: I bumped into the accused at about 8pm in Kings Cross and we had a conversation about some money he owed me. He didn't have it with him. Prosecution: Was anything else said? Calin: No, I cannot recall anything else. Prosecution: Your Honour, we seek leave to cross-examine Mr Calin about a statement he made to the police. Voir dire held. Judge: All right, Mr Prosecutor, you may cross-examine the witness. Prosecution:  Mr  Calin, look at this document. Is that a document prepared by the police that you signed? Calin: Yes, but the statements in it are not mine. … Police officer: I took the written statement from Mr Calin and it is correct. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Prosecution: We seek to tender the statement made by Mr Calin to the police. … Judge (to jury): If you accept that Mr Calin told the police that Lee had said to him “leave me alone because I'm running because I fired two shots … I did a job…”, that was evidence of the fact that the appellant did say those words to Mr Calin. Now answer the following questions: (a) Consider the case of Lee v The Queen (1998) 195 CLR 594 and assume Calin is not an unfavourable witness. • If Calin testifies about what Lee said (ie the previous representation contained in his statement to the police about “firing two shots and just doing a job”), who has made the previous representation? Answer: Lee. • What is the purpose of Calin giving evidence of Lee's previous representation? In other words, what is that person intending to assert in the previous representation? Answer: To prove its truth (ie that Lee just did a job). • Would Lee's previous representation be excluded by the hearsay rule? Answer:  If Calin was a “favourable” witness, then Calin would have testified about what Lee said (ie the previous representation contained in his statement to police about “firing two shots and just doing a job”). When Lee told Calin that he had “fired two shots” and he “did a job” he intended to assert that he had

Answers to Questions

CHAPTER 21

fired two shots and did a job, therefore Lee's previous representation is being tendered to prove the truth of the facts intended to be asserted by Lee. • Is there an exception to the hearsay rule that would apply? Answer: As the evidence is admitted for a hearsay purpose it would be excluded by s 59; however, it would be admissible as an exception to s 59 under s 81. Lee's previous representation is first-hand hearsay, therefore it does not infringe s 82. (b) Consider the trial of Lee and that Calin is an unfavourable witness and answer the following: • Who made the previous representations in Calin's statement to the police? Answer: Calin. • How did the High Court deal with Calin's previous representation of what Lee did (ie “walking fast” and “sweating”)? (i) Who made the previous representation? – Calin (ii) How was this previous representation admitted? – As prior inconsistent statement.

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(iii) What use could be made of the previous representation? – Used to discredit Calin and to prove that Lee was walking fast and sweating. Answer: This was first-hand hearsay, as it concerned what Calin had seen, which was first-hand testimony. Calin was an unfavourable witness and his statement to police was tendered as a prior inconsistent statement which was used, pursuant to s  60, as evidence of the truth of the facts asserted in the statement. Calin's statement to police contains two previous representations. First, Calin represents what he saw Lee doing, and second, Calin represents what he heard Lee say. Both representations contained in the statement are made by Calin. The previous representation in the police statement of what Lee was doing (“walking fast” and “sweating”) was admitted to prove a prior inconsistent statement (ie under s 106 to discredit Calin). The High Court held that once admitted for a credit purpose (ie a non-hearsay purpose) the previous representation could be used for its hearsay purpose (ie to prove the truth of the facts that Calin intended to assert, ie that Lee was walking fast and sweating). The High Court stated: Evidence that Mr Calin had seen what was recorded in his statements was relevant to the issues in the case. Mr Calin's representation out of court that he had seen these things was hearsay. Because his representation out of court (that he had seen these things) was relevant for the purpose of showing that he had made a prior statement that was inconsistent with his evidence in court, the hearsay rule did not apply and the representation was admissible to prove the existence of the fact that Mr Calin intended to assert by his earlier representation.

•

How did the High Court deal with Calin's previous representation of what Lee said (ie “leave me alone, cause I'm running because I fired two shots … I did a job and the other guy who was with me bailed out”)?

(i) Who made the previous representation? – Calin.

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(ii) What did Calin intend to assert? – That Lee said something. (iii) What did Lee intend to assert? – He fired two shots and did a job. (iv) Was it admissible? – Admissible as credit evidence (but note it was excluded under s 137). (v) What should the trial judge have done in the trial of Lee? – Excluded the evidence in the exercise of discretion under s 137. At the trial, Calin was an unfavourable witness and his statement to police was tendered as a prior inconsistent statement which was used, pursuant to s 60, as evidence of the truth of the facts asserted in the statement. Calin's statement to police contains two previous representations. First, Calin represents what he saw Lee doing, and second, Calin represents what he heard Lee say. Both representations contained in the statement are made by Calin. The High Court held that Calin's representations in his statement of what the appellant said (ie “Leave me alone, cause I'm running because I fired two shots … I did a job and the other guy was with me bailed out”) were inadmissible as evidence of the truth of Lee's confession. The court based its decision on an analysis of Calin's intended assertion by the representation.

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The High Court stated that the starting point for using a previous representation for a hearsay purpose is s 59. The court held at [22]: The rule's operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that the previous representation is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it.

The court continued at [27]: Mr Calin did not, in his out of court statements, intend to assert any fact about his conversation with the appellant other than that he had said certain words and that he had heard the appellant say the words attributed to him.

Calin intended to assert that he had heard the appellant say that he had “fired two shots” and “done a job”. Calin did not intend to assert that the appellant actually had “fired two shots” and “done a job”. He only intended to assert that he was told something by Lee as he could not intend to assert as a fact that the appellant had “fired two shots” and just “done a job” because Calin had no way of knowing these facts. The High Court stated at [29]: To put the matter another way, s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert.

Calin's assertion that the appellant had said something could only show Calin's belief or lack of belief in what the appellant said. He did not and could not intend to assert that what he heard was true. The High Court held that Calin's belief in what the appellant said was not relevant to the issues that arose at trial. Calin's representation of Lee's admission could only be used to affect Calin's credit; it could not be used to establish the facts asserted by Lee. It should be noted that the court would

Answers to Questions

CHAPTER 21

have still excluded this evidence pursuant to s  137, even though it was admissible under s 106 (at [41]). The High Court has restricted the ambit of s 60 by emphasising the words “intended to assert”. Section 60 only enables proof of the facts intended to be asserted in the representation by the maker. The court excluded the evidence by showing that Calin could not have intended to assert the truth of the facts of Lee's confession. The prosecution sought to tender Calin's statement to prove that Lee “did the job”, but this is not possible because this is not the hearsay use of the statement. To put it another way, while Lee's admission is relevant, the hearsay use of Calin's representation of Lee's admission can only prove that Calin heard Lee assert something as opposed to its truth, and thus its hearsay purpose is irrelevant. Exceptions to the hearsay rule 1.

What does s 61 provide? Answer: If hearsay statements are to be admitted in exception to the hearsay rule, the maker must have been competent at the time of making the statement.

2.

What is the effect of s 62? Answer:  Only first-hand hearsay will be admissible pursuant to the exceptions in ss 63 – 66.

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3.

What is first-hand hearsay? What are the preconditions to using the first-hand exceptions? Answer:  This is where the person reporting the representation saw or heard the representation (ie they had personal knowledge of the asserted fact). An illustration of the operation of a first-hand hearsay exception is in the case of Cox v New South Wales [2007] NSWSC 471. Mr  Cox sued the Department of Education for personal injury he suffered as a result of bullying at school. At trial, Mr Cox had no recollection of the principal bullying events which gave rise to his claim. Mr Cox told his mother of the bullying events at the time they occurred. The trial judge ruled that the plaintiff was “unavailable” (under s 13 and the Dictionary) to give evidence about the asserted facts (in regard to the bullying) that he had told his mother. The mother's evidence of her son's previous representations of bullying were therefore admissible as an exception to the hearsay rule: see s 63.

4.

Read the following and explain the evidence: In a murder charge the deceased was killed by a fatal stab wound. One day after the killing the accused was seen by the postman, P, cleaning the knife in the garden. P asked what he was doing and the accused replied that he was cleaning the knife that he had used to kill someone. P then told his supervisor, S. S then told her husband, H. •

•

How is P's evidence to be categorised? Is it admissible? Answer: What P saw is relevant admissible evidence as a direct eyewitness account. What P reports that the accused said is first-hand hearsay if it is being admitted to prove that the accused killed somebody. The accused has personal knowledge of the asserted fact (that he killed someone). How is S's evidence to be categorised and is there any distinction between what P had seen and what P had heard? Is it admissible?

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Answer: S's evidence as to what P saw is first-hand hearsay. S's evidence as to what P heard is second-hand hearsay (as S is reporting what P said that the accused had said). •

How would H's evidence be categorised? Is it admissible? Answer: H's evidence is too far removed from its source to be admissible as a firsthand hearsay exception. H's evidence of what P saw is second-hand hearsay. H's evidence as to what the accused said is third-hand hearsay!

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5.

Fill in the following table, indicating whether each section requires the maker of the representation to be available, applies to civil or criminal cases, the requirements for its use and whether notice must be given to the other side.

Section

Maker available?

Civil/crim?

Reasons for use?

Other requirement?

Notice (s 67)?

63

No

Civil

Maker unavailable

No

Yes

64(2)

Yes

Civil

Undue delay or expense

Objections are possible under s 68

Yes

64(3)

Yes, and being called

Civil

Maker unavailable

No

No

65(2)(a)

No

Criminal

Duty to make representation

No

Yes

65(2)(b)

No

Criminal

“Shortly after fact occurred”, unlikely to be a fabrication

No

Yes

65(2)(c)

No

Criminal

Highly probable evidence will be reliable

No

Yes

65(2)(d)

No

Criminal

Statement against interest (see 65(7) and highly probable that evidence will be reliable

No

Yes

65(3)

No

Criminal

Defence cross-examined witness in other proceedings

No

Yes

65(8)

No

Criminal

Evidence is adduced by defendant

Yes

65(9)

No

Criminal

Evidence is adduced by prosecution if evidence of a previous representation has been adduced by a defendant.

Yes

66

Yes

Criminal

Representation is “fresh in memory” (see s 66(2A))

66A

Both

State of mind or health

6.

Note s 136

No

No

Fill in the following table, indicating whether each section requires the maker of the representation to be available, applies to civil or criminal cases, the requirements for its use and whether notice must be given to the other side.

Answers to Questions

Section

Civil/crim

Reason

Other requirement?

Notice (s 67)?

69

Both

Business records

“Personal knowledge” needed (unless representation prepared for proceeding or criminal investigation)

No

70

Both

Identification

No

71

Both

Telecommunications

No

72

Both

Representation about traditional laws and customs of an Aboriginal or Torres Strait Islander group

No

73

Both

Pedigree

No

74

Both

Public and general rights

No

75

Both

Interlocutory proceedings

No

7.

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CHAPTER 21

On 22 June 2014 there was a murder on the dance floor of a nightclub. John was stabbed in the middle of the dance floor. John died some hours after the stabbing from the fatal injuries inflicted. Detective Green is the police officer who investigated the murder and prepared the brief of evidence. George has been charged, and is on trial for the murder of John. Hugo gave a statement to police on 24 July 2014. In Hugo's statement he described what occurred on the night of the stabbing when he “saw George dancing close to John and then George lunged towards John and moved away”. Hugo also told Detective Green that John had yelled “my goodness, I  can't believe that George has done this to me”. Detective Green fears that Hugo may not wish to give evidence against George. Both are members of rival gangs and Hugo may not wish to give evidence for fear of gang warfare. At the trial of George, Hugo is called as a witness by the prosecution. Hugo is asked by the Crown Prosecutor to recollect what occurred on 22 June 2014. Hugo states that he “can't remember”. What should the prosecutor do? Answer:  The prosecutor may attempt to revive Hugo's memory under s  32. Query whether Hugo would satisfy the freshness test in s 32. Hugo may be an unfavourable witness. The prosecutor could apply s 38 (and s 192) and seek leave to cross-examine Hugo about his prior inconsistent statement (the cross-examination should comply with s 43 if the prosecutor seeks to adduce evidence of the prior inconsistent statement otherwise than from the witness). If Hugo agrees with his prior statement, then this evidence is admissible. It is direct evidence of what Hugo saw. Hugo may give oral evidence of John's previous representation as it is relevant to prove what John said (George did something to John). Section  59 excludes evidence as it is being admitted to prove that George did something to John. The evidence may be admitted under s 65(2)(b) or (c), or s 66A (note ss 61, 62 and 67 for admissibility under s 65). John is “unavailable” as he is dead (see Dictionary to the Act). If Hugo does not agree with the previous statement made to police, then can the previous statement be admitted? The statement is relevant for a credit purpose (to attack

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Hugo's credit) and it is also relevant for a hearsay purpose (to prove where George was and that John said something). Hugo's documentary statement made to police could be adduced as a document, but would be excluded under s 59. Does a hearsay exception apply? Is the previous representation first hand? John's previous representation (in Hugo's documentary statement) is second hearsay. The evidence does not appear to fall within a hearsay exception and therefore satisfies the definition of “credibility evidence” (s 101A(b)). Therefore s 102 applies to exclude the document but it may be admitted as an exception to s 102 under s 106 (provided s 43 has been satisfied and leave is not required, s s 106(2)(c)). The document was admitted for a non-hearsay purpose and therefore can then be used for its hearsay purpose due to s 60.

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John's previous representation (in Hugo's documentary statement) is second hearsay and an application of s 60 means that the previous representation can be used to prove Hugo's previous representation and John's previous representation. This is very different from the law prior to the 2009 amendments. Prior to the amendments, applying Lee v The Queen (1998) 195 CLR 594 to John's previous representation (in Hugo's documentary statement), note that this is second hearsay and that an application of s 60 means that the previous representation can only be used to prove that Hugo asserts that John said something. Under the previous law, Hugo's previous representation in his documentary statement could only be used to prove that Hugo reported that John said something; it could not prove the asserted facts made by John. Perhaps s 137 would have excluded the evidence entirely. Note that s 136 permits the judge to limit the use of the document to a credibility purpose. 8.

Consider the evidential issues that arise for the following scenario. Reto is on trial, before a judge and jury, for the possession of cocaine. The offence occurred on 22 December 2015. The prosecution case relies on the evidence of Mike. Mike has deposed a statement to police which states that he had a conversation with Reto on 21 December 2015 where Reto told him “I am expecting the white gold tomorrow” while he pointed to his nose. Mike also told police that Reto showed him 20 empty plastic bags. Mike had informed police of this information and the police executed a search warrant on Reto's apartment on 22 December 2015. During the search the police found the cocaine in a box marked “Reto's stuff”. The cocaine was in 20 small plastic bags. Police seized the cocaine, the scales and spare plastic bags. The scales have a sticker attached to the base of the scales which reads “Heroin is the best”. At the time of the search, the police officer in charge of the investigation took a statement from Reto's son, Lucio. Lucio told police that before the police were at the house he saw his father using the weighing machine with the powder. Lucio told the police that his mummy told him that “Daddy's job is to fit white powder into tiny bags and sell it”. Lucio was born on 22 December 2009. Lucio gives unsworn evidence in accordance with his statement. The defence objected to this evidence but the judge ruled the evidence was relevant. At the trial, the prosecution calls Mike as a witness. Mike testifies that Reto was a jewellery maker and he was expecting a shipment of gold. The trial judge allows the

Answers to Questions

CHAPTER 21

prosecution to admit Mike's statement to police into evidence. The judge directs the jury to “use it to prove that the accused was expecting a supply of cocaine”. Answer: The first issue is Mike as a witness for the prosecution. It appears that Mike is unfavourable. An application may be made under s 38(1) as his evidence is inconsistent with statement (note s 192). The Crown can cross-examine on the prior inconsistent statement (PIS). The cross-examination must adhere to s 43 before the prior inconsistent statement can be tendered – this was not done. Mike should have been cross-examined on his PIS in accordance with s 43. If Mike admits his PIS then evidence of what Reto said and what Mike saw would be admissible (apply ss 55, 59 and 81). If Mike did not admit his PIS then it could be admitted on the basis of it being relevant in two ways (to discredit Mike and to prove the facts in issue). Note the PIS can not be admitted unless the prosecutor complies with s 43. Does s 59 exclude the evidence? Does a hearsay exception apply? If a hearsay exception does not apply, is the evidence “credibility evidence” (see s 101A), and therefore does s 102 apply to exclude the evidence? If s 102 applies, could the PIS be admitted under s 106? If the PIS is admitted under s 106, does s 60 allow the PIS to be used to prove what Mike saw (plastic bags) and can it also be used to prove the report of what Mike says he heard Reto say?

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Applying s  60(3), the previous representation is that of Mike. Mike's previous representation contains Reto's intended assertion which is an admission. The PIS cannot prove the admission by Reto. The judge's direction is wrong. Section 136 may limit the use of the prior statement to its credit use and the jury would be directed not to use the prior statement to prove the truth of the admission made by Reto. Alternatively, s 137 could exclude the PIS altogether. The judge has allowed the admission of the PIS without applying ss 38, 192, 43 and  60. The judge's direction was wrong (Lee v The Queen (1998) 195 CLR 594). The second issue is Lucio's evidence. The judge appears to have incorrectly assumed that Lucio is not competent to give sworn evidence. The judge should have applied s 13(1), (3) and (5). Lucio's age does not mean he is incompetent. Lucio is the son of the accused and has a right to object to being compellable (apply s 18). The witness needs to know of his right to object under s 18. A witness may object to being compellable under s 18. Apply test in s 18(6) and factors in s 18(7) (also apply R v Gulam Mohammad Khan (unreported, NSW Sup Ct, Hidden J, 22 November 1995)). Assume Lucio is competent and compellable (s 12). Lucio's evidence of what he saw and heard appears relevant (s 55). The evidence of what Lucio heard is evidence of his mother's previous representation (it is relevant for a hearsay purpose and therefore s 59 excludes it). An exception may apply (it is necessary to consider whether Lucio's mother is unavailable – see Dictionary). Section 66 does not apply as Lucio's mother is not called as a witness. Readers should apply s 65(2)(c) or (d).

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Readers should also consider ss  135 and 137, and whether warning is required under s 165. Another issue is whether the prosecution should have called Lucio's mother (see R v Kneebone (1999) 47 NSWLR 450). 9.

Refer to Strom v Council of the Shire of Cremorne in Chapter  20, and answer the following: (a) The plaintiff was intoxicated at the time of the accident. The Council want to call Bill Bugle, an ambulance officer, who attended the accident to give the following evidence: Bugle: How do you feel mate? Strom: OK. I think I drank too much. Bugle: How much did you drink? Strom: Probably (hiccup) about (hiccup) … you know … 20 beers or so and some Jim Beam. Bugle: Can you feel it when I touch your legs? Strom: Yes, I think so.

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Would this evidence have been admissible? Answer: The evidence by Strom that he had had a lot to drink would be relevant to prove that he was drunk and therefore partially responsible for the accident. The evidence is hearsay, as it is being given by Bugle. It would be admissible under s 64(3) as an exception to the hearsay rule, since Strom gave evidence. The evidence about how his legs felt would be admissible under s 66A as a statement concerning his health. (b) Bill Watch is a friend of Jack Strom. He witnessed Jack's fall and told the solicitor for the Council that he thought “Jack was being really stupid. No wonder he fell.” Bill has since moved to Switzerland, where he is working as a banker. Could his statement to the solicitor have been admitted in court? Answer:  This evidence would be relevant to show that Strom was contributorily negligent. The evidence is hearsay, as it is being used to prove the truth of the statement that Jack was being stupid. The evidence may be admissible under s 63, if Bill is considered “unavailable”, or s 64(2) if it would take too much money or time to have Bill come and testify. (c) The Council tendered a police statement made by Sam Ross (see Document 8), that said he was “at a picnic” near the accident scene and he saw some young adults. He said “Most of them were quite intoxicated. They all were hanging around the railing overlooking the water.” He said “One particular tall young man, with a blue shirt, came over to us to ask for a cigarette. Soon after that he fell over the railing. I heard him call out and ran to see what had happened.” Assume that at the trial Sam Ross said he couldn't remember anything about what happened that night because he became quite drunk. The Council tells the judge this police statement is relevant to show that Jack was drunk and could have been negligent. Jack's objection to the admission of Sam Ross's police statement was overruled. Can he appeal?

Answers to Questions

CHAPTER 21

Answer: Sam Ross might be an “unfavourable witness” under s 38, which might allow the Council to cross-examine him. If he still could not give evidence, he might be shown his police statement. If he still denied what the statement contained, it might be admitted into evidence (consider if a hearsay exception applies; if not, apply s 101A, and consider if there is an exception to s 102). If the evidence is admitted pursuant to a credibility exception then s 60 may apply so that it can prove the truth of what it contained. 10. Consider R v Eagle in Chapter  20. Look at the statements in the police brief against Robert Eagle and identify the hearsay issues that may arise in respect of each witness statement. Answer: Detective Blue: Paragraph 5 refers to a previous representation made by East. Consider whether it is being tendered for a hearsay purpose. Dominguez: Paragraph 4 refers to an argument – is this being admitted for a hearsay purpose? Probably not, as the fact that there was an argument is relevant rather than the content of what was argued. Does paragraph 6 contain a previous representation that is being admitted for a hearsay purpose?

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East: Are the accounts of conversations in East's statement being led for a hearsay purpose? Probably not as they are being admitted to prove the fact that the statements were made rather than the contents of the conversations. Jade: Consider paragraphs 4, 5, 6 and 7 and locate the previous representations that are relevant for a hearsay purpose. Consider the admissibility of the letter in paragraph 8 (also note s 48(4)). Jeremy: Paragraph 4 refers to a previous representation made by the accused: would this be admissible under s 81?

CHAPTER 8 1.

In Lithgow City Council v Jackson (2011) 281 ALR 223; 85 ALJR 1130; [2011] HCA 36, French CJ, Heydon and Bell JJ concluded that the ambulance officers' records were “so shrouded in obscurity about what data they observed and suggest so great an unlikelihood that that data could support, or were seen as pointing to, any definitive inference that it is not possible to find on the balance of probabilities what the impugned representation was stating. It is therefore not possible positively to find that it stated an opinion”. Given that the effect of s 76 is to create a rule of inadmissibility, subject to exceptions created by s 77, s 78 and s 79, does it make sense that s 76 would not apply unless the court were satisfied, on the balance of probabilities, that an opinion had been expressed? Should it be enough that it would be open to the tribunal of fact to find that a particular inference has been drawn (that is, a particular opinion expressed)? Answer: This means that if it would be open to the tribunal of fact to find that a particular inference has been drawn (that is, a particular opinion expressed), then the evidence should be subject to the operation of this Pt 3.3.

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2.

In Australian Securities & Investments Commission v Rich (2005) 216 ALR 320 at [205]-[222] Austin J of the NSW Supreme Court held that the opinion rule in s 76 is confined to evidence of an opinion given by a witness in court, so that it does not apply to out-of-court hearsay representations of opinion. Is that analysis good law now? Answer: In Lithgow City Council v Jackson [2011] HCA 36, French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) held at [19] that the opinion rule in s 76 is not confined to evidence of an opinion given by a witness in court – it applies to any evidence of an opinion, including out-of-court hearsay representations of opinion: Section 56(1) contemplates that relevant, ie otherwise admissible, evidence may be excluded by more than one exclusionary rule in Pts 3.2 -3.11. One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies. Section 76 excludes “[e]vidence of an opinion” – not “evidence by a witness of an opinion”. There is no indication in any other provision in Pt 3.3 that it operates only in relation to the opinions of witnesses.

This means that the High Court has rejected Austin J’s view. Australian Securities & Investments Commission v Rich (2005) 216 ALR 320 is not good law.

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3.

In Lithgow City Council v Jackson (2011) 281 ALR 223; 85 ALJR 1130; [2011] HCA 36, French CJ, Heydon and Bell JJ stated that s 78(a) “goes to questions of form” and requires that the opinion is about a “matter or event” as well as being “based” on what the person stating the opinion “saw, heard or otherwise perceived” about that matter or event. Is it strictly correct that the opinion must be about the “matter or event”? Does s 78(a) go to “questions of form” or rather to ensuring that the opinion is based on what was actually perceived about a matter or event with the person’s senses? Is the result of the plurality judgment that s 78(a) will only permit admission of the kind of evidence that was admitted under the common law rule? Answer: The following is extracted from Odgers, Uniform Evidence Law 13th Edition [EA.78.60]: The first consideration of this provision in the High Court was in the case of Smith v The Queen (2001) 206 CLR 650; 75 ALJR 1398; [2001] HCA 50 where only Kirby J found it necessary to discuss it. Two police officers testified that, in their opinion, a person shown in photographs taken by bank security cameras was the accused. Kirby J considered that the police opinion evidence met the test of relevance because it could reasonably be concluded that the witnesses were better placed to recognise the person in the photographs than the jury. However, he held (at [60]): Neither police officer was present at the “matter or event” in question in the appellant’s trial, namely the robbery. Although the security photographs record the robbery taking place, the opinion of the police officers is “based on” the photographs and not, as such, “based on” the robbery itself which they did not see, hear or otherwise perceive. The Australian Law Reform Commission’s report makes it clear that this provision of the Act was addressed, essentially, to the opinion of eyewitnesses. It exists to allow such witnesses to recount, as closely as possible, “their original perception [so as] to minimise inaccuracy and encourage honesty”. It is important to note that the requirements for the applicability of s 78 of the Act are cumulative (“and”). Neither the language of the Act governing the reception of lay opinion evidence, nor the purposes of those provisions as explained by the Commission, justifies treating the opinions expressed by the two police officers as falling within a permissible exception.

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Answers to Questions

CHAPTER 21

This analysis appears questionable. In s 78, the term “matter or event” is not related to what is in question in the trial but rather to what the person expressing the opinion “saw, heard or otherwise perceived”. Indeed, not only is there no suggestion in the provision that the “matter or event” must be a fact in issue in the proceeding (compare s 55), there is no express requirement that the “matter or event” must itself be relevant. It is true that it has been held by Simpson J in the NSW Court of Criminal Appeal that the section assumes that the matter or event as perceived by the witness is relevant to the proceeding [R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287 at [33] per Simpson J. The other two members of the Court of Criminal Appeal (Spigelman CJ and Sperling J) reserved their position as to the scope and effect of this provision.] but this is misleading since it is not s 78 but s 56(2) which imposes the requirement of relevance. If the person’s perception of a “matter or event”, whether or not that perception incorporates an element of opinion, is not relevant, it is excluded by s 56(2). However, a person’s perception of a “matter or event” may be relevant even if the “matter or event” itself is not. [For example, where a person expresses an opinion as to the speed of a vehicle, that opinion may be based not only on a perception of the vehicle in question but on a mental comparison with the speed of vehicles perceived on other occasions. The speed of those latter vehicles is not a relevant matter or event, but the person’s perception of those vehicles will be relevant to an assessment of the quality of the opinion as to the speed of the vehicle in question. In R v TA (2003) 57 NSWLR 444; 139 A Crim R 30; [2003] NSWCCA 191 at [7] Spigelman CJ stated that it was “not necessary to determine whether or not a lay opinion under s 78 of the Evidence Act 1995 extends to a “matter or event” which is not itself relevant”.] In Smith, the applicable “matter or event” was the security camera photographic image, the appearance of the accused, and a comparison of the two. If the police officers’ perception of that comparison met the test of relevance (because they were in a better position to make a comparison between the accused and the person in the photograph than the jurors [See the discussion of this issue by the majority of the High Court (at [9]]) then an opinion as to identity based on that perception, and needed to obtain an adequate account or understanding of that perception, should satisfy the requirements of s 78. [If Kirby J’s analysis were correct, even if the police witness was in a much better position than the jurors to make a comparison between the accused and the person in the photograph (because, eg, the police witness had spent considerably more time with the accused than the jury, the accused’s appearance had changed materially before the trial and the police had other advantages in recognising the person in the photographs) the police witness’s opinion would not be admissible (because it would be excluded by s 76 and neither s 78 nor 79 would apply). It is unlikely that the other members of the court in Smith would have adopted that approach. In R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287, Simpson J held (at [34]) that an interpreter’s attribution, following his comparison of voices on two sets of tape recordings, of two of the voices to the two accused, did not come within the terms of this provision: “[T]he relevant matter was the identity of the speakers on the DAT tapes. [The interpreter’s] perception of that matter did not become relevant until he had formed his opinion as to that identity. Evidence of his opinion was therefore not necessary to obtain an adequate account or understanding of his perception. It was his opinion evidence that was said to render his perception of the matter or event relevant and admissible. Without his opinion, there was no “matter or event” perceived by him, understanding of which would be facilitated by evidence of his opinion”. This analysis is problematic. It was a fact in issue whether the two accused were the persons recorded speaking on the DAT tapes. Evidence of their voices recorded on another occasion was relevant to that fact in issue since a comparison between the voices on the two sets of tape recordings could rationally affect the assessment of the probability of the existence of the fact in issue. That comparison was a relevant “matter or event” in the proceeding although it is not necessary that the “matter or event” must itself be relevant. The interpreter’s opinion was based on what he heard when he listened to the two sets of tape recordings and

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engaged in such a comparison. In addition, evidence of that opinion was arguably necessary to obtain an adequate account or understanding of his perception of the similarities between the two sets of voices. This critique was adopted by the Victorian Court of Appeal in Kheir v The Queen (2014) 43 VR 308; 244 A Crim R 231; [2014] VSCA 200.] If that were not the case, it is difficult to see how such an opinion could ever be admissible. [It might be argued that it should never be admissible. However, that result does not appear to be consistent with the ALRC’s goal to admit opinion evidence which “will assist the tribunal of fact in understanding the testimony or determining a fact in issue” as distinct from “mere uninformed speculation”: see ALRC 26, vol 1, paras 739–740.]] This critique was accepted by the Victorian Court of Appeal in  Kheir v The Queen (2014) 43 VR 308; 244 A Crim R 231; [2014] VSCA 200. In that case, a police officer listened repeatedly to intercepted recorded telephone calls and a recorded interview between the appellant and police officers (after his arrest) and then, after comparing the voices, identified the appellant’s voice on some of the calls. It was accepted that the police officer was in a better position to perform the comparison than the jury, since the interview was not admitted into evidence. It was held at [65] that: [w]hether the voice heard in the intercepts was also that in the record of interview was a fact in issue, and the comparison could rationally affect the assessment of the probability of that fact. [The police officer’s] opinion was based upon that comparison, and his opinion — that the voices on the two tapes were the same — was necessary to shed light upon the observations he made about the voices’ similarities.

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Equally, in Nguyen v The Queen [2017] NSWCCA 4, Basten JA in the NSW Court of Criminal Appeal engaged at [39] in a similar critique of the approach of Simpson J in R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287, although the other members of the Court did not directly address the issue. Unfortunately, in the second High Court case to look at this provision, Lithgow City Council v Jackson (2011) 244 CLR 352; 85 ALJR 1130; [2011] HCA 36, a similar mistake to that made by Justice Kirby seems to have been made by all members of the Court. In that case, ambulance officers’ records relating to a person who had fallen and injured himself contained the words: “? Fall from 1.5 metres onto concrete”. French CJ, Heydon and Bell JJ in a joint judgment (Gummow J and Crennan J agreeing in separate judgments) stated at [39]: Section 78(a) goes to questions of form. It must be possible to extract from the form of what the person stating the opinion said, construed in context, that the opinion is about a “matter or event”, and that it is “based” on what the person stating the opinion “saw, heard or otherwise perceived” about that matter or event. This analysis, it is suggested, is wrong. Section 78(a) does not require that “the opinion is about” the “matter or event” referred to in the provision. It requires only that the opinion “is based on” what the person perceived about the matter or event. Accordingly, it must not be based on what the person has been told about the matter or event (that is, on hearsay) or what the person otherwise thinks happened without having witnessed it (“mere uninformed speculation”, to use the language of the ALRC). The person must have been a witness to the matter or event. It is likely that an opinion based on what a person perceived about a matter or event will be about that matter or event, but that is not required by s 78(a). An opinion based on what a person perceived about a matter or event may be relevant and admissible even if the opinion is not about the matter or event (and, indeed, even if the matter or event is not in itself relevant to a fact in issue). It should be concluded that section s 78(a) does not go to “questions of form” but to a single question of substance – was

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the opinion based on what was actually perceived about a matter or event with the person’s senses? There were two possibilities regarding the applicable “matter or event” in the case of the report of the ambulance officers:  it was the circumstances of the fall or it was the circumstances when the ambulance officers arrived at the scene. French CJ, Heydon and Bell JJ concluded correctly that, if the applicable matter or event was the actual circumstances of the fall, the opinion of the ambulance officers was not admissible because, although the opinion was about that matter or event, that opinion was not based on what they perceived about the fall (since they did not see, hear or otherwise perceive anything about the fall). As French CJ, Heydon and Bell JJ observed at [46], the term “otherwise perceived” should not be read so broadly as to extend to inferences regarding the matter or event without having actually witnessed it.

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As regards the alternative “matter or event”, French CJ, Heydon and Bell JJ concluded that, if the “matter or event” was the circumstances when the ambulance officers arrived at the scene (including the extent of the injured man’s injuries), the ambulance officers were “not stating an opinion on that subject, only about their cause”, with the consequence that s 78(a) would not be satisfied – the “opinion” was not about the “matter or event” of the circumstances when the ambulance officers arrived. As explained above, this analysis is misconceived because s  78  does not require that the opinion has to be about the matter or event perceived. French CJ, Heydon and Bell JJ referred with approval to the case of R v Howard (2005) 152 A Crim R 7; [2005] NSWCCA 25 where the NSW Court of Criminal Appeal held that evidence of a witness who had viewed some cannabis and estimated the period since it had been harvested was inadmissible. Hunt AJA, Grove and James JJ said at [29]: The only matter or event was the viewing and identification of the cannabis. The opinion evidence was an assertion of something said to have happened beforehand (harvest) and specifying the time which must have elapsed between the harvest and the viewing, a progression which [the witness] did not purport to see, hear, or otherwise perceive. It may be accepted that the applicable “matter or event” was, in one sense, “the viewing and identification of the cannabis”, although it would be preferable to say that it was “the presence of (harvested) cannabis”. The witness perceived that matter or event. The opinion regarding when it had been harvested was presumably “based” on what the person perceived about the cannabis, notwithstanding that the witness had not perceived the harvesting. Again, the provision does not require the opinion to be about the matter or event perceived. However, it may well be that the holding of the High Court in  Lithgow City Council (based on s 78(a)) that s 78 only permits admission of an opinion “about” some matter or event that was actually witnessed by the person expressing the opinion is largely supportable by reason of the requirements of s 78(b). That provision does suggest that, as a practical matter, only an opinion “about” some “matter or event” will fall within the scope of s 78 because only such an opinion will be “necessary to obtain an adequate account or understanding of the person’s perception of” that matter or event. Of course, that will depend on the proper construction of the words of s 78(b). Before discussing that provision, the High Court’s position on s 78(a) should be re-stated: it does not permit admission of an opinion about some matter or event unless the matter was actually witnessed by the person expressing the opinion. Thus, in practice it will only permit admission of the kind of evidence that was admitted under the common law rule. French CJ, Heydon and Bell JJ referred to this type of evidence at [45]:

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The common law permitted the reception of non-expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy [sic: primary] facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves. Indeed, it is clear that the High Court has concluded that s 78 should be understood consistently with the common law exception for lay opinion evidence.

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This point was made most clearly in the approach taken to the interpretation of s 78(b). French CJ, Heydon and Bell JJ, plainly basing their analysis on the common law position, stated at [48]: The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed. Applying that approach to the requirement of “necessary to obtain an adequate account or understanding of the person’s perception”, their Honours concluded that it was not necessary to admit evidence of the ambulance officers’ opinion in order to obtain an adequate account or understanding of what they perceived. “Necessary”, in this context, and consistently with the common law, means “the only way” to overcome some “incapacity” in the witness “to perceive, to remember what they had perceived, or to say what they had perceived about it” (at [51]). It would not be established simply because the ambulance officers’ were not called as witnesses and thus no other evidence of their perceptions was adduced. French CJ, Heydon and Bell JJ concluded that it was not necessary, in order to obtain an adequate account or understanding of the perceptions of ambulance officers, that the opinion be received because (at [48]): in cases of the present type the primary facts are not too evanescent to remember or too complicated to be separately narrated. It would be possible for an observer to list his or her perceptions of specifically identifiable medical circumstances of someone found in a drain, perceptions of specifically measurable distances between limbs and other objects and perceptions of specifically describable angles of limbs. Professional investigators like police officers, for example, commonly make precise measurements of that kind and compose diagrams to illustrate what they have measured. Those persons can often remember what they have measured

Answers to Questions

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even without recourse to their notes. The process is not one where component observations are made which are incapable of meaningful expression without stating the composite opinion to which they led. It is not necessary, in order to obtain an adequate account or understanding of perceptions of that kind, that the opinion be received. Thus, there was no established necessity to admit the opinion to overcome “some incapacity in perception, memory or expression”. Since it was not “not possible to say what perception it was” that the ambulance officers made of the injured man’s position, it was “not possible to say … whether the statement was necessary to obtain an adequate account or understanding” of their perception (at [56]). Accepting the correctness of this analysis it follows that, as a practical matter, s 78 does not permit admission of an opinion about some matter or event unless the matter was actually witnessed by the person expressing the opinion. While the High Court derived such a requirement from s 78(a), it also flows from the requirements of s 78(b) – if the opinion is admitted to overcome some incapacity in perception, memory or expression of the witness to the matter or event perceived by the witness, it follows that the opinion must be about that matter or event.

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4.

As regards s 78(b), was it “necessary” to admit evidence of the ambulance officers’ opinion in order to obtain an adequate account or understanding of what they perceived? Is it required that the primary perceptions be identified by the holder of the opinion? May the opinion be expressed in terms of an inference from what the person perceived rather than a compendious description of what the person perceived? Answer: The Court found that it was not necessary. Perhaps the witness should first be required to give an account of his or her perceptions without introducing any opinion. Then, if the person asserts the need under s 78(b), the question should be whether the opinion is relied upon as evidence of what was perceived rather than sought to be used as an inference drawn from those perceptions. Finally, questions of “adequacy” and “necessity” must be addressed.

5.

Is it possible to determine the position of the plurality in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 to the common law “basis rule” or “proof of assumption rule” under the Act? Answer: There are two ways of viewing the plurality decision on this issue. On view is that the plurality stated that an expert must “ordinarily” identify the factual assumptions upon which their opinion is based, but they did not examine whether the assumptions require proof in order for the opinion to be admissible under s 79 ([37], [41]). Another view is that the plurality’s interpretation of s 79 suggests that a basis rule is not incorporated in s 79 as they explicitly refer to the identification of the “facts assumed or observed” as a requirement of s 79 and do not refer to a requirement that the facts be proved by admissible evidence (at [37]). However, the plurality does not consider whether the common law proof of assumption rule continues to apply – in addition to the requirements in s 79 – to expert evidence tendered under s 79.

6.

Do you agree with the statement of Justice Heydon that “failure by the tendering party to comply with the proof of assumption rule makes the opinion evidence irrelevant”? In what circumstances do you believe that a failure by the tendering party to prove the facts assumed to exist for the purposes of expressing the opinion makes the opinion evidence irrelevant pursuant to s 55? How different must the facts proved be to the facts assumed before the opinion can have no rational bearing on a fact in issue?

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Answer:  Matter for discussion. The opinion would be irrelevant if it was based on assumed facts which were different from the facts in issue in the proceeding. The last question is a matter of degree.

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7.

If opinion evidence is relevant, not inadmissible pursuant to s 79 and it is not appropriate to exclude it in discretion, is there any room left for the operation of the common law “basis rule” or “proof of assumption rule” in NSW (bearing in mind s 56(1) and the concluding words of s 9(1) in the NSW Act)? See, generally, [1.40]. Answer: This is a matter for discussion. However, Heydon J’s analysis is very convincing. Heydon J’s argument in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 is based on his analysis that the Federal Court approach is flawed as it placed “determinative significance” on ALRC 26 without establishing the basis for its use and that the ALRC’s incorrect view of the common law resulted in Parliament’s failure to enact specific legislation to abolish the common law basis rule (at [107]). This use has subsequently been cited: Lithgow City Council v Jackson [2011] HCA 36 (28 September 2011) [43] (French CJ, Heydon and Bell JJ). As submitted by the respondent in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, the legislation was passed with the specific purpose of excluding a basis rule which means that whether the ALRC was right in its view is now irrelevant. While s 79, as enacted, is the law, whether or not there ever was a basis rule in Australia, and whether or not the ALRC was correct in its analysis of the common law, an issue remains as to whether the common law basis rule has survived. Heydon J was in dissent and his views on this point canvassed a matter the plurality found it unnecessary to consider. Heydon J’s conclusion that the basis rule survives under the Uniform Evidence Legislation is contrary to the Commission’s clear intention not to make such a rule a condition of admissibility. An issue for resolution is whether Heydon J’s analysis is correct. Further investigation is required as to whether, having regard to ALRC 26 and its use by Parliament, the common law basis rule survives under the Uniform Evidence Legislation. If the basis rule is a requirement under the Uniform Evidence Legislation then further examination will assist in clarifying the ambit of the exception to the hearsay rule for facts that form the basis of the expert’s “specialised knowledge”. Requiring clarification, for example, is the extent to which the “technical data” and “knowledge” referred to by an expert can form part of this hearsay exception in the common law. Heydon J’s argument for the survival of the basis rule is that the legislature has not expressly abolished the common law requirement that the factual basis of an opinion be established by admissible evidence. His Honour’s analysis does not consider a line of authority that provides that the rules relating to admissibility of evidence are codified: see McNeill v The Queen (2008) 168 FCR 198, 209 [60]-[62]. This position is also set out in ALRC 102, 52–2 [2.6]-[2.9]. These authorities rely on s 56 of the Uniform Evidence Legislation which provides “except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding”. The effect of s 56 has been interpreted as a “clear intention that all issues of admissibility are to be governed by the Evidence Act”: EI Dupont de Nemours & Co v Imperial Chemical Industries plc (2002) 54 IPR 304; 320 [46]. See also Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346, 349; McNeill v The Queen (2008) 168 FCR 198, 209 [60]-[62]; Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640, 652

Answers to Questions

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[28]. However, this approach has not been followed in cases that have applied the common law doctrine in O’Leary v The King (1946) 73 CLR 566 to admit evidence that forms part of the res gestae, so that O’Leary continues to provide a basis for the admissibility of evidence (and is not subject to the tendency and coincidence provisions) under the Uniform Evidence Legislation. Heydon J’s analysis could mean that in the absence of specific abolition, common law rules regulating the conditions for admissibility co-exist with the Uniform Evidence Legislation; for example the recent complaint doctrine for the admissibility of sexual assault complaints: Adam v The Queen (1999) 106 A Crim R 510, 515 [25] (Spigelman CJ, James and Bell JJ); Samadi v The Queen (2008) 192 A  Crim R 251, 260 [54] (Beazley JA, Hislop and Price JJ); Parkinson v The Queen [2011] NSWCCA 133 (15 June 2011)  [24] (McClellan CJ at CL, Hoeben J and Grove AJ). It is noted that in Papakosmas v The Queen (1999) 196 CLR 297, the High Court rejected the contention that the common law recent complaint doctrine governed the admissibility of complaint evidence admitted for a hearsay use because it would be “an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules and distinctions which the legislature has discarded”:  see Gleeson CJ and Hayne J in Papakosmas v The Queen (1999) 196 CLR 297, 310 [39]. The application of common law doctrines to determine the admissibility of evidence is distinguished from common law concepts that are fitted within the terms of the Uniform Evidence Legislation, for example, the “ad hoc expert” has been found to fit within the broad terms of s 79 : R v Leung (1999) 47 NSWLR 405, 413 [40]. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

8.

The requirements for the admissibility of expert evidence were considered by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where Heydon JA said: [85] In short, if evidence tendered as expert opinion evidence is to be admissible, must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached:  that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).

Answer: What is the source of law for each of the above propositions?

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• • • • • • •

9.

must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert [s 79]; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge” [s 79]; so far as the opinion is based on facts “observed” by the expert, they must be identified [s 79] and admissibly proved by the expert, [common law] and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified [s 79] and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; [common law] and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded [s 79].

Answer the following questions: What is the opinion rule?

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Answer: Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76. What are the exceptions to s 76? Answer: See ss 50(3), 77, 78, 79, 81, 92(3), 110. What is the effect of s 77? Answer: If evidence of an opinion is admitted for a purpose other than proof of the opinion, it may also be used to prove the fact in respect of which the opinion is expressed, regardless of s 76. Provide examples of lay opinion. In what circumstances will lay opinion be admissible? Answer: Opinions on weather, age of a person, speed. Lay opinion is admissible pursuant to s 78. What are the requirements for admissibility of expert opinion? Answer: See s 79. First, there must be a “specialised knowledge”, second, the witness must be qualified in the specialised knowledge, and finally, the opinion must be wholly or substantially based on that specialised knowledge. How is “specialised knowledge” determined? Answer: Under the common law, Dixon CJ in Clark v Ryan (1960) 103 CLR 486, 491 quoted a passage and said: On the one hand it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible where the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.

Answers to Questions

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“Specialised knowledge” is not defined in the Evidence Act. Australian courts have not uniformly applied a general acceptance test (see Frye) or a reliability-based approach to determining whether a field of expertise exists (see Daubert). The ALRC considered that it should be left to discretion and said in ALRC 26 para 743 (footnotes ommitted): [It has been suggested] that the expert must be able to point to a relevant accepted “field of expertise” and the use of accepted theories and techniques. Quite what constitutes such a field remains a matter for speculation. There are major difficulties in implementing such a test. In the United States, the test known as the Frye test was adopted in many States. More recently, however, it has been assailed from many quarters as being “arbitrary” and “impossible to implement” because of the difficulties of defining the actual “field” in each instance and then of determining the existence of accepted theories and techniques. It also can exclude evidence which the courts should have before them. It is proposed, therefore, not to introduce the “field of expertise” test. There will be available the general discretion to exclude evidence when it might be more prejudicial than probative, or tend to mislead or confuse the tribunal of fact. This could be used to exclude evidence that has not sufficiently emerged from the experimental to the demonstrable.

What does s 80 provide? Answer: It abolishes the ultimate issue and common knowledge rules. How can s 177 be used?

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Answer: It can be used to adduce expert evidence without requiring the expert to attend the proceedings as a witness. 10. What was the expert evidence in Honeysett v The Queen (2014) 88 ALJR 786; [2014] HCA 29? Was the court satisfied that there was a field of expertise? Give your reasons. Answer: The expertise was facial and body mapping. The court was not satisfied that it was a field of expertise within the meaning of the legislation as it did not satisfy the tests required. 11. Refer to the case of Strom v Council for the Shire of Cremorne in Chapter 20 and answer the following questions. (a) Jack Strom was arguing that his fall was due to the negligence of the Council in not providing an adequate railing at the lookout. Assume Fiona Picket is called as a witness for Jack Strom. She states that she has worked for many years as a fence builder for the Council of Bangor in Sydney. She has no formal qualifications but has worked for 20 years building fences and railings in public areas. She is asked: Q: Do you think the railing at the Cremorne lookout was high enough to protect the public? A: In my opinion, it should have been about 50cm higher. Most railings at lookouts are higher. The Council was clearly negligent in this case.

The evidence was received over objection. Should it have been admitted? Answer: Fiona should not have given evidence of a conclusion that the Council was negligent. This is for the trier of fact to decide. Her opinion that the railing should have been higher would only be admissible if it satisfied the test of expert opinion in s 79. It would need to be decided whether Fiona had “specialised knowledge” based on her training or experience.

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(b) Refer to Document 4. How could the report by Mike Thompson have been admitted into evidence? Answer: This requires a consideration of whether the document amounts to “expert evidence” within s 79. The document reports the “history of the matter”. This material is the basis on which the opinion is given. This information would need to be proved separately. (c) Refer to Document 9:  Witness Statement of Miriam Strom. Would Miriam be allowed to give evidence that Jack was not drunk? What form of evidence is this? Answer: This testimony might amount to lay opinion evidence under s 78. Witnesses are generally allowed to state their opinion as to whether someone is intoxicated or not. 12. See the case of R v Eagle in Chapter 20. (a)

Is the forensic pathologist's opinion as to the cause of death admissible if the pathologist based her opinion on: •

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• •

the photographs of Abby Star's body; Answer: Yes, if the photographs were relevant to the cause of death. It would be better for the expert to conduct a post-mortem examination. If the expert uses another forensic pathologist's observations on examination in the post-mortem as the basis for her opinion on the cause of death, then such observations must be admissible. the photographs of the body, and an autopsy of the body; Answer: Yes. the photographs of the body, an autopsy of the body and a view of the crime scene? Answer: Yes, a view of the crime scene may be relevant to whether the insulin was self-administered.

(b)

Do you think that the forensic pathologist should view the hospital records before providing an opinion as to the cause of death? Answer: It is not necessary to view the records to provide an opinion on the cause of death. However, it would be advisable to also consider the records.

(c)

Can the forensic pathologist express an opinion on the following: • • • • •

cause of death; Answer: Yes. time of death; Answer: Yes. place of death; Answer: No. This is not within their expertise. effect of an overdose of insulin; Answer: No. This may be outside the specialised knowledge of a forensic pathologist. probability of death being a suicide or murder?

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Answer: Yes. The cause of death is an opinion that is within a forensic pathologist's expertise. 13. Answer the following questions relating to R v Eagle in Chapter 20. (a)

Refer to exhibit 2. How could the report by Star's accountant be admissible? Consider relevance, the opinion rule and the discretions to exclude evidence in your answer. Answer: The report is relevant to Eagle's motive to murder as he would inherit a significant amount of money. It is an opinion that must satisfy s  79 to be admissible. Section 135(b) may apply if the report is inaccurate.

(b)

Refer to exhibit 6. Is this document admissible? Explain. Answer: Provided s 79 is satisfied, the evidence can be adduced by providing a certificate pursuant to s 177.

(c)

Can Abby Star's psychiatrist provide an opinion that Abby Star was likely to have committed suicide? Answer: The defence would seek to adduce this opinion evidence as to whether Abby Star's death was suicide. Apply s 79.

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(d)

Refer to the documents produced on subpoena by Dr  Psychiatrist (documents produced in respect of subpoena 3). Can the defence use the file notes which record Star's heroin use? Answer: The notes can be adduced as a document. Abby's previous representations of heroin use may form the basis of the psychiatrist's opinion and could therefore be admitted for a non-hearsay purpose (s 60 applies, subject to discretion in s 136). The opinion must satisfy s 79.

(e)

Refer to Jeremy Eagle's statement. Are paragraphs 4 and 5 admissible? Answer: See s 78.

(f)

Refer to Jade's statement. Discuss objections on the basis of s 76 and whether any exceptions would operate to admit the evidence. Answer: Jade may give evidence of her opinion about the relationship in paragraph 4 as lay opinion. The last sentence in paragraph 5 is also lay opinion.

(g)

Refer to Cliff East's statement. Is the evidence in paragraph 5 admissible? Answer:  It is arguable whether the fingerprint match would satisfy s  79. The enquiry is whether the do-it-yourself fingerprint test kit would constitute “specialised knowledge”. Further, the qualifications of East are questionable. Section 138 should also be considered.

(h)

Refer to the statement of Maria-Rosa Dominguez. Can her evidence that was the result of hypnosis be admissible? Answer: These issues should be considered in your answer: Does s 79 have to be satisfied before Maria's evidence can be admitted? Would this be done on the voir dire? Would s 137 operate to exclude the evidence? If the evidence is admitted, would a direction need to be given pursuant to s 165?

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CHAPTER 9 Read ss 81 – 90 and 138 – 139 of the Evidence Act 1995. Answer the following questions: 1.

What are the justifications for allowing admissions into evidence in exception to the hearsay rule? Answer: Admissions are probative of guilt. Admissions are reliable as they are against the interests of their maker. In criminal proceedings, there are sections in the Act to ensure reliability and fairness in respect of the admissibility of admissions.

2.

What is the definition of an “admission” in the Dictionary to the Act? Answer: Refer to Dictionary definition.

3.

What is the exception to the hearsay rule for a “previous representation” that is an “admission”? What is the effect of s 82? What do ss 81 and 82 require? Answer: Section 81. Admissions must be first-hand (s 82) to be admissible under s 81. Section 81 is the exception to the hearsay rule and s 82 requires that the evidence be first-hand.

4.

Are admissions admissible against co-parties according to s 83? Answer: Yes, if there is consent. That is, an admission by D1 cannot be used against D2, unless D2 consents.

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5.

What is the effect of s 87? Is it an exception to s 59 or is it a definitional section? Answer: It defines when admissions are made with authority. Thus, it is a definitional section, not an exception to s 59. The evidence of an admission is admitted under s 81, provided s 87(1)(a) or (b) or (c) is satisfied.

6.

Fill in the following table, explaining each section's effect, requirements for application, and whether it can be used in a civil or criminal case.

Section

Effect

Requirements

Criminal/Civil

84

Admission is excluded

Admission influenced by violent, oppressive, inhuman or degrading conduct, etc

Both

85

Admission is excluded

Admissible if the circumstances make it unlikely the truth of admission was adversely affected, etc

Criminal, where admission given during official questioning, etc

86

Admission (record of oral questioning) is excluded

Admissible if defendant acknowledges record is true

Criminal

90

Discretion to exclude

(a) if adduced by prosecution or

Criminal

(b) would be unfair to defendant 138(2)

Discretion to exclude

s 138(2)(a) and (b) define when an admission is improperly obtained

Criminal and civil

139

Requirement for caution

s  139(1) and (2) provide that an Criminal admission is improperly obtained if a caution is not given

Answers to Questions

7.

Refer to the case of R v Edwards (1993) 178 CLR 193, and answer the following: • •

•

•

will evidence of a lie affect the credit of the accused; Answer: Yes. will evidence of a lie be used as an implied admission of guilt; Answer: If a lie is inconsistent with innocence it may amount to an implied admission of guilt. is every lie told by an accused probative of their guilt; Answer: If the accused is telling a lie because he or she perceives that the truth is inconsistent with his or her innocence then the telling of the lie may constitute evidence of guilt. The lie must be about some circumstance or event connected with the offence. what should be the contents of a judge's direction to a jury in respect of a lie told by an accused? Answer:  A jury can only consider lies as corroboration if they are satisfied that the lie: – – – –

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CHAPTER 21

is deliberate; relates to a material issue; springs from a realisation of guilt and a fear of the truth; can be clearly shown to be a lie by evidence other than that to be corroborated.

The jury should be instructed that there may be reasons for telling lies apart from a realisation of guilt, such as panic, to protect some other person, to avoid a consequence extraneous to the offence. The jury should be instructed that if they accept the explanation for the lie then they cannot use the lie as an admission of guilt. 8.

Apply the Evidence Act 1995 to the facts of R v Edwards (1993) 178 CLR 193. Would the prosecution be able to adduce evidence of the accused's lies? Answer: The Evidence Act 1995 is silent in respect of the direction on lies, therefore the common law as stated in R v Edwards (1993) 178 CLR 193 applies.

9.

Refer to R v Eagle in Chapter 20. Read the accused's record of interview and discuss the admissibility of the interview. Answer:  Section  281 of the Criminal Procedure Act 1986 has been complied with. Question 15 is inadmissible as opinion; it is also irrelevant. Questions 16 and 18 are inadmissible as second-hand hearsay. Questions and answers 16, and 20 to 22 raise the accused's drug use and bad character, but consider whether they are admissible for a non-character purpose. Question 25 is impermissible as the accused's understanding of a witness's motive to lie is irrelevant and inadmissible due to s 102. Question and answer 28 is an opinion of the police officer. Question 29 elicits an opinion from the accused – is this admissible? Question and answer 30 may be excluded under s 85. The police officer's persuading against having a lawyer present may be grounds to exclude under s 90.

10. Refer to R v Eagle in Chapter 20. Are there any other admissions in the witness statements obtained by police that are admissible pursuant to s 81?

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Answer: It is arguable that there is evidence of flight which may be an implied admission (paragraph 5 of Dominguez, paragraph 4 of Jeremy Eagle's statement and paragraph 7 of Jade's statement). 11. Apply the Evidence Act 1995 to the facts of Foster v The Queen (1993) 66 A Crim R 112; [1992] HCA 63. Would the prosecution be able to adduce evidence of the accused's confession? Answer: Apply ss 81, 82, 84, 85, 90, 138, 139 of the Evidence Act 1995 and s 281 of the Criminal Procedure Act 1986 (NSW).

CHAPTER 10 1.

What does Pt 3.6 of the Evidence Act 1995 apply to? Answer: Refer to s 94.

2.

What sort of evidence does Pt 3.6 apply to? Answer: Tendency and coincidence.

3.

What is s 97 used to prove? Answer: That a person has a tendency to act in a particular way.

4.

Can you provide an example of such evidence?

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Answer: Prior indecent assaults of children may be used in a prosecution of the accused for child sexual assault to show a propensity for sexual misconduct towards children. 5.

What is s 98 used to prove? Answer: The reasoning process involves reliance on the improbability of events occurring coincidentally.

6.

Can you provide an example of such evidence? Answer: A number of murders committed by a serial killer in circumstances where the murders are committed in the same way.

7.

Fill in the table below concerning the requirements the parties must satisfy in order to be allowed to bring in evidence of tendency or coincidence evidence. Defence evidence

Prosecution evidence

Civil case

Must satisfy “significant probative value”

Yes

Yes

Yes

Must provide notice

Yes

Yes

Yes

Must show evidence “substantially outweighs prejudice”: s 101

No

Only when adducing tendency or coincidence evidence about a defendant

No

Might s 135 apply?

Yes

Yes

Yes

Might ss 95, 136 apply?

Yes

Yes

Yes

8.

Henry has been charged with the sexual assault of his stepdaughter, Sandra, aged 14. She claims that on 25 November 1998 the accused took her to the basement of an unfinished house adjacent to their home and forced her to have sexual intercourse with him. The prosecution intends to introduce the following evidence:

Answers to Questions

CHAPTER 21

(a) Sandra's claim that during the year prior to 25 November 1998 Henry had come into her bedroom at night on seven separate occasions when she was in bed and had indecently assaulted her on each occasion. (b) Sandra's 12-year-old sister, Mary, claims that on three occasions in the previous year Henry had come into her bedroom at night and indecently assaulted her. She was in bed on each occasion. (c) Sandra's 10-year-old brother, Bruce, claims that in August 1994, when he was in the bath, Henry had come into the bathroom and indecently assaulted him. You act for Henry, who denies the offence. He says that he has had to discipline Sandra frequently for her unruly behaviour and did so on the afternoon of 25  November 1998. He claims her story is fabricated and she has put her brother and sister up to telling lies about him. Advise him about whether the evidence will be admitted in court. Answer: Sandra's evidence of the prior assaults can be led as tendency evidence. Mary and Bruce's evidence discloses a tendency of the accused to indecently assault his children; it is not coincidence evidence. However, there is the possibility of joint concoction which may exclude Mary and Bruce's evidence: see s 101.

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9.

Jane Juice is charged with murder and robbery. The robbery of the Hornsby branch of the Big Bank occurred at 4.15pm on 20 June 2003. The robber wore a Hulk costume and used a silver pistol to shoot and kill a security guard. The prosecution call many witnesses, including Barry Bat. Barry has signed a document, a copy of which has been made available to the defence, which contains a statement in the following terms: I committed a robbery of the Broadway Branch of the Great Bros department store on July 9, 2003, with Jane Juice. Jane wore a Hulk costume and pistol she always wears when doing a job. Jack drove the get-away car as usual. During the robbery Joe was shot and killed but Jane and I escaped. I was not personally involved in the robbery on June 20, but Joe told me about it. Signed by Barry Bat on 10/9/2003

Could the defence have successfully objected to the admission of Barry's evidence? If so, how? Answer:  Readers should consider whether this is tendency and/or coincidence evidence. Characterise the evidence as either tendency or coincidence. Consider ss 97 and 98 and “significant probative value”. Apply s  101 to determine whether the probative value substantially outweighs the prejudice (R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319). Has notice been given? In considering the probative value consider: • • • •

similarities differences number of occasions time between the offences.

10. On 21 December 2003, two women, Thelma and Louise, were admitted to a small country hospital in New South Wales in labour. The two women were placed in the same

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room, with a screen separating them. They gave birth within a minute of each other. Thelma claims the babies were mixed up. She is now seeking an order to compel Louise to give her the baby Louise took home from the hospital. It is part of Thelma's case that the mix-up of the two babies arose from the fact that Nurse Laura (who was one nurse present at the births) carried the two babies in her arms in one trip from the ward to the nursery. The doctor present and other nurses on duty deny that this occurred or can't remember that this occurred. Thelma wishes to call Nurse Miranda, who has worked at the hospital for five years and would testify that the practice followed in the hospital was for one of the nurses who attends the birth to carry the baby from the ward to the nursery, and that on occasions more than one child would be carried by one nurse. Nurse Miranda was not working on the night of December 21. Is this evidence admissible? Answer: The evidence of Miranda is being adduced to prove that the nurses in the maternity ward had a tendency to carry more than one child. However, the evidence is being adduced to prove a system in the hospital and it is arguable that s 97 does not apply. 11. Further to the facts in problem 7 in Chapter 7 (at [7.300]): George has a previous conviction for assault caused by stabbing. In 1999, George stabbed a rival gang member in the chest while dancing at a nightclub. George also has several convictions for firearm offences. George gives evidence and states “I have never murdered anyone, nor stolen anything”.

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George also gives evidence that “Detective Green framed me”. This allegation was not put to Detective Green when the detective gave evidence. The trial judge allows the Crown prosecutor to cross-examine George on his criminal record. The trial judge states “I will not give the jury any direction about this evidence, it is a matter of common sense”. The trial judge asks “Should I allow the Crown to reopen its case?” Answer:  George has raised good character:  see s  110(1). The question is whether it has been raised specifically or generally:  see s  110(2) and (3) and R v Zurita [2002] NSWCCA 22. It seems that the bad character would not be admissible as good character appears to have been raised specifically. The trial judge has erred in admitting bad character evidence, which does not rebut the fact that George is not a murderer or a thief. But, if the judge found that the character evidence was raised generally (ie, that George is of good character because he is not a criminal), then George could be cross-examined on his criminal record; but ss 112 and 192 need to be applied: see Stanoevski v The Queen (2001) 202 CLR 115. If character is raised, it can only be used for a character purpose if ss 97 or 98 are satisfied. Apply s 95 and BRS v The Queen (1997) 191 CLR 275. The trial judge should give a direction on the character evidence's limited purpose (namely, that it can only be used to rebut good character). Other directions on good character are made at the discretion of the trial judge:  see Melbourne v The Queen (1999) 198 CLR 1.

Answers to Questions

CHAPTER 21

Readers should consider the admissibility of the evidence under ss 97 and 98. The assault offences may show a tendency to commit crime: ss 97 and 101. Such evidence would be adduced by calling the victim: s 91. As coincidence evidence it is unlikely that it will fit within the definition of s 98(2). Regarding the firearm offences, ss 97 or 98 would not allow the evidence in as neither of those sections would be satisfied. In relation to the breach of Browne v Dunn (1893) 6 R 67 there should be caution in applying it to a criminal case. What is the breach? What is the remedy? Has the judge gone too far to ask that the Crown reopen its case to recall Green so he can be asked about whether he framed the accused? 12. Refer to R v Eagle in Chapter 20. In what way can the accused's past actions be used under s 97 and/or s 98? Can any evidence concerning the deceased's behaviour also be admissible under s 97 and/or s 98? Answer:  Is there evidence to show that the accused administered injections to the deceased? On what basis would the prosecution adduce evidence of the accused's prior drug use? The deceased's prior injections disclosed in the hospital records disclose a tendency to self-inject.

CHAPTER 11 Credibility evidence Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

1.

What is “credibility”? What is credibility evidence? Answer: See definition in Dictionary to the Evidence Act 1995 and s 101A.

2.

Why is credibility evidence relevant? Answer: Evidence relevant to credibility is evidence that affects the reliability or believability of other evidence that proves a fact in issue. Section 102 excludes evidence that is only relevant to a witness's credibility (see s 101A). Such evidence may include character evidence of a witness, evidence of inconsistent or consistent statements of a witness or evidence that shows a witness's capacity for observation.

3.

Do the following matters bear on the credibility of a witness: • • • • •

truthfulness and honesty; Answer: Yes. character; Answer: Yes. intelligence; Answer: Yes. bias; Answer: Yes. motive to be untruthful; Answer: Yes.

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• • • • • • • • •

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• • • 4.

capacity for accurate observation; Answer: Yes. relationship with the accused or a party to the litigation; Answer: Yes. prior inconsistent statements of a witness; Answer: Yes. conviction for perjury; Answer: Yes. age or gender of a witness; Answer: No. reasons for recollection or belief; Answer: Yes. powers of perception and memory; Answer: Yes. factors affecting competency; Answer: Yes. factors affecting compellability; Answer: Yes. any past criminal convictions; Answer: Yes. inconsistencies in evidence; Answer: Yes. contradiction of testimony with other evidence? Answer: Yes.

Is credibility evidence relevant because it affects the probability that a witness is telling the truth about a fact in issue, or is such evidence relevant to proving the existence of the truth of facts in a party's case? Answer: Both.

5.

Explain the distinction between evidence relevant to credit and evidence relevant to a fact in issue. Answer: See discussion in Palmer v The Queen (1998) 193 CLR 1 (McHugh J).

6.

What is the rationale for restricting the admission of credibility evidence? Answer: It is based upon the need to confine the trial process and upon notions of fairness to the witness.

7.

When does s 102 apply? What are the exceptions which may admit the evidence? Answer: Section 102 provides that “credibility evidence” (see s 101A) is not admissible. Exceptions are ss 103, 104, 105, 106, 108, 108A and 110.

8.

Where the evidence is relevant in another way, does s 102 apply to exclude the evidence? Answer: Yes, Adam v The Queen (2001) 207 CLR 96 has been reversed.

Answers to Questions

9.

CHAPTER 21

Can the following factors influence a trier of facts assessment of the credibility of a witness: • • •

demeanour; Answer: Yes. the time taken by the witness to answer a question in cross-examination; Answer: Yes. appearance of the witness? Answer: Yes.

10. Consider the extract at [11.30] from Palmer v The Queen (1998) 193 CLR 1 and answer the following questions. (a) McHugh J refers in [48] to the common law's “well established finality rule” and its exceptions. What sections in the Act now replace this common law rule? Answer: Sections 103 and 106. (b) McHugh J refers in [49] to the common law “bolster rule”. What section in the Act now replaces this common law rule? Answer: Section 108.

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(c) Why was it relevant to determine whether the cross-examination of the complainant (about whether she fabricated the sexual assault) was relevant for a credit purpose or to prove the “facts in issue” (namely that the sexual assault occurred)? Answer:  If the evidence was only relevant to credit, any further evidence on this issue could only be admitted as an exception to the finality rule or under the bolster rule. If the Evidence Act 1995 applied, the evidence could only be admitted through s 106 or 108. (d) How did McHugh J characterise the cross-examination of the complainant? Answer: The evidence was relevant to credit and to prove the sexual assault. 11. Exercise. Gilbert Adam is charged with stabbing to death a police officer on 18 April 1997. Thaier Sako was present at the scene of the murder and was questioned by the police. Assume you are the Crown prosecutor and you have the transcript of his ERISP interview as stated below. Sako is called by you as a witness. How would you examine Sako to adduce the evidence as detailed below (especially paragraph 4)? What would you do if Sako gave evidence that did not accord with the transcript (for example, he testified that he did not actually see anything happen to the police officer)? TRANSCRIPT OF ERISP WITH Thaier Sako on 18 July 1997 1.

On 18 April 1997, while I was leaving the Karaoke bar, I saw Edward Esho and Gilbert Adam speaking to and pushing a police officer.

2.

I approached, and was pushed back by the police officer.

3.

I recovered, only to be pushed over once more, this time by Gilbert Adam and Edward Esho.

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4.

I saw that Gilbert Adam and Edward Esho were punching the police officer and blood was spitting or sprinkling out.

5.

During the punching, I saw that Gilbert Adam had something in his hand.

6.

Esho did not have anything in his hand. Dated 18 July 1997

12. Consider the extract at [11.40] from Adam v The Queen (2001) 207 CLR 96 and answer the following questions: (a) Did the High Court find that Sako's prior statement to police was relevant to credibility and other issues in the case? Answer: Yes. The majority held that the prior statements of Sako were relevant to both credit and proof of the facts asserted in the statements. (b) Did the case mean that s 102 does not apply where evidence is relevant to credibility and relevant in some other way (for example, a hearsay use) even though it is inadmissible for that other use? Answer: Yes. The majority held that s 102 does not apply where evidence is relevant to credibility and relevant in some other way (eg a hearsay use) even though it is inadmissible for that other use, subject to the discretions. The effect of s  60 is to permit the evidence to be used for a hearsay use, subject to s 136. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(c) Is this a literal meaning to s 102? What is the effect of such an interpretation? Answer: This is a literal interpretation and means that if an out-of-court statement relating to issues in the case will be relevant to both credibility and proving the issues in the case (ie a hearsay purpose), the evidence will not be excluded by s 102. In such circumstances, it can be admitted for a credit use without needing to satisfy an exception in Pt 3.7. This decision means that it is very important to be able to determine whether an item of evidence is relevant in any way other than to the credibility of a witness. When evidence is relevant in another way (ie other than credit), s 102 has no application. This literal construction of s 102 enables the potential avoidance of two major exclusionary rules (ss 59 and 102) so long as the evidence can be classified as being relevant (but not necessarily admissible) to credit and the facts in issue. Readers should note that the Australian Law Reform Commission, New South Wales Law Reform Commission and the Victorian Law Reform Commission have recommended an amendment to s 102 which would reverse the effect of Adam v The Queen (2001) 207 CLR 96: Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005). (d) Did the majority conclude that as s 102 did not apply then s 60 permitted the statements to be used as truth of the contents of the statements, that is, could the prior statement be used for a hearsay purpose? Answer: Yes. (e) Did this mean that s 66 did not have to be considered?

Answers to Questions

CHAPTER 21

Answer: Sako's prior statements were relevant to credibility and other issues in the case, thus s 102 did not apply, and s 60 permitted the statements to be used as truth of the contents of the statements. Therefore, s 66 did not have to be considered. (f)

Are ss 135 – 137 applicable to the High Court's reasoning? Answer: Yes.

(g) Assume complaint evidence is relevant for both a hearsay and credit purpose. In such circumstances, does s 108 apply? Answer: It does now after the amendments to s 102. (h) Does Adam v The Queen (2001) 207 CLR 96 overrule aspects of the decision of R v Graham [1973] CLR 628? If so, in what way? Answer: Adam v The Queen (2001) 207 CLR 96 implicitly overrules the decision of R v Graham [1973] CLR 628 as s 108 would not have any operation as complaint evidence is relevant to both credit and hearsay; therefore s 102 would not apply. (i)

Does Adam v The Queen (2001) 207 CLR 96 overrule aspects of the decision of Papakosmas v The Queen (1999) 196 CLR 297? If so, in what way? Answer: See answer in (h).

Attacking an opponent's witness

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1. Complete the following table which considers the sections relevant when a party is cross-examining an opponent's witness: Section

What are the requirements that must be satisfied in the section?

Civil and/or criminal cases?

43

A witness can be cross-examined about a prior inconsistent statement

Both

If the witness denies the statement then s 43(2) must be satisfied 44

A witness can be cross-examined about a previous representation of another person provided s 44(2) or (3) are satisfied

Both

103

Cross-examination as to credibility must have substantial probative value

Both

106

Evidence can be led to rebut a denial by witness in cross-examination

Both

104(2)

An accused must not be cross-examined unless the court grants leave

Criminal

104(3)

Leave is not required to cross-examine the accused if the matter relates to one of the categories in s 104(3)

Criminal

104(4)

This section sets out when leave will not be granted to cross-examine the accused about credit

Criminal

104(6)

Leave is not to be granted to cross-examine a codefendant unless the evidence falls within this subsection

Criminal

192

Factors to consider for the grant of leave

Both

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2.

What are the exceptions to s 102 which permit a party to attack the credibility of their opponent's witness? Answer: Sections 103 and 106.

3.

Does cross-examination pursuant to s 103 permit other evidence to be admitted under s 106 if such evidence rebuts a denial of a witness? Answer: Yes, if the evidence falls within s 106.

4.

If a prior inconsistent statement is admitted under s 106, can the evidence be used for a hearsay purpose pursuant to s 60? Answer: Yes, subject to s 136.

Attacking own witness 1.

Do you need leave to cross-examine your own witness? Answer: Yes: see s 38.

2.

What factors does the court take into account in making a decision to permit crossexamination of a party's own witness (see ss 38(6), 192)? Answer: Refer in detail to ss 38(6) and 192.

3.

What may you cross-examine your own witness about (s 38(1), (3))? Answer: Either credit or the substance of their evidence.

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4.

When, in the course of the witness being questioned by both sides, would you crossexamine your own witness (see s 38(4), (5))? Answer: After you have called the witness.

5.

How would you adduce evidence of your own witness's written prior inconsistent statement (consider all sections of the Act)? Answer: See ss 38, 55, hearsay exceptions, credibility exceptions (101A, 102, 103, 106), and 60 and 136.

6.

What are the exceptions to s 102 which permit a party to attack the credibility of their own witness? Answer: Sections 103 and 106.

7.

What is the effect of s 60 if evidence is admitted under s 106? Answer: It can be used to attack credibility and it can be used for a hearsay purpose.

Supporting your own witness's credibility 1.

When does the credibility rule not apply to evidence given by your own witness? Refer to s 108(1), 108(3)(a) and 108(3)(b) of the Evidence Act 1995. Answer: See s 108.

2.

Papakosmas v The Queen (1999) 196 CLR 297 is an example of the multiple use of evidence. The complaint evidence was relevant in two distinct ways. It was relevant to proving the facts asserted by the complainant, that is, to prove the absence of consent,

Answers to Questions

CHAPTER 21

and it was relevant to supporting the credibility of the complainant. The trial judge directed the jury to use the complaint evidence to prove the truth of the facts asserted in the complainant's previous representations (pursuant to s 66(2)). Papakosmas v The Queen (1999) 196 CLR 297 appealed to the High Court on the basis that the complaint evidence was relevant only to the credibility of the complainant and therefore the trial judge erred in directing the jury that it was relevant to the issue of consent. In support of this submission, the appellant argued that the Evidence Act 1995 should be read in light of the common law. (a) Did the High Court uphold the appellant's argument? Answer: No, the appeal was dismissed. In Papakosmas v The Queen (1999) 196 CLR 297, the High Court firmly stated that the “language of the statute”, which is given its “natural and ordinary” meaning, determines the manner in which complaint evidence is treated. The court unanimously decided that it is incorrect to interpret the Act in light of, and in a manner consistent with, the common law. The admissibility of complaint evidence under the Act must be determined with sole reference to the Act, preconceptions obtained from the common law must be discarded and the structure and words of the Act embraced.

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(b) Explain the basis of admissibility for the complaint evidence at common law. Answer: The High Court in Papakosmas v The Queen (1999) 196 CLR 297 stated that at common law the only reason that complaint evidence was precluded from being used for a hearsay purpose was because of the hearsay rule. The common law had developed to admit complaint evidence under the rule relating to prior consistent statements. Evidence of complaint bolstered credibility as it demonstrated consistency of conduct by enhancing the believability of the complainant's allegations. Simply put, one would expect a person who had just been raped to make a complaint. Recent complaint evidence at common law was not “direct evidence negativing consent” and so juries were directed to use such evidence to support the credibility of the complainant in terms of it supporting consistency of conduct. As the court in Papakosmas v The Queen (1999) 196 CLR 297 observed, such a distinction was “unduly subtle”, which “juries might not have found easy to comprehend or apply”. (c) Explain the basis of admissibility for the complaint evidence under the Evidence Act 1995. Answer: The starting point for admitting evidence under the Act is consistent with both the common law and common sense. The relevance of the evidence must be defined, and accordingly, the crucial question is in what way the evidence is relevant pursuant to s 55. Complaint evidence has multiple relevance; it can be probative to prove facts in issue and it goes to the credibility of the complainant. Complaint evidence can be relevant for a hearsay purpose, that means it is probative of the facts asserted in the complainant's previous representation. In other words, it is used to prove the truth of the facts asserted. In Papakosmas v The Queen (1999) 196 CLR 297, the court unanimously found that the complaints were relevant to proving that sexual intercourse took place and that it occurred without consent. Such evidence was admissible pursuant to s 66.

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If evidence is irrelevant for a hearsay purpose but is relevant only to credit, then it can only be admitted as an exception to s 102, pursuant to s 108(3)(a) or (b). Section  108(3)(a) permits the adducing of a prior consistent statement if a prior inconsistent statement has been admitted. This section does not require strict contemporaneity. Under s  108(3)(b), a prior consistent statement can be used to reestablish the complainant's credibility, to rebut any suggestion of fabrication or reconstruction. There is no exception in the Act which allows complaint evidence only relevant to credibility to be admitted as it was at common law (ie, to be used to prove consistency of conduct). However, complaint evidence admitted under s 66 can be used to bolster the complainant's credit because the making of an early complaint is regarded as being consistent with what a complainant would do if he or she had been assaulted as alleged (ie the common law use). (d) In what circumstances can evidence of a prior consistent statement be adduced?

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Answer: In R v Graham [1973] CLR 628 and Papakosmas v The Queen (1999) 196 CLR 297, the High Court clarified the circumstances where leave should be granted to permit the adducing of a prior consistent statement under s 108(3)(b). In R v Graham [1973] CLR 628, the majority judgment held that even though the appellant's denial of the charges and the course of cross-examination of the complainant may have amounted to a suggestion to the complainant that she had fabricated her evidence, this did not mean that “leave” would automatically be granted to adduce evidence of her prior consistent statement. (e) Explain the way in which a trial judge can exercise discretion on the use of complaint evidence? Answer: The appellant in Papakosmas v The Queen (1999) 196 CLR 297 submitted that as a general rule, even if complaint evidence is admissible under s 66, trial judges should exercise their s 136 discretion to direct juries with the standard common law direction in relation to the use of complaint evidence, that is, it could only be used to support the credit of the complainant to prove consistency of conduct. Gleeson CJ and Hayne J rejected this argument and stated: The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.

However, they added: There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation.

Gleeson CJ and Hayne J held that: [T]he facts and circumstances surrounding the complaint were not such as to make the use of the evidence for a hearsay purpose either unfairly prejudicial to the appellant, or misleading or confusing. The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant's appearance and demeanour,

Answers to Questions

CHAPTER 21

meant that it was not unfairly prejudicial. There is nothing to suggest such evidence was either misleading or confusing in its use for a hearsay purpose.

However, McHugh J observed that once the scheme of the Act and the legislative intent to admit complaint evidence for a hearsay purpose were taken into account, there would be very few, if any, cases where a jury would be directed to limit the use of complaint evidence solely to a credit purpose. McHugh J stated that it is “artificial and wrong” to admit evidence under s 66 and then limit its purpose to a credit purpose. His Honour stated that a warning under s 165 should cure any perceived dangers due to its hearsay nature. He concluded that if a warning does not cure any danger then s 136 should be used. In determining what constitutes “prejudice”, McHugh J observed: Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.

McHugh  J referred to the ALRC report which stated that the unfair prejudice must be a: [D]anger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.

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McHugh J observed in reference to recent decisions under the Act that: I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of “prejudice” in a context of rejecting evidence for discretionary reasons.

His Honour continued: Sections  135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited. But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility.

(f)

Papakosmas v The Queen (1999) 196 CLR 297 was decided prior to the High Court's decision in Adam v The Queen (2001) 207 CLR 96. How does the reasoning in Adam v The Queen (2001) 207 CLR 96 affect the decision in Papakosmas v The Queen (1999) 196 CLR 297? Answer: The complaint evidence is relevant to credit and hearsay – therefore s 102 does not apply.

Problems 1.

Refer to Strom v Council for the Shire of Cremorne in Chapter 20 and the statement by Mr Samuel Ross. Assume that when Mr Ross was called by the plaintiff to testify, he said he could not remember what happened on 16 December because he has a hopeless

Part 5 — Case Files and Answers to Questions

memory. He was shown his statement and said “well, that may be right, but who can tell?” At the time of the trial, he was romantically involved with a council ranger at the Council for the Shire of Cremorne. Counsel for the plaintiff asked permission to crossexamine Mr Ross. The judge refused. (a) On what basis would the plaintiff seek permission to cross-examine the witness? Answer: The plaintiff might seek leave to cross-examine Sam Ross under s 38 on the basis that he is an unfavourable witness. In particular, s 38(1)(b) concerns a situation where a witness does not seem to be making a genuine attempt to recall events, which might be the case here if Sam Ross does not want to give evidence because of his recent relationship. Alternatively, s 38(1)(c) covers situations where a witness has made a prior inconsistent statement. (b) Was the judge correct in disallowing this? Answer: The judge should have held a voir dire to decide whether Sam Ross was an unfavourable witness. In making this decision the judge should have considered under s 38(6) whether notice was given at the earliest opportunity to seek leave under s 38 and to what extent Sam Ross would be questioned by the defence. Further, the judge should have considered s 192, which concerns the granting of leave generally. Without more information it is difficult to make a final conclusion whether the judge was correct or not.

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(c) Could Mr Ross's written statement have been used for any purpose? Answer: The earlier statement might be able to be used to discredit Sam Ross. He has already been shown his statement. As he is still not prepared to agree to it, it might be tendered to discredit him under s 106. Once admitted, it might be used to prove its contents, via s 60, so long as s 136 is not used to limit its use. The document might otherwise be used by Sam Ross to revive his memory, under s 32. 2.

Refer to R v Eagle in Chapter 20. Read all of the witness statements and identify any credit issue that may arise in the trial. Further, consider the situation if Jeremy Eagle does not testify in accordance with his signed statement to police. Answer: The hypnosis of Dominguez affects her credibility. The fact that East was privately paid to investigate may affect his credibility as an impartial investigator. An application may be required under s 38 in respect of Jeremy.

3.

Tran is suing Brown for personal injuries arising from a collision between their cars which occurred on a highway. Immediately after the collision, Tran told his passenger: “That car went through a red light.” At the hearing, Tran testifies that Brown's car went through a red light. Counsel for Brown then cross-examines Tran and asks the following questions: You have concocted this story today, haven't you, because you are actually the driver who went through the red light?

Tran answers “No”. (a) What should Tran's counsel do? Should counsel call the passenger? Answer: Tran's prior consistent statement is relevant to prove that the defendant

Answers to Questions

CHAPTER 21

went through a red light and to bolster the credibility of Tran. Tran’s counsel could call the passenger to give evidence of Tran’s statement. If Tran’s previous representation is admitted to prove Tran’s intended assertion then the evidence would be excluded by s 59 and it could be admissible under s 64(3). If the previous representation is inadmissible under s 64 then the evidence would satisfy the definition of “credibility evidence” (s 101A) and it would be excluded by s 102. However, it may be admitted under s 108(3)(b) to re-establish Tran's credibility. Also note that Tran could give evidence of his prior consistent statement in re-examination (see ss 39 and 108(1)). Once admitted for a credibility purpose, the effect of s 60 may mean that the evidence can be used to prove that the car went through a red light. There is a discretion to limit the use of the evidence (s 136). Green arrived at the scene straight after the collision and gave first aid to both drivers. Green helped pull Brown out of his car, and told the police officer who attended at the scene the following: As I dragged Brown from his car, he said to me, “I am really sorry, I must have dozed off, and when I woke up I was on the wrong side of the road and I hit the other car.”

Tran's solicitor issued a subpoena on Green to give evidence at the hearing. Green is called as a witness and testifies that he “cannot remember any conversation between [himself] and Brown”.

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(b) What should Tran's counsel do? What application may be necessary? Answer: If revival of memory is not possible under s 32, then Tran’s counsel can make an application under s 38(1)(b) (note s 192(2)) to cross-examine Green on his prior inconsistent statement that was made to the police officer: see s 43. Apply ss  103 and 106. If Green agrees with the prior inconsistent statement then the evidence is in. If Green does not admit the prior inconsistent statement, then he would need to be cross-examined in accordance with s 43(2) in order for the prior inconsistent statement to be adduced as evidence. The prior inconsistent statement could be adduced by calling oral evidence from the police officer to give oral evidence of Green’s previous representation. The previous representation is relevant in two ways: first, it is relevant to prove the facts asserted by Green; and second, it is relevant to discredit Green. The previous representation, if tendered to prove the facts that Green intended to assert, would be excluded by s 59 and it would be inadmissible as a firsthand hearsay exception (see s 62) or under s 81 (due to s 82). Therefore, s 101A would apply and s 102 would exclude the evidence. The exception to s 102 could be s 106(1), and leave would not be required, as the evidence falls in s 106(2)(c). As the evidence has been admitted for a credibility purpose (ie a non-hearsay purpose, namely to discredit Green) the effect of s 60 is that it can be used for a hearsay purpose (ie to prove Green’s intended assertion and Brown’s intended assertion). Note that s 60(3) only applies in criminal proceedings and this is a civil case. If the police officer gives oral evidence of Green's prior inconsistent statement, can it be used as an admission by Brown? Refer to Lee v The Queen (1998) 195 CLR 594.

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Brown then gives evidence in the defendant's case. Brown states that: “I stopped at the red light and then drove when it was green.” Tran's counsel has a police notebook entry that records an interview with Brown. In this interview, Brown states “I can't remember the traffic light.” (c) From the evidence, how should Tran's counsel cross-examine Brown? Answer:  This is evidence of a prior inconsistent statement. Tran's counsel may cross-examine Brown on his prior inconsistent statement: see s 43(2). If Brown denies the statement, then his denial can be rebutted by tendering the police notebook entry. The prior inconsistent statement is relevant to discredit Brown and to prove the colour of the light. If the notebook entry is inadmissible as an exception to the hearsay rule, then it satisfies s 101A and s 102 applies. The prior inconsistent statement can be admitted under s 106 and then used for its hearsay purpose (s 60 but note s 136). Note that the notebook could not be admissible under s 81 (because it is second hand: s 82) nor could it be admissible as a business record (due to s 69(3)).

CHAPTER 12 1.

Which of the following is correct: (a) s 109 applies only to civil/criminal cases;

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Answer: It applies only to criminal cases. (b) s 110 provides that a defendant may adduce evidence in chief to show s/he is of good/bad character; Answer: To show s/he is of good character. (c) there is no provision in the Evidence Act 1995 that deals with the admissibility of the character of witnesses other than the accused? Answer: There is no specific provision; however, ss 55, 97, 102 and 135 may apply. 2.

When (in what circumstances) can the prosecution adduce evidence of the accused's bad character? Answer: Refer to s 110(2) and (3).

3.

When can the prosecutor cross-examine the accused to attack his/her credit? Answer: See s 104 and note s 112.

4.

How can the prosecutor adduce bad character of the accused? What sections of the Evidence Act 1995 must be satisfied? Answer: The prosecutor can adduce evidence of bad character if the accused adduces evidence of good character and either s 110(2) or (3) apply. In addition, the prosecutor can adduce evidence of bad character if it is being led for a tendency purpose and it satisfies ss 97 and 101. Refer to ss 110, 192, 112, 97 and 101.

5.

What are the restrictions placed on admitting character evidence of a witness (other than the accused)?

Answers to Questions

CHAPTER 21

Answer: Sections 55, 97, 102 and 135 may apply. 6.

What rules apply to the admissibility of character evidence of the plaintiff in a civil case? Answer: See answer 5 above.

7.

Refer to R v Eagle in Chapter 20. What evidence of the accused's character is admissible? Answer: The prosecution may seek to adduce evidence of the accused's prior drug use.

CHAPTER 13 Read ss 113 – 116 of the Evidence Act 1995, the material above and answer the following questions: 1.

Does Pt 3.9 Identification Evidence apply to civil or criminal cases? Answer: Only criminal cases.

2.

What does “visual identification evidence” mean in s 114? Answer: “Identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.”

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3.

When will visual identification evidence be admissible according to s 114? Answer: It will not be admissible unless (a) an identification parade that included the defendant was held before the identification was made; or (b) it would not have been reasonable to have held such a parade; or (c) the defendant refused to take part in such a parade and the identification was made without the person who made it having been intentionally influenced to identify the defendant.

4.

What does an “identification parade” include? Answer: The term is not defined in the Act; however, courts should ensure that there is a minimum level of fairness and evidentiary reliability.

5.

Refer to R v Tahere [1999] NSWCCA 170. Was the identification evidence admissible? Why/why not? Answer:  The in-court identification was not admissible because s  114 had not been complied with.

6.

When might identification evidence be excluded under the discretions in ss 135 and 137? Answer: Identification evidence may be excluded if there is a feature of the identification that would mean that there would be unfair prejudice to the accused.

7.

Refer to Alexander v The Queen (1981) 145 CLR 395. What was the evidence involved? Was it admissible? Why/why not? Answer:  The case concerned police photographs, which a witness, Mr  Connell, was shown in order to identify the accused, which he did. At the time of the trial, two years later, he was no longer able to identify the accused. However, the High Court held that the police were allowed to testify that Mr Connell had identified the accused.

8.

What does s 115 provide?

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Answer: It concerns the exclusion of evidence of identification by pictures. 9.

What is “picture identification evidence”? Answer: “Identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers” (s 115(1)).

10. What is the difference between ss 114 and 115? Answer:  Section  114 concerns identification parades, whereas s  115 concerns picture identification. 11. Which discretions might operate to exclude evidence otherwise admissible under s 115? Answer: Sections 135 and 137 and possibly 138. 12. What directions must be given to the jury in relation to identification evidence under s 116? Answer:  The judge must inform the jury “(a) that there is a special need for caution before accepting identification evidence and (b) of the reasons for that need for caution both generally and in the circumstances of the case”. 13. Which type of identification must be attempted first – visual or photographic? Answer: Visual. 14. Is voice identification dealt with in the Evidence Act 1995? If so, where?

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Answer: No. 15. Chad is brought to trial charged with the rape and murder of a 16-year-old boy named James. The prosecution, over objection from the defence, is allowed to lead testimony from a witness, Bill, of an encounter between Chad and James which he observed before James disappeared. The encounter took place on a dark street corner. Bill identifies Chad in court and states that he had earlier identified him from a picture at the police station. The prosecution informs the trial judge that Chad refused to take part in an identification parade so the police used photographs. Is Bill's identification evidence admissible? Answer: The in-court identification is inadmissible. The identification from photographs is admissible provided ss 115 and 114 are satisfied.

CHAPTER 14 General 1.

Refer to the Evidence Act 1995 and the relevant rules, then complete the following table:

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Answers to Questions

CHAPTER 21

Court and context

Does Pt 3.10 apply or does the common law test for privilege apply?

Why does the Evidence Act or common law test apply?

(a) In an interlocutory proceeding to argue that documents should not be inspected on a return of subpoena before the trial in the Federal Court

Pt 3.10

Act only applies to evidence that is adduced but s 131A may mean that the Evidence Act applies

(b) In an interlocutory civil proceeding to resist inspection of documents on a return of subpoena before the trial in the Supreme Court

Pt 3.10

The rules have been amended – UCPR 1.9 and s 131A of the Evidence Act 1995. However, this would be an objection to inspection (as opposed to an objection to production) therefore one view is that s 131A and UCPR 1.9 only at the stage of objection to production (not in an application for access to documents): Waugh Asset Management v Merrill Lynch [2010] NSWSC 197. However, in Singtel Optus Pty Limited v Weston [2011] NSWSC 1083, the approach in Waugh was held to be incorrect and the Evidence Act 1995 did apply to an objection to access.

(c) In an interlocutory civil proceeding to argue that documents should not be inspected on a return of subpoena before the trial in the District Court

Pt 3.10

See answer in (b) above.

(d) Would you answers to (b) and (c) differ if privilege argument arose in the context of discovery between the parties?

Pt 3.10

No. See answers to (b) and (c) above also.

(e) In an interlocutory criminal proceeding to resist inspection of documents due to privilege on a return of subpoena before the trial in the District or Supreme Court

Pt 3.10

Section 131A may apply but see discussion re Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 and Singtel Optus Pty Limited v Weston [2011] NSWSC 1083.

(f) In a civil proceeding to argue that documents should not be inspected on a return of subpoena returnable during the trial in the District Court.

Pt 3.10

The subpoena would still be called on and a claim for privilege would be made in relation to access. Even though the civil hearing is taking place, evidence is not being adduced, but Pt 3.10 applies because of s 131A and UCPR 1.9. But note Waugh Asset Management v Merrill Lynch [2010] NSWSC 197. However, in Singtel Optus Pty Limited v Weston [2011] NSWSC 1083 the approach in [2010] NSWSC 197Waugh was held to be incorrect and the Evidence Act did apply to an objection to access.

(g) In a criminal trial to argue that documents should not be inspected on a return of subpoena returnable during the trial in the District Court.

Pt 3.10

The subpoena would still be called on and a claim for privilege would be made in relation to access. Even though the trial is taking place, evidence is not being adduced, but Pt 3.10 applies because of s 131A, but note the effect of the cases (Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 and Singtel Optus Pty Limited v Weston [2011] NSWSC 1083) which are discussed above.

(h) During a criminal trial to object to a witness answering a question put in crossexamination on the grounds of privilege

Pt 3.10

Evidence is being adduced and the Evidence Act applies

(i) During a civil trial in the Federal Court or District Court to object to eh admissibility of a document on the grounds that it is the subject of client legal privilege

Pt 3.10

Evidence is being adduced and the Evidence Act applies

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Client legal privilege 1.

Which case authoritatively determined that the Evidence Act 1995 does not have derivative application to the common law? Answer: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49.

2.

Can a judge inspect documents to determine whether they are privileged? Answer: See s 133.

3.

What are the competing considerations in privileging information and disclosure of material? Answer: Protecting a relationship, ensuring that a party has all relevant information for litigation. Privileged communications are excluded because their disclosure would harm a fundamental principle or relationship that society deems worthy of preserving at the expense of litigants having all relevant material for litigation. The rationale for client legal privilege is that it promotes the public interest in the administration of justice by facilitating the representation of clients by lawyers.

4.

Can client legal privilege be waived? If so, how? Answer: See s 122.

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5.

Read the following scenario and then answer the questions. Jennifer Smith was an accountant responsible for the auditing of a financial company, Dollars-R-Us, which went into liquidation in 2007. Smith has been charged in relation to the collapse of the company, and is accused of having conspired with the directors of the company to commit fraud, and of publishing false financial reports about the state of the company's finances. These proceedings are in the Supreme Court of New South Wales. There are related civil proceedings in the Federal Court. Smith has issued subpoenas seeking a range of documents held by a firm of solicitors acting for another company, Finance 24-7, in these related proceedings. The solicitors claim that those documents are the subject of legal professional privilege and the client who holds the privilege has not waived that privilege. Smith argues that the documents may establish her innocence or at least assist her in her defence. (a) Can Smith compel the solicitors to produce the documents? Answer: Yes, with a subpoena to produce. (b) Do you think she should be able to access the documents? Answer: They assist in her defence. Section 123 may apply. (c) Would your answer be different if the proceedings were occurring in Western Australia? Answer:  Yes, the common law would apply:  see Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121. (d) Some of the documents were produced before the related court proceedings were anticipated, and contain a combination of legal and policy advice. Might this make a difference to whether privilege applies to them?

Answers to Questions

CHAPTER 21

Answer: Apply s 118. (e) Some of the documents are records of interviews with clients of Finance 24-7, that were taken after proceedings commenced in the Federal Court. They have been checked by the interviewee for accuracy. Can Smith argue that the contents have been disclosed and that the records of interview have lost their privilege? Answer: Apply s 122. (f)

There are also some records of conversations between Finance 24-7's solicitors and an external financial adviser about Dollars-R-Us, that occurred before it went into liquidation. Can privilege be claimed over those records? Answer: Apply s 119.

(g) Some of the documents are referred to in the pleadings exchanged between the parties in the Federal Court matter. Could this make a difference to whether the privilege can be claimed? Answer: Apply s 122. (h) Smith is also arguing that some of the documents that she wants to access are records of an attempt by the solicitors and their clients to conceal assets that might become the subject of a judgment debt. Will that make a difference to the success of the privilege claim? Answer: Apply s 125.

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Other privileged communications 1.

Can a priest be compelled to attend court in answer to a subpoena to testify? Can the priest object to giving oral evidence about a previous representation of a person if that representation was a confession? If so, how? Answer: See s 127.

2.

What is the effect of ss 126J – 126L? Answer: To make privilege apply to pre-trial proceedings.

Privilege against self-incrimination in other proceedings: s 128 1.

Which party must object to adducing evidence that may incriminate a person? Answer: A witness objects.

2.

What evidence need not be given? Answer: Evidence that incriminates the witness for a criminal charge or civil penalty.

3.

What are “reasonable grounds for objection”? Answer: There is no guidance in respect of what constitutes “reasonable grounds”.

4.

What happens if the court thinks there are reasonable grounds for the objection? Answer:  The witness is not required to give that particular evidence unless the witness chooses to give the evidence, having been informed that he or she will be given a

Part 5 — Case Files and Answers to Questions

certificate (s 128(2)); or, where the evidence does not tend to prove that the witness has committed an offence or is liable to a civil penalty and the interests of justice require that the witness give the evidence: s 128(5). 5.

What effect does a certificate have? Answer:  It gives the witness both use and derivative use immunity in respect of the evidence. The evidence cannot be used against the person in any proceedings in an Australian court.

6.

When does a witness get a certificate? Answer: After the witness has given the evidence. See s 128(3) and (4).

7.

What obligation does the court have because of s 132? Answer: To inform the witness of his or her right to object.

8.

What “interests of justice” considerations would require a witness to give evidence? Answer: It is suggested that the factors in s 130(5) are the types of matters that may be considered.

9.

Do bodies corporate have the right to claim the privilege? See s 187. Answer: No.

Public interest immunity: ss 129, 130

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1.

Did the ALRC intend to change the common law in relation to this area? Answer: No, there was no recognised inadequacy in the common law approach.

2.

What effect does s 129 have? Answer: Evidence of reasons for decision of judges, juries and arbitrators should not be disclosed. There are exceptions to this rule in s 129(5).

3.

What is the test for exclusion of material under s 130(1)? Answer:  It is a balancing exercise between the public interest in admitting into evidence information or a document that relates to matters of state and on the other hand to the public interest in preserving secrecy or confidentiality in relation to the information or document.

4.

Who initiates exclusion of the evidence? Answer: The court or the parties or the state.

5.

What are some factors the court takes into account in making a decision? Answer: See s 130(5).

6.

Can public interest immunity be waived? If so, how? Answer: It cannot be waived, but the court considers whether the substance of the information or document has already been published: s 130(5)(e).

7.

Consider the decision of Sankey v Whitlam (1978) 142 CLR 1 and the Evidence Act 1995, and answer the following questions: (a) Does public interest immunity apply to both documents and oral communications? Answer: Yes.

Answers to Questions

CHAPTER 21

(b) Why are Cabinet documents and papers concerned with policy decisions at a high level entitled to protection from production due to the “class” of the document? What “class” of documents should be immune from production? Answer:  The class of the document means because of the nature of the document it should not be disclosed; eg Cabinet minutes, minutes of discussions between heads of departments, papers for preparing submissions to Cabinet and any document which relates to the framing of government policy at a high level. Cabinet documents are immune from production as it is necessary for the proper functioning of government. A “class” of documents will be immune from production if it is really necessary for the proper functioning of the public service to withhold documents of that class from production. (c) What is the reason for withholding a “class” document from production? Is it in the public interest to withhold a document which describes events which occurred many years ago or has been tabled in Parliament? Answer: A class document may be withheld from production if it is necessary in the public interest. It will not be in the public interest to withhold from production a document which describes events which occurred many years ago, or has been tabled in Parliament (this makes a document public). (d) Does the court have a duty to apply the privilege or can it be asserted by a party? Also refer to the Evidence Act 1995.

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Answer: The court has a duty to apply public interest immunity, or it can be asserted by a party (now see s 130(2)). (e)

What was the balancing exercise in Sankey v Whitlam (1978) 142 CLR 1? Did Sankey gain access to the documents? Did the documents concern Cabinet deliberations? Answer: The court must balance the need for secrecy against the need to produce the documents in the administration of justice (now see s 130(1)). In Sankey v Whitlam (1978) 142 CLR 1 some of the documents belonged to a class of documents that attracted public interest immunity. However, after the court inspected the documents they ordered disclosure because the documents described events which occurred three years before, the documents would not affect the present government and the documents were integral to Sankey's claim. The documents in this case did not involve Cabinet deliberations.

(f)

Can the court inspect the documents to determine whether they are privileged? Answer: The court may inspect the document. Class documents may not need to be inspected (now see ss 130(3) and 133).

(g) Does the fact that the determination of the privilege is in the context of a criminal trial affect the balancing exercise? Answer: In criminal trials, if the liberty of the accused is at stake then the documents should be disclosed. 8.

Consider the case extracts and answer the following questions: (a) Is the classification of claims as class or contents a precise exercise? Answer: The classification of claims as class or contents is often “rough and imprecise”.

Part 5 — Case Files and Answers to Questions

(b) Are “class documents” documents where there are strong considerations of public policy militating against the disclosure regardless of the content of the document? Answer: Yes. (c) Do class documents have absolute immunity from disclosure? Answer: Class documents do not have absolute immunity from disclosure. The public interest in non-disclosure must be weighed against the proper administration of justice which may be impaired by the denial of a court of access to relevant and admissible evidence: see s 130(1). (d) In what circumstances should a judge inspect the documents? Answer: If “exceptional circumstances” exist then the judge must personally inspect the documents to determine the relevance of the material to the proceedings. The documents must be crucial to the proper determination of the proceedings. In some class claims the court may find it necessary to inspect a document in order to determine if it falls into a class attracting immunity (sometimes the contents will have a bearing on that question). Now see s 133. (e) Do Cabinet minutes have a pre-eminent claim to confidentiality? Answer: Yes. Would Cabinet deliberations upon matters which remain current or controversial be disclosed in civil proceedings?

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Answer: No. Would criminal proceedings warrant disclosure of such Cabinet minutes? Answer: Yes, if the minutes are relevant to the accused's defence. Notes of Cabinet deliberations have a pre-eminent claim to confidentiality. The court doubted whether disclosure of Cabinet deliberations upon matters which remain current or controversial would ever be disclosed in civil proceedings. The public interest in proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. Criminal proceedings may warrant disclosure. Problem Refer to R v Eagle in Chapter 20. Consider whether any of the documents produced on subpoena are the subject of privilege. Refer to sections of the Evidence Act 1995 to determine whether documents are privileged. Answer: Subpoena on police – s 130; subpoena on Dr Psychiatrist – s 126B; subpoena on East lawyers – ss 118 and 119. Role play and problem See the role play scenario as outlined in Chapter 14.

Answers to Questions

CHAPTER 21

Matters to consider: Are the notes prepared by the deceased in respect of the legal advice the subject of s 118 or s 119? What about the minutes of meeting of ABC? Is this protected by s 130? Is the safety report prepared by the engineer privileged under s 118 or s 119? Can the priest give oral evidence of what the deceased said at the hospital? Are the in-house notes of the lawyers at ABC privileged? Has privilege been waived in respect of the accidentally dropped note? What is the effect of the publication of the summary of the report? Can the plaintiff seek access to the Department of Defence's relevant documents? Group work and problem See the information in Chapter 14. Group 1 Issue subpoenas on the Sydney Rape Therapy Centre and police. Argue that the documents are not privileged pursuant to sexual assault communications privilege and possibly on the basis of public interest immunity. Group 2 Sexual assault communications privilege and possibly on the basis of public interest immunity. Group 3 Prepare argument on the basis of public interest immunity: s 130. Group 4 Consider application of s 128.

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CHAPTER 15 1.

Fill in the following table concerning the burden of proof in civil and criminal cases:

Burden of proof

Who has it?

Exceptions?

Civil

Plaintiff

Where substantive law so dictates

Criminal

Prosecution

Some defences

2.

Fill in the following table, explaining the standard of proof in civil cases and that for the prosecution and accused. Explain what section of the Evidence Act 1995 is applicable, the requirements of that section and any other consideration that is relevant.

Standard of proof

Section

Requirements?

Consideration?

Civil

140

Balance of probabilities

Court may consider: nature of cause of action or defence, nature of subjectmatter and gravity of matters

Prosecution

141(1)

Beyond reasonable doubt

Accused

141(2)

Balance of probabilities

Admissibility of evidence

142

Balance of probabilities

Part 5 — Case Files and Answers to Questions

3.

Alex is on trial for importation of prohibited drugs into Australia. He was arrested at the airport when the drugs were found in his suitcase. Alex claimed another passenger in Bangkok asked him to take the suitcase because his luggage was overweight. At the conclusion of the trial, the judge began her summing up by referring to the role of the jury in general terms and how they should go about their task. She summarised the elements of the offence and continued: In respect of the onus of proof, it is for the Crown to prove the accused is guilty, beyond reasonable doubt. The accused does not have to prove anything and you will find him not guilty unless you are satisfied beyond reasonable doubt that he is guilty. That means you should convict unless you have a rational doubt.

You are defence counsel. What redirections do you seek? Answer: The standard of proof should not be elaborated on, as it may confuse the jury. The judge should not have said the jury should convict unless they had a rational doubt. That amounts to reversing the onus of proof. 4.

Consider R v Eagle in Chapter 20. Is the trial judge required to give the jury a circumstantial evidence direction? If yes, state the direction that a judge should give the jury. Answer:  Yes. The Judicial Commission of New South Wales provides the following model direction in its Criminal Trial Courts Bench Book (http://www.judcom.nsw.gov. au/bench-books) at [2-530]:

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The Crown asks you to draw an inference or conclusion of guilt [as to an essential ingredient of the charge] … [specify ingredients] beyond reasonable doubt from the [fact(s)] which I have summarised. It will not be open to you to come to a conclusion favourable to the Crown unless you were first to find as a fact that … [refer to the essential intermediate fact]. As that fact is essential to your coming to a conclusion in favour of the Crown — because the Crown must prove its case beyond reasonable doubt — then you would first have to be satisfied as to the existence of that particular fact beyond reasonable doubt. This particular fact must be proved beyond reasonable doubt not because it alone proves the guilt of [the accused] but because it is an essential step in the reasoning that the Crown asks you to follow in order to establish its case. Unless that fact is proved beyond reasonable doubt, the reasoning relied upon by the Crown must fail. As I have already said, in relation to facts which are not essential to your process of reasoning, you would not consider those facts you find established by the evidence in isolation, but you would have regard to them as a whole. If you were satisfied beyond reasonable doubt as to the existence of the essential fact, then you can take that fact together with all the other facts you find established and ask whether you can draw an inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown asks you to find is not available then the Crown’s circumstantial case fails. But it is for you to determine what conclusion, if any, can reasonably be drawn from the established facts, and then consider whether there is any other reasonable explanation for those facts other than that of [the accused’s] guilt. If there is no other explanation consistent with all the established facts considered together, then it would be open to you to convict [the accused]. If, however, you are not satisfied beyond reasonable doubt as to the essential fact to which I have referred, you must return a verdict of not guilty. You should also find [the accused] not guilty if, looking at the established facts as a whole you cannot conclude beyond reasonable doubt that [he/she] is guilty. As I have said, this would

Answers to Questions

CHAPTER 21

also be the position if, at the end of your deliberations, you are of the view that some other reasonable explanation exists for those facts other than that [the accused] is guilty.

CHAPTER 16 1.

Explain how s 143 of the Evidence Act 1995 operates. Answer: This section assumes a judge's obligation to take the law into account and apply it. Therefore, no proof is required about legislation.

2.

What matters of common knowledge need not be proved under s 144 of the Evidence Act 1995? Answer: “Knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.”

3.

Consider the case of Woods v Multi-Sport Holdings (2002) 208 CLR 460 and answer the following: (a) What were the facts involved?

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Answer: Woods had lost 99% use of his eye when hit in the eye by a cricket ball while playing indoor cricket. The case was whether Multi-Sport had breached a duty of care to Woods. (b) What was the issue concerning judicial notice? Answer: There was an issue of whether the judges could take judicial notice of statistics concerning recreational injuries. (c) How did McHugh J explain judicial notice? Answer: Evidence that is “so generally known that every ordinary person may be reasonably presumed to be aware of it”, so it is not really evidence. (d) What examples did McHugh J give of the different types of judicial notice? Answer: He divided them up into adjudicative facts and legislative facts. He further discussed notorious facts judicially noticed without inquiry (such as that HIV is a life-endangering disease); notorious facts judicially noticed after inquiry (relying on reports, studies, articles, etc) and statistics. (e) How did McHugh J resolve the dispute in relation to judicial notice on the facts? Answer: He thought that the court could refer to the statistics concerning recreational injuries. (f)

How did Callinan J explain judicial notice? Answer: He expressed his view in similar words to McHugh J.

(g) What are the competing interests a court must consider when deciding whether to take judicial notice of a fact? Answer:  That parties must be given the opportunity to deal with all matters the

Part 5 — Case Files and Answers to Questions

court regards as material, and that the court should be properly informed. (h) How did Callinan J resolve the dispute in relation to judicial notice on the facts? Answer:  He did not think it appropriate for the court to consider the National Health Survey. (i)

How was Callinan J's judgment different from McHugh J's judgment? Which do you prefer, and why? Answer: Callinan J did not think that the court should consider the National Health Survey. He thought it was too vague, too small a sample, and not directly relevant. McHugh J thought judicial notice might be taken of the fact that recreational injuries are extremely common and this was known to Multi-Sport or ought to have been known by Multi-Sport.

4.

In light of the decision of Maluka & Maluka (2011) 45 Fam LR 129; [2011] FamCAFC 7 explain how s 144 operates. Answer: Notice and procedural fairness are essential. While the court can acquire knowledge “in any way the judge thinks fit” and so ordinary rules of evidence (eg hearsay, opinion) do not apply, however parties should be given the opportunity to comment. If the court acquires knowledge through experts, then it should probably take place with the parties. The material must “not reasonably open to question”.

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5.

Consider Strom v Council of the Shire of Cremorne in Chapter 20. If it were relevant, could the court take judicial notice of the following: •

•

•

the fact that the day on which Jack was injured was the day that school broke up; Answer: Possibly this would be common knowledge in the locality where the case was heard. It might depend on whether there were different days for different schools. the location of the wharf; Answer: This would be a matter of common knowledge that would either be common knowledge in the locality or could be easily verified by a map. the average height of Australians according to the 1995 National Health Survey data (see Document 6). If not, how could this be proved and how would it be relevant? Answer: The data might help to show whether the railing was safe for most people, and whether the Council had taken sufficient care in constructing the railing. According to McHugh J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, it would be possible for the court to take judicial notice of this data. It would probably also satisfy Callinan  J, since the problems with the survey in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 would not be in issue here. If the parties sought to tender the evidence it would be admissible as documentary evidence.

CHAPTER 17 1.

Refer to Strom v Council of the Shire of Cremorne in Chapter  20. In para  15 of the judgment, there is mention of Michael Brown, who was sitting with Jack Strom before the fall. Assume that the plaintiff does not call Michael Brown as a witness. What are the consequences of this?

Answers to Questions

CHAPTER 21

Answer: There might be an adverse inference drawn that Michael Brown would not help the plaintiff's case. This would require a consideration of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. 2.

Refer to R v Eagle in Chapter 20. As defence counsel for Eagle, advise your client as to the consequences of him not giving evidence in the trial. Answer: Consider s 20.

3.

Refer to R v Eagle in Chapter 20. Discuss the other directions in respect of proof that the trial judge may be required to give to the jury. Answer: Directions in respect of circumstantial evidence.

Evidence of convictions and judgments 1.

Can an accused's criminal record be relevant to: • • •

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• 2.

Is there a distinction in s 91 between: • •

3.

to attack credit (see ss 103, 104, 106); Answer: Yes, but see ss 103, 104, 106. to rebut good character (see s 110); Answer: Yes, but see s 110. to prove a tendency (see ss 97, 101); Answer: Yes, but see ss 97, 101. to prove lack of coincidence (see ss 98, 101)? Answer: Yes, but see ss 98, 101. proving the fact of the judgment or conviction; and proving the existence of the facts implied (or the facts which support) the judgment or conviction? Answer: Yes, s 91 operates to prove the fact of judgment or conviction but not the underlying facts leading to that fact.

Can a party tender a criminal record to prove the fact of a conviction? Answer: Yes, by s 178.

4.

Can a party tender a criminal record to prove the existence of the facts that support a conviction? Answer: No. To prove the facts supporting a conviction a party would need to prove those facts; that is, the elements of the crime. If a party is unable to tender a criminal record for such a purpose, how would a party prove the existence of facts that support a conviction? Answer: Calling evidence of those facts that support the conviction.

5.

Does an acquittal prove innocence of the crime charged? Answer: No. It proves the fact that the person was acquitted.

6.

What does s 178 of the Evidence Act 1995 provide? Answer: Section 178 provides the means of proving the fact of a conviction, acquittal, sentencing etc.

Part 5 — Case Files and Answers to Questions

Failure to give evidence

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1.

Delete the incorrect phrase in each of the following: Answers: • Absence of the defendant as a witness can/cannot make up a deficiency in the plaintiff's case. • If the defendant fails to give evidence, evidence led by the plaintiff that the defendant might have contradicted (had he or she testified) can be more readily accepted by the finder of fact/taken to be admitted by the defendant. • A defendant's unexplained failure to give evidence can be used to draw an inference that the evidence would not have assisted that defendant/would have been unfavourable to the defendant. • Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 principles apply to only civil/ civil and criminal cases. • Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inferences can be drawn in respect of any evidence/only where a party fails to testify. • A failure to give evidence amounts to/does not amount to an admission of guilt. • A judge should/should not instruct the jury that the accused does not have to give evidence. • A judge should/should not instruct the jury that a failure to give evidence will make it easier to accept or draw inferences from the Crown's case. • A judge should/should not warn the jury that there may be no reasons/good reasons why an accused has not given evidence.

2.

Consider s 20 of the Evidence Act and answer the following: (a) Does s 20 apply to civil or criminal cases? Answer: Criminal cases. (b) What do subsections 20(2) and (3) provide? Answer: Comment on the failure to give evidence.

3.

Fill in the following table concerning the possible comments allowed under s 20.

Section 20

Judge

Prosecution

Other Party

Who can comment?

Yes

No

Yes

Can the comment suggest guilt?

No

No

Yes

CHAPTER 18 1.

Refer to R v Eagle in Chapter 20. Consider the warnings that ought be given in respect of each of the witnesses that have provided statements to police. Identify the warning that ought be given by the trial judge.

Answers to Questions

CHAPTER 21

Answer: Consider s 165; unreliability of testimony of Jeremy and Jade; problems associated with the hypnosis of housekeeper. 2.

For each of the cases extracted above, identify the following: (a) what was the evidence that was subject of a direction or warning; (b) what warning was necessary in respect of the evidence; (c) was the warning required because of a common law obligation or was it required under the Evidence Act 1995? Answer: Flood:  (a) a direction because the complainant had brain damage; (b)  s 165; and (c) Evidence Act 1995.

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Stewart: (a) evidence from an accomplice; (b) s 165(2); and (c) Evidence Act 1995. Longman: (a) complainant's evidence of sexual assault that occurred more than 20 years before the trial; (b) the need to direct the jury on the forensic disadvantage occasioned to the accused as a result of the delay in complaint. That is, that as the evidence of the complainant could not be adequately tested because of the passage of time, it would be “unsafe or dangerous” to convict on uncorroborated evidence of the complainant alone unless satisfied of its truth and accuracy after scrutinising it and the relevant circumstances with great care, and after taking this warning into account. The direction must include a reference to and detail of potential and actual disadvantage; and (c) the Longman direction was required by the common law, however if the proceedings commenced after 1 January 2007, the direction should not be given in these terms: see s 294AA Criminal Procedure Act 1986 (warning to jury of the danger of convicting on the uncorroborated evidence of any complainant is prohibited) and for proceedings commenced after 1 January 2009, s 165B Evidence Act 1995 regulates warnings given to juries concerning delay and forensic disadvantage to the accused. This means a “Longman” direction now would require: (i) compliance with that s 294 Criminal Procedure Act 1986 (for proceedings commenced after 1 January 2007) that requires a direction that absence of, or delay in, complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint. (ii) compliance with s 165B (for proceedings commenced after 1 January 2009) that regulates warnings concerning delay and forensic disadvantage to the accused. Section 165B(2) provides that if the court, on the application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage (eg witness deceased or unable to be located, or potential evidence lost or unavailable: s 165B(7)) because of the consequences of delay, the court must inform the jury of the nature of the disadvantage and of the need to take that disadvantage into account when considering the evidence. The mere passage of time is not to be regarded as a significant forensic disadvantage (s 165B(6)) and the judge need not take this action if there are good reasons for not doing so: s 165B(3). The section makes it clear that the warning is

Part 5 — Case Files and Answers to Questions

to be given only if a party applies for it, and should only be given where there is an identifiable risk of prejudice to the accused. Such prejudice should not be assumed to exist merely because of the passage of time. Crofts:  (a) late complaint of child sexual assault; (b)  defence counsel argued that the trial judge should have directed the jury that the delay of complaint could be taken into account to weigh the credibility of the complainant; and (c)  this is common law obligation (Kilby v The Queen (1973) 129 CLR 460) and is not dealt with in Evidence Act 1995 (it continues to apply with the Act). In Kilby v The Queen (1973) 129 CLR 460, Barwick CJ said as a “general rule” that it is “…proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity” (at 465) and “… just as the fact of a proximate complaint tends to support credibility of the complainant so its absence may be a considerable factor where a tribunal of fact is deciding on the credibility of the complainant” (at 469). In R v Markuleski (2001) 52 NSWLR 82, a five-judge decision, Spigelman CJ said at [175] that as a general rule:

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… a direction, which tells the jury that there may be reasons for delay in the complaint, should be balanced by the jury being informed that it was entitled to take into account the delay in assessing the complainant’s credibility.

CMG: (a) the child was seven at the time of the alleged offences and nine at the time of the trial and the trial judge commented about the reliability of the child’s evidence (see [11] of the judgment which extracts the directions); (b) the comments of the trial judge were not properly within the scope of directions of law; and (c) the trial judge could have said that the “collective experience of the courts is that “the age of a witness is not determinative of his or her ability to give truthful and accurate evidence”” (see reference to English decision of R v Barker [2010] EWCA Crim 4 at [10] of Victorian judgment. PT: (a) forensic disadvantage caused by the delay; (b) the trial judge did not give a warning about the forensic disadvantage caused by the delay; and, (c) a warning under s 165B was not required in the facts of this case because the appellant had failed to establish “significant forensic disadvantage” as required by s 165B. The Victorian Court of Appeal said at [38]: The threshold question for a trial judge in considering whether a forensic disadvantage warning should be given is whether the judge is satisfied that there has been “significant” forensic disadvantage. That requires, as has been seen, a measure of precision in identifying the nature of the disadvantage alleged. It also requires some demonstration of the obstacles confronting the defence as a result of the delay. That, in turn, may call for some evidence to be led of the attempts made to overcome the difficulties identified.

3.

You are a judge hearing a sexual assault trial. Defence counsel cross-examine the complainant by questioning him about the two-month delay between the alleged sexual assault and the first time he told another person about the sexual assault. Defence counsel have requested you to direct the jury that that the delay in complaint can be taken into account when the jury assesses the complainant’s credibility. What direction should you give to the jury?

Answers to Questions

CHAPTER 21

Answer: The Judicial Commission of New South Wales provides the following model direction in its Criminal Trial Courts Bench Book (http://www.judcom.nsw.gov.au/ bench-books): [2-620] Suggested direction — delay in, or absence of, complaint This direction must be given when evidence is given, or a question is asked, tending to suggest an absence of, or delay in, making a complaint: s 294(1). The direction must not extend to warning that delay is relevant to the complainant’s credibility “unless there is sufficient evidence to justify such a warning”: s 294(2)(c). You have heard evidence that [the complainant] did not complain about what [he/ she] claims that the accused did to [her/him] until [he/she] told [set out details of when, to whom, and nature of complaint]. [Alternatively: You have heard that [the complainant] did not make any complaint about what [he/she] claims that the accused did to [her/him].] The delay in making a complaint about the alleged conduct of the accused [or an absence of a complaint] does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. [Where appropriate: You have heard evidence that [the complainant] did not complain until [he/she] did so to [specify] because [specify the explanation offered].]

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[Where appropriate (ie, where the “sufficient evidence” test under s 294(2)(c) is met): However, the delay in making a complaint [or the absence of a complaint] is a matter that you may take into account in assessing the credibility of [the complainant’s] evidence as to what [he/she] said the accused did. The accused has argued that the delay in making a complaint [or the absence of a complaint] is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating that the complainant’s evidence is false. [He/she] asks you to rely upon the evidence that … [set out the evidence relied upon by the accused said to justify that the jury should use the delay in assessing the complainant’s credibility]. This is a matter which you should consider.]

4.

You are a judge hearing a trial for sexual offences that are alleged to have occurred on 10 March 1996 when the complainant was ten years old. The accused gives evidence that he was admitted to hospital on 9 March 1996 and was discharged five days later. The accused also gives evidence that his lawyer subpoenaed the hospital records but received a letter from the hospital advising that a fire destroyed all records in March 1996 (the letter and subpoena are tendered). Defence counsel request a direction about the forensic disadvantage suffered by the accused due to the delay in prosecution. What direction should you give to the jury? Answer: The Judicial Commission of New South Wales provides the following model direction in its Criminal Trial Courts Bench Book (http://www.judcom.nsw.gov.au/ bench-books): [2-650] Suggested direction — delay in complaint and forensic disadvantage to the accused Note: The suggested direction should be modified so as to deal only with the actual and possible disadvantages encountered in the case at hand and omitting assumptions that may not be applicable.

Part 5 — Case Files and Answers to Questions

There is a warning I must give you relating to this issue of the delay in [or absence of] any complaint being made by [the complainant]. It is most important that you appreciate fully the effects of delay [or absence of complaint] on the ability of [the accused] to defend [himself/herself] by testing prosecution evidence [or bringing forward evidence] in [his/her] own case, to establish a reasonable doubt about [his/her] guilt. In this regard, I refer to the following specific difficulties encountered by [the accused] in testing the evidence of the prosecution [or in adducing evidence] in [his/her] own case … [these specific difficulties should be highlighted in such a way as to make it clear that delay, for which the accused had not been responsible, had created those difficulties. All additional significant circumstances require comment. These may include: • the delay in instituting the prosecution, • the possibility of distortion in human recollection, • the nature of the allegations, • the age of the complainant at the time of the allegations having regard to the current and previous forms of ss 165A and 165B Evidence Act, • the prosecution case is confined to the evidence of the complainant, and • any unusual or special features.] These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence [him/herself] to establish a reasonable doubt about [his/her] guilt, or both.

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The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been. Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that [the complainant’s] memory for details would have been clearer. This may have enabled [his/her] evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. [The complainant’s] inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on [his/her] evidence by pointing to circumstances which may contradict [him/her]. Had the accused learned of the allegations at a much earlier time [he/she] may have been able to recall relevant details which could have been used by his counsel in cross-examination of [the complainant]. Another aspect of the accused’s disadvantage is that had [he/she] learned of the allegations at a much earlier time [he/she] may have been able to find witnesses or items of evidence that might have either contradicted [the complainant] or supported [his/ her] case, or both. [He/She] may have been able to recall with some precision what [he/she] was doing and where [he/she] was at particular times on particular dates and to have been able to bring forward evidence to support [him/her]. You should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence from [set out specific items of evidence lost or no longer available].

Because the accused has been put into this situation of significant disadvantage [he/she] has been prejudiced in the conduct of his defence. As a result, I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about — the fact that the complainant’s evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support [his/her] defence.

Answers to Questions

CHAPTER 21

CHAPTER 19 1.

What is the test for determining whether there is a “case to answer” in civil hearings? Answer: If there is a lack of evidence to prove the plaintiff's case.

2.

What is the test for determining whether there is a “case to answer” in criminal trials? Answer: If the Crown has failed to adduce evidence that is capable of proving one or more elements of the offence, then there will be no case to answer. If the Crown has adduced evidence of proving all elements of the offence, then there is a case to answer.

3.

List the various applications that an accused can make to prevent the jury deliberating a verdict. Answer: A “no case to answer” submission; an application to stay the proceedings.

4.

What is the consequence of making a “no case to answer” submission in a civil case? Answer: The defendant must seek leave to call evidence if the submission fails.

5.

What is the consequence of a defendant making a “no case to answer” submission in a criminal trial?

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Answer:  If the defendant succeeds in the submission then the jury will be directed to acquit. If unsuccessful, the trial proceeds.

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APPENDIX — LEGISLATION Evidence Act....................................................................................................... 871

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Criminal Procedure Act 1986 (NSW) – Extracts .................................. 1041

APPENDIX

Relationship Between the Evidence Act 2001 (Tas) and the Evidence Act 1995 (Cth) ....................................................... 1033

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APPENDIX - LEGISLATION Evidence Act Act No 2 of 1995 [Cth] Act No 25 of 1995 [NSW] Act No 47 of 2008 [Vic]

Table of Provisions * indicates that the provision appears only in the Commonwealth Act † indicates that the provision appears only in the NSW Act. ‡ indicates that the provision appears only in the Vic Act.

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CHAPTER 1 - PRELIMINARY INTRODUCTORY NOTE PART 1.1 - FORMAL MATTERS 1 Short title* / Name of Act† / Purpose‡ 2 Commencement 3 Definitions 3A Notes‡ PART 1.2 - APPLICATION OF THIS ACT 4 Courts and proceedings to which Act applies 5 Extended application of certain provisions* 6 Territories* 7 Act binds Crown 8 Operation of other Acts etc* / Operation of other Acts† / Operation of Acts† 8A Application of the Criminal Code* 9 Effect of Act on other laws* / Application of common law and equity†† 10 Parliamentary privilege preserved 11 General powers of a court

CHAPTER 2 - ADDUCING EVIDENCE INTRODUCTORY NOTE PART 2.1 - WITNESSES Division 1 - Competence and compellability of witnesses

12 13 14 15 16

Competence and compellability Competence: lack of capacity Compellability: reduced capacity Compellability: Sovereign and others Competence and compellability: judges and jurors

Appendix — Legislation

17 18 19 20

Competence and compellability: defendants in criminal proceedings*† / Competence and compellability—accused in criminal proceedings‡ Compellability of spouses and others in criminal proceedings generally Compellability of spouses and others in certain criminal proceedings*† Comment on failure to give evidence

Division 2 - Oaths and affirmations

21 22 23 24 24A 25

Sworn evidence of witnesses to be on oath or affirmation Interpreters to act on oath or affirmation Choice of oath or affirmation Requirements for oaths Alternative oath†‡ Rights to make unsworn statements unaffected* [Repealed]

Division 3 - General rules about giving evidence

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26 27 28 29 30 31 32 33 34 35 36

Court’s control over questioning of witnesses*† / Court’s control over questioning of witness‡ Parties may question witnesses Order of examination in chief, cross-examination and re-examination Manner and form of questioning witnesses and their responses Interpreters Deaf and mute witnesses Attempts to revive memory in court Evidence given by police officers Attempts to revive memory out of court Effect of calling for production of documents Person may be examined without subpoena or other process

Division 4 - Examination in chief and re-examination

37 38 39

Leading questions Unfavourable witnesses Limits on re-examination

Division 5 - Cross-examination

40 Witness called in error 41 Improper questions 42 Leading questions 43 Prior inconsistent statements of witnesses 44 Previous representations of other persons 45 Production of documents 46 Leave to recall witnesses PART 2.2 - DOCUMENTS 47 Definitions 48 Proof of contents of documents 49 Documents in foreign countries 50 Proof of voluminous or complex documents 51 Original document rule abolished PART 2.3 - OTHER EVIDENCE 52 Adducing of other evidence not affected

Evidence Act

53 54

Views Views to be evidence

CHAPTER 3 - ADMISSIBILITY OF EVIDENCE INTRODUCTORY NOTE PART 3.1 - RELEVANCE 55 Relevant evidence 56 Relevant evidence to be admissible 57 Provisional relevance 58 Inferences as to relevance PART 3.2 - HEARSAY Division 1 - The hearsay rule

59 60 61

The hearsay rule – exclusion of hearsay evidence Exception: evidence relevant for a non-hearsay purpose Exceptions to the hearsay rule dependent on competency*† / Exceptions to the hearsay rule dependant on competency‡

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Division 2 - “First-hand” hearsay

62 63 64 65 66 66A 67 68

Restriction to “first-hand” hearsay Exception: civil proceedings if maker not available Exception: civil proceedings if maker available Exception: criminal proceedings if maker not available Exception: criminal proceedings if maker available Exception: contemporaneous statements about a person’s health etc Notice to be given Objections to tender of hearsay evidence in civil proceedings if maker available

Division 3 - Other exceptions to the hearsay rule

69 Exception: business records 70 Exception: contents of tags, labels and writing 71 Exception: electronic communications 72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs 73 Exception: reputation as to relationships and age 74 Exception: reputation of public or general rights 75 Exception: interlocutory proceedings PART 3.3 - OPINION 76 The opinion rule 77 Exception: evidence relevant otherwise than as opinion evidence 78 Exception: lay opinions 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs 79 Exception: opinions based on specialised knowledge 80 Ultimate issue and common knowledge rules abolished PART 3.4 - ADMISSIONS 81 Hearsay and opinion rules: exception for admissions and related representations 82 Exclusion of evidence of admissions that is not first-hand 83 Exclusion of evidence of admissions as against third parties 84 Exclusion of admissions influenced by violence and certain other conduct

Appendix — Legislation

Criminal proceedings: reliability of admissions by defendants*† / Criminal proceedings—reliability of admissions by accused‡ 86 Exclusion of records of oral questioning 87 Admissions made with authority 88 Proof of admissions 89 Evidence of silence*‡ / Evidence of silence generally† 89A Evidence of silence in criminal proceedings for serious indictable offences† 90 Discretion to exclude admissions PART 3.5 - EVIDENCE OF JUDGMENTS AND CONVICTIONS 91 Exclusion of evidence of judgments and convictions 92 Exceptions 93 Savings PART 3.6 - TENDENCY AND COINCIDENCE 94 Application 95 Use of evidence for other purposes 96 Failure to act 97 The tendency rule 98 The coincidence rule 99 Requirements for notices 100 Court may dispense with notice requirements 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution PART 3.7 - CREDIBILITY

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85

Division 1 - Credibility evidence

101A

Credibility evidence

Division 2 - Credibility of witnesses

102 103 104 105 106 107 108

The credibility rule Exception: cross-examination as to credibility Further protections: cross-examination of accused* / Further protections: cross-examination as to credibility†‡ Further protections: defendants making unsworn statements* [Repealed] Exception: rebutting denials by other evidence Exception: application of certain provisions to makers of representations* [Repealed] Exception: re-establishing credibility

Division 3 - Credibility of persons who are not witnesses

108A 108B

Admissibility of evidence of credibility of person who has made a previous representation Further protections: previous representations of an accused who is not a witness

Division 4 - Persons with specialised knowledge

108C Exception: evidence of persons with specialised knowledge PART 3.8 - CHARACTER 109 Application 110 Evidence about character of accused persons*† / Evidence about character of an accused‡

Evidence Act

111 112

Evidence about character of co-accused Leave required to cross-examine about character of accused or co-accused

PART 3.9 - IDENTIFICATION EVIDENCE 113 Application of Part 114 Exclusion of visual identification evidence 115 Exclusion of evidence of identification by pictures 116 Directions to jury PART 3.10 - PRIVILEGES Division 1 - Client legal privilege

117 118 119 120 121 122 123 124 125 126

Definitions Legal advice Litigation Unrepresented parties Loss of client legal privilege: generally Loss of client legal privilege: consent and related matters Loss of client legal privilege: defendants*† / Loss of client legal privilege—accused‡ Loss of client legal privilege: joint clients Loss of client legal privilege: misconduct Loss of client legal privilege: related communications and documents

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Division 1A - Professional confidential relationship privilege†

126A 126B 126C 126D 126E 126F

Definitions Exclusion of evidence of protected confidences Loss of professional confidential relationship privilege: consent Loss of professional confidential relationship privilege: misconduct Ancillary orders Application of Division

Division 1B - Sexual assault communications privilege†

126G 126H 126I

Definitions† Exclusion of evidence of protected sexual assault communications† Application of Division†

Division 1C - Journalist privilege†‡

126J 126K 126L

Definitions†‡ Journalist privilege relating to identity of informant†‡ Application of Division†

Division 2 - Other privileges

127 128 128A

Religious confessions Privilege in respect of self-incrimination in other proceedings Privilege in respect of self-incrimination—exception for certain orders etc

Division 3 - Evidence excluded in the public interest

129 130 131

Exclusion of evidence of reasons for judicial etc decisions Exclusion of evidence of matters of state Exclusion of evidence of settlement negotiations

Appendix — Legislation

Division 4 - General

131A

Extended application of Division 1A* / Application of Part to preliminary proceedings of courts†‡ 131B Extended application of Division 1A etc to all proceedings for Commonwealth offences* 132 Court to inform of rights to make applications and objections 133 Court may inspect etc documents 134 Inadmissibility of evidence that must not be adduced or given PART 3.11 - DISCRETIONARY AND MANDATORY EXCLUSIONS 135 General discretion to exclude evidence 136 General discretion to limit use of evidence 137 Exclusion of prejudicial evidence in criminal proceedings 138 Discretion to exclude improperly or illegally obtained evidence* / Exclusion of improperly or illegally obtained evidence†‡ 139 Cautioning of persons

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CHAPTER 4 - PROOF INTRODUCTORY NOTE PART 4.1 - STANDARD OF PROOF 140 Civil proceedings: standard of proof 141 Criminal proceedings: standard of proof 142 Admissibility of evidence: standard of proof PART 4.2 - JUDICIAL NOTICE 143 Matters of law 144 Matters of common knowledge 145 Certain Crown certificates PART 4.3 - FACILITATION OF PROOF Division 1 - General

146 147 148 149 150 151 152

Evidence produced by processes, machines and other devices Documents produced by processes, machines and other devices in the course of business Evidence of certain acts of justices, lawyers and notaries public* / Evidence of certain acts of justices, Australian lawyers and notaries public†‡ Attestation of documents Seals and signatures Seals of bodies established under State law* Documents produced from proper custody

Division 2 - Matters of official record

153 154 155 155A 156 157 158 159

Gazettes and other official documents Documents published by authority of Parliaments etc Evidence of official records Evidence of Commonwealth documents* Public documents Public documents relating to court processes Evidence of certain public documents Official statistics

Evidence Act

Division 3 - Matters relating to post and communications

160 Postal articles 161 Electronic communications 162 Lettergrams and telegrams 163 Proof of letters having been sent by Commonwealth agencies* PART 4.4 - CORROBORATION 164 Corroboration requirements abolished PART 4.5 - WARNINGS AND INFORMATION 165 Unreliable evidence 165A Warnings in relation to children’s evidence 165B Delay in prosecution PART 4.6 - ANCILLARY PROVISIONS Division 1 - Requests to produce documents or call witnesses

166 167 168 169

Definition of request Requests may be made about certain matters Time limits for making certain requests Failure or refusal to comply with requests

Division 2 - Proof of certain matters by affidavits or written statements

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170 171 172 173

Evidence relating to certain matters Persons who may give such evidence Evidence based on knowledge, belief or information Notification of other parties

Division 3 - Foreign law

174 175 176

Evidence of foreign law Evidence of law reports of foreign countries Questions of foreign law to be decided by judge

Division 4 - Procedures for proving other matters

177 178 179 180 181

Certificates of expert evidence Convictions, acquittals and other judicial proceedings Proof of identity of convicted persons – affidavits by members of State or Territory police forces Proof of identity of convicted persons – affidavits by AFP members or special members of the Australian Federal Police* / Proof of identity of convicted persons – affidavits by members of the Australian Federal Police†‡ Proof of service of statutory notifications, notices, orders and directions

CHAPTER 5 - MISCELLANEOUS 182 183 184 185 186 187 188

Application of certain sections in relation to Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents* Inferences Accused may admit matters and give consents Faith and credit to be given to documents properly authenticated* Swearing of affidavits before justices of the peace, notaries public and lawyers* Abolition of the privilege against self-incrimination for bodies corporate* / No privilege against self-incrimination for bodies corporate†‡ Impounding documents

Appendix — Legislation

189 190 191 192 192A 193 194 195 196 197 198

The voir dire* / The voir dire†‡ Waiver of rules of evidence Agreements as to facts Leave, permission or direction may be given on terms Advance rulings and findings Additional powers Witnesses failing to attend proceedings†‡ Prohibited question not to be published Proceedings for offences† Regulations Savings, transitional and other provisions†

SCHEDULE* / SCHEDULE 1†‡ - OATHS AND AFFIRMATIONS SCHEDULE 2† - SAVINGS, TRANSITIONAL AND OTHER PROVISIONS† / TRANSITIONAL PROVISIONS‡ DICTIONARY -

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PART 1 – DEFINITIONS PART 2 – OTHER EXPRESSIONS

EVIDENCE ACT 1995 [Cth and NSW] EVIDENCE ACT 2008 [Vic] Act No 2 of 1995 [Cth] Act No 25 of 1995 [NSW] Act No 47 of 2008 [Vic] An Act about the law of evidence, and for related purposes [Assented to 23 February 1995] [Cth] [Assented to 19 June 1995] [NSW] [Assented to 15 September 2008] [Vic]

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Chapter 1– Preliminary Introductory Note [Cth Act only] Outline of this Act This Act sets out the federal rules of evidence. Generally speaking, the Act applies to proceedings in federal courts (see section 4), but some provisions extend beyond such proceedings (see Note 2 to subsection 4(1)). Chapter 2 is about how evidence is adduced in proceedings. Chapter 3 is about admissibility of evidence in proceedings. Chapter 4 is about proof of matters in proceedings. Chapter 5 deals with miscellaneous matters. The Dictionary at the end of this Act defines terms and expressions used in this Act. Related legislation This Act is in most respects uniform with the following State and Territory Acts: (a) the Evidence Act 1995 NSW; (b) the Evidence Act 2001 Tas; (c) the Evidence Act 2008 Vic; (d) the Evidence Act 2011 ACT; (e) the Evidence (National Uniform Legislation) Act 2011 NT.

While these Acts are in most respects identical to this Act, there are differences. The explanatory memorandum to the Civil Law and Justice Legislation Amendment Bill 2014 includes a table setting out the differences as at 8 July 2014. An updated version of the table is maintained by the Attorney-General’s Department on its website (http://www.ag.gov.au). Ch 1 note am Act 113 of 2015, s 3 and Sch 5 items 4 and 21 Act 100 of 2005, s 3 and Sch 1 item 14 Introductory note [NSW Act only] Outline of this Act This Act sets out the State rules of evidence. Generally speaking, the Act applies to proceedings in State courts and before other persons or bodies required to apply the laws of evidence (see section 4). Chapter 2 is about how evidence is adduced in proceedings.

Appendix — Legislation

Chapter 3 is about admissibility of evidence in proceedings. Chapter 4 is about proof of matters in proceedings. Chapter 5 deals with miscellaneous matters. The Dictionary at the end of this Act defines terms and expressions used in this Act.

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Related legislation This Act is in most respects uniform with the Evidence Act 1995 of the Commonwealth. The 2 Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required because one Act is a New South Wales Act and one Act is a Commonwealth Act. If one Act contains a provision that is not included in the other Act, the numbering of the other Act has a gap in the numbering in order to maintain consistent numbering for the other provisions. In relation to the taking of evidence outside New South Wales for the purposes of proceedings in the State and in relation to the taking of evidence in the State for the purposes of proceedings outside New South Wales see the Evidence on Commission Act 1995. Introductory Note [Vic Act only] Outline of this Act This Act sets out the State rules of evidence. Generally speaking, the Act applies to proceedings in State courts and before other persons or bodies required to apply the laws of evidence (see section 4). Chapter 2 is about how evidence is adduced in proceedings. Chapter 3 is about admissibility of evidence in proceedings. Chapter 4 is about proof of matters in proceedings. Chapter 5 deals with miscellaneous matters. The Dictionary at the end of this Act defines terms and expressions used in this Act. Related legislation This Act is in most respects uniform with the Evidence Act 1995 of the Commonwealth (the Commonwealth Act) and the Evidence Act 1995 of New South Wales (the New South Wales Act). The Acts are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required to accord with the drafting style of each jurisdiction. If one Act contains a provision that is not included in another Act, there is a gap in the numbering of the other Act in order to maintain consistent numbering for the other provisions. The Evidence Act 2001 of Tasmania also largely mirrors this legislation, but there are some departures.

Part 1.1 – Formal matters 1

Short title [Cth Act only] This Act may be cited as the Evidence Act 1995.

1

Name of Act [NSW Act only] This Act is the Evidence Act 1995.

Part 1.1 – Formal matters

1

s3

Purpose [Vic Act only]

The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law. 2

Commencement [Cth Act only]

(1) This Part and the Dictionary at the end of this Act commence on the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation. (3) If a provision referred to in subsection (2) does not commence under that subsection before 18 April 1995, it commences on that day. 2

Commencement [NSW Act only]

(1) This Part and the Dictionary at the end of this Act commence on the date of assent. (2) The remaining provisions of this Act commence on a day or days to be appointed by proclamation.

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2

Commencement [Vic Act only]

(1) This Part and the Dictionary at the end of this Act come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision of this Act does not come into operation before 1 January 2010, it comes into operation on that day. 3

Definitions [Cth Act only]

(1) Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary. Note: Some expressions used in this Act are defined in the Acts Interpretation Act 1901, and have the meanings given to them in that Act.

(1A) The Dictionary at the end of this Act is part of this Act. (2) Notes included in this Act are explanatory notes and do not form part of this Act. (3) Definitions in this Act of expressions used in this Act apply to its construction except insofar as the context or subject matter otherwise indicates or requires. 3

Definitions [NSW Act only]

(1) Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary. (2) Notes included in this Act are explanatory notes and do not form part of this Act.

Appendix — Legislation

(3) Without limiting the effect of, and subject to, section 34 of the Interpretation Act 1987, material that may be used in the interpretation of a provision of this Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted. Notes: 1

Some expressions used in this Act are defined in the Interpretation Act 1987, and have the meanings given to them in that Act.

2

The Commonwealth Act includes a different subsection (3). This is to the same effect as section 6 of the Interpretation Act 1987. Subsection (3) of the NSW Act is covered by section 15AB of the Acts Interpretation Act 1901 of the Commonwealth.

3

Definitions [Vic Act only]

(1) Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary. (2) The Dictionary at the end of this Act forms part of this Act.

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Notes: 1

Some expressions used in this Act are defined in the Interpretation of Legislation Act 1984 and have the meanings given to them in that Act.

2

Subsection (2) differs from the Commonwealth Act and New South Wales Act.

3

The Commonwealth Act and New South Wales Act include an additional subsection regarding definitions which are unnecessary in Victoria due to the Interpretation of Legislation Act 1984.

3A

Notes [Vic Act only]

Notes do not form part of this Act. Note: This section does not appear in the Commonwealth Act or New South Wales Act.

Part 1.2 – Application of this Act 4

Courts and proceedings to which Act applies [Cth Act only] (1) This Act applies to all proceedings in a federal court, including proceedings that: (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) subject to subsection (2), relate to sentencing.

Note 2: Federal court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence. Note 3: Some provisions of this Act extend beyond proceedings in federal courts. These provisions deal with: • extension of specified provisions to cover proceedings in all Australian courts (section 5); • faith and credit to be given to documents properly authenticated (section 185); • swearing of affidavits for use in Australian courts exercising federal jurisdiction or similar jurisdiction (section 186); • abolition of the privilege against self-incrimination for bodies corporate (section 187).

Part 1.2 – Application of this Act

s4

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Note 4: See section 79 of the Judiciary Act 1903 for the application of this Act to proceedings in a State court exercising federal jurisdiction.

(2) If such a proceeding relates to sentencing: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly. (3) The court must make a direction if: (a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and (b) in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice. (5) Subject to subsection (5A), the provisions of this Act (other than sections 185, 186 and 187) do not apply to: (a) an appeal from a court of a State, including an appeal from a court of a State exercising federal jurisdiction; or (b) an appeal from a court of the Australian Capital Territory, the Northern Territory or an external Territory; or (c) [Repealed] (d) [Repealed] (e) a review of a decision or order of a magistrate and any appeal from such a review; except so far as the provisions apply to proceedings in all Australian courts. (5A) Despite subsection (5), this Act applies to an appeal to the Family Court of Australia from a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act 1975. (6) [Repealed] 4

Courts and proceedings to which Act applies [NSW Act only] (1) This Act applies to all proceedings in a NSW court, including proceedings that: (a) relate to bail, subject to Division 4 of Part 3 of the Bail Act 2013, or (b) are interlocutory proceedings or proceedings of a similar kind, or (c) are heard in chambers, or (d) subject to subsection (2), relate to sentencing. (2) If such a proceeding relates to sentencing: (a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly.

Appendix — Legislation

(3) The court must make a direction if: (a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and (b) in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

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Notes: 1

Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an ACT court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and ACT courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2

NSW court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.

3

The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State (including appeals from a court of a State exercising federal jurisdiction) and certain other courts.

4

See section 79 of the Judiciary Act 1903 of the Commonwealth for the application of this Act to proceedings in a State court exercising federal jurisdiction.

4

Courts and proceedings to which Act applies [Vic Act only]

(1) This Act applies to all proceedings in a Victorian court, including proceedings that— (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) subject to subsection (2), relate to sentencing. (2) If such a proceeding relates to sentencing— (a) this Act applies only if the court directs that the law of evidence applies in the proceeding; and (b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters—the direction has effect accordingly. (3) The court must make a direction if— (a) a party to the proceeding applies for such a direction in relation to the proof of a fact; and (b) in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. (4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice. (5) In this section, a proceeding that relates to sentencing includes a proceeding for an order under Part 4 of the Sentencing Act 1991.

Part 1.2 – Application of this Act

s5

Notes: 1

Section 4 of the Commonwealth Act differs from this section. It applies that Act to proceedings in a federal court or an Australian Capital Territory court. Some provisions of the Commonwealth Act extend beyond proceedings in federal courts and Australian Capital Territory courts (see sections 5, 185, 186 and 187 of the Commonwealth Act).

2

Victorian court is defined in the Dictionary. The definition includes persons or bodies required to apply the laws of evidence.

3

The Commonwealth Act includes 2 additional subsections that exclude the application of that Act to appeals from a court of a State (including appeals from a court of a State exercising federal jurisdiction) and certain other courts.

4

Provisions in other Victorian Acts which relieve courts from the obligation to apply the rules of evidence in certain proceedings are preserved by section 8 of this Act. These include— • section 215 of the Children, Youth and Families Act 2005; • sections 8(6) and 13A of the Crimes (Family Violence) Act 1987; • section 38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

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• section 127 of the Electoral Act 2002. 5

Subsection (5) is not included in the Commonwealth Act or New South Wales Act.

5

Extended application of certain provisions [Cth Act only]

The provisions of this Act referred to in the Table apply to all proceedings in an Australian court, including proceedings that: (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) relate to sentencing. TABLE Provisions of this Act Subject matter Subsection 70(2) Evidence of tags and labels in Customs prosecutions and Excise prosecutions Section 143 Matters of law Section 150 Seals and signatures Section 153 Gazettes and other official documents Section 154 Documents published by authority of Parliaments etc. Section 155 Official records Section 155A Commonwealth documents Section 157 Public documents relating to court processes Section 158 Evidence of certain public documents Section 159 Official statistics Section 163 Proof of letters having been sent by Commonwealth agencies Section 182 Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents

Appendix — Legislation

Note: Australian court is defined in the Dictionary to cover all courts in Australia. The definition extends to persons and bodies that take evidence or that are required to apply the laws of evidence.

5

Extended application of certain provisions [NSW Act only]

Note: The Commonwealth Act includes a provision that extends the application of specified provisions of the Commonwealth Act to proceedings in all Australian courts.

5

Extended application of certain provisions [Vic Act only]

Note: The Commonwealth Act includes a provision that extends the application of specified provisions of that Act to proceedings in all Australian courts.

6 Territories [Cth Act only] This Act extends to each external Territory. 6 Territories [NSW & Vic Acts only] Note: The Commonwealth Act includes a provision extending that Act to each external Territory.

7

Act binds Crown [Cth Act only] This Act binds the Crown in all its capacities.

7

Act binds Crown [NSW Act only]

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This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, in all its other capacities. 7

Act binds Crown [Vic Act only]

This Act binds the Crown in right of Victoria and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. 8

Operation of other Acts etc. [Cth Act only]

(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903. (2) This Act does not affect the operation of regulations that: (a) are made under an Act other than this Act; and (b) are in force on the commencement of this section. However, this subsection ceases to apply to a regulation once it is amended after that commencement. (3) This Act has effect subject to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001. (4) [Repealed] (5) [Repealed] (6) [Repealed] 8

Operation of other Acts [NSW Act only] This Act does not affect the operation of the provisions of any other Act.

Part 1.2 – Application of this Act

s9

Note: The Commonwealth Act includes additional subsections relating to the operation of the Corporations Act 2001 of the Commonwealth, the Australian Securities and Investments Commission Act 2001 of the Commonwealth and certain laws in force in the ACT. It also provides for the regulations to have continued effect (until amended) after the commencement of the Commonwealth section.

8

Operation of Acts [Vic Act only] This Act does not affect the operation of the provisions of any other Act.

Note: The Commonwealth Act includes additional subsections relating to the operation of the Corporations Act 2001 of the Commonwealth, the Australian Securities and Investments Commission Act 2001 of the Commonwealth and certain laws in force in the Australian Capital Territory. It also provides for the regulations to have continued effect (until amended) after the commencement of the Commonwealth section.

8A

Application of the Criminal Code [Cth Act only]

Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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9

Effect of Act on other laws [Cth Act only]

(1) For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. (2) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law relates to: (a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of the relevant court; or (b) bail; or (c) any requirement for admission of evidence in support of an alibi. (3) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law provides for: (a) the operation of a legal or evidential presumption (except so far as this Act is, expressly or by necessary intendment, inconsistent with the presumption); or (b) the admissibility of a document to depend on whether stamp duty has been paid; or (c) a requirement that notice must be given before evidence may be adduced; or (d) evidentiary effect to be given to a certificate or other document issued under that or any other law of the State or Territory; or (e) proof of title to property (other than by a means provided for by this Act that is applicable to proof of title to property). 9

Application of common law and equity [NSW & Vic Acts only]

(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

Appendix — Legislation

(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following: (a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of a court, (b) the operation of a legal or evidential presumption that is not inconsistent with this Act, (c) a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding. Note: This section differs from section 9 of the Commonwealth Act. That section preserves the written and unwritten laws of States and Territories in relation to various matters.

10

Parliamentary privilege preserved

(1) This Act does not affect the law relating to the privileges of any Australian Parliament or any House of any Australian Parliament. (2) In particular, subsection 15(2) does not affect, and is in addition to, the law relating to such privileges.

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11

General powers of a court

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment. (2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.

Chapter 2 – Adducing Evidence INTRODUCTORY NOTE [CTH AND NSW ACTS ONLY]/ NOTE [VIC ACT ONLY] Outline of this Chapter This Chapter is about ways in which evidence is adduced. Part 2.1 is about adducing evidence from witnesses. Part 2.2 is about adducing documentary evidence. Part 2.3 is about adducing other forms of evidence.

Part 2.1 – Witnesses DIVISION 1 – COMPETENCE AND COMPELLABILITY OF WITNESSES

12

Competence and compellability

Except as otherwise provided by this Act: (a) every person is competent to give evidence; and (b) a person who is competent to give evidence about a fact is compellable to give that evidence.

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13

Competence: lack of capacity

(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact; or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact; and that incapacity cannot be overcome. Note: See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth; and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs; and

Appendix — Legislation

(c)

that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue. (6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. (7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience. 14

Compellability: reduced capacity

A person is not compellable to give evidence on a particular matter if the court is satisfied that: (a) substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about the matter or to give an answer that can be understood to a question about the matter; and (b) adequate evidence on that matter has been given, or will be able to be given, from one or more other persons or sources. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

15

Compellability: Sovereign and others

(1) None of the following is compellable to give evidence: (a) the Sovereign; (b) the Governor-General; (c) the Governor of a State; (d) the Administrator of a Territory; (e) a foreign sovereign or the Head of State of a foreign country. (2) A member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending: (a) a sitting of that House or a joint sitting of that Parliament; or (b) a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member. 16

Competence and compellability: judges and jurors

(1) A person who is a judge or juror in a proceeding is not competent to give evidence in that proceeding. However, a juror is competent to give evidence in the proceeding about matters affecting conduct of the proceeding. (2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.

Part 2.1 – Witnesses

s 18

17 Competence and compellability: defendants in criminal proceedings (1) This section applies only in a criminal proceeding. (2) A defendant is not competent to give evidence as a witness for the prosecution. (3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant. (4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is aware of the effect of subsection (3). Note: Associated defendant is defined in the Dictionary.

18 Compellability of spouses and others in criminal proceedings generally

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(1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence; or (b) to give evidence of a communication between the person and the defendant; as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted;

Appendix — Legislation

(b)

the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; (d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been determined, the prosecutor may not comment on: (a) the objection; or (b) the decision of the court in relation to the objection; or (c) the failure of the person to give evidence. 19 Compellability of spouses and others in certain criminal proceedings [Repealed]

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19 Compellability of spouses and others in certain criminal proceedings [NSW Act only] Section 18 does not apply: (a) in proceedings for an offence against or referred to in the following provisions of the Children and Young Persons (Care and Protection) Act 1998: (i) section 222 (Endangering children in employment), (ii) section 223 (Certain employers of children to be authorised), (iii) section 227 (Child and young person abuse), (iv) section 228 (Neglect of children and young persons), or (b) if the person could be compelled to give evidence in proceedings under section 279 (Compellability of family members to give evidence in certain proceedings) of the Criminal Procedure Act 1986. Note: This section differs from section 19 of the Commonwealth Act.

19 Compellability of spouses and others in certain criminal proceedings [Vic Act only] Note: Section 19 of the Commonwealth Act and New South Wales Act excludes the application of the section in proceedings for certain offences.

20

Comment on failure to give evidence [Cth & NSW Acts only]

(1) This section applies only in a criminal proceeding for an indictable offence. (2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant had, or believed that he or she had, committed the offence concerned.

Part 2.1 – Witnesses

s 22

(3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was: (a) the defendant’s spouse or de facto partner; or (b) a parent or child of the defendant. (4) However, unless the comment is made by another defendant in the proceeding, a comment of a kind referred to in subsection (3) must not suggest that the spouse, de facto partner, parent or child failed to give evidence because: (a) the defendant had committed the offence concerned; or (b) the spouse, de facto partner, parent or child believed that the defendant had committed the offence concerned. (5) If: (a) 2 or more persons are being tried together for an indictable offence; and (b) comment is made by any of those persons on the failure of any of those persons or of the spouse or de facto partner, or a parent or child, of any of those persons to give evidence; the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).

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20

Comment on failure to give evidence [Vic Act only]

Note: Section 20 of the Commonwealth Act and New South Wales Act requires the judge to give certain directions to the jury relating to the failure to give evidence or call witnesses in a criminal proceeding for an indictable offence. Division 6 of Part 4 of the Jury Directions Act 2015 contains provisions relating to the failure to give evidence or call a witness that apply in criminal trials.

DIVISION 2 – OATHS AND AFFIRMATIONS

21

Sworn evidence of witnesses to be on oath or affirmation

(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence. (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13. (3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so. (4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form. (5) Such an affirmation has the same effect for all purposes as an oath. 22

Interpreters to act on oath or affirmation [Cth Act only]

(1) A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding. (2) The person is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form. (3) Such an affirmation has the same effect for all purposes as an oath.

Appendix — Legislation

22

Interpreters to act on oath or affirmation [NSW & Vic Acts only]

(1) A person must either take an oath, or make an affirmation, before acting as an interpreter in a proceeding. (1A) An oath taken, or an affirmation made, by a person before acting as an interpreter on a day is taken for the purposes of subsection (1) to be an oath taken or affirmation made by that person for the purposes of any subsequent proceedings in that court on that day in which the person acts as an interpreter. (2) The person is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form. (3) Such an affirmation has the same effect for all purposes as an oath. Note: The Commonwealth Act does not include subsection (1A).

23

Choice of oath or affirmation

(1) A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation. (2) The court is to inform the person that he or she has this choice. (3) The court may direct a person who is to be a witness to make an affirmation if: (a) the person refuses to choose whether to take an oath or make an affirmation; or (b) it is not reasonably practicable for the person to take an appropriate oath.

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24

Requirements for oaths

(1) It is not necessary that a religious text be used in taking an oath. (2) An oath is effective for the purposes of this Division even if the person who took it: (a) did not have a religious belief or did not have a religious belief of a particular kind; or (b) did not understand the nature and consequences of the oath. 24A

Alternative oath [NSW & Vic Acts only]

(1) A person may take an oath even if the person’s religious or spiritual beliefs do not include a belief in the existence of a god. (2) Despite anything to the contrary in this Act, the form of oath taken by a person: (a) need not include a reference to a god, and (b) may instead refer to the basis of the person’s beliefs in accordance with a form prescribed by the regulations. Note: The Commonwealth Act does not include an equivalent provision to section 24A.

25 Rights to make unsworn statements unaffected [Repealed] [Cth Act only] 25

Rights to make unsworn statements unaffected [NSW Act only]

Note: The Commonwealth Act includes a provision preserving any right of a defendant under the law of a State or Territory to make an unsworn statement. The right to make an unsworn statement remains in Norfolk Island.

Part 2.1 – Witnesses

25

s 30

Rights to make unsworn statements unaffected [Vic Act only]

Note: The Commonwealth Act previously included a provision that preserved any right that an accused in a criminal proceeding had under a law of a State or Territory to make an unsworn statement.

DIVISION 3 – GENERAL RULES ABOUT GIVING EVIDENCE

26 Court’s control over questioning of witnesses [Cth & NSW Acts only] / Court’s control over questioning of witness [Vic Act only] The court may make such orders as it considers just in relation to: (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses. 27

Parties may question witnesses

A party may question any witness, except as provided by this Act.

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28

Order of examination in chief, cross-examination and re-examination

Unless the court otherwise directs: (a) cross-examination of a witness is not to take place before the examination in chief of the witness; and (b) re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness. 29

Manner and form of questioning witnesses and their responses

(1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court. (2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form. (3) Such a direction may include directions about the way in which evidence is to be given in that form. (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given. 30

Interpreters

A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

Appendix — Legislation

31 Witnesses who cannot hear adequately or speak adequately (1) A witness who cannot hear adequately may be questioned in any appropriate way. (2) A witness who cannot speak adequately may give evidence by any appropriate means. (3) The court may give directions concerning either or both of the following: (a) the way in which a witness may be questioned under subsection (1); (b) the means by which a witness may give evidence under subsection (2). (4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.

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32

Attempts to revive memory in court

(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or (ii) was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. 33

Evidence given by police officers

(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. (2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and (b) the police officer signed the statement when it was made; and (c) a copy of the statement had been given to the person charged or to his or her Australian legal practitioner or legal counsel a reasonable time before the hearing of the evidence for the prosecution. (3) A reference in this section to a police officer includes a reference to a person who, at the time the statement concerned was made, was a police officer.

Part 2.1 – Witnesses

34

s 37

Attempts to revive memory out of court

(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding. (2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with. 35

Effect of calling for production of documents

(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise: (a) called for the document to be produced to the party; or (b) inspected it when it was so produced. (2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

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36

Person may be examined without subpoena or other process

(1) The court may order a person who: (a) is present at the hearing of a proceeding; and (b) is compellable to give evidence in the proceeding; to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person. (2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process. (3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence. DIVISION 4 – EXAMINATION IN CHIEF AND RE-EXAMINATION

37

Leading questions

(1) A leading question must not be put to a witness in examination in chief or in reexamination unless: (a) (b) (c)

the court gives leave; or the question relates to a matter introductory to the witness’s evidence; or no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the

Appendix — Legislation

proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or (d) the question relates to a matter that is not in dispute; or (e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given. (2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties. (3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker. Note: Leading question is defined in the Dictionary.

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38

Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility. Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties crossexamine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

Part 2.1 – Witnesses

(b) 39

s 41

the party is a witness in the proceeding.

Limits on re-examination

On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave. DIVISION 5 – CROSS-EXAMINATION

40 Witness called in error A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

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41

Improper questions [Cth & NSW Acts only]

(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question): (a) is misleading or confusing; or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or (d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account: (a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and (c) the context in which the question is put, including: (i) the nature of the proceeding; and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates; and (iii) the relationship (if any) between the witness and any other party to the proceeding.

Appendix — Legislation

(3) A question is not a disallowable question merely because: (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness. (4) A party may object to a question put to a witness on the ground that it is a disallowable question. (5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question. Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195.

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41

Improper questions [Vic Act only]

(1) The court may disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered. (2) The court must disallow an improper question or improper questioning put to a vulnerable witness in cross-examination, or inform the witness that it need not be answered, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put. (3) In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that— (a) is misleading or confusing; or (b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or (d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability). (4) For the purposes of subsection (2) a witness is a vulnerable witness if the witness— (a) is under the age of 18 years; or (b) has a cognitive impairment or an intellectual disability; or (c) is a witness whom the court considers to be vulnerable having regard to— (i) any relevant condition or characteristic of the witness of which the court is, or is made aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and (ii) any mental or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and

Part 2.1 – Witnesses

s 42

(iii) the context in which the question is put, including— (A) the nature of the proceeding; and (B) in a criminal proceeding—the nature of the offence to which the proceeding relates; and (C) the relationship (if any) between the witness and any other party to the proceeding. (5) A question is not an improper question merely because— (a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or (b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness. (6) A party may object to a question put to a witness on the ground that it is an improper question. (7) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question. (8) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question. Notes:

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1 A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section—see section 195. 2 Section 41 differs from the Commonwealth Act and New South Wales Act.

42

Leading questions

(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. (2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and (b) the witness has an interest consistent with an interest of the cross-examiner; and (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and (d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. (4) This section does not limit the court’s power to control leading questions. Note: Leading question is defined in the Dictionary.

Appendix — Legislation

43

Prior inconsistent statements of witnesses

(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness; or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner: (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and (b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence. (3) For the purpose of adducing evidence of the statement, a party may re-open the party’s case.

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44

Previous representations of other persons

(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. (2) A cross-examiner may question a witness about the representation and its contents if: (a) evidence of the representation has been admitted; or (b) the court is satisfied that it will be admitted. (3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows: (a) the document must be produced to the witness; (b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents; (c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given; (d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents. (4) A document that is so used may be marked for identification. 45

Production of documents

(1) This section applies if a party is cross-examining or has cross-examined a witness about: (a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

Part 2.2 – Documents

s 48

(b)

a previous representation alleged to have been made by another person that is recorded in a document. (2) If the court so orders or if another party so requires, the party must produce: (a) the document; or (b) such evidence of the contents of the document as is available to the party; to the court or to that other party. (3) The court may: (a) examine a document or evidence that has been so produced; and (b) give directions as to its use; and (c) admit it even if it has not been tendered by a party. (4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3. (5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

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46

Leave to recall witnesses

(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) it contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

Part 2.2 – Documents 47

Definitions

(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence. (2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects. Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.

48

Proof of contents of documents

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

Appendix — Legislation

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(b)

tendering a document that: (i) is or purports to be a copy of the document in question; and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents; (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words; (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device; (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence); and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary; (f) if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed: (i) by the Government Printer or by the government or official printer of a State or Territory; or (ii) by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or (iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament. (2) Subsection (1) applies to a document in question whether the document in question is available to the party or not. (3) If the party adduces evidence of the contents of a document under paragraph (1) (a), the evidence may only be used: (a) in respect of the party’s case against the other party who made the admission concerned; or (b) in respect of the other party’s case against the party who adduced the evidence in that way. (4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: (a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or (b) adducing from a witness evidence of the contents of the document in question.

Part 2.3 – Other evidence

s 52

Note 1: Clause 5 of Part 2 of the Dictionary is about the availability of documents. Note 2: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.

49

Documents in foreign countries

No paragraph of subsection 48(1) (other than paragraph 48(1)(a)) applies to a document that is in a foreign country unless: (a) the party who adduces evidence of the contents of the document in question has, not less than 28 days (or such other period as may be prescribed by the regulations or by rules of court) before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or (b) the court directs that it is to apply. Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.

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50

Proof of voluminous or complex documents

(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and (b) given each other party a reasonable opportunity to examine or copy the documents in question. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section. 51

Original document rule abolished

The principles and rules of the common law that relate to the means of proving the contents of documents are abolished. Note: Section 182 gives the provisions of this Part a wider application in relation to Commonwealth records and certain Commonwealth documents. S 51 am Act 125 of 1999, s 3 and Sch 6 item 9

Part 2.3 – Other evidence 52

Adducing of other evidence not affected

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

Appendix — Legislation

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53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present; and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present; (b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence; (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time; (d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; (e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered. (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury. 54 Views to be evidence The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

Chapter 3 – Admissibility of Evidence (ss 55–80)

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INTRODUCTORY NOTE Outline of this Chapter This Chapter is about whether evidence adduced in a proceeding is admissible. Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible. Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule. Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion rule. Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule. Part 3.5 is about exclusion of certain evidence of judgments and convictions. Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule. Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule. Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule. Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible. Part 3.10 is about the various categories of privilege that may prevent evidence being adduced. Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible. The following diagram shows how this Chapter applies to particular evidence:

Appendix — Legislation

Is the evidence relevant? (See Part 3.1.) Yes Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

No

Yes

No Does the opinion rule apply? (See Part 3.3. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

Yes

No Does the evidence contravene the rule about evidence of judgements and convictions? (See Part 3.5.)

Yes

No

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Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8 on character evidence) No Does the credibility rule apply? (See Part 3.7. See also Part 3.8 on character evidence.)

Yes

Yes

No Does the evidence contravene the rules about identification evidence? (See Part 3.9.)

Yes

No Does a previlege apply? (See Part 3.10.)

Yes

No Should a discretion to exclude the evidence be exercised or must it be excluded? (See Part 3.11.) No THE EVIDENCE IS ADMISSIBLE

Yes

THE EVIDENCE IS NOT ADMISSIBLE

Part 3.1 – Relevance

s 57

Part 3.1 – Relevance 55

Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) (b) (c) 56

the credibility of a witness; or the admissibility of other evidence; or a failure to adduce evidence.

Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.

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57

Provisional relevance

(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. (2) [Vic Act only] Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or as part of involvement in the commission of an offence or otherwise), the court may use the evidence itself in determining whether the common purpose existed. Notes: 1

Subsection (2) differs from section 57(2) of the Commonwealth Act and New South Wales Act .

2

Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in commission of offences.

Appendix — Legislation

58 Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn.

Part 3.2 – Hearsay DIVISION 1 – THE HEARSAY RULE

59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

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Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359.

(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Note: Specific exceptions to the hearsay rule are as follows: • evidence relevant for a non-hearsay purpose (section 60); • first-hand hearsay: – civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64); – criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66); • contemporaneous statements about a person’s health etc. (section 66A); • business records (section 69); • tags and labels (section 70); • electronic communications (section 71); • Aboriginal and Torres Strait Islander traditional laws and customs (section 72); • marriage, family history or family relationships (section 73); • public or general rights (section 74); • use of evidence in interlocutory proceedings (section 75); • admissions (section 81); • representations about employment or authority (subsection 87(2)); • exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));

Part 3.2 – Hearsay

s 62

• character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. Examples: (1) D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial. (2) P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective. (3) W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.

60

Exception: evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. (2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)). Note: Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

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(3) However, this section does not apply in a criminal proceeding to evidence of an admission. Note: The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.

61

Exceptions to the hearsay rule dependent on competency

(1) This Part does not enable use of a previous representation to prove the existence of an asserted fact if, when the representation was made, the person who made it was not competent to give evidence about the fact because of subsection 13(1). (2) This section does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Note: For the admissibility of such contemporaneous representations, see section 66A.

(3) For the purposes of this section, it is presumed, unless the contrary is proved, that when the representation was made the person who made it was competent to give evidence about the asserted fact. DIVISION 2 – “FIRST-HAND” HEARSAY

62

Restriction to “first-hand” hearsay

(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.

Appendix — Legislation

(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact. (3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made. 63

Exception: civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note 1: Section 67 imposes notice requirements relating to this subsection. Note 2: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

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64

Exception: civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation; if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Note: Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

Part 3.2 – Hearsay

65

s 65

Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind; or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) was made in circumstances that make it highly probable that the representation is reliable; or (d) was: (i) against the interests of the person who made it at the time it was made; and (ii) made in circumstances that make it likely that the representation is reliable.

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Note: Section 67 imposes notice requirements relating to this subsection.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it; or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note: Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding; and (b) is admitted into evidence in the criminal proceeding because of subsection (3); cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time; and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made; or

Appendix — Legislation

(b)

if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting paragraph (2)(d), a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends: (a) to damage the person’s reputation; or (b) to show that the person has committed an offence for which the person has not been convicted; or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

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Note: Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party; and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

66

Exception: criminal proceedings if maker available

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) [Cth & NSW Acts only] If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2) [Vic Act only] The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if— (a) the person who made the representation has been or is to be called to give evidence; and (b) either—

Part 3.2 – Hearsay

s 67

(i) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or (ii) the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made. Note: Subsection (2) differs from the Commonwealth Act and New South Wales Act.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned; and (b) the age and health of the person; and (c) the period of time between the occurrence of the asserted fact and the making of the representation.

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Note: Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

66A Exception: contemporaneous statements about a person’s health etc. The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind. 67

Notice to be given

(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and (b) if subsection 64(2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.

Appendix — Legislation

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit; and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

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68 Objections to tender of hearsay evidence in civil proceedings if maker available (1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it: (a) would cause undue expense or undue delay; or (b) would not be reasonably practicable; a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence. (2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made. (3) The court may, on the application of a party, determine the objection at or before the hearing. (4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs (ascertained on a solicitor and client basis) incurred by another party: (a) in relation to the objection; and (b) in calling the person who made the representation to give evidence. DIVISION 3 – OTHER EXCEPTIONS TO THE HEARSAY RULE

69

Exception: business records

(1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

Part 3.2 – Hearsay

s 70

by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question; and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind; the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(a)

Note 1: Sections 48, 49, 50, 146, 147 and subsection 150(1) are relevant to the mode of proof, and authentication, of business records. Note 2: Section 182 gives this section a wider application in relation to Commonwealth records.

70

Exception: contents of tags, labels and writing [Cth Act only]

(1) The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed: (a) in the course of a business; and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object. Note: Section 182 gives this subsection a wider application in relation to Commonwealth records.

(2) This section, and any provision of a law of a State or Territory that permits the use in evidence of such a tag, label or writing as an exception to a rule of law restricting the admissibility or use of hearsay evidence, does not apply to: (a) a Customs prosecution within the meaning of Part XIV of the Customs Act 1901; or (b) an Excise prosecution within the meaning of Part XI of the Excise Act 1901. Note: Section 5 extends the application of this subsection to proceedings in all Australian courts.

Appendix — Legislation

70 Exception: contents of tags, labels and writing [NSW & Vic Acts only) The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed: (a) in the course of a business, and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object. Note: The Commonwealth Act has an additional subsection. It provides that the exception does not apply to Customs and Excise prosecutions. Section 5 of the Commonwealth Act extends the application of that subsection to proceedings in all Australian courts.

71

Exception: electronic communications

The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to: (a) the identity of the person from whom or on whose behalf the communication was sent; or (b) the date on which or the time at which the communication was sent; or (c) the destination of the communication or the identity of the person to whom the communication was addressed. Note 1: Division 3 of Part 4.3 contains presumptions about electronic communications. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Note 2: Section 182 gives this section a wider application in relation to Commonwealth records. Note 3: Electronic communication is defined in the Dictionary.

72 Exception: Aboriginal and Torres Strait Islander traditional laws and customs The hearsay rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group. 73

Exception: reputation as to relationships and age

(1) The hearsay rule does not apply to evidence of reputation concerning: (a) whether a person was, at a particular time or at any time, a married person; or (b) whether 2 people cohabiting at a particular time were married to each other at that time; or (c) a person’s age; or (d) family history or a family relationship. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless: (a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted; or

Part 3.3 – Opinion

s 76

(b)

the defendant has given reasonable notice in writing to each other party of the defendant’s intention to adduce the evidence. (3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted. 74

Exception: reputation of public or general rights

(1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted. 75

Exception: interlocutory proceedings

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

Part 3.3 – Opinion

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76 The opinion rule [Cth & NSW Acts only] (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. (2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Note: Specific exceptions to the opinion rule are as follows: • summaries of voluminous or complex documents (subsection 50(3)); • evidence relevant otherwise than as opinion evidence (section 77); • lay opinion (section 78); • Aboriginal and Torres Strait Islander traditional laws and customs (section 78A); • expert opinion (section 79); • admissions (section 81); • exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3)); • character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. Examples: (1) P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P’s neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own. (2) P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.

Appendix — Legislation

76 The opinion rule [Vic Act only] Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Notes: 1

The Commonwealth Act and New South Wales Act include an additional subsection.

2

Specific exceptions to the opinion rule are as follows— • summaries of voluminous or complex documents (section 50(3)) • evidence relevant otherwise than as opinion evidence (section 77) • lay opinion (section 78) • Aboriginal and Torres Strait Islander traditional laws and customs (section 78A) • expert opinion (section 79) • admissions (section 81) • exceptions to the rule excluding evidence of judgments and convictions (section 92(3)) • character of and expert opinion about an accused (sections 110 and 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

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Examples: 1

P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P’s neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.

2

P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.

77

Exception: evidence relevant otherwise than as opinion evidence

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed. 78

Exception: lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event. 78A Exception: Aboriginal and Torres Strait Islander traditional laws and customs The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group.

Part 3.3 – Opinion

79

s 80

Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 80

Ultimate issue and common knowledge rules abolished

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Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge.

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Ch 3, Pts 3.4–3.6 Part 3.4 – Admissions Note: Admission is defined in the Dictionary.

81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission. Note: Specific exclusionary rules relating to admissions are as follows:

• evidence of admissions that is not first-hand (section 82); • use of admissions against third parties (section 83); • admissions influenced by violence etc. (section 84); • unreliable admissions of accused persons (section 85); Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• records of oral questioning of accused persons (section 86). Example: D admits to W, his best friend, that he sexually assaulted V. In D’s trial for the sexual assault, the prosecution may lead evidence from W: (a) that D made the admission to W as proof of the truth of that admission; and (b) that W formed the opinion that D was sane when he made the admission.

82

Exclusion of evidence of admissions that is not first-hand

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: (a) it is given by a person who saw, heard or otherwise perceived the admission being made; or (b) it is a document in which the admission is made. Note: Section 60 does not apply in a criminal proceeding to evidence of an admission.

83

Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. (2) The evidence may be used in respect of the case of a third party if that party consents. (3) Consent cannot be given in respect of part only of the evidence. (4) In this section: third party means a party to the proceeding concerned, other than the party who:

Appendix — Legislation

(a) (b)

made the admission; or adduced the evidence.

84 Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

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85

Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note: Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned. 86

Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

Part 3.4 – Admissions

s 89

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response. (3) The acknowledgment must be made by signing, initialling or otherwise marking the document. (4) In this section: document does not include: (a) a sound recording, or a transcript of a sound recording; or (b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

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87

Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter; or (b) that the person was an employee of another person or had authority otherwise to act for another person; or (c) the scope of the person’s employment or authority. 88

Proof of admissions

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. 89

Evidence of silence [Cth and Vic Acts only]

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions; or (b) to respond to a representation;

Appendix — Legislation

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section: inference includes: (a) an inference of consciousness of guilt; or (b) an inference relevant to a party’s credibility.

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89

Evidence of silence generally [NSW Act only]

(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section: inference includes: (a) an inference of consciousness of guilt, or (b) an inference relevant to a party’s credibility. 89A Evidence of silence in criminal proceedings for serious indictable offences [NSW Act only] (1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact: (a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and (b) that is relied on in his or her defence in that proceeding. (2) Subsection (1) does not apply unless: (a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and

Part 3.4 – Admissions

s 89A

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(b)

the special caution was given before the failure or refusal to mention the fact, and (c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and (d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions. (3) It is not necessary that a particular form of words be used in giving a special caution. (4) An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence. (5) This section does not apply: (a) to a defendant who, at the time of the official questioning, is under 18 years of age or is incapable of understanding the general nature and effect of a special caution, or (b) if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence. (6) The provisions of this section are in addition to any other provisions relating to a person being cautioned before being investigated for an offence that the person does not have to say or do anything. The special caution may be given after or in conjunction with that caution. Note: See section 139 of this Act and section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002.

(7) Nothing in this section precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section. (8) The giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence). (9) In this section: official questioning of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence. special caution means a caution given to a person that is to the effect that: (a) the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and (b) anything the person does say or do may be used in evidence. Note: The Commonwealth Act does not include this section.

Appendix — Legislation

90

Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note: Part 3.11 contains other exclusionary discretions that are applicable to admissions.

Part 3.5 – Evidence of judgments and convictions 91

Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

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92

Exceptions

(1) Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove: (a) the death, or date of death, of a person; or (b) the due execution of a testamentary document. (2) In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction: (a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or (b) that has been quashed or set aside; or (c) in respect of which a pardon has been given. (3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section. 93

Savings

This Part does not affect the operation of: (a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation; or (b) a judgment in rem; or (c) the law relating to res judicata or issue estoppel.

Part 3.6 – Tendency and coincidence

s 98

Part 3.6 – Tendency and coincidence 94

Application

(1) This Part does not apply to evidence that relates only to the credibility of a witness. (2) This Part does not apply so far as a proceeding relates to bail or sentencing. (3) This Part does not apply to evidence of: (a) the character, reputation or conduct of a person; or (b) a tendency that a person has or had; if that character, reputation, conduct or tendency is a fact in issue. 95

Use of evidence for other purposes

(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. 96

Failure to act

A reference in this Part to doing an act includes a reference to failing to do that act.

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97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities

Appendix — Legislation

in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note: Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

99

Requirements for notices

Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

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100

Court may dispense with notice requirements

(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party’s failure to give notice under section 97. (2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under section 98. (3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice. (4) In a civil proceeding, the party’s application may be made without notice of it having been given to one or more of the other parties. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit; and (b) may be given either at or before the hearing. (6) Without limiting the court’s power to impose conditions under this section, those conditions may include one or more of the following: (a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party; (b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence;

Part 3.6 – Tendency and coincidence

(c)

s 101

a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

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(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

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Part 3.7 – Credibility DIVISION 1 – CREDIBILITY EVIDENCE

101A

Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) (b)

is relevant only because it affects the assessment of the credibility of the witness or person; or is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

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DIVISION 2 – CREDIBILITY OF WITNESSES

102 The credibility rule Credibility evidence about a witness is not admissible. Note 1: Specific exceptions to the credibility rule are as follows: • evidence adduced in cross-examination (sections 103 and 104); • evidence in rebuttal of denials (section 106); • evidence to re-establish credibility (section 108); • evidence of persons with specialised knowledge (section 108C); • character of accused persons (section 110). Other provisions of this Act, or of other laws, may operate as further exceptions. Note 2: Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but who is not a witness.

103

Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

Appendix — Legislation

Subs (1) am Act 135 of 2008, s 3 and Sch 1 item 46 (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. Subs (2) am Act 135 of 2008, s 3 and Sch 1 item 47 S 103 am Act 135 of 2008

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104 Further protections: cross-examination of accused [Cth Act only]/ Further protections: cross-examination as to credibility [NSW & Vic Acts only] (1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant: (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement. (4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and (b) is relevant solely or mainly to the witness’s credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Leave is not to be given for cross-examination by another defendant unless: (a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and (b) that evidence has been admitted.

Part 3.7 – Credibility

s 107

105 Further protections: defendants making unsworn statements [Repealed] [Cth Act only] 105 Further protections: defendants making unsworn statements [NSW Act only] Note: The Commonwealth Act includes a provision that will only apply in proceedings in a federal court sitting in Norfolk Island. It sets out the situations in which where a defendant in a criminal proceeding has made an unsworn statement evidence may be adduced from a person relating solely to the credibility of the defendant.

105 Further protections—accused making unsworn statements [Vic Act only] Note: The Commonwealth Act previously included a provision which set out the situations in which where a defendant in a criminal proceeding had made an unsworn statement evidence might have been adduced from a person relating solely to the credibility of the defendant.

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106

Exception: rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if: (a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness; and (ii) the witness denied, or did not admit or agree to, the substance of the evidence; and (b) the court gives leave to adduce the evidence. (2) Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful; or (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth. 107 Exception: application of certain provisions to makers of representations [Repealed] [Cth & NSW Acts only] 107 Exception—application of certain provisions to makers of representations [Vic Act only] Note: This section has been repealed from the Commonwealth Act and New South Wales Act.

Appendix — Legislation

108

Exception: re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) [Repealed] (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement. DIVISION 3 – CREDIBILITY OF PERSONS WHO ARE NOT WITNESSES

108A Admissibility of evidence of credibility of person who has made a previous representation

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(1) If: (a) evidence of a previous representation has been admitted in a proceeding; and (b)

the person who made the representation has not been called, and will not be called, to give evidence in the proceeding; credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth; and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation. 108B Further protections: previous representations of an accused who is not a witness (1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.

Part 3.7 – Credibility

s 108C

(3) Despite subsection (2), leave is not required if the evidence is about whether the defendant: (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates; or (c) has made a prior inconsistent statement. (4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecution has a tendency to be untruthful; and (b) is relevant solely or mainly to the witness’s credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted; or (b) the investigation of the offence for which the defendant is being prosecuted.

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(6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave. DIVISION 4 – PERSONS WITH SPECIALISED KNOWLEDGE

108C

Exception: evidence of persons with specialised knowledge

(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if: (a) (b)

(c)

the person has specialised knowledge based on the person’s training, study or experience; and the evidence is evidence of an opinion of the person that: (i) is wholly or substantially based on that knowledge; and (ii) could substantially affect the assessment of the credibility of a witness; and the court gives leave to adduce the evidence.

(2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following:

Appendix — Legislation

(i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Part 3.8 – Character 109

Application

This Part applies only in a criminal proceeding.

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110 Evidence about character of accused persons [Cth & NSW Acts only]/ Evidence about character of an accused [Vic Act only] (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect. (4) [Repealed] 111

Evidence about character of co-accused

(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant’s character if: (a) the evidence is evidence of an opinion about the defendant adduced by another defendant; and (b) the person whose opinion it is has specialised knowledge based on the person’s training, study or experience; and (c) the opinion is wholly or substantially based on that knowledge. (2) If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted. 112 Leave required to cross-examine about character of accused or co-accused A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.

Part 3.9 – Identification evidence

s 114

Part 3.9 – Identification evidence Note: Identification evidence is defined in the Dictionary.

113

Application of Part

This Part applies only in a criminal proceeding.

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114

Exclusion of visual identification evidence

(1) In this section: visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence. (2) Visual identification evidence adduced by the prosecutor is not admissible unless: (a) an identification parade that included the defendant was held before the identification was made; or (b) it would not have been reasonable to have held such a parade; or (c) the defendant refused to take part in such a parade; and the identification was made without the person who made it having been intentionally influenced to identify the defendant. (3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account: (a) the kind of offence, and the gravity of the offence, concerned; and (b) the importance of the evidence; and (c) the practicality of holding an identification parade having regard, among other things: (i) if the defendant failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and (ii) in any case—to whether the identification was made at or about the time of the commission of the offence; and (d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification. (4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held. (5) If: (a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held; and (b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present;

Appendix — Legislation

it is presumed that it would not have been reasonable to have held an identification parade at that time. (6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

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115

Exclusion of evidence of identification by pictures

(1) In this section: picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers. (2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody. (3) Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if: (a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and (b) the picture of the defendant that was examined was made before the defendant was taken into that police custody. (4) Subsection (3) does not apply if: (a) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or (b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody. (5) Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless: (a) the defendant refused to take part in an identification parade; or (b) the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or (c) it would not have been reasonable to have held an identification parade that included the defendant. (6) Subsections 114(3), (4), (5) and (6) apply in determining, for the purposes of paragraph (5)(c) of this section, whether it would have been reasonable to have held an identification parade. (7) If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:

Part 3.9 – Identification evidence

(a)

(b)

s 116

if the picture of the defendant was made after the defendant was taken into that custody—inform the jury that the picture was made after the defendant was taken into that custody; or otherwise—warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.

Note: Sections 116 and 165 also deal with warnings about identification evidence.

(8) This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant. (9) This section applies in addition to section 114. (10) In this section: (a) a reference to a picture includes a reference to a photograph; and (b) a reference to making a picture includes a reference to taking a photograph.

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116

Directions to jury

(1) [Cth & NSW Acts only] If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) [Cth & NSW Acts only] It is not necessary that a particular form of words be used in so informing the jury. 116

Directions to jury [Vic Act only]

Note: Section 116 of the Commonwealth Act and New South Wales Act requires the judge to give certain directions to the jury relating to identification evidence. Division 4 of Part 4 of the Jury Directions Act 2015 contains provisions relating to identification evidence that apply in criminal trials.

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Part 3.10 – Privileges DIVISION 1 – CLIENT LEGAL PRIVILEGE

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117

Definitions

(1) In this Division: client includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service); (b) an employee or agent of a client; (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory; or (ii) a body established by a law of the Commonwealth or a State or Territory; (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting; (e) if a client has died—a personal representative of the client; (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it; or (b) the person to whom it was made; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it; or (b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. lawyer [Cth Act only] lawyer means: (a) an Australian lawyer; and (b) an Australian-registered foreign lawyer; and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).

Appendix — Legislation

lawyer [NSW Act only] means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. lawyer [Vic Act only] lawyer means— (a) an Australian lawyer; and (b) an a non-participant registered foreign lawyer; and (c) a foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c); party includes the following: (a) an employee or agent of a party; (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting; (c) if a party has died—a personal representative of the party; (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act.

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118

Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer; or (b) a confidential communication made between 2 or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119

Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or (b) the contents of a confidential document (whether delivered or not) that was prepared; for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Part 3.10 – Privileges

120

s 122

Unrepresented parties

(1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the party and another person; or (b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party; for the dominant purpose of preparing for or conducting the proceeding. (2) [Repealed] 121

Loss of client legal privilege: generally

(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died. (2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court. (3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.

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122

Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document; or

Appendix — Legislation

(ii) as a result of duress or deception; or (iii) under compulsion of law; or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

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123 Loss of client legal privilege: defendants [Cth & NSW Acts only]/ Loss of client legal privilege—accused [Vic Act only] In a criminal proceeding, this Division does not prevent [a defendant/ an accused] from adducing evidence unless it is evidence of: (a) a confidential communication made between an associated [defendant/ accused] and a lawyer acting for that person in connection with the prosecution of that person; or (b) the contents of a confidential document prepared by an associated [defendant/ accused] or by a lawyer acting for that person in connection with the prosecution of that person. Note [Cth & NSW Acts only]: Associated defendant is defined in the Dictionary. Note [Vic Act only]: Associated accused is defined in the Dictionary.

124

Loss of client legal privilege: joint clients

(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter. (2) This Division does not prevent one of those parties from adducing evidence of: (a) a communication made by any one of them to the lawyer; or (b) the contents of a confidential document prepared by or at the direction or request of any one of them; in connection with that matter. 125

Loss of client legal privilege: misconduct

(1) This Division does not prevent the adducing of evidence of:

Part 3.10 – Privileges

s 126A

(a)

a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act, or the abuse of power, was committed; and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power; the court may find that the communication was so made or the document so prepared. (3) In this section: power means a power conferred by or under an Australian law.

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126 Loss of client legal privilege: related communications and documents If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document. Note: Example: A lawyer advises his client to understate her income for the previous year to evade taxation because of her potential tax liability “as set out in my previous letter to you dated 11 August 1994”. In proceedings against the taxpayer for tax evasion, evidence of the contents of the letter dated 11 August 1994 may be admissible (even if that letter would otherwise be privileged) to enable a proper understanding of the second letter.

DIVISION 1A – PROFESSIONAL CONFIDENTIAL RELATIONSHIP PRIVILEGE [NSW Act ONLY] Note [Vic Act only]: The Commonwealth Act and New South Wales Act include this Division.

126A

Definitions [NSW Act only]

(1) In this Division: harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). protected confidence means a communication made by a person in confidence to another person (in this Division called the confidant):

Appendix — Legislation

(a)

in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. protected confider means a person who made a protected confidence. protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence. (2) For the purposes of this Division, a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication.

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126B

Exclusion of evidence of protected confidences [NSW Act only]

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that

Part 3.10 – Privileges

s 126E

is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences, (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section. 126C Loss of professional confidential relationship privilege: consent [NSW Act only] This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned.

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126D Loss of professional confidential relationship privilege: misconduct [NSW Act only] (1) This Division does not prevent the adducing of evidence of a communication made or the contents of a document prepared in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty. (2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or document so prepared. 126E

Ancillary orders [NSW Act only]

Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence or protected identity information, the court may: (a) order that all or part of the evidence be heard in camera, and (b) make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider.

Appendix — Legislation

126F

Application of Division [NSW Act only]

(1) This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division. (2) This Division applies in relation to a protected confidence within the meaning of this Division whether made before or after the commencement of this Division. (3) This Division does not apply in relation to a protected confidence within the meaning of Division 1B or Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. Note: The Commonwealth Act does not include this subsection.

(4) The court may give a direction under this Division in respect of a protected confidence or protected identity information whether or not the protected confidence or protected identity information is privileged under another section of this Part or would be so privileged except for a limitation or restriction imposed by that section. DIVISION 1B – SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE [NSW Act ONLY] Note [NSW Act only]: The Commonwealth Act does not include this Division. Note [Vic Act only]: The New South Wales Act includes this Division.

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126G

Definitions [NSW Act only]

In this Division: criminal proceeding has the same meaning as criminal proceedings has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. principal protected confider has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. protected confidence has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. sexual assault offence has the same meaning as it has in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. 126H Exclusion of evidence of protected sexual assault communications [NSW Act only] (1) This section applies only in a civil proceeding in which substantially the same acts are in issue as the acts that were in issue in relation to a criminal proceeding. (2) If evidence was found to be privileged in a criminal proceeding under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986, the evidence may not be adduced in a civil proceeding to which this section applies.

Part 3.10 – Privileges

126I

s 126J

Application of Division [NSW Act only]

(1) This Division does not apply in relation to a civil proceeding the hearing of which began before the commencement of this section. (2) This Division applies, subject to subsection (1), in respect of a protected confidence whether made before or after the commencement of this section. DIVISION 1C – JOURNALIST PRIVILEGE

126A

Definitions [Repealed] [Cth Act only]

126B Exclusion of evidence of protected confidences [Repealed] [Cth Act only] 126C Loss of professional confidential relationship privilege: consent [Repealed] [Cth Act only]

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126D Loss of professional confidential relationship privilege: misconduct [Repealed] [Cth Act only] 126E

Ancillary orders [Repealed] [Cth Act only]

126F

Application of Division [Repealed] [Cth Act only]

126J

Definitions [Cth Act only]

(1) In this Division: informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium. journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium. news medium means any medium for the dissemination to the public or a section of the public of news and observations on news. 126J

Definitions [NSW Act only]

In this Division: informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium. journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium.

Appendix — Legislation

news medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

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126J

Definitions [Vic Act only]

(1) In this Division— informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium; journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium; news medium means a medium for the dissemination to the public or a section of the public of news and observations on news. (2) For the purpose of the definition of journalist, in determining if a person is engaged in the profession or occupation of journalism regard must be had to the following factors— (a) whether a significant proportion of the person’s professional activity involves— (i) the practice of collecting and preparing information having the character of news or current affairs; or (ii) commenting or providing opinion on or analysis of news or current affairs— for dissemination in a news medium; (b) whether information, having the character of news or current affairs, collected and prepared by the person is regularly published in a news medium; (c) whether the person’s comments or opinion on or analysis of news or current affairs is regularly published in a news medium; (d) whether, in respect of the publication of— (i) any information collected or prepared by the person; or (ii) any comment or opinion on or analysis of news or current affairs by the person— the person or the publisher of the information, comment, opinion or analysis is accountable to comply (through a complaints process) with recognised journalistic or media professional standards or codes of practice. 126K Journalist privilege relating to identity of informant [Cth Act only] (1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or

Part 3.10 – Privileges

s 126L

produce any document that would disclose the identity of the informant or enable that identity to be ascertained. (2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

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126K Journalist privilege relating to identity of informant [NSW & Vic Acts only] (1) [NSW Act only] If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained. (1) [Vic Act only] If a journalist, in the course of the journalist’s work, has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained. (2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs: (a) any likely adverse effect of the disclosure on the informant or any other person, and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts. (3) An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit. 126L

Application of Division [NSW Act only]

(1) This Division extends to information given by an informant before the commencement of this Division. (2) This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division. (3) This Division (as applied by section 131A) does not apply to a disclosure requirement referred to in that section made before the commencement of this Division.

Appendix — Legislation

DIVISION 2 – OTHER PRIVILEGES

127

Religious confessions

(1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy. (2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose. (3) This section applies even if an Act provides: (a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or (b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground. (4) In this section: religious confession means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.

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128

Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4); or (ii) the witness gives the evidence after being required to do so under subsection (4); and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

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Part 3.10 – Privileges

s 128

(b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled; and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in an Australian court: (a) evidence given by a person in respect of which a certificate under this section has been given; and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence; cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue; or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) The following are prescribed State or Territory provisions for the purposes of subsection (12): (a) section 128 of the Evidence Act 1995 of New South Wales; (b) a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection (12). (14) Subsection (12) applies to: (a) a proceeding in relation to which this Act applies because of section 4; and (b) a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a).

Appendix — Legislation

(15) [Repealed] Note 1: Bodies corporate cannot claim this privilege: see section 187. Note 2: Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty. Note 4: Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA 12 (22 March 2007).

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128A Privilege in respect of self-incrimination—exception for certain orders etc (1) In this section: disclosure order means an order made by a federal court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order, but does not include an order made by a court under the Proceeds of Crime Act 2002. relevant person means a person to whom a disclosure order is directed. (2) If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty; the person must: (c) disclose so much of the information required to be disclosed to which no objection is taken; and (d) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope; and (e) file and serve on each other party a separate affidavit setting out the basis of the objection. (3) The sealed envelope containing the privilege affidavit must not be opened except as directed by the court. (4) The court must determine whether or not there are reasonable grounds for the objection. (5) Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person. (6) If the court is satisfied that: (a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and (b) the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

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Part 3.10 – Privileges

s 129

(c) the interests of justice require the information to be disclosed; the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties. (7) If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information as referred to in paragraph (6)(a). (8) In any proceeding in an Australian court: (a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and (b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information; cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned. (9) Subsection (8) does not prevent the use against the relevant person of any information disclosed by a document: (a) that is an annexure or exhibit to a privilege affidavit prepared by the person in response to a disclosure order; and (b) that was in existence before the order was made. (10) Subsection (8) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (11) If a person has been given a certificate under a prescribed State or Territory provision in respect of information of a kind referred to in paragraph (6)(a), the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (12) For the purposes of subsection (11), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection. (13) Subsection (11) applies to: (a) a proceeding in relation to which this Act applies because of section 4; and (b) a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a) of this subsection. Note 1: Bodies corporate cannot claim this privilege: see section 187. Note 2: Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty.

DIVISION 3 – EVIDENCE EXCLUDED IN THE PUBLIC INTEREST

129

Exclusion of evidence of reasons for judicial etc. decisions

(1) Evidence of the reasons for a decision made by a person who is:

Appendix — Legislation

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(a) (b)

a judge in an Australian or overseas proceeding; or an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration; or the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person. (2) Such evidence must not be given by tendering as evidence a document prepared by such a person. (3) This section does not prevent the admission or use, in a proceeding, of published reasons for a decision. (4) In a proceeding, evidence of the reasons for a decision made by a member of a jury in another Australian or overseas proceeding, or of the deliberations of a member of a jury in relation to such a decision, must not be given by any of the members of that jury. (5) This section does not apply in a proceeding that is: (a) [Cth Act only] a prosecution for one or more of the following offences: (i) an offence against or arising under Part III of the Crimes Act 1914; (ii) embracery; (iii) attempting to pervert the course of justice; (iv) an offence connected with an offence mentioned in subparagraph (i), (ii) or (iii), including an offence of conspiring to commit such an offence; or (a) [NSW Act only]a prosecution for one or more of the following offences: (i) an offence against or arising under section 319, 321, 322 or 333 of the Crimes Act 1900, (ii) an offence against or arising under section 67 of the Jury Act 1977, (iii) an offence connected with an offence mentioned in subparagraph (i) or (ii), including an offence of conspiring to commit such an offence, or (a) [Vic Act only]a prosecution for one or more of the following offences— (i) attempt to pervert the course of justice; (ii) perverting the course of justice; (iii) subornation of perjury; (iv) embracery; (v) bribery of public official; (vi) misconduct in public office; (vii) an offence against section 52A of the Summary Offences Act 1966 (Offence to harass witness etc.); (viii) an offence against section 66 (Offences by officials) or 78 (Confidentiality of jury’s deliberations) of the Juries Act 2000;

Part 3.10 – Privileges

(b) (c) (d) (e)

s 130

(ix) an offence connected with an offence mentioned in subparagraphs (i) to (viii), including an offence of conspiring to commit such an offence; or in respect of a contempt of a court; or by way of appeal from, or judicial review of, a judgment, decree, order or sentence of a court; or by way of review of an arbitral award; or a civil proceeding in respect of an act of a judicial officer or arbitrator that was, and that was known at the time by the judicial officer or arbitrator to be, outside the scope of the matters in relation to which the judicial officer or arbitrator had authority to act.

Note 1: [Cth Act only]: Paragraph (5)(a) differs from paragraph 129(5)(a) of the NSW Act. Note 2: [NSW Act only]: Subsection (5)(a) differs from paragraph 129(5)(a) of the Commonwealth Act. Note 3: [Vic Act only]: Subsection (5)(a) differs from paragraph 129(5)(a) of the Commonwealth Act and New South Wales Act.

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130

Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia; or (b) damage relations between the Commonwealth and a State or between 2 or more States; or (c) prejudice the prevention, investigation or prosecution of an offence; or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or (f) prejudice the proper functioning of the government of the Commonwealth or a State.

Appendix — Legislation

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding; (b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor; (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication; (e) whether the substance of the information or document has already been published; (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory.

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131

Exclusion of evidence of settlement negotiations

(1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. (2) Subsection (1) does not apply if: (a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or (b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or (d) the communication or document included a statement to the effect that it was not to be treated as confidential; or (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or (f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or

Part 3.10 – Privileges

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(g)

s 131

evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or (h) the communication or document is relevant to determining liability for costs; or (i) making the communication, or preparing the document, affects a right of a person; or (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. (3) For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act was committed; and (b) a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act; the court may find that the communication was so made or the document so prepared. (4) For the purposes of paragraph (2)(k), if: (a) the abuse of power is a fact in issue; and (b) there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power; the court may find that the communication was so made or the document was so prepared. (5) In this section: (a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and (b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and (c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and (d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and (e) a reference to commission of an act includes a reference to a failure to act. (6) In this section: power means a power conferred by or under an Australian law.

Appendix — Legislation

DIVISION 4 – GENERAL

131A

Extended application of Division 1C [Cth Act only]

(1) This section applies if, in response to a disclosure requirement, a person claims that they are not compellable to answer any question or produce any document that would disclose the identity of the informant (within the meaning of section 126K) or enable that identity to be ascertained. (1A) A party that seeks disclosure pursuant to a disclosure requirement may apply to the court for an order, under section 126K, that subsection 126K(1) does not apply in relation to the information or document. (2) In this section, disclosure requirement means a court process or court order that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence; (b) pre-trial discovery; (c) non-party discovery; (d) interrogatories; (e) a notice to produce; (f) a request to produce a document under Division 1 of Part 4.6.

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131A Application of Part to preliminary proceedings of courts [NSW Act only] (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following: (a) a summons or subpoena to produce documents or give evidence, (b) pre-trial discovery, (c) non-party discovery, (d) interrogatories, (e) a notice to produce, (f) a request to produce a document under Division 1 of Part 4.6.

Part 3.10 – Privileges

s 132

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131A Application of Part to preliminary proceedings of courts [Vic Act only] (1) If— (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and (b) the person objects to giving that information or providing that document— the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following— (a) a summons or subpoena to produce documents or give evidence; (b) pre-trial discovery; (c) non-party discovery; (d) interrogatories; (e) a notice to produce; (f) a request to produce a document under Division 1 of Part 4.6; (g) a search warrant. Note: Subsection (2) of the New South Wales Act does not include a reference to a search warrant.

131B Extended application of Division 1C etc. to all proceedings for Commonwealth offences [Cth Act only] In addition to their application under section 4 to all proceedings in a federal court, Division 1C and section 131A apply to all proceedings in any other Australian court for an offence against a law of the Commonwealth, including proceedings that: (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) relate to sentencing. 132

Court to inform of rights to make applications and objections

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

Appendix — Legislation

133

Court may inspect etc. documents

If a question arises under this Part in relation to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question. 134

Inadmissibility of evidence that must not be adduced or given

Evidence that, because of this Part, must not be adduced or given in a proceeding is not admissible in the proceeding.

Part 3.11 – Discretionary and mandatory exclusions 135

General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time.

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136

General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing. 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. 138 Discretion to exclude improperly or illegally obtained evidence [Cth Act only]/ Exclusion of improperly or illegally obtained evidence [NSW & Vic Acts only] (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was

Part 3.11 – Discretionary and mandatory exclusions

s 139

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likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note [Cth Act only]: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986. Note [NSW & Vic Acts only]: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

139

Cautioning of persons

(1) For the purposes of paragraph 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time; and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For the purposes of paragraph 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and

Appendix — Legislation

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(c)

the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official. (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or (b) the official would not allow the person to leave if the person wished to do so; or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. (6) A person is not treated as being under arrest only because of subsection (5) if: (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

Chapter 4 – Proof INTRODUCTORY NOTE Outline of this Chapter This Chapter is about the proof of matters in a proceeding. Part 4.1 is about the standard of proof in civil proceedings and in criminal proceedings. Part 4.2 is about matters that do not require proof in a proceeding. Part 4.3 makes easier the proof of the matters dealt with in that Part. Part 4.4 is about requirements that evidence be corroborated. Part 4.5 requires judges to warn juries about the potential unreliability of certain kinds of evidence. Part 4.6 sets out procedures for proving certain other matters.

Part 4.1 – Standard of proof

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140

Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 141

Criminal proceedings: standard of proof

(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities. 142

Admissibility of evidence: standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or (b) any other question arising under this Act; have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding; and (b) the gravity of the matters alleged in relation to the question.

Appendix — Legislation

Part 4.2 – Judicial notice

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143

Matters of law

(1) Proof is not required about the provisions and coming into operation (in whole or in part) of: (a) [Cth Act only] an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia; or (a) [NSW & Vic Acts only] an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory, or (b) a regulation, rule or by-law made, or purporting to be made, under such an Act or Ordinance; or (c) a Proclamation or order of the Governor-General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or (d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called). (2) A judge may inform himself or herself about those matters in any way that the judge thinks fit. (3) A reference in this section to an Act, being an Act of an Australian Parliament, includes a reference to a private Act passed by that Parliament. Note 1 [Cth Act only]: Section 5 extends the operation of this provision to proceedings in all Australian courts. Note 2 [NSW & Vic Acts only]: Section 5 of the Commonwealth Act extends the operation of the equivalent Commonwealth section to proceedings in all Australian courts.

144

Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Part 4.3 – Facilitation of proof

145

s 147

Certain Crown certificates

This Part does not exclude the application of the principles and rules of the common law and of equity relating to the effect of a certificate given by or on behalf of the Crown with respect to a matter of international affairs.

Part 4.3 – Facilitation of proof DIVISION 1 – GENERAL

146

Evidence produced by processes, machines and other devices

(1) This section applies to a document or thing: (a) that is produced wholly or partly by a device or process; and (b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome. (2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.

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Note: Example: It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.

147 Documents produced by processes, machines and other devices in the course of business (1) This section applies to a document: (a) that is produced wholly or partly by a device or process; and (b) that is tendered by a party who asserts that, in producing the document, the device or process has produced a particular outcome. (2) If: (a) the document is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence); and (b) the device or process is or was at that time used for the purposes of the business; it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document on the occasion in question, the device or process produced that outcome. (3) Subsection (2) does not apply to the contents of a document that was produced: (a) for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

Appendix — Legislation

(b)

in connection with an investigation relating or leading to a criminal proceeding.

Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.

148 Evidence of certain acts of justices, lawyers and notaries public [Cth Act only] / Evidence of certain acts of justices, Australian lawyers and notaries public [NSW & Vic Acts only] It is presumed, unless the contrary is proved, that a document was attested or verified by, or signed or acknowledged before, a justice of the peace, Australian lawyer or notary public, if: (a) an Australian law requires, authorises or permits it to be attested, verified, signed or acknowledged by a justice of the peace, an Australian lawyer or a notary public, as the case may be; and (b) it purports to have been so attested, verified, signed or acknowledged. 149

Attestation of documents

It is not necessary to adduce the evidence of an attesting witness to a document (not being a testamentary document) to prove that the document was signed or attested as it purports to have been signed or attested.

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Note [Cth Act only]: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives section 149 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

150

Seals and signatures

(1) [Cth Act only] If the imprint of a seal appears on a document and purports to be the imprint of: (a) a Royal Great Seal; or (b) the Great Seal of Australia; or (c) another seal of the Commonwealth; or (d) a seal of a State, a Territory or a foreign country; or (e) the seal of a body (including a court or a tribunal), or a body corporate, established by a law of the Commonwealth, a Territory or a foreign country; or (f) the seal of a court or tribunal established by a law of a State; it is presumed, unless the contrary is proved, that the imprint is the imprint of that seal, and the document was duly sealed as it purports to have been sealed. Note: This subsection differs from subsection 150(1) of the NSW Act.

(1) [NSW & Vic Acts only] If the imprint of a seal appears on a document and purports to be the imprint of: (a) the Public Seal of the State, or (b) a Royal Great Seal, or

Part 4.3 – Facilitation of proof

s 151

(c) (d) (e) (f)

the Great Seal of Australia, or another seal of the Commonwealth, or a seal of another State, a Territory or a foreign country, or the seal of a body (including a court or a tribunal), or a body corporate, established by or under Royal Charter or by an Australian law or the law of a foreign country, it is presumed, unless the contrary is proved, that the imprint is the imprint of that seal, and the document was duly sealed as it purports to have been sealed.

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Note: The Commonwealth Act has a different subsection (1).

(2) If the imprint of a seal appears on a document and purports to be the imprint of the seal of an office holder, it is presumed, unless the contrary is proved, that: (a) the imprint is the imprint of that seal; and (b) the document was duly sealed by the office holder acting in his or her official capacity; and (c) the office holder held the relevant office when the document was sealed. (3) If a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that: (a) the document was signed by the office holder acting in that capacity; and (b) the office holder held the relevant office when the document was signed. (4) In this section: office holder means: (a) the Sovereign; or (b) the Governor-General; or (c) the Governor of a State; or (d) the Administrator of a Territory; or (e) a person holding any other office under an Australian law or a law of a foreign country. (5) This section extends to documents sealed, and documents signed, before the commencement of this section. Note 1 [Cth Act only]: Section 5 extends the application of this section to proceedings in all Australian courts. Note 1 [NSW & Vic Acts only]: Section 5 of the Commonwealth Act extends the operation of this section of the Commonwealth Act to proceedings in all Australian courts. Note 2: Australian law is defined in the Dictionary. Note 3 [Vic Act only]: See also section 142 of the Evidence (Miscellaneous Provisions) Act 1958 (Forgery, using etc. false documents an indictable offence).

151

Seals of bodies established under State law [Cth Act only]

(1) If the imprint of a seal appears on a document and purports to be the imprint of the seal of a body (other than a court or a tribunal), or a body corporate, established by Royal Charter or a law of a State, it is presumed, unless the contrary is proved, that: (a) the imprint is the imprint of that seal; and (b) the document was duly sealed as it purports to have been sealed.

Appendix — Legislation

(2) This section extends to documents sealed before the commencement of this section. 151

Seals of bodies established under State law [NSW & Vic Acts only]

Note: The Commonwealth Act includes a provision dealing with certain seals of bodies established by Royal Charter or a law of a State.

152

Documents produced from proper custody

If a document that is or purports to be more than 20 years old is produced from proper custody, it is presumed, unless the contrary is proved, that: 

(a) (b)

the document is the document that it purports to be; and if it purports to have been executed or attested by a person—it was duly executed or attested by that person.

Note [Cth Act only]: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives section 152 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

DIVISION 2 – MATTERS OF OFFICIAL RECORD

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153

Gazettes and other official documents [Cth Act only]

(1) It is presumed, unless the contrary is proved, that a document purporting: (a) to be any government or official gazette (by whatever name called) of the Commonwealth, a State, a Territory or a foreign country; or (b) to have been printed by the Government Printer or by the government or official printer of a State or Territory; or (c) to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; is what it purports to be and was published on the day on which it purports to have been published. (2) If: (a) there is produced to a court: (i) a copy of any government or official gazette (by whatever name called) of the Commonwealth, a State, a Territory or a foreign country; or (ii) a document that purports to have been printed by the Government Printer or by the government or official printer of a State or Territory; or (iii) a document that purports to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; and (b) the doing of an act: (i) by the Governor-General or by the Governor of a State or the Administrator of a Territory; or

Part 4.3 – Facilitation of proof

s 153

(ii) by a person authorised or empowered to do the act by an Australian law or a law of a foreign country; is notified or published in the copy or document; it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day. Note: Section 5 extends the operation of this provision to proceedings in all Australian courts.

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153

Gazettes and other official documents [NSW & Vic Acts only]

(1) It is presumed, unless the contrary is proved, that a document purporting: (a) to be any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country, or (b) to have been printed by the Government Printer of the Commonwealth or by the government or official printer of a State or Territory, or (c) to have been printed by authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country, is what it purports to be and was published on the day on which it purports to have been published. (2) If: (a) there is produced to a court: (i) a copy of any government or official gazette (by whatever name called) of this State, the Commonwealth, another State, a Territory or a foreign country, or (ii) a document that purports to have been printed by the Government Printer of the Commonwealth or by the government or official printer of a State or Territory, or (iii) a document that purports to have been printed by authority of the government or administration of this State, the Commonwealth, another State, a Territory or a foreign country, and (b) the doing of an act: (i) by the Governor-General or by the Governor of a State or the Administrator of a Territory, or (ii) by a person authorised or empowered to do the act by an Australian law or a law of a foreign country, is notified or published in the copy or document, it is presumed, unless the contrary is proved, that the act was duly done and, if the day on which the act was done appears in the copy or document, it was done on that day. Note [NSW & Vic Acts]: Section 5 of the Commonwealth Act extends the operation of section 153 of the Commonwealth Act to proceedings in all Australian courts. Note 2 [Vic Act only]: See also section 143 of the Evidence (Miscellaneous Provisions) Act 1958 (Printing or using documents falsely purporting to be printed by government printer an indicable offence).

Appendix — Legislation

154

Documents published by authority of Parliaments etc.

It is presumed, unless the contrary is proved, that a document purporting to have been printed by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament: (a) is what it purports to be; and (b) was published on the day on which it purports to have been published. Note 2 [Cth Act only]: Section 5 extends the application of this section to proceedings in all Australian courts.

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155

Evidence of official records [Cth Act only]

(1) Evidence of a Commonwealth record or of a public record of a State or Territory may be adduced by producing a document that: (a) purports to be such a record and to be signed or sealed by: (i) a Minister, or a Minister of the State or Territory, as the case requires; or (ii) a person who might reasonably be supposed to have custody of the record; or (b) purports to be a copy of or extract from the record that is certified to be a true copy or extract by: (i) a Minister, or a Minister of the State or Territory, as the case requires; or (ii) a person who might reasonably be supposed to have custody of the record. (2) If such a document is produced, it is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, that: (a) the document is the record, copy or extract that it purports to be; and (b) the Minister, Minister of the State or Territory or person: (i) signed or sealed the record; or (ii) certified the copy or extract as a true copy or extract; as the case requires. Note: Section 5 extends the application of this section to proceedings in all Australian courts.

155

Evidence of official records [NSW & Vic Acts only]

(1) Evidence of a Commonwealth record or of a public document of this State, another State or a Territory may be adduced by producing a document that: (a) purports to be such a record or document and to be signed or sealed by: (i) a Minister of the Commonwealth, or a Minister of this or another State or a Territory, as the case requires, or (ii) a person who might reasonably be supposed to have custody of the record or document, or (b) purports to be a copy of or extract from the record or document that is certified to be a true copy or extract by:

Part 4.3 – Facilitation of proof

s 156

(i) a Minister of the Commonwealth, or a Minister of this or another State or a Territory; or (ii) a person who might reasonably be supposed to have custody of the record or document. as the case requires. (2) If such a document is produced, it is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, that: (a) the document is the record, public document, copy or extract that it purports to be, and (b) the Minister of the Commonwealth, Minister of this or that other State or the Territory or person: (i) signed or sealed the record, or (ii) certified the copy or extract as a true copy or extract, as the case requires. Note: This section differs from section 155 of the Commonwealth Act. The Commonwealth provision refers to evidence of a “public record” of a State or Territory rather than evidence of a “public document” of a State or Territory.

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155A

Evidence of Commonwealth documents

(1) Evidence of a Commonwealth document may be adduced by producing a document that purports to be, or to be a copy of or extract from, the Commonwealth document that is certified to be the Commonwealth document, or to be a true copy or extract, as the case may be, by: (a) a Minister; or (b) a person who might reasonably be supposed to have custody of the Commonwealth document. (2) If such a document is produced, it is presumed, unless evidence that is sufficient to raise doubt about the presumption is adduced, that: (a) the document is the Commonwealth document, or the copy of or extract from the Commonwealth document, that it purports to be; and (b) the Minister or person certified the document as being the Commonwealth document or a true copy or extract, as the case requires. Note 1: The NSW Act has now equivalent provision for section 155A. Note 2: Section 5 extends the application of this section to proceedings in all Australian courts.

155A

Evidence of Commonwealth documents [NSW & Vic Acts only]

Note: The Commonwealth Act includes a provision that relates to evidence of Commonwealth documents.

156

Public documents

(1) A document that purports to be a copy of, or an extract from or summary of, a public document and to have been: (a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or

Appendix — Legislation

(b)

certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document; is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document. (2) If an officer entrusted with the custody of a public document is required by a court to produce the public document, it is sufficient compliance with the requirement for the officer to produce a copy of, or extract from, the public document if it purports to be signed and certified by the officer as a true copy or extract. (3) It is sufficient production of a copy or extract for the purposes of subsection (2) if the officer sends it by prepaid post, or causes it to be delivered, to: (a) the proper officer of the court in which it is to be produced; or (b) the person before whom it is to be produced. (4) The court before which a copy or extract is produced under subsection (2) may direct the officer to produce the original public document. Note: Section 182 gives this section a wider application in relation to Commonwealth records.

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157

Public documents relating to court processes

Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that: (a) is proved to be an examined copy; or (b) purports to be sealed with the seal of that court; or (c) purports to be signed by a judge, magistrate, registrar or other proper officer of that court. Note: Section 5 extends the operation of this provision to proceedings in all Australian courts.

158

Evidence of certain public documents

(1) If: (a) a public document, or a certified copy of a public document, of a State or Territory is admissible for a purpose in that State or Territory under the law of that State or Territory; and (b) it purports to be sealed, or signed and sealed, or signed alone, as directed by the law of that State or Territory; it is admissible in evidence to the same extent and for that purpose in all courts: (c) without proof of: (i) the seal or signature; or (ii) the official character of the person appearing to have signed it; and (d) without further proof in every case in which the original document could have been received in evidence.

Part 4.3 – Facilitation of proof

s 158

(2) A public document of a State or Territory that is admissible in evidence for any purpose in that State or Territory under the law of that State or Territory without proof of: (a) the seal or signature authenticating the document; or (b) the judicial or official character of the person appearing to have signed the document; is admissible in evidence to the same extent and for any purpose in all courts without such proof. (3) This section only applies to documents that are public records of a State or Territory. Note 2: Section 5 extends the operation of this provision to proceedings in all Australian courts.

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158

Evidence of certain public documents [NSW Act only]

(1) If: (a) a public document, or a certified copy of a public document, of another State or a Territory is admissible for a purpose in that State or Territory under the law of that State or Territory, and (b) it purports to be sealed, or signed and sealed, or signed alone, as directed by the law of that State or Territory, it is admissible in evidence to the same extent and for that purpose in all NSW courts: (c) without proof of: (i) the seal or signature, or (ii) the official character of the person appearing to have signed it, and (d) without further proof in every case in which the original document could have been received in evidence. (2) A public document of another State or a Territory that is admissible in evidence for any purpose in that State or Territory under the law of that State or Territory without proof of: (a) the seal or signature authenticating the document, or (b) the judicial or official character of the person appearing to have signed the document, is admissible in evidence to the same extent and for any purpose in all NSW courts without such proof. (3) This section only applies to documents that are public records of another State or a Territory. 158

Evidence of certain public documents [Vic Act only]

(1) If— (a) a public document, or a certified copy of a public document, of another State or a Territory is admissible for a purpose in that State or Territory under the law of that State or Territory; and

Appendix — Legislation

(b)

it purports to be sealed, or signed and sealed, or signed alone, as directed by the law of that State or Territory— it is admissible in evidence to the same extent and for that purpose in all Victorian courts— (c) without proof of— (i) the seal or signature; or (ii) the official character of the person appearing to have signed it; and (d) without further proof in every case in which the original document could have been received in evidence. (2) A public document of another State or a Territory that is admissible in evidence for any purpose in that State or Territory under the law of that State or Territory without proof of— (a) the seal or signature authenticating the document; or (b) the judicial or official character of the person appearing to have signed the document— is admissible in evidence to the same extent and for any purpose in all Victorian courts without such proof. (3) This section only applies to documents that are public records of another State or a Territory.

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159

Official statistics

A document that purports: (a) to be published by the Australian Statistician; and (b) to contain statistics or abstracts compiled and analysed by the Australian Statistician under the Census and Statistics Act 1905; is evidence that those statistics or abstracts were compiled and analysed by the Australian Statistician under that Act. Note [Cth Act only]: Section 5 extends the application of this section to proceedings in all Australian courts. Note [NSW & Vic Acts only]: Section 5 of the Commonwealth Act extends the operation of section 159 of the Commonwealth Act to proceedings in all Australian courts.

DIVISION 3 – MATTERS RELATING TO POST AND COMMUNICATIONS

160

Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted. (2) This section does not apply if: (a) the proceeding relates to a contract; and (b) all the parties to the proceeding are parties to the contract; and (c) subsection (1) is inconsistent with a term of the contract.

Part 4.3 – Facilitation of proof

s 162

(3) In this section: working day means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or a bank holiday in the place to which the postal article was addressed. Note [Cth Act only]: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives section 160 of the Commonwealth Act a wider application in relation to postal articles sent by a Commonwealth agency.

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161

Electronic communications

(1) If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication: (a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and (b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and (c) was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and (d) was received at the destination to which it appears from the document to have been sent; and (e) if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time. (2) A provision of subsection (1) does not apply if: (a) the proceeding relates to a contract; and (b) all the parties to the proceeding are parties to the contract; and (c) the provision is inconsistent with a term of the contract. Note [Cth Act only]: Section 182 gives this section a wider application in relation to Commonwealth records. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives section 161 of the Commonwealth Act a wider application in relation to Commonwealth records.

162

Lettergrams and telegrams

(1) If a document purports to contain a record of a message transmitted by means of a lettergram or telegram, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the message was received by the person to whom it was addressed 24 hours after the message was delivered to a post office for transmission as a lettergram or telegram. (2) This section does not apply if: (a) the proceeding relates to a contract; and (b) all the parties to the proceeding are parties to the contract; and (c) subsection (1) is inconsistent with a term of the contract.

Appendix — Legislation

Note [Cth Act only]: Section 182 gives this section a wider application in relation to Commonwealth records. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives section 162 of the Commonwealth Act a wider application in relation to Commonwealth records.

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163 Proof of letters having been sent by Commonwealth agencies [Cth Act only] (1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. (2) In this section: business day means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or bank holiday in the place in which the letter was prepared. Commonwealth agency [Repealed] letter means any form of written communication that is directed to a particular person or address, and includes: (a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and (b) any envelope, packet, parcel, container or wrapper containing such a communication; and (c) any unenclosed written communication that is directed to a particular person or address. Note 1: The NSW Act has no equivalent provision for section 163. Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts.

163 Proof of letters having been sent by Commonwealth agencies [NSW & Vic Acts only] Note: Section 5 of the Commonwealth Act extends the operation of section 163 of the Commonwealth Act to proceedings in all Australian courts.

Part 4.4 – Corroboration 164

Corroboration requirements abolished

(1) It is not necessary that evidence on which a party relies be corroborated. (2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence. (3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or (b) give a direction relating to the absence of corroboration.

Part 4.5 – Warnings and information

s 165

(4) [Vic Act only] Subject to subsection (5), if there is a jury in a criminal proceeding, the judge must not— (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or (b) direct the jury regarding the absence of corroboration. (5) [Vic Act only] In a criminal proceeding for the offence of perjury or a similar or related offence, the judge must direct the jury that it may find the accused guilty only if it is satisfied that the evidence proving guilt is corroborated. (6) [Vic Act only] The principles and rules of the common law that relate to jury directions or warnings on corroboration of evidence, or the absence of corroboration of evidence, in criminal trials to the contrary of this section are abolished. Note: Section 4 (5) and (6) do not appear in the Commonwealth Act and New South Wales Act.

Part 4.5 – Warnings and information

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165

Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies; (b) identification evidence; (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; (d) [Vic Act only] Repealed (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding; (e) [Vic Act only] Repealed (e) evidence given in a criminal proceeding by a witness who is a prison informer; (f) [Vic Act only] Repealed (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant; (g) in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

Appendix — Legislation

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with subsections 165A(2) and (3).

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165A Warnings in relation to children’s evidence (1) A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following: (a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses, (b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults, (c) give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the age of the child, (d) in the case of a criminal proceeding—give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child. (d) [Vic Act only] Repealed (2) Subsection (1) does not prevent the judge, at the request of a party, from: (a) informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and (b) warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it, if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information. (3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury. Note [Vic Act only]: This section applies only to civil proceedings. Division 3 of Part 4 of the Jury Directions Act 2015 contains provisions relating to children’s evidence that apply in criminal trials.

165B

Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

Part 4.6 – Ancillary provisions

s 166

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported; and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. Note [Vic Act only]: The Commonwealth Act and New South Wales Act include a section requiring the judge to give certain directions to the jury relating to delay and forensic disadvantage. Division 5 of Part 4 of the Jury Directions Act 2015 contains provisions relating to delay and forensic disadvantage that apply in criminal trials.

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Part 4.6 – Ancillary provisions DIVISION 1 – REQUESTS TO PRODUCE DOCUMENTS OR CALL WITNESSES Note [Cth Act only]: Section 182 gives this Division a wider application in relation to Commonwealth records and certain Commonwealth documents. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives Division 1 of Pt 4.6 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

166

Definition of request

In this Division: request means a request that a party (the requesting party) makes to another party to do one or more of the following: (a) to produce to the requesting party the whole or a part of a specified document or thing; (b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing; (c) to call as a witness a specified person believed to be concerned in production or maintenance of a specified document or thing; (d) to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time;

Appendix — Legislation

(e)

(f) (g)

167

in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary—to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept; in relation to evidence of a previous representation—to call as a witness the person who made the previous representation; in relation to evidence that a person has been convicted of an offence, being evidence to which subsection 92(2) applies—to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to: (a) a previous representation; or (b) evidence of a conviction of a person for an offence; or (c) the authenticity, identity or admissibility of a document or thing.

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168 Time limits for making certain requests (1) If a party has given to another party written notice of its intention to adduce evidence of a previous representation, the other party may only make a request to the party relating to the representation if the request is made within 21 days after the notice was given. (2) Despite subsection (1), the court may give the other party leave to make a request relating to the representation after the end of that 21 day period if it is satisfied that there is good reason to do so. (3) If a party has given to another party written notice of its intention to adduce evidence of a person’s conviction of an offence in order to prove a fact in issue, the other party may only make a request relating to evidence of the conviction if the request is made within 21 days after the notice is given. (4) Despite subsection (3), the court may give the other party leave to make a request relating to evidence of the conviction after the end of that 21 day period if it is satisfied that there is good reason to do so. (5) If a party has served on another party a copy of a document that it intends to tender in evidence, the other party may only make a request relating to the document if the request is made within 21 days after service of the copy. (6) If the copy of the document served under subsection (5) is accompanied by, or has endorsed on it, a notice stating that the document is to be tendered to prove the contents of another document, the other party may only make a request relating to the other document if the request is made within 21 days after service of the copy. (7) Despite subsections (5) and (6), the court may give the other party leave to make a request relating to the document, or other document, after the end of the 21 day period if it is satisfied that there is good reason to do so.

Part 4.6 – Ancillary provisions

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169

s 169

Failure or refusal to comply with requests

(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders: (a) an order directing the party to comply with the request; (b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166; (c) an order that the evidence in relation to which the request was made is not to be admitted in evidence; (d) such order with respect to adjournment or costs as is just. (2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed. (3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under paragraph (1) (a) or (b) is not complied with. (4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if: (a) the document or thing to be produced is not available to the party; or (b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or (c) the person to be called as a witness is not available. (5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account: (a) the importance in the proceeding of the evidence in relation to which the request was made; and (b) whether there is likely to be a dispute about the matter to which the evidence relates; and (c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and (d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and (e) if the request relates to evidence of a previous representation—whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and (f) in the case of a request referred to in paragraph (g) of the definition of request in section 166—whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained; and

Appendix — Legislation

(g) (h)

whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and the nature of the proceeding.

Note: Clause 5 of Part 2 of the Dictionary is about the availability of documents and things, and clause 4 of Part 2 of the Dictionary is about the availability of persons.

DIVISION 2 – PROOF OF CERTAIN MATTERS BY AFFIDAVITS OR WRITTEN STATEMENTS Note [Cth Act only]: Section 182 gives this Division a wider application in relation to Commonwealth records and certain Commonwealth documents. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives Division 2 of Pt 4.6 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

170

Evidence relating to certain matters [Cth Act only]

(1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence.

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TABLE Provisions of this Act Section 48 Sections 63, 64 and 65 Section 69 Section 70 Section 71 The provisions of Part 4.3 Section 182

Subject matter Proof of contents of documents Hearsay exceptions for first-hand hearsay Hearsay exception for business records Hearsay exception for tags, labels and other writing Hearsay exception for telecommunications Facilitation of proof Commonwealth records

(2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement. 170

Evidence relating to certain matters [NSW & Vic Acts only]

(1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence. Provisions of this Act Section 48 Sections 63, 64 and 65 Section 69

Table Subject-matter Proof of contents of documents Hearsay exceptions for “first-hand” hearsay Hearsay exception for business records

Part 4.6 – Ancillary provisions

Section 70 Section 71 The provisions of Part 4.3

s 171

Table Hearsay exception for tags, labels and other writing Hearsay exception for telecommunications Facilitation of proof

Note: The Table to section 170 of the Commonwealth Act includes a reference to section 182 (Commonwealth records) of that Act.

(2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement.

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171

Persons who may give such evidence

(1) Such evidence may be given by: (a) a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing; or (b) except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65—an authorised person. (2) Despite paragraph (1)(b), evidence must not be given under this section by an authorised person who, at the relevant time or afterwards, did not have a position of responsibility in relation to making or keeping the document or thing unless it appears to the court that: (a) it is not reasonably practicable for the evidence to be given by a person who had, at the relevant time or afterwards, a position of responsibility in relation to making or keeping the document or thing; or (b) having regard to all the circumstances of the case, undue expense would be caused by calling such a person as a witness. (3) [Cth Act only] In this section: authorised person means: (a) if the evidence is given at a place outside Australia: (i) an Australian Diplomatic Officer, or an Australian Consular Officer, within the meaning of the Consular Fees Act 1955, exercising his or her function in that place; or (ii) an employee of the Commonwealth, authorised under paragraph 3(c) of the Consular Fees Act 1955, exercising his or her function in that place; or (iii) an employee of the Australian Trade and Investment Commission, authorised under paragraph 3(d) of the Consular Fees Act 1955, exercising his or her function in that place; or (b) an AFP employee (within the meaning of the Australian Federal Police Act 1979); or (c) a special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or (d) a person authorised by the Attorney-General for the purposes of this section. Note: Subsection 169(3) of the NSW Act differs from subsection (3).

Appendix — Legislation

(3) [NSW Act only] In this section: authorised person means: (a) a person before whom an oath, declaration or affidavit may be taken or made in a country or place outside the State under section 26 of the Oaths Act 1900, or (b) a police officer of or above the rank of sergeant, or (c) a person authorised by the Attorney General for the purposes of this section. (3) [Vic Act only] In this section, authorised person means— (a) a person before whom an affidavit may be sworn and taken in a country or place outside the State under section 124 of the Evidence Act 1958; or (b) a member of the police force above the rank of sergeant; or (c) a person authorised by the Attorney-General for the purposes of this section. Note: The Commonwealth Act and New South Wales Act contain a different definition of authorised person.

172

Evidence based on knowledge, belief or information

(1) Despite Chapter 3, the evidence may include evidence based on the knowledge and belief of the person who gives it, or on information that that person has. (2) An affidavit or statement that includes evidence based on knowledge, information or belief must set out the source of the knowledge or information or the basis of the belief. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

173

Notification of other parties

(1) A copy of the affidavit or statement must be served on each party a reasonable time before the hearing of the proceeding. (2) The party who tenders the affidavit or statement must, if another party so requests, call the deponent or person who made the statement to give evidence but need not otherwise do so. DIVISION 3 – FOREIGN LAW

174

Evidence of foreign law

(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing: (a) a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or (b) a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or (c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of state; or

Part 4.6 – Ancillary provisions

s 177

(d)

a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy. (2) A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country. 175

Evidence of law reports of foreign countries

(1) Evidence of the unwritten or common law of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the unwritten or common law of the country. (2) Evidence of the interpretation of a statute of a foreign country may be adduced by producing a book containing reports of judgments of courts of the country if the book is or would be used in the courts of the country to inform the courts about the interpretation of the statute. 176

Questions of foreign law to be decided by judge

If, in a proceeding in which there is a jury, it is necessary to ascertain the law of another country which is applicable to the facts of the case, any question as to the effect of the evidence adduced with respect to that law is to be decided by the judge alone. DIVISION 4 – PROCEDURES FOR PROVING OTHER MATTERS

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177

Certificates of expert evidence

(1) Evidence of a person’s opinion may be adduced by tendering a certificate (expert certificate) signed by the person that: (a) states the person’s name and address; and (b) states that the person has specialised knowledge based on his or her training, study or experience, as specified in the certificate; and (c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge. (2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party: (a) a copy of the certificate; and (b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion. (3) Service must be effected not later than: (a) 21 days before the hearing; or (b) if, on application by the party before or after service, the court substitutes a different period—the beginning of that period. (4) Service for the purposes of subsection (2) may be proved by affidavit. (5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence.

Appendix — Legislation

(6) The expert certificate is not admissible as evidence if such a requirement is made. (7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section.

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178

Convictions, acquittals and other judicial proceedings

(1) This section applies to the following facts: (a) the conviction or acquittal before or by an applicable court of a person charged with an offence; (b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court; (c) an order by an applicable court; (d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding. (2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or a registrar or other proper officer of the applicable court: (a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question; and (b) stating the time and place of the conviction, acquittal, sentence, order or proceeding; and (c) stating the title of the applicable court. (3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate. (4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate. (5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate. (6) In this section: acquittal includes the dismissal of the charge in question by an applicable court. applicable court means an Australian court or a foreign court. Note: Section 91 excludes evidence of certain judgments and convictions.

179 Proof of identity of convicted persons—affidavits by members of State or Territory police forces (1) This section applies if a member of a police force of a State or Territory: (a) makes an affidavit in the form prescribed by the regulations for the purposes of this section; and

Part 4.6 – Ancillary provisions

s 180

(b)

states in the affidavit that he or she is a fingerprint expert for that police force. (2) For the purpose of proving before a court the identity of a person alleged to have been convicted in that State or Territory of an offence, the affidavit is evidence in a proceeding that the person whose fingerprints are shown on a fingerprint card referred to in the affidavit and marked for identification: (a) is the person referred to in a certificate of conviction, or certified copy of conviction annexed to the affidavit, as having been convicted of an offence; and (b) was convicted of that offence; and (c) was convicted of any other offence of which he or she is stated in the affidavit to have been convicted. (3) For the purposes of this section, if a Territory does not have its own police force, the police force performing the policing functions of the Territory is taken to be the police force of the Territory.

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180 Proof of identity of convicted persons—affidavits by AFP employees or special members of the Australian Federal Police [Cth Act only]/ Proof of identity of convicted persons—affidavits by members of Australian Federal Police [NSW & Vic Acts only] (1) [Cth Act only] This section applies if an AFP employee (within the meaning of the Australian Federal Police Act 1979) or a special member of the Australian Federal Police (within the meaning of that Act): (a) makes an affidavit in the form prescribed by the regulations for the purposes of this section; and (b) states in the affidavit that he or she is a fingerprint expert for the Australian Federal Police. (1) [NSW & Vic Acts only] This section applies if a member of the Australian Federal Police: (a) makes an affidavit in the form prescribed by the regulations for the purposes of this section, and (b) states in the affidavit that he or she is a fingerprint expert for the Australian Federal Police. (2) For the purpose of proving before a court the identity of a person alleged to have been convicted of an offence against a law of the Commonwealth, the affidavit is evidence in a proceeding that the person whose fingerprints are shown on a fingerprint card referred to in the affidavit and marked for identification: (a) is the person referred to in a certificate of conviction, or certified copy of conviction annexed to the affidavit, as having been convicted of an offence; and (b) was convicted of that offence; and (c) was convicted of any other offence of which he or she is stated in the affidavit to have been convicted.

Appendix — Legislation

181 Proof of service of statutory notifications, notices, orders and directions

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(1) The service, giving or sending under an Australian law of a written notification, notice, order or direction may be proved by affidavit of the person who served, gave or sent it. (2) A person who, for the purposes of a proceeding, makes an affidavit referred to in this section is not, because of making the affidavit, excused from attending for crossexamination if required to do so by a party to the proceeding.

Chapter 5 – Miscellaneous 182 Application of certain sections in relation to Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents (1) Subject to this section, the provisions of this Act referred to in the following Table apply in relation to documents that: (a) are, or form part of, Commonwealth records; or (b) at the time they were produced were, or formed part of, Commonwealth records; as if those sections applied to the extent provided for in section 5.

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Provisions of this Act Sections 47, 48, 49 and 51 Section 69 Subsection 70(1) Section 71 Section 147 Section 149 Section 152 Section 156 Sections 161 and 162 Division 1 of Part 4.6 Division 2 of Part 4.6 Section 183

TABLE Subject matter Documentary evidence Hearsay exception for business records Hearsay exception for tags, labels and other writing Hearsay exception for electronic communications Documents produced by processes, machines etc. in the course of business Attestation of documents Documents produced from proper custody Public documents Electronic communications, lettergrams and telegrams Requests to produce documents or call witnesses Proof of certain matters by affidavit or written statements Inferences about documents etc.

(2) For the purposes of subsection (1), section 69, subsection 70(1) and section 71 apply in relation to proceedings, other than proceedings in a federal court, as if the references in those sections to the hearsay rule were references to any rule of law restricting the admissibility or use of hearsay evidence. (3) Subsection (1) applies to subsection 70(1) only in relation to tags or labels that may reasonably be supposed to have been attached to objects in the course of carrying on an activity engaged in by a body, person or organisation referred to in the definition of Commonwealth record in the Dictionary. (4) For the purposes of subsection (1) in relation to the application of subsection 70(1): (a) the reference in subsection (1) to documents includes a reference to writing placed on objects; and

Appendix — Legislation

(b)

the reference in subsection (3) to tags or labels attached to objects includes a reference to writing placed on objects. (4A) Section 160 applies in relation to postal articles sent by a Commonwealth agency as if that section applied to the extent provided for in section 5. (4B) Sections 47, 48, 49, 51, 147, 149 and 152, Divisions 1 and 2 of Part 4.6 and section 183 apply in relation to a Commonwealth document that: (a) is in the possession of a Commonwealth entity; or (b) has been destroyed but was, immediately before its destruction, in the possession of a Commonwealth entity or someone else to whom it had been given by a Commonwealth entity for destruction; as if the section or Division applied to the extent provided for in section 5. (5) This section does not derogate from the operation of a law of a State or Territory that enables evidence of a matter referred to in this section to be given. Note: Section 5 extends the operation of this provision to proceedings in all Australian courts.

182 Application of certain sections in relation to Commonwealth records [NSW & Vic Acts only] Note: The Commonwealth Act includes a provision that extends the operation of certain provisions of the Commonwealth Act to Commonwealth records.

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183

Inferences

If a question arises about the application of a provision of this Act in relation to a document or thing, the court may: (a) examine the document or thing; and (b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn. Note [Cth Act only]: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents. Note [NSW & Vic Acts only]: Section 182 of the Commonwealth Act gives section 183 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

184

Accused may admit matters and give consents

(1) In or before a criminal proceeding, a defendant may: (a) admit matters of fact; and (b) give any consent; that a party to a civil proceeding may make or give. Subs (1) am Act 135 of 2008, s 3 and Sch 1 items 73 and 74 (2) A defendant’s admission or consent is not effective for the purposes of subsection (1) unless: (a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel; or

Chapter 5 – Miscellaneous

(b)

s 186

the court is satisfied that the defendant understands the consequences of making the admission or giving the consent.

185 Faith and credit to be given to documents properly authenticated [Cth Act only] All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory. Note: The NSW Act has no equivalent provision for section 185.

185 Full faith and credit to be given to documents properly authenticated [NSW & Vic Acts only] Note: The Commonwealth Act includes a provision requiring full faith and credit to be given to the public acts, records and judicial proceedings of a State or Territory.

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186 Swearing of affidavits before justices of the peace, notaries public and lawyers [Cth Act only] (1) Affidavits for use in: (a) an Australian court (other than a court of a Territory) in proceedings involving the exercise of federal jurisdiction; or (b) a court of a Territory in proceedings involving the exercise of jurisdiction conferred by an Act of the Parliament; may be sworn before any justice of the peace, notary public or Australian lawyer without the issue of any commission for taking affidavits. (2) In this section: proceedings includes proceedings that: (a) relate to bail; or (b) are interlocutory proceedings or proceedings of a similar kind; or (c) are heard in chambers; or (d) relate to sentencing. Note: The NSW Act has no equivalent provision for section 186.

186 Swearing of affidavits before justices of the peace, notaries public and lawyers [NSW Act only] Note: The Commonwealth Act includes a provision about swearing of affidavits before justices of the peace, notaries public and lawyers for use in court proceedings involving the exercise of federal jurisdiction and in courts of a Territory.

186

Swearing of affidavits [Vic Act only]

Notes: 1

Sections 112, 123C, 124, 125, 126 and 126A of the Evidence Act 1958 relate to swearing affidavits.

Appendix — Legislation

2

The Commonwealth Act includes a provision about swearing of affidavits before justices of the peace, notaries public and lawyers for use in court proceedings involving the exercise of federal jurisdiction and in courts of a Territory.

187 Abolition of the privilege against self-incrimination for bodies corporate [Cth Act only] (1) This section applies if, under a law of the Commonwealth or in a proceeding in a federal court, a body corporate is required to: (a) answer a question or give information; or (b) produce a document or any other thing; or (c) do any other act whatever. (2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.

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187 No privilege against self-incrimination for bodies corporate [NSW & Vic Acts only] (1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to: (a) answer a question or give information, or (b) produce a document or any other thing, or (c) do any other act whatever. (2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty. Note [Vic Act only]: This section differs from the Commonwealth Act.

188

Impounding documents

The court may direct that a document that has been tendered or produced before the court (whether or not it is admitted in evidence) is to be impounded and kept in the custody of an officer of the court or of another person for such period, and subject to such conditions, as the court thinks fit. 189 The voir dire [Cth Act only]/ The voir dire [NSW & Vic Acts only] (1) If the determination of a question whether: (a) evidence should be admitted (whether in the exercise of a discretion or not); or (b) evidence can be used against a person; or (c) a witness is competent or compellable; depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

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Chapter 5 – Miscellaneous

s 190

(2) If there is a jury, a preliminary question whether: (a) [Cth Act only] particular evidence is evidence of an admission, or evidence to which section 138 applies; or (a) [NSW & Vic Acts only] particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies; or (b) evidence of an admission, or evidence to which section 138 applies, should be admitted; is to be heard and determined in the jury’s absence. (3) In the hearing of a preliminary question about whether [a defendant’s admission/ an admission made by an accused] should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the [defendant/ accused]. (4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders. (5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account: (a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the [defendant/ accused]; and (b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question; and (c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing). (6) Subsection 128(10) does not apply to a hearing to decide a preliminary question. (7) In the application of Chapter 3 to a hearing to determine a preliminary question, the facts in issue are taken to include the fact to which the hearing relates. (8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless: (a) it is inconsistent with other evidence given by the witness in the proceeding; or (b) the witness has died. 190 Waiver of rules of evidence (1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of: (a) Division 3, 4 or 5 of Part 2.1; or (b) Part 2.2 or 2.3; or (c) Parts 3.2 to 3.8; in relation to particular evidence or generally.

Appendix — Legislation

Note [Cth Act only]: Matters related to evidence in child-related proceedings (within the meaning of section 69ZM of the Family Law Act 1975) are dealt with by that Act.

(2) [Cth & NSW Acts only] In a criminal proceeding, a defendant’s consent is not effective for the purposes of subsection (1) unless: (a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel; or (b) the court is satisfied that the defendant understands the consequences of giving the consent. (2) [Vic Act only] In a criminal proceeding, a consent given by an accused is not effective for the purposes of subsection (1) unless— (a) the accused has been advised to do so by the Australian legal practitioner or legal counsel of the accused; or Note: Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

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(b)

the court is satisfied that the accused understands the consequences of giving the consent. (3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if: (a) the matter to which the evidence relates is not genuinely in dispute; or (b) the application of those provisions would cause or involve unnecessary expense or delay. (4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account: (a) the importance of the evidence in the proceeding; and (b) the nature of the cause of action or defence and the nature of the subject matter of the proceeding; and (c) the probative value of the evidence; and (d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. 191

Agreements as to facts

(1) In this section: agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed. (2) In a proceeding: (a) evidence is not required to prove the existence of an agreed fact; and (b) evidence may not be adduced to contradict or qualify an agreed fact; unless the court gives leave. (3) Subsection (2) does not apply unless the agreed fact: (a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or

Chapter 5 – Miscellaneous

(b) 192

s 193

with the leave of the court, is stated by a party before the court with the agreement of all other parties.

Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 192A

Advance rulings and findings

Where a question arises in any proceedings, being a question about: 

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(a) (b)

the admissibility or use of evidence proposed to be adduced; or the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or (c) the giving of leave, permission or direction under section 192; the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. 193

Additional powers

(1) The powers of a court in relation to: (a) the discovery or inspection of documents; and (b) ordering disclosure and exchange of evidence, intended evidence, documents and reports; extend to enabling the court to make such orders as the court thinks fit (including orders about methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary. (2) The power of a person or body to make rules of court extends to making rules, not inconsistent with this Act or the regulations, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (3) Without limiting subsection (2), rules made under that subsection may provide for the discovery, exchange, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence in a proceeding.

Appendix — Legislation

(4) Without limiting subsection (2), rules made under that subsection may provide for the exclusion of evidence, or for its admission on specified terms, if the rules are not complied with. 194 Witnesses failing to attend proceedings [NSW Act only]

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(1) If a witness fails to appear when called in any civil or criminal proceedings and it is proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may: (a) order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or (b) if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence. (2) Matters may be proved under this section orally or by affidavit. (3) On return of an order to show cause under this section the court may deal with the case in the same way as the Supreme Court would deal with an order to similar effect made by that Court. (4) In this section, recognisance includes bail undertaking within the meaning of the Bail Act 1978. Note: The Commonwealth Act does not include an equivalent provision to section 194. There are provisions to the same effect in federal court rules and ACT legislation applying to proceedings before federal courts and ACT courts.

194 Witnesses failing to attend proceedings [Vic Act only] (1) If, in a civil or criminal proceeding, a witness fails to appear when called and it is proved that the witness has been— (a) bound over to appear; or (b) duly bound by recognisance or undertaking to appear; or (c) served with a summons or subpoena to attend and a reasonable sum of money has been provided to the witness for his or her costs in so attending— the court may— (d) issue a warrant to apprehend the witness and bring him or her before the court; or (e) order the witness to pay a fine of not more than 5 penalty units; or (f) take any other action against the witness that is permitted by law. (2) If a subpoena or summons has been issued for the attendance of a witness on the hearing of a civil or criminal proceeding and it is proved, on application by the party seeking to compel his or her attendance, that the witness— (a) is avoiding service of the subpoena or summons; or (b) has been duly served with the subpoena or summons but is unlikely to comply with it—

Chapter 5 – Miscellaneous

s 195

the court may issue a warrant to apprehend the witness and bring the witness before the court. (3) In issuing a warrant under this section, the court may endorse the warrant with a direction that the person must, on arrest, be released on bail as specified in the endorsement. (4) An endorsement under subsection (3) must fix the amounts in which the principal and the sureties (if any) are bound and the amount of any money or the value of any security to be deposited. (5) The person to whom the warrant to arrest is directed must cause the person named or described in the warrant when arrested— (a) to be released on bail in accordance with any endorsement on the warrant; or (b) if there is no endorsement on the warrant, to be brought before the court which issued the warrant; or (c) to be discharged from custody on bail in accordance with the Bail Act 1977. (6) Matters may be proved under this section orally or by affidavit. (7) A witness, who under subsection (1)(e) has been ordered to pay a fine, is not exempted from any other proceedings for disobeying the subpoena or summons. Note: This section differs from the New South Wales Act.

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The Commonwealth Act does not include an equivalent provision to section 194. There are provisions to the same effect in federal court rules and Australian Capital Territory legislation applying to proceedings before federal courts and Australian Capital Territory courts.

195

Prohibited question not to be published [Cth Act only]

(1) A person must not, without the express permission of a court, print or publish: (a) any question that the court has disallowed under section 41; or (b) any question that the court has disallowed because any answer that is likely to be given to the question would contravene the credibility rule; or (c) any question in respect of which the court has refused to give leave under Part 3.7. Penalty: 60 penalty units. (2) Subsection (1) is an offence of strict liability. Note 1: For strict liability, see section 6.1 of the Criminal Code. Note 2: Subsection 195(2) does not appear in the NSW Act, because section 6.1 of the Criminal Code (which deals with strict liability) applies only to this Act.

195

Prohibited question not to be published [NSW & Vic Acts only]

A person must not, without the express permission of a court, print or publish: (a) any question that the court has disallowed under section 41 (Improper questions), or (b) any question that the court has disallowed because any answer that is likely to be given to the question would contravene the credibility rule, or (c) any question in respect of which the court has refused to give leave under Part 3.7 (Credibility).

Appendix — Legislation

[NSW Act] Maximum penalty: 60 penalty units.[Vic Act] Penalty: 60 penalty units. 196

Proceedings for offences [Cth Act only]

Note: The NSW Act includes a provision about procedure for dealing with offences against the Act or regulations.

196

Proceedings for offences [NSW Act only]

Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court. Note: The Commonwealth Act does not include an equivalent provision to section 196.

196

Proceedings for offences [Vic Act only]

Note: This section is unnecessary in Victoria. It is included in the New South Wales Act. The Commonwealth Act does not include an equivalent provision to section 196.

197

Regulations [Cth Act only]

The Governor-General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

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197

Regulations [NSW Act only]

The Governor may make regulations, not inconsistent with this Act, prescribing matters for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. 197

Regulations [Vic Act only]

(1) The Governor in Council may make regulations for or with respect to any matter or thing that is required or permitted to be prescribed or necessary to be prescribed to give effect to this Act. (2) The regulations— (a) may be of general or limited application; and (b) may differ according to differences in time, place or circumstance. Note: This section differs from the Commonwealth Act and New South Wales Act.

198

Savings, transitional and other provisions [NSW Act only]

Schedule 2 has effect.

SCHEDULE [CTH ACT ONLY] SCHEDULE 1 [NSW AND VIC ACTS ONLY] – OATHS AND AFFIRMATIONS Subsections 21(4) and 22(2) Oaths by witnesses

I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that the evidence I shall give will be the truth, the whole truth and nothing but the truth. Oaths by interpreters

I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by his or her religion) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability. Affirmations by witnesses

I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.

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Affirmations by interpreters

I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.

SCHEDULE 2 – SAVINGS, TRANSITIONAL AND OTHER PROVISIONS [NSW ACT ONLY] (Section 198)

Part 1

Preliminary

Note: The Commonwealth Act does not include an equivalent provision to Schedule 2. There are provisions to the same effect as Part 2 of Schedule 2 in the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 of the Commonwealth.

1

Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

Appendix — Legislation

(b)

to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) Regulations made as referred to in subclause (1) may have effect despite the terms of any savings or transitional provision contained in this Schedule, if the regulations so provide. Part 2

Provisions consequent on the enactment of this Act

1A Transferred provisions (1) This clause is taken to have commenced on 1 September 1995 (the date of commencement of this Act other than Part 1.1 and the Dictionary). (2) This Part is a transferred provision to which section 30A of the Interpretation Act 1987 applies. 2

Proceedings

(1) A provision of the Evidence Act 1995 or Evidence on Commission Act 1995 does not apply in relation to a proceeding the hearing of which began before the commencement of the provision, except as provided by this Schedule. (2) A provision of the Evidence Act 1898 or the Evidence (Reproductions) Act 1967 that is repealed by this Act continues to apply in relation to proceedings the hearing of which began before the repeal. Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

3

Prior operation of notification provisions

(1) If, before the commencement of a notification provision, a document of a kind referred to in that provision is given or served: (a) in the circumstances provided for in that provision, and (b) in accordance with such requirements (if any) as would apply to the giving or serving of the document under that provision after its commencement, the document is taken to have been given or served under that provision. (2) The following provisions of the Evidence Act 1995 are notification provisions for the purposes of subclause (1): (a) section 33(2)(c), (b) section 49(a), (c) section 50(2)(a), (d) section 67(1), (e) section 68(2), (f) section 73(2)(b), (g) section 168(1), (h) section 168(3), (i) section 168(5), (j) section 168(6),

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Schedule 2 – Savings, transitional and other provisions [NSW Act only]

cl 6

(k) section 173(1), (l) section 177(2), (m) section 177(5). (3) If a notice given before the commencement of section 67(1) of the Evidence Act 1995 is taken because of this clause to have been given under that subsection, the period for an objection to be made under section 68 of that Act to the tender of evidence to which the notice relates is the period ending: (a) 7 days after the commencement of section 68 of that Act, or (b) 21 days after the notice was given to the party concerned, whichever is the later. (4) If a notice given before the commencement of section 168(1) or (3) of the Evidence Act 1995 is taken because of this clause to have been given under one of those subsections, the period for a request to be made under that subsection in connection with the notice is the period ending: (a) 7 days after the commencement of section 168 of that Act, or (b) 21 days after the notice was given to the party concerned, whichever is the later. (5) If a copy of a document served before the commencement of section 168(5) or (6) of the Evidence Act 1995 is taken because of this clause to have been served under one of those subsections, the period for a request to be made under that subsection in connection with the document is the period ending: (a) 7 days after the commencement of section 168 of that Act, or (b) 21 days after the document was served on the party concerned, whichever is the later. 4

Proof of voluminous or complex documents

A person is taken, for the purposes of section 50(2)(b) of the Evidence Act 1995, to have been given a reasonable opportunity to examine or copy documents if such an opportunity was given to the person before the commencement of section 50 of that Act. 5 Notices for the purposes of sections 97 and 98 of the Evidence Act 1995 References in sections 97(1)(a) and 98(1)(a) of the Evidence Act 1995 to giving notice are taken to include references to giving notice of the kind referred to in those paragraphs before the commencement of section 97 and section 98 of that Act, respectively. 6

Requests under section 167 of the Evidence Act 1995

The reference in section 167 of the Evidence Act 1995 to making a request is taken to include a reference to making a request of the kind referred to in that section before the commencement of that section.

Appendix — Legislation

7

Requests under section 173 of the Evidence Act 1995

The reference in section 173(2) of the Evidence Act 1995 to a request is taken to include a reference to a request of the kind referred to in that subsection made before the commencement of section 173 of that Act. 8

Agreements under section 191 of the Evidence Act 1995

The reference in section 191(3)(a) of the Evidence Act 1995 to an agreement is taken to include a reference to an agreement of the kind referred to in that paragraph entered into before the commencement of section 191 of that Act. 9

Identifications already carried out

(1) Section 114 of the Evidence Act 1995 does not apply in relation to an identification made before the commencement of that section. (2) Section 115 of the Evidence Act 1995 does not apply in relation to an identification made before the commencement of that section. 10

Cautioning of persons

Section 139 of the Evidence Act 1995 does not apply in relation to a statement made or an act done before the commencement of that section.

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11

Amendments made by this Act

(1) An amended provision does not apply in relation to proceedings the hearing of which began before the commencement of the amendment. (2) An amended provision continues to apply in relation to proceedings the hearing of which began before that commencement as if the amendment had not been made. (3) In this section: amended provision means a provision of another Act that is amended by Schedule 1 to this Act, and is taken to include a provision of another Act that is repealed or omitted by that Schedule. amendment of provision, includes repeal or omission of the provision. 12 Admissibility of evidence or statements as to access by husband or wife To remove doubt, it is declared that the common law rule relating to evidence by spouses as to access and marital intercourse abolished by section 14D of the Evidence Act 1898 is not revived by the repeal of that section by this Act. 13

Imperial Acts

An Imperial Act or a provision of such an Act that was repealed by the Evidence Act 1898 is not revived merely because the Evidence Act 1898 is repealed by this Act. 14

Construction of references to old Acts

(1) In this clause:

Schedule 2 – Savings, transitional and other provisions [NSW Act only]

cl 19

old Act means: (a) the Evidence Act 1898, or (b) the Evidence (Reproductions) Act 1967. (2) A reference in any Act or instrument to an old Act (or a provision of an old Act) is to be read as a reference to the Evidence Act 1995 or the Evidence on Commission Act 1995 (or the provision of those Acts) that, having regard to the reference and the context in which the reference occurs, most nearly corresponds to the old Act (or the provision of the old Act). 15

Saving of rules

Any rules made under Part 7 or 8 of the Evidence Act 1898 and in force immediately before the repeal of that Act by this Act are taken to be rules made under the Evidence on Commission Act 1995 and may be amended and repealed accordingly. Part 3 16

Provisions consequent on the enactment of the Evidence Amendment Act 2007

Definition

In this Part: the amending Act means the Evidence Amendment Act 2007.

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17

Proceedings already begun

(1) Subject to this Part, an amendment made to this Act by the amending Act does not apply in relation to proceedings the hearing of which began before the commencement of the amendment. (2) This Act, as in force immediately before the commencement of the amendment, continues to apply in relation to proceedings the hearing of which began before that commencement. 18

Admissions

(1) The amendment made by the amending Act to section 85 does not apply in relation to admissions made before the commencement of the amendment. (2) That section, as in force immediately before the commencement of the amendment, continues to apply in relation to admissions made before that commencement. 19

Failure or refusal to answer questions etc

(1) The amendment made by the amending Act to section 89 does not apply in relation to any failure or refusal, before the commencement of the amendment: (a) to answer one or more questions, or (b) to respond to a representation. (2) That section, as in force immediately before the commencement of the amendment, continues to apply in relation to any such refusal or failure before that commencement.

Appendix — Legislation

20

Prior operation of notice provisions

If, before the commencement of an amendment made to section 97 or 98 by the amending Act, a notice of the kind referred to in section 97 or 98 is given: 

(a) (b)

in the circumstances provided for in the section concerned, and in accordance with such requirements (if any) as would apply to the giving of the notice under that section after that commencement, the notice is taken to have been given under that section as in force after that commencement. 21

Disclosure orders

Section 128A, as inserted by the amending Act, does not apply in relation to any order made before the commencement of that section. 22

Disclosure requirements

Section 131A, as inserted by the amending Act, does not apply in relation to any disclosure requirement made before the commencement of that section. Part 4

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23

Provisions consequent on the enactment of the Evidence Amendment (Evidence of Silence) Act 2013

Definition

In this Part: amending Act means the Evidence Amendment (Evidence of Silence) Act 2013. 24 Evidence of silence in criminal proceedings for serious indictable offences (1) Section 89A, as inserted by the amending Act, does not apply in relation to a proceeding the hearing of which began before the insertion of that section. (2) Section 89A, as inserted by the amending Act, does not apply in relation to any failure or refusal to mention a fact before the insertion of that section. (3) Section 89A, as inserted by the amending Act, extends to evidence of anything done or omitted to be done in connection with the investigation of offences committed before the insertion of that section. 25

Review of policy objectives of amending Act

(1) The Minister is to review section 89A to determine whether the policy objectives of the amending Act remain valid and whether the terms of section 89A remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the commencement of this clause. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Schedule 2 – Transitional Provisions [Vic Act only]

Part 5

cl 4

Provisions consequent on the enactment of the Miscellaneous Acts Amendment (Marriages) Act 2018

26 Application of amendment to section 73—exception to the hearsay rule for evidence concerning relationship The amendment to section 73 made by the Miscellaneous Acts Amendment (Marriages) Act 2018 applies in relation to evidence adduced on or after the commencement of this Part, whether the proceedings are commenced before, on or after that commencement.

SCHEDULE 2 – TRANSITIONAL PROVISIONS [VIC ACT ONLY] Part 1 1

General

Definitions In this Schedule— commencement day means the day this Act (other than Part 1 and the Dictionary) commences.

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2

Application of this Act on commencement day

(1) Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day. (2) Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and— (a) continued on or after the commencement day; or (b) was adjourned until the commencement day or a day after the commencement day. 3

Application of section 128A

Section 128A does not apply to an order made before the commencement day that would, if it were made after the commencement day, be a disclosure order within the meaning of that section. 4

Application of Part 3.10 to disclosure requirements (1) Part 3.10 does not apply in respect of— (a) a process or order of the court that requires the disclosure of information or a document issued or ordered before the commencement day that would, if it were issued or ordered after the commencement day, be a disclosure requirement within the meaning of section 131A; or (b) a summons or subpoena issued on or after the commencement day to give evidence or produce documents at a hearing to which clause 2(2)(a) or (b) applies.

Appendix — Legislation

(2) Despite subclause (1)(a), Part 3.10 applies to a summons or subpoena to give evidence issued before the commencement day if the evidence is to be given at a hearing to which this Act applies. 5

Identifications already carried out

(1) Section 114 does not apply in relation to an identification made before the commencement day. (2) Section 115 does not apply in relation to an identification made before the commencement day. 6 Documents and evidence produced before commencement day by processes, machines and other devices (1) Section 146 has effect on and from the commencement day with respect to the production of a document or thing that occurred before the commencement day. (2) Section 147 has effect on and from the commencement day with respect to the production of a document that occurred before the commencement day.

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7

Documents attested and verified before the commencement day

(1) Section 148 has effect on and from the commencement day with respect to the attestation, verification, signing or acknowledgement of a document that occurred before the commencement day. (2) Section 149 has effect on and from the commencement day with respect to the attestation or signing of a document that occurred before the commencement day. 8

Matters of official record published before the commencement day

(1) Section 153 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day. (2) Section 154 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day. (3) Section 155 has effect on and from the commencement day with respect to the signing and sealing or certification of a document referred to in that section that occurred before the commencement day. (4) Section 156 has effect on and from the commencement day with respect to the sealing or certification of a document referred to in that section that occurred before the commencement day. (5) Section 157 has effect on and from the commencement day with respect to the sealing or signing of a document referred to in that section that occurred before the commencement day.

Schedule 2 – Transitional Provisions [Vic Act only]

cl 11

(6) Section 158 has effect on and from the commencement day with respect to the sealing or signing and sealing of a public document referred to in that section that occurred before the commencement day. (7) Section 159 has effect on and from the commencement day with respect to the publication of a document referred to in that section that occurred before the commencement day. 9

Agreed facts

The reference in section 191(3)(a) to an agreement is taken on and from the commencement day to include a reference to an agreement entered into before the commencement day under section 149AB(3) of the Evidence Act 1958, as in force immediately before its repeal. 10

Application of Act to improperly or illegally obtained evidence

Section 139 does not apply in relation to a statement made or an act done before the commencement day. Part 2

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11

Application Of Notification Provisions

Notification provisions

(1) If, before the commencement day, a document of a kind referred to in a notification provision is given or served— (a) in the circumstances provided for in that provision; and (b) in accordance with such requirements (if any) as would apply to the giving or serving of the document under that provision on and after its commencement— on and from the commencement day the document is taken to have been given or served in accordance with that provision. (2) The following sections are notification provisions for the purposes of subclause (1)— (a) section 33(2)(c); (b) section 49(a); (c) section 50(2)(a); (d) section 67(1); (e) section 68(2); (f) section 73(2)(b); (g) section 97; (h) section 98; (i) sections 168(1), (3), (5) and (6); (j) section 173(1); (k) sections 177(2) and 177(5).

Appendix — Legislation

12

Notice of intention to adduce hearsay evidence

If a notice given before the commencement day is taken, by the operation of clause 11, to have been given under section  67(1), the period for an objection to be made under section 68 to the tender of evidence to which the notice relates is the later of the period ending—

(a) (b)

7 days after the commencement day; or 21 days after the notice was given to the party concerned.

13 Notice of intention to adduce evidence as to tendency or coincidence (1) References in sections 97(1)(a) and 98(1)(a) to giving notice are taken to include references to giving notice of the kind referred to in those sections before the commencement day. (2) Despite clause 11(1)(b), a notice of a kind referred to in section 97 or 98 given before the commencement day is taken to have been given in accordance with any regulations or rules made for the purposes for section 99.

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14 Time limits for making requests (1) A request made before the commencement day that would, if it were made after the commencement day be a request under section 167, is taken to be such a request. (2) If a notice given before the commencement day is taken, by the operation of clause 11, to have been given under section 168(1) or (3), the period for a request to be made under section 168(1) or (3) is the later of the period ending— (a) 7 days after the commencement day; or (b) 21 days after the notice was given to the party concerned. (3) If a copy of a document served before the commencement day is taken, by the operation of clause 11, to have been served under section 168(5) or (6), the period for a request to be made under section 168(5) or (6) is the later of the period ending— (a) 7 days after the commencement day; or (b) 21 days after the document was served on the party concerned. (4) If a request made under section 168 was received before the commencement day, in determining what is a reasonable time after receiving a request for the purposes of section 169(2), the court may take into account time passed before the commencement day. 15

Requests under section 173

A request made before the commencement day that would, if it were made after the commencement day be a request under section 173(2), is taken to be such a request. 16

Proof of voluminous or complex documents

If a court has given a direction under section 42B of the Evidence Act 1958, as in force immediately before its repeal, and a party has been provided with a copy of the evidence in the form specified in that direction, the party is taken, for the purposes

Schedule 2 – Transitional Provisions [Vic Act only]

cl 20

of section 50(2)(b), to have been given a reasonable opportunity to examine or copy documents. Part 3 Transitional Provisions for Evidence Amendment (Journalist Privilege) Act 2012 17

Definitions

In this Part— 2012 Act means the Evidence Amendment (Journalist Privilege) Act 2012. 18

Application of Division 1C of Part 3.10

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(1) Except as otherwise provided by this Schedule, the amendment made to Part 3.10 of this Act by section 3 of the 2012 Act applies to any proceeding commenced on or after the commencement of that section. (2) Except as otherwise provided by this Schedule, in the case of any proceeding that commenced before the commencement of section 3 of the 2012 Act, the amendment made to Part 3.10 of this Act by that section applies to that part of the proceeding that takes place on or after the commencement of that section, other than any hearing in the proceeding that commenced before the commencement of that section and— (a) continued on or after the commencement of that section; or (b) was adjourned until the commencement of that section or a day after the commencement of that section. 19

Application of Division 1C of Part 3.10 to disclosure requirements

(1) The amendment made to Part 3.10 of this Act by section 3 of the 2012 Act does not apply in respect of— (a) a disclosure requirement issued or ordered before the commencement of section 3 of that Act; or (b) a disclosure requirement issued or ordered on or after the commencement of section 3 of that Act to give evidence or produce documents at a hearing to which clause 18(2)(a) or (b) applies. (2) Despite subclause (1)(a), the amendment made to Part 3.10 of this Act by section 3 of the 2012 Act applies to a disclosure requirement issued or ordered before the commencement of section 3 of that Act if the evidence is to be given at a hearing to which the amendment made by section 3 of that Act applies. (3) In this section, disclosure requirement has the same meaning as in section 131A. 20

Certificate given to a witness before commencement

(1) The amendment made to section 128 by section 4(3) and (4) of the 2012 Act has effect on and from the commencement of that section with respect to the giving of a certificate under a prescribed State or Territory provision that has occurred before the commencement of that section.

Appendix — Legislation

(2) The amendment made to section 128A by section 5 of the 2012 Act has effect on and from the commencement of that section with respect to the giving of a certificate under a prescribed State or Territory provision that has occurred before the commencement of that section. Part 5 Transitional provision for Crimes Amendment (Abolition of Defensive Homicide) Act 2014 22 Transitional—Crimes Amendment (Abolition of Defensive Homicide) Act 2014 This Act as amended by Part 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which Part 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation, irrespective of when the offence is alleged to have been committed. Part 6 Transitional provisions for Jury Directions Act 2015 23

Application of Act as amended

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This Act as amended by Division 2 of Part 10 of the Jury Directions Act 2015 applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which Division 2 of Part 10 of that Act comes into operation. Part 7 Transitional provision for Jury Directions and Other Acts Amendment Act 2017 24

Application of section 66 as amended

Section 66 as amended by section 17 of the Jury Directions and Other Acts Amendment Act 2017 applies to—

(a)

(b)

a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which section 17 of the Jury Directions and Other Acts Amendment Act 2017 comes into operation; and a summary hearing held on or after the day on which section 17 of the Jury Directions and Other Acts Amendment Act 2017 comes into operation if no evidence has been given in that hearing before that day.

Dictionary

cl 24

DICTIONARY Section 3

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PART 1 – DEFINITIONS

admission admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including [a defendant/ an accused] in a criminal proceeding); and (b) adverse to the person’s interest in the outcome of the proceeding. asserted fact asserted fact is defined in section 59. associated accused – Vic Act only associated accused [Vic Act only], in relation to an accused in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for— (a) an offence that arose in relation to the same events as those in relation to which the offence for which the accused is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the accused is being prosecuted; associated defendant – Cth & NSW Acts only associated defendant [Cth & NSW Acts only], in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted. Australia Australia includes the external Territories. Australian court Australian court means: (a) the High Court; or (b) a court exercising federal jurisdiction; or (c) a court of a State or Territory; or (d) a judge, justice or arbitrator under an Australian law; or (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or (f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.

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Appendix — Legislation

Australian law Australian law means a law of the Commonwealth, a State or a Territory. Note: See clause 9 of Part 2 of the Dictionary for the meaning of law. Australian lawyer [Cth Act only] means a person who is admitted to the legal profession by a Supreme Court of a State or Territory under a law of a State or Territory specified in the regulations. Australian lawyer [NSW & Vic Acts only] has the meaning it has in the Legal Profession Uniform Law (NSW); Australian legal practitioner [Cth Act only] means an Australian lawyer who holds a practising certificate under a law of a State or Territory specified in the regulations. Australian legal practitioner [NSW & Vic Acts only] has the meaning it has in the Legal Profession Uniform Law (NSW); Australian or overseas proceeding Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court. Australian Parliament [Cth Act only] means the Parliament, a Parliament of a State or a Legislative Assembly of a Territory. Australian Parliament [NSW & Vic Acts only] means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory; Australian practising certificate [Cth Act only] means a practising certificate granted under a law of a State or Territory specified in the regulations. Australian practising certificate [NSW & Vic Acts only] has the meaning it has in the Legal Profession Uniform Law (NSW). Australian Statistician Australian Statistician [Cth Act only] means the Australian Statistician referred to in subsection 5(2) of the Australian Bureau of Statistics Act 1975, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 have been delegated. Australian Statistician [NSW & Vic Acts only] means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated.business business is defined in clause 1 of Part 2 of this Dictionary. case case of a party means the facts in issue in respect of which the party bears the legal burden of proof. child child means a child of any age and includes the meaning given in subclause 10(1) of Part 2 of this Dictionary.

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Dictionary

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civil penalty civil penalty is defined in clause 3 of Part 2 of this Dictionary. civil proceeding civil proceeding means a proceeding other than a criminal proceeding. client client is defined in section 117. coincidence evidence coincidence evidence means evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection. coincidence rule coincidence rule means subsection 98(1). Commonwealth agency – Cth Act only Commonwealth agency [Cth Act only] means: (a) an Agency within the meaning of the Public Service Act 1999; or (b) a House of the Parliament; or (c) a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or (d) a body or organisation, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister. Commonwealth document – Cth Act only Commonwealth document [Cth Act only] means: (a) a document in the nature of a form, application, claim or return, or any document of a similar kind, that has, in accordance with a Commonwealth law, or in connection with the provision of money or any other benefit or advantage by the Commonwealth, been filed or lodged with a Commonwealth entity or given or sent (including sent by a form of electronic transmission) to a Commonwealth entity; and (b) any of the following documents: (i) a report of the passengers or crew on a ship or aircraft that has been communicated to the Department administered by the Minister administering Part XII of the Customs Act 1901 under section 64ACA or 64ACB of the Customs Act 1901; (ia) a report relating to the passengers or crew on an aircraft or ship that has been communicated to the Department administered by the Minister who administers the Migration Act 1958 under Division 12B of Part 2 of that Act;

Appendix — Legislation

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(ii) a ship’s inward cargo adjustment report delivered to an officer under subregulation 46(3) of the Customs Regulations; (iii) an entry made under the Customs Act 1901 or Excise Act 1901 in relation to goods; (iv) a form or statement given to a Collector under regulation 41 of the Customs Regulations; (v) a passenger card given to an officer under subregulation 3.01(3) of the Migration Regulations; (vi) a report referred to in section 46 or 46A of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 that has been given under that section to the Minister administering that Act; (vii) any other document prescribed by the regulations for the purposes of this paragraph. Commonwealth entity – Cth Act only Commonwealth entity [Cth Act only] means: (a) an Agency within the meaning of the Public Service Act 1999; or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or (d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister; or (e) any other body or organisation that is a Commonwealth owned body corporate. Commonwealth owned body corporate [Cth Act only] means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001, be: (a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph). Commonwealth owned body corporate [NSW & Vic Acts only] means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be:

Dictionary

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(a) (b)

a wholly-owned subsidiary of the Commonwealth, or a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph). Commonwealth record [Cth Act only] means a record made by: (a) an Agency within the meaning of the Public Service Act 1999; or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or (d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister; or (e) any other body or organisation that is a Commonwealth owned body corporate; and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned. Commonwealth record [NSW & Vic Acts only] means a record made by: (a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth, or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament, or (c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth, or (d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island), or (ii) by the Governor-General, or (iii) by a Minister of the Commonwealth, or

Appendix — Legislation

(e)

any other body or organisation that is a Commonwealth owned body corporate, and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned. confidential communication confidential communication is defined in section 117. confidential document confidential document is defined in section 117. Note [Cth Act only]: The NSW Act includes a definition of court.

court [NSW Act only] means NSW court. Notes: 1

NSW court is defined in this Dictionary.

2

The Commonwealth Act does not include this definition.

court [Vic Act only] means Victorian court;

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Notes: 1

Victorian court is defined in this Dictionary.

2

The Commonwealth Act does not include this definition.

credibility credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation. credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. credibility evidence credibility evidence is defined in section 101A. credibility rule credibility rule means section 102. criminal proceeding [Cth Act only] means a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail; but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953. criminal proceeding [NSW & Vic Acts only] means a prosecution for an offence and includes—

Dictionary

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(a)

a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail— but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth; cross-examination cross-examination is defined in subclause 2(2) of Part 2 of this Dictionary. cross-examiner cross-examiner means a party who is cross-examining a witness. de facto partner de facto partner is defined in clause 11 of Part 2 of this Dictionary. de facto spousede facto spouse [Repealed] document document means any record of information, and includes: (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph. Note: See also clause 8 of Part 2 of this Dictionary on the meaning of document.

electronic communication [NSW Act only] has the same meaning as it has in the Electronic Transactions Act 2000. electronic communication [Vic Act only] has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000; examination in chief examination in chief is defined in subclause 2(1) of Part 2 of this Dictionary. exercise exercise of a function includes performance of a duty. fax fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy. federal court – Cth Act only federal court [Cth Act only] means: (a) the High Court; or (b) any other court created by the Parliament (other than the Supreme Court of a Territory);

Appendix — Legislation

and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence. Note: The NSW Act does not include this definition.

foreign court foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country. foreign lawyer foreign lawyer has the meaning it has in the Legal Profession Uniform Law (NSW). function function includes power, authority or duty. government or official gazette [Cth Act only] includes the Gazette. Note 1: The definition of government or official gazette differs from the definition of the same expression in the NSW Act. Note 2: The NSW Act includes definitions of Governor of a State and Governor-General. Those terms are not defined in this Act because they are defined in sections 16A and 16B of the Acts Interpretation Act 1901.

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government or official gazette [NSW Act only] includes the Gazette and the Teaching Services Gazette. Note: The Commonwealth definition of this term differs from this definition.

government or official gazette [Vic Act only] includes the Government Gazette; Note: The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition.

Governor of a State – NSW & Vic Acts only Governor of a State [NSW & Vic Acts only] includes any person for the time being administering the Government of the State. Governor-General – NSW & Vic Acts only Governor-General [NSW & Vic Acts only] means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth. Note: The Commonwealth Act does not include definitions of Governor of a State and GovernorGeneral. These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth.

hearsay rule hearsay rule means subsection 59(1). identification evidence means evidence that is:

Dictionary

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(a)

cl 24

an assertion by a person to the effect that [a defendant/ an accused] was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the [defendant/ accused] is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion. investigating official investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences. joint sitting joint sitting means: (a) in relation to the Parliament – a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Constitution or convened under any Act; or (b) in relation to a bicameral legislature of a State – a joint sitting of both Houses of the legislature convened under a law of the State. judge judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held. law law is defined in clause 9 of Part 2 of this Dictionary. lawyer lawyer [Repealed] leading question leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

Appendix — Legislation

legal counsel legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment. Note: Examples of legal counsel are in-house counsel and government solicitors.

Legislative Assembly Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly. member – NSW & Vic Acts only member [NSW Act only] of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police. NSW court – NSW Act only NSW court [NSW Act only] means: (a) the Supreme Court, or (b) any other court created by Parliament, and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.

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Note: The Commonwealth Act does not include this definition.

offence offence means an offence against or arising under an Australian law. official questioning official questioning [Repealed] opinion rule opinion rule means section 76. overseas-registered foreign lawyer – Cth Act only overseas-registered foreign lawyer [Cth Act only] means a natural person who is properly registered to engage in legal practice in a foreign country by an entity in the country having the function, conferred by the law of the country, of registering persons to engage in legal practice in the country. parent parent includes the meaning given in subclause 10(2) of Part 2 of this Dictionary. picture identification evidence picture identification evidence is defined in section 115. police officer [Cth Act only] means: (a) a member or special member of the Australian Federal Police; or (b) a member of the police force of a State or Territory.

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Dictionary

cl 24

police officer [NSW & Vic Acts only] means: (a) a member of the Australian Federal Police, or (b) a member of the police force of a State or Territory. postal article postal article [Cth Act only] has the same meaning as in the Australian Postal Corporation Act 1989. postal article [NSW & Vic Acts only] has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth. previous representation previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. prior consistent statement prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness. prior inconsistent statement prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness. probative value probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.prosecutor means a person who institutes or is responsible for the conduct of a prosecution.public document public document means a document that: (a) forms part of the records of the Crown in any of its capacities; or (b) forms part of the records of the government of a foreign country; or (c) forms part of the records of a person or body holding office or exercising a function under or because of the Constitution, an Australian law or a law of a foreign country; or (d) is being kept by or on behalf of the Crown, such a government or such a person or body; and includes the records of the proceedings of, and papers presented to: (e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and (f) a legislature of a foreign country, including a House or committee (however described) of such a legislature. re-examination re-examination is defined in subclauses 2(3) and (4) of Part 2 of this Dictionary.

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Appendix — Legislation

registered – Cth Act only registered [Cth Act only], in relation to legal practice in a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in that country. representation representation includes: (a) an express or implied representation (whether oral or in writing); or (b) a representation to be inferred from conduct; or (c) a representation not intended by its maker to be communicated to or seen by another person; or (d) a representation that for any reason is not communicated. seal seal includes a stamp. tendency evidence tendency evidence means evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection. tendency rule tendency rule means subsection 97(1). traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group. Victorian court – Vic Act only Victorian court [Vic Act only] means— (a) the Supreme Court; or (b) any other court created by Parliament— and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence; Note: The Commonwealth Act and New South Wales Act do not include this definition.

visual identification evidence visual identification evidence is defined in section 114. witness witness includes the meaning given in clause 7 of Part 2 of this Dictionary. PART 2 – OTHER EXPRESSIONS

1

References to businesses (1) A reference in this Act to a business includes a reference to the following: (a) a profession, calling, occupation, trade or undertaking; (b) an activity engaged in or carried on by the Crown in any of its capacities;

Dictionary

cl 4

(c) (d)

an activity engaged in or carried on by the government of a foreign country; an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity); (e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; (f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. (2) A reference in this Act to a business also includes a reference to: (a) a business that is not engaged in or carried on for profit; or (b) a business engaged in or carried on outside Australia.

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2 References to examination in chief, cross-examination and re-examination (1) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination. (2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence. (3) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party. (4) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party. 3

References to civil penalties

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country. 4

Unavailability of persons [Cth Act only]

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead; or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence; or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

Appendix — Legislation

(d) (e) (f)

it would be unlawful for the person to give the evidence; or a provision of this Act prohibits the evidence being given; or all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact.

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4

Unavailability of persons [NSW & Vic Acts only]

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or (d) it would be unlawful for the person to give the evidence, or (e) a provision of this Act prohibits the evidence being given, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 5

Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if: (a) it cannot be found after reasonable inquiry and search by the party; or (b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or (c) it would be impractical to produce the document or thing during the course of the proceeding; or (d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or (e) it is not in the possession or under the control of the party and: (i) it cannot be obtained by any judicial procedure of the court; or

Dictionary

cl 8A

(ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or (iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding. 6

Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if: (a) the document was written, made or otherwise produced by the person; (b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document. 7 Witnesses (1) A reference in this Act to a witness includes a reference to a party giving evidence. (2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence. (3) A reference in this clause to a party includes a defendant in a criminal proceeding.

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8

References to documents A reference in this Act to a document includes a reference to: (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate.

8A

References to offices etc. [Cth Act only]

In this Act: (a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee; and (b) in that context, a reference to an office is a reference to the position occupied by the APS employee concerned. 8A

References to offices etc. [NSW & Vic Acts only]

In this Act— (a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth; and

Appendix — Legislation

(b)

9

in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.

References to laws

(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place. (2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia. 10

References to children and parents

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(1) A reference in this Act to a child of a person includes a reference to: (a) an adopted child or ex-nuptial child of the person; or (b) a child living with the person as if the child were a member of the person’s family. (2) A reference in this Act to a parent of a person includes a reference to: (a) an adoptive parent of the person; or (b) if the person is an ex-nuptial child—the person’s natural father; or (c) the person with whom a child is living as if the child were a member of the person’s family. 11

References to de facto partners

(1) A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person. (2) A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married. (3) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (d) the ownership, use and acquisition of their property; (e) the degree of mutual commitment to a shared life; (f) the care and support of children; (g) the reputation and public aspects of the relationship. (4) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

Dictionary

cl 11

(5) For the purposes of subclause (3), the following matters are irrelevant: (a) whether the persons are different sexes or the same sex; (b) whether either of the persons is legally married to someone else or in another de facto relationship. (6) [Vic Act only] Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered domestic relationship within the meaning of the Relationships Act 2008.

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Note: The Commonwealth Act and New South Wales Act do not include subclause (6).

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APPENDIX - LEGISLATION Relationship Between the Evidence Act 2001 (Tas) and the Evidence Act 1995 (Cth)

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Table A: Sections of the Evidence Act 2001 (Tas) which are identical in substance to those in the Evidence Act 1995 (Cth) Section 10

Parliamentary privilege preserved

Section 11

General powers of court

Section 12

Competence and compellability

Section 13

Competence: lack of capacity

Section 14

Compellability: reduced capacity

Section 15

Compellability: Sovereign and others

Section 16

Competence and compellability: judges and jurors

Section 17

Competence and compellability: defendants in criminal proceedings

Section 18

Compellability of spouses and others in criminal proceedings generally

Section 20

Comment on failure to give evidence

Section 23

Choice of oath or affirmation

Section 24

Requirements for oaths

Section 26

Court’s control over questioning of witnesses

Section 27

Parties may question witnesses

Section 28

Order of examination in chief, cross-examination and re-examination

Section 29

Manner and form of questioning and responses of witness

Section 30

Interpreters

Section 31

Deaf and mute witnesses

Section 32

Attempts to revive memory in court

Section 33

Evidence by police officers

Section 34

Attempts to revive memory out of court

Section 35

Effect of calling for production of documents

Section 36

Examination without subpoena or other process

Section 37

Leading questions

Section 38

Unfavourable witness

Section 39

Limits on re-examination

Section 40

Witness called in error

Section 41

Improper question

Section 42

Leading questions

Section 43

Prior inconsistent statement of witness

Section 44

Previous representation of other person

Section 45

Production of document

Section 46

Leave to recall witnesses

Appendix — Legislation

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Table A: Sections of the Evidence Act 2001 (Tas) which are identical in substance to those in the Evidence Act 1995 (Cth) Section 47

Interpretation of Part

Section 48

Proof of contents of document

Section 49

Documents in foreign countries

Section 50

Proof of voluminous or complex documents

Section 51

Original document rule abolished

Section 52

Adducing of other evidence not affected

Section 54

Views to be evidence

Section 55

Relevant evidence

Section 56

Relevant evidence admissible

Section 57

Provisional relevance

Section 58

Inference as to relevance

Section 59

Hearsay rule – exclusion of hearsay evidence

Section 60

Exception: evidence relevant for non-hearsay purpose

Section 61

Exception to hearsay rule dependent on competency

Section 62

Restriction to first-hand hearsay

Section 63

Exception: civil proceedings if maker not available

Section 64

Exception: civil proceedings if maker available

Section 65

Exception: criminal proceedings if maker not available

Section 66

Exception: criminal proceedings if maker available

Section 66A

Exception: contemporaneous statements about a person’s health, etc

Section 67

Notices to be given

Section 68

Objection to tender of hearsay evidence in civil proceedings if maker available

Section 69

Exception: business records

Section 71

Exception: telecommunications

Section 72

Exception: contemporaneous representation about health, &c

Section 74

Exception: reputation of public or general rights

Section 75

Exception: interlocutory proceedings

Section 76

Opinion rule

Section 77

Exception: evidence relevant otherwise than as opinion evidence

Section 78

Exception: lay opinion

Section 78A

Exception: Aboriginal and Torres Strait Islander traditional laws and customs

Section 79

Exception: opinion based on specialised knowledge

Section 80

Ultimate issue and common knowledge rules abolished

Section 81

Hearsay and opinion rules: exception for admissions and related representations

Section 82

Exclusion of evidence of admissions that is not first hand

Section 83

Exclusion of evidence of admissions as against third parties

Section 84

Exclusion of admission influenced by violence and certain other conduct

Section 85

Criminal proceedings: reliability of admissions by defendants

Relationship Between the Evidence Act 2001 (Tas) and the Evidence Act 1995 (Cth)

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Table A: Sections of the Evidence Act 2001 (Tas) which are identical in substance to those in the Evidence Act 1995 (Cth) Section 86

Exclusion of records of oral questioning

Section 87

Admission made with authority

Section 88

Proof of admission

Section 89

Evidence of silence

Section 90

Discretion to exclude admission

Section 91

Exclusion of evidence of judgments and convictions

Section 92

Exceptions

Section 93

Savings

Section 94

Application of Part

Section 95

Use of evidence for other purposes

Section 96

Failure to act

Section 97

Tendency rule

Section 98

Coincidence rule

Section 99

Requirements for notices

Section 100

Court may dispense with notice requirements

Section 103

Exception: cross-examination as to credibility

Section 106

Exception: rebutting denial by other evidence

Section 108A

Admissibility of evidence of credibility of person who has made a previous representation

Section 108C

Exception: evidence of persons with specialised knowledge

Section 109

Application

Section 111

Evidence about character of co-accused

Section 112

Leave required for cross-examination on character of accused or co-accused

Section 116

Directions to jury

Section 117

Interpretation of Division

Section 118

Legal advice

Section 119

Litigation

Section 120

Unrepresented parties

Section 121

Loss of client legal privilege: generally

Section 122

Loss of client legal privilege: consent and related matters

Section 123

Loss of client legal privilege: defendants

Section 124

Loss of client legal privilege: joint clients

Section 125

Loss of client legal privilege: misconduct

Section 127

Religious confession

Section 130

Exclusion of evidence of matters of state

Section 131

Exclusion of evidence of settlement negotiations

Section 132

Court to inform of rights to make applications and objections

Section 133

Court may inspect, &c, documents

Section 134

Inadmissibility of evidence that must not be adduced or given

Appendix — Legislation

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Table A: Sections of the Evidence Act 2001 (Tas) which are identical in substance to those in the Evidence Act 1995 (Cth) Section 135

General discretion to exclude evidence

Section 136

General discretion to limit use of evidence

Section 137

Exclusion of prejudicial evidence in criminal proceedings

Section 138

Discretion to exclude evidence improperly or illegally obtained

Section 139

Cautioning person

Section 140

Civil proceedings: standard of proof

Section 141

Criminal proceedings: standard of proof

Section 142

Admissibility of evidence: standard of proof

Section 144

Matters of common knowledge

Section 145

Certain Crown certificates

Section 146

Evidence produced by processes, machines and other devices

Section 147

Documents produced by processes, machines and other devices in the course of business

Section 148

Evidence of certain acts of justices, lawyers and notaries public

Section 149

Attestation of documents

Section 152

Documents produced from proper custody

Section 154

Documents published by authority of Parliaments

Section 156

Public documents

Section 157

Public documents relating to court processes

Section 159

Official statistics

Section 160

Postal articles

Section 161

Electronic communications

Section 162

Lettergrams and telegrams

Section 164

Corroboration requirements abolished

Section 165A

Warnings in relation to children’s evidence

Section 165B

Delay in prosecution

Section 167

Requests may be made about certain matters

Section 168

Time limits for making certain requests

Section 169

Failure or refusal to comply with request

Section 172

Evidence based on knowledge, belief or information

Section 173

Notification of other parties

Section 174

Evidence of foreign law

Section 175

Evidence of law reports of foreign countries

Section 176

Questions of foreign law decided by judge

Section 177

Certificates of expert evidence

Section 179

Proof of identity of convicted persons by affidavits by members of State or Territory police forces

Section 181

Proof of service of statutory notifications, notices, orders and directions

Section 183

Inferences

Relationship Between the Evidence Act 2001 (Tas) and the Evidence Act 1995 (Cth)

Table A: Sections of the Evidence Act 2001 (Tas) which are identical in substance to those in the Evidence Act 1995 (Cth) Section 184

Accused may admit matters and give consent

Section 188

Impounding documents

Section 189

The voir dire

Section 190

Waiver of rules of evidence

Section 191

Agreements as to facts

Section 192

Leave, permission or direction may be given on terms

Section 192A

Advance rulings and findings

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Table B: Sections of the Evidence Act 2001 (Tas) which do not appear in the Evidence Act 1995 (Cth) Section 30A

Unsworn statements

Section 85A

Admission in serious offence

Section 126

Loss of client legal privilege: related communications and documents

Section 126A

Definitions

Section 126B

Exclusion of evidence of protected confidence

Section 126C

Loss of professional confidential relationship privilege: consent

Section 126D

Loss of professional confidential relationship privilege: misconduct

Section 126E

Ancillary orders

Section 126F

Application of Division

Section 127A

Medical communications

Section 127B

Communication to counsellor

Section 142A

Proof of exemption

Section 177A

Certificate of analyst

Section 177B

Proof of proceedings of councils and committees

Section 177C

Probate and letters of administration

Section 177D

Certificate of Surveyor-General

Section 177E

Certificate of Chief Parliamentary Counsel

Section 181A

Depositions on one charge admissible on trial of another

Section 194

Witnesses failing to attend proceedings

Section 194A

Depositions under Justices Act 1959

Section 194B

Depositions of persons dangerously ill

Section 194C

Power of court or judge to order examination of witnesses on interrogatories or otherwise

Section 194D

Parties

Section 194E

Compelling attendance of witnesses or production of documents

Section 194F

Examinations of witnesses to be taken on oath

Section 194G

Persons appointed for taking examinations to report on conduct or absence of witnesses if necessary

Section 194H

Costs of examination may be made costs in the cause

Appendix — Legislation

Table B: Sections of the Evidence Act 2001 (Tas) which do not appear in the Evidence Act 1995 (Cth) Section 194I

Provisions relating to reading of examinations

Section 194J

Printing and publication of certain evidence prohibited

Section 194K

Publication of certain identifying particulars prohibited

Section 194L

Publication of evidence in certain civil cases prohibited

Section 194M

Evidence relating to sexual experience

Section 196

Proceedings for offences

Section 196A

Medical examination of injured person

Section 196B

Certain errors not avoid conviction

Section 196C

Inspection of realty and personalty

Section 198

Administration of Act

Section 199

Repeals

Section 200

Savings, transitional and other provisions

Schedule 2

Savings, transitional and other provisions

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Table C: Sections of the Evidence Act 2001 (Tas) which differ from the same numbered sections of the Evidence Act 1995 (Cth) Section 1

Short title

Section 2

Commencement

Section 2A

Numbering of Act

Section 3

Interpretation

Section 4

Courts and proceedings to which Act applies

Section 7

Act binds Crown

Section 8

Operation of other Acts

Section 9

Application of common law and equity

Section 19

Compellability of spouses and others in certain proceedings

Section 20

Comment on failure to give evidence

Section 21

Sworn evidence by oath or affirmation

Section 22

Interpreters to act on oath or affirmation

Section 53

Views

Section 70

Exception: contents of tags, labels and writing

Section 73

Exception: reputation as to relationships and age

Section 101

Further restrictions on tendency evidence and coincidence evidence adduced by the prosecution

Section 101A

Credibility evidence

Section 102

Credibility rule

Section 104

Further protection: cross-examination of defendant

Section 108

Exception: re-establishing credibility

Section 108B

Further protections: previous representations of an accused who is not a witness

Section 110

Evidence about character of accused

Relationship Between the Evidence Act 2001 (Tas) and the Evidence Act 1995 (Cth)

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Table C: Sections of the Evidence Act 2001 (Tas) which differ from the same numbered sections of the Evidence Act 1995 (Cth) Section 128

Privilege in respect of self-incrimination in other proceedings

Section 128A

Privilege in respect of self-incrimination – exception for certain orders, etc

Section 129

Exclusion of evidence of reasons for judicial decisions

Section 131A

Application of Division to preliminary proceedings of courts

Section 143

Matters of law

Section 150

Seals and signatures

Section 153

Gazettes and other official documents

Section 155

Evidence of official records

Section 158

Evidence of certain public documents

Section 165

Unreliable evidence

Section 166

Definition of request

Section 170

Evidence relating to certain matters

Section 171

Persons who may give such evidence

Section 178

Convictions, acquittals and other judicial proceedings

Section 180

Proof of identity of convicted persons by affidavits by members of the Australian Federal Police

Section 187

No privilege against self-incrimination for bodies corporate

Section 193

Additional powers

Section 195

Prohibited question not to be published

Section 197

Regulations

Schedule 1

Oaths and affirmations

Table D: Sections of the Evidence Act 2001 (Tas) which are similar to the same numbered sections of the Evidence Act 1995 (Cth) Section 4

Courts and proceedings to which Act applies

Section 7

Act binds Crown

Section 8

Operation of other Acts

Section 9

Application of common law and equity

Section 70

Exception: contents of tags, labels and writing

Section 128

Privilege in respect of self-incrimination in other proceedings

Section 150

Seals and signatures

Section 153

Gazettes and other official documents

Section 155

Evidence of official records

Section 170

Evidence relating to certain matters

Section 171

Persons who may give such evidence

Section 180

Proof of identity of convicted persons by affidavits by members of the Australian Federal Police

Section 187

No privilege against self-incrimination for bodies corporate

Appendix — Legislation

Table E: Sections of the Evidence Act 2001 (Tas) which appear as differently numbered sections of the Evidence Act 1995 (Cth) Evidence Act 2001 (Tas) section:

Equivalent Evidence Act 1995 (Cth) section:

Section 3A (References to business)

Dictionary

Section 3B (Unavailability of persons)

Dictionary

Section 3C (Unavailability of documents and things)

Dictionary

Section 3D (Representations in documents)

Dictionary

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Table F: Sections of the Evidence Act 1995 (Cth) which are not part of the Evidence Act 2001 (Tas) Section 5

Extended application of certain provisions

Section 6

Territories

Section 8A

Application of the Criminal Code

Section 25

Rights to make unsworn statements unaffected

Section 113

Application of Part

Section 114

Exclusion of visual identification evidence

Section 115

Exclusion of evidence of identification by pictures

Section 126G

Definitions

Section 126H

Protection of journalists’ sources

Section 151

Seals of bodies established under State law

Section 155A

Evidence of Commonwealth documents

Section 163

Proof of letters having been sent by Commonwealth agencies

Section 182

Application of certain sections in relation to Commonwealth records

Section 185

Full faith and credit to be given to documents properly authenticated

Section 186

Swearing of affidavits before justices of the peace, notaries public and lawyers

APPENDIX - LEGISLATION Criminal Procedure Act 1986 (NSW) – Extracts 279

Compellability of spouses to give evidence in certain proceedings

(1) In this section: (a) a reference to a member of the accused person’s family means the spouse or de facto partner of the accused person or a parent (within the meaning of the Evidence Act 1995) or child (within the meaning of that Act) of the accused person, and Note: “De facto partner” is defined in section 21C of the Interpretation Act 1987.

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(b)

a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and (c) a reference to a domestic violence offence committed on the spouse of an accused person includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which the spouse was the protected person, and (d) a reference to a child assault offence is a reference to: (i) a prescribed sexual offence committed on a child under the age of 18 years, or (ii) an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or (iii) an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900, or (iv) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and (e) a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person. (2) A member of an accused person’s family in proceedings in any court (a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on the spouse, or (b) for a child assault offence (other than an offence arising from a negligent act or omission) committed on: (i) a child living in the household of the accused person, or

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Appendix — Legislation

(ii) a child who, although not living in the household of the accused person, is a child (within the meaning of the Evidence Act 1995) of the accused person, is compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person. (2A) This section does not make a member of an accused person’s family (other than the accused person’s spouse) compellable to give evidence in proceedings for a domestic violence offence committed on a member of the accused person’s family if the accused person is under the age of 18 years. (3) The spouse of an accused person is not compellable to give evidence for the prosecution as referred to in subsection (2) if the spouse has applied to, and been excused by, the court. (4) A court may excuse a member of an accused person’s family from giving evidence for the prosecution as referred to in subsection (2) if satisfied: (a) that the application to be excused is made by that family member freely and independently of threat or any other improper influence by any person, and (b) that it is relatively unimportant to the case to establish the facts in relation to which it appears that the family member is to be asked to give evidence, or there is other evidence available to establish those facts, and (c) that the offence with which the accused person is charged is of a minor nature. (5) When excusing a member of an accused person’s family from giving evidence under subsection (4), the court: (a) must state the reasons for doing so, and (b) must cause those reasons to be recorded in writing in a form prescribed by the regulations. (6) An application under this section by a member of an accused person’s family to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person’s Australian legal practitioner. (7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit. (8) The fact that a member of an accused person’s family in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings. 281

Admissions by suspects

(1) This section applies to an admission:

Criminal Procedure Act 1986 (NSW) – Extracts

s 281

that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

(a)

(4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or

Appendix — Legislation

(c)

a video recording accompanied by a separately but contemporaneously recorded audio recording.

…

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293

Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H(1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the

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Criminal Procedure Act 1986 (NSW) – Extracts

s 294

complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. (9) [Repealed] 294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings (1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest: (a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or (b) delay by that person in making any such complaint. (2) In circumstances to which this section applies, the Judge:

Appendix — Legislation

(a)

must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and (b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and (c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning. (3) [Repealed] (4) [Repealed] (5) [Repealed] 294AA Warning to be given by Judge in relation to complainants’ evidence

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(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. (3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section. 294A Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented (1) This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner. (2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court. (3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant. (4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice. (5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 306ZL or any other Act or law. (6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence. (7) If such a person is appointed in proceedings before a jury, the judge must: (a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and

Criminal Procedure Act 1986 (NSW) – Extracts

s 294B

(b)

warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement. (8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard. (9) Any thing done or omitted to be done by a person who: (a) is appointed under this section, and (b) is an Australian lawyer, when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand.

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294B Giving of evidence by complainant in prescribed sexual offence proceedings—alternative arrangements (1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence. (1A) This section applies (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) by a protected person in the same way as it applies to the giving of evidence in criminal proceedings by a complainant but only if: (a) the defendant in the proceedings is a person who is charged with a prescribed sexual offence, and (b) the protected person is the alleged victim of the offence. (2) This section does not apply to or in respect of the giving of evidence by a vulnerable person if Division 4 of Part 6 applies to the giving of that evidence. (2A) This section applies in addition to Part 4B, if the complainant is a domestic violence complainant. (3) A complainant who gives evidence to which this section applies is entitled (but may choose not): (a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or (b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following: (i) use of screens, (ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant’s line of vision).

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Appendix — Legislation

(4) If, to enable evidence to be given as referred to in subsection (3), the court considers it appropriate to do so, the court may adjourn the proceeding or any part of the proceeding from the courtroom to another court or place. (5) Despite subsection (3)(a), a complainant must not give evidence as referred to in that paragraph if a court, on its own initiative or on application by a party to the proceeding, orders that such means not be used. (6) A court may make an order under subsection (5) only if it is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by such means. (7) In any proceedings in which evidence is given as referred to in subsection (3), the judge must: (a) inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means or use of those arrangements, and (b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements. (8) Any place outside the courtroom from which a complainant gives evidence under this section is taken to be part of the courtroom in which the proceeding is being held. (9) If a complainant gives evidence as referred to in subsection (3) in a place other than a courtroom, the court may order that a court officer be present at that place. (10) This section extends to evidence given in proceedings instituted before the commencement of this section, including a new trial that was ordered to take place before that commencement and proceedings that have been partly heard. (11) [Repealed] 294C Complainant entitled to have support person or persons present when giving evidence (1) A complainant is entitled to have a person or persons chosen by the complainant present near the complainant, and within the complainant’s sight, when the complainant is giving evidence in proceedings in respect of a prescribed sexual offence. (2) The entitlement applies: (a) even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 294B or Part 6, and (b) even if the proceedings, or the part of the proceedings in which the complainant gives evidence, are held in camera. (3) Without limiting the entitlement of a complainant under this section, the person or persons chosen by the complainant to be with the complainant when he or she gives evidence may include a parent, guardian, relative, friend or support person of the complainant, or a person assisting the complainant in a professional capacity.

Criminal Procedure Act 1986 (NSW) – Extracts

s 295

(4) An accused person is not entitled to object to the suitability of the person or persons chosen by a complainant to be with the complainant when giving evidence, and the court is not to disallow the complainant’s choice of person or persons on its own motion, unless the complainant’s choice is likely to prejudice the accused person’s right to a fair trial (for example, because the person chosen by the complainant is a witness or potential witness in the proceedings). (5) During any part of the proceedings in which the complainant gives evidence, the person or persons chosen by the complainant to be present when the complainant gives evidence are taken to be exempt from any requirement or direction under this Division that requires the proceedings, or the part of the proceedings concerned, to be held in camera. (6) This section applies to a complainant giving evidence in proceedings in respect of a prescribed sexual offence regardless of the complainant’s age. (7) If the complainant is a vulnerable person when the evidence is given, section 306ZK does not apply. (8) Nothing in this section affects any entitlement a complainant has under section 275B. Note: This section applies to proceedings before the Children’s Court because of section 27 of the Children (Criminal Proceedings) Act 1987.

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295

Interpretation

(1) Definitions In this Division: court [Repealed] criminal proceedings means: (a) proceedings relating to the trial or sentencing of a person for an offence (whether or not a sexual assault offence) including pre-trial and interlocutory proceedings but not preliminary criminal proceedings, or (b) proceedings relating to an order under the Crimes (Domestic and Personal Violence) Act 2007. harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). preliminary criminal proceedings means any of the following: (a) committal proceedings, (b) proceedings relating to bail (including proceedings during the trial or sentencing of a person), whether or not in relation to a sexual assault offence. principal protected confider means the victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made. protected confidence—see section 296.

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Appendix — Legislation

protected confider, in relation to a protected confidence, means: (a) the principal protected confider, or (b) any other person who made the protected confidence. sexual assault offence means: (a) a prescribed sexual offence, or (a1) acts that would constitute a prescribed sexual offence if those acts: (i) had occurred in this State, or (ii) had occurred at some later date, or (iii) had both occurred in this State and occurred at some later date, or (b) any other offence prescribed by the regulations for the purposes of this definition. (2) Document recording a protected confidence In this Division, a reference to a document recording a protected confidence: (a) is a reference to any part of the document that records a protected confidence or any report, observation, opinion, advice, recommendation or other matter that relates to the protected confidence made by a protected confider, and (b) includes a reference to any copy, reproduction or duplicate of that part of the document. (3) Electronic documents For the purposes of this Division, if a document recording a protected confidence is stored electronically and a written document recording the protected confidence could be created by use of equipment that is usually available for retrieving or collating such stored information, the document stored electronically is to be dealt with as if it were a written document so created. 296 What is a protected confidence? (1) In this Division: protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence. (2) A counselling communication is a protected confidence for the purposes of this Division even if it: (a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or (b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence. (3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process.

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Criminal Procedure Act 1986 (NSW) – Extracts

s 298

(4) In this section: counselling communication means a communication: (a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or (b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or (c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or (d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person. (5) For the purposes of this section, a person counsels another person if: (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and (b) the person: (i) listens to and gives verbal or other support or encouragement to the other person, or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward. 297

Protected confidences—preliminary criminal proceedings

(1) A person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any preliminary criminal proceedings. (2) A document recording a protected confidence cannot be produced in, or in connection with, any preliminary criminal proceedings. (3) Evidence cannot be adduced in any preliminary criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence. 298

Protected confidences—criminal proceedings

(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings. (2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.

Appendix — Legislation

(3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence. 298A Victim cannot be required to identify counsellor (1) A person cannot seek to compel (whether by subpoena or any other procedure) a victim or alleged victim of a sexual assault offence to produce a document or give evidence that would disclose the identity of the victim or alleged victim’s counsellor in, or in connection with, criminal proceedings or preliminary criminal proceedings. (2) In this section: counsellor of a victim or alleged victim of a sexual assault offence means a counsellor (within the meaning of section 296(4)) to whom or by whom a counselling communication that is a protected confidence is made. 299

Court to inform of rights under Division

If it appears to a court that a witness, party or protected confider may have grounds for making an application under this Division or objecting to the production of a document or the adducing of evidence, the court must satisfy itself (or if there is a jury, in the absence of the jury) that the person is aware of the relevant provisions of this Division and has been given a reasonable opportunity to seek legal advice.

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300

Effect of consent

(1) This Division does not prevent the production of any document recording a protected confidence or the adducing of evidence disclosing a protected confidence or the contents of a document recording a protected confidence, in, or in connection with, any proceedings, if the principal protected confider to whom the proceedings relate has consented to the production of the document or adducing of the evidence. (2) Consent is not effective for the purposes of this section unless: (a) the consent is given in writing, and (b) the consent expressly relates to the production of a document or adducing of evidence that is privileged under this Division or would be so privileged except for a limitation or restriction imposed by this Division. 301

Loss of sexual assault communications privilege: misconduct

(1) This Division does not prevent the adducing of evidence of a communication made, or the production or adducing of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty.

Criminal Procedure Act 1986 (NSW) – Extracts

s 306

(2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act, the court may find that the communication was so made or document so prepared. 302

Ancillary orders

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(1) Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected confidence, the court may: (a) order that all or part of the evidence be heard or document produced in camera, and (b) make such orders relating to the production and inspection of the document as, in the opinion of the court, are necessary to protect the safety and welfare of any protected confider. (c) [Repealed] (d) [Repealed] (2) Nothing in this section limits the power of a court to make an order under section 106 or 119 of this Act or section 578A of the Crimes Act 1900. (3) [Repealed] 303 Court to inform of rights to make applications and objections [Repealed] 304

Court may inspect documents [Repealed]

305

Inadmissibility of evidence

Evidence that, because of this Division, cannot be adduced or given in proceedings is not admissible in the proceedings. 306

Application of common law

(1) This Division does not affect the operation of a principle or rule of the common law in relation to evidence in criminal proceedings, except so far as this Division provides otherwise expressly or by necessary intendment. (2) Without limiting subsection (1), this Division does not affect the operation of such a principle or rule so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings.

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INDEX contradictory evidence or impeachment of credit, and [2.340]–[2.400] direction to disregard evidence, [2.370] inferences drawn from other evidence, [2.340]–[2.400] later contradiction or discredit of witness, [2.340]–[2.400] opportunity to be heard, [2.340]–[2.390]

A

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Admissibility of evidence, [1.120] admissions — see Admissions character evidence — see Character evidence credibility — see Credibility evidence discretion to exclude evidence — see Discretion to exclude evidence discretion to limit use of evidence — see Discretion to exclude evidence documents — see Documents hearsay rule — see Hearsay rule identification evidence — see Identification evidence privilege — see Privilege relevant evidence — see Relevant evidence tendency and coincidence rule — see Tendency and coincidence rule Admissions allegedly fabricated admissions, [9.20] circumstances in which admission made, [9.80] co-party, against, [9.10] conversations recorded without the knowledge of both defendants, [9.130]–[9.140] definition, [9.10] evidence of silence, [9.160] right to silence, scope, [9.170] exception to hearsay and opinion rules, [9.10] exclusions admissions made to, or in the presence of, an investigating official, [9.50]–[9.60] discretion to exclude improperly or illegally obtained admissions, [9.100] improperly or illegally obtained admissions, [9.90] influenced by violence and certain other conduct, [9.30]–[9.40] fairness to defendant, [9.10] unfairness, basis,[9.110]–[9.120] intoxication, and [9.60] overview, [9.10] police impropriety, [9.10] psychiatric and psychological vulnerabilities, [9.80] reliability, [9.80] threshold requirements, [9.10] unsigned records of interview, [9.10] Australian Law Reform Commission (ALRC) interim and final report on evidence, [1.30]

B Browne v Dunn rule civil proceedings, [2.400] cross-examination, [2.370]

Burden and standard of proof admissibility of evidence, [15.90] civil standard of proof, [15.40] balance of probabilities, on [15.50] Briginshaw test, [15.40], [15.50] racial discrimination, [15.50] strength of evidence, [15.50] criminal standard of proof, [15.60] beyond reasonable doubt, [15.60] circumstantial evidence, [15.80] improper instruction of jury on onus of proof, [15.70] onus rests upon the Crown, [15.60] presumption of innocence, [15.60] evidential burden, [15.20]–[15.30] legal burden, [15.20] overview, [15.10] Business records hearsay rule, exception, [7.230]–[7.240], [7.270]

C Character evidence co-accused in criminal proceedings, [12.80] cross-examination of accused, limitations, [12.90]–[12.100] defendant’s use in criminal proceedings, [12.10] directions on good character, [12.50] discretion misapplied, [12.70] treatment of evidence of bad character or criminal propensity, [12.60] disproof of guilt, [12.40] evidence about character of an accused person, [12.20]–[12.30] expert opinion evidence, [12.10] negating dishonest purpose, [12.40] “particular respect”, [12.20] prosecution may adduce rebuttal evidence, [12.10] Children competence and compellability, [2.80] ALRC Report 102, [2.80]–[2.90] Bench Book for Children Giving Evidence in Australian Courts, [2.120] special hearings for children or cognitively impaired witnesses, [2.120] “script” for use in special hearings, [2.120]

Uniform Evidence Law: Commentary and Materials

Children — cont seen and heard: priority for children in the legal process, [2.80] Circumstantial evidence criminal standard of proof, [15.80] inferences of guilt, and [15.60]

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Civil proceeding admissibility of admission, [9.10] Browne v Dunn, rule in, [2.400] calling of witness, [2.40] coincidence evidence, [10.60], [10.70], [10.80] conduct evidence, [10.70] definition, [1.80] discretions to exclude evidence, [6.10] first-hand hearsay exception to the hearsay rule, [7.90] improperly obtained evidence, [6.170] inability to cross-examine on material sought to be introduced, [7.180] privilege — see Privilege similar fact evidence, [10.70] standard of proof, [15.40] balance of probabilities, on [15.50] Briginshaw test, [15.40], [15.50] racial discrimination, [15.50] strength of evidence, [15.50] tendency and coincidence rule, [10.60] tender of relevant and admissible evidence, rejection, [2.370] Civil standard of proof, [15.40] balance of probabilities, on [15.50] matters for consideration, [15.50] Briginshaw test, [15.40], [15.50] racial discrimination, [15.50] strength of evidence, [15.50] Client legal privilege commercial documents, [14.40] common interest in current or anticipated legal proceedings, [14.10] common law, [14.30] communications between third party and client, [14.40] confidential written communications, [14.30] disclosure under compulsion of law, [14.10] documents prepared for the sole purpose of legal advice, [14.30] dominant purpose test, [14.20],[14.30] in-house solicitor, [14.50] inadvertent disclosure of documents, [14.80] inspection by the court, [14.40] legal advice, [14.40] loss of, [14.10], [14.60] communications made in furtherance of a fraud or offence, [14.10], [14.110] consent, express or implied, [14.10] cross-examination, [14.100] failure to object to cross-examination, [14.90] inadvertent disclosure of documents, [14.100] knowingly and voluntarily disclosed, [14.60], [14.70] waiver, [14.10]

onus, [14.40] public interest, [14.30] public policy, [14.30] purpose of communication, [14.40] rule of substantive law, [14.40] two-stage process, [14.40] Coincidence evidence “propensity” or “similar fact” evidence, [10.20] Common law admissibility rules, abrogation, [1.40] adverse inferences, [17.10] bad character and criminal propensity, [12.60] bolster rule, [11.30] Browne v Dunn rule — see Browne v Dunn rule burden and standard of proof, [15.10] civil standard, [15.40]–[15.50] calling of witness, [2.30] client legal privilege — see Client legal privilege corroboration and warnings, [18.50] Crofts warning, [18.70] delay in complaint, [18.50] Kilby direction, [18.50] Crown certificates on a matter of international affairs, [16.10] discretion to exclude admissions, [9.110] discretion to exclude evidence, [6.20], [6.60] discretion to exclude improperly or illegally obtained evidence, [6.160] drawing inferences, [1.130] evidence of good character, [12.60] reputation, and [12.60] evidence of judgments and convictions, [17.50] evidentiary presumptions, [17.10] facilitation of proof — see Facilitation of proof finality rule, [11.30] hearsay, [5.50], [7.60] improper witness questions, [2.20] inappropriate cross-examination, [2.320] inferences failure to call evidence in accused’s case, [17.100] party’s failure to adduce evidence, [17.80] judicial notice — see Judicial notice non-expert opinion evidence, [8.20] opinion rule, [8.10] specialised knowledge, [8.60] photographic and picture identification, [13.40]–[13.80] prima facie case “no case to answer”, [19.10] prior inconsistent statements, [7.60] proof of assumption rule, [8.10], [8.80] “propensity” or “similar fact” evidence, [10.20], [10.60] Evidence Act, departure, [10.70] proving the content of documents, [3.30] questioning witnesses, [2.170] real evidence, admission, [4.10] inspections, demonstrations and experiments — see Inspections, demonstrations and experiments physical objects, [4.20] views of relevant locations, [4.20]

Index

Common law — cont rebuttal and opening, [2.450] recent complaint in sexual assualt cases, [5.50] refreshing memory from previous statement, [2.260] relevant evidence, [5.50]–[5.60] reliability of admissions, [9.80] right to silence, [9.160]–[9.170], [17.120] spousal privilege, [2.140] ultimate issue and common knowledge rules, abolished, [8.110] unreliable evidence, [18.20] warnings and directions, [18.50] children’s evidence, [18.80] Competence and compellability, [1.120] assessment of,[2.80] “capacity to understand a question”, [2.70] disability, [2.80] evidence of little probative value, and [2.80] judges and jurors, [2.140] seen and heard: priority for children in the legal process, [2.80] understanding the difference between a truth and a lie, [2.90] ALRC 102 proposed deletion of requirement, [2.90] wife of the accused, [2.140], [2.150] stability of marriage, [2.150]

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Convictions evidence of, [17.50] Corroboration and warnings children’s evidence, [18.80] reliability, [18.90] common law obligations, [18.50] Crofts warning, [18.70] delay in complaint, [18.50] Kilby direction, [18.50] delay in prosecution, [18.100] “good reasons” not to, [18.10] judicial warnings for unreliable evidence, [18.20] accomplice evidence, [18.40] disability of complainant, [18.30] significant forensic disadvantage, [18.50] Longman warning [18.60] status of the comments as directions of law, [18.90] Credibility evidence, [11.20] assessment of credibility, [11.160]–[11.170] attacking credibility, [11.40] cross-examination, [11.40] current test, [11.50] credibility of witness, definition, [11.100] credit and facts-in-issue, distinction, [11.30] evidence relevant only to witness credibility is inadmissible, [11.20] determination, [11.30] relevant and admissible for other purposes, [11.20] expert opinion, [11.130]–[11.150] matters bearing on credibility, [11.10] previous representations by persons who are not witnesses, [11.60]

rebutting denials with other evidence, [11.70] supporting credibility, [11.90]–[11.100] complaint evidence, [11.110], [11.120] re-establishing credibility, [11.100] Criminal proceedings admissions — see Admissions burden and standard of proof Burden and standard of proof character evidence — see Character evidence client legal privilege — see Client legal privilege credibility evidence Credibility evidence cross-examination — see Cross-examination definition, [1.80] discretion to exclude evidence — see Discretion to exclude evidence discretion to limit use of evidence — see Discretion to limit use of evidence hearsay rule Hearsay rule privilege, and protected confidences in sexual assault prosecutions, [14.10] self-incrimination, against, [14.10] relevant evidence — see Relevant evidence sexual assault communications privilege, [14.40] standard of proof, [15.60] beyond reasonable doubt, [15.60] circumstantial evidence, [15.80] improper instruction of jury on onus of proof, [15.70] onus rests upon the Crown, [15.60] presumption of innocence, [15.60] tendency and coincidence rule Tendency and coincidence rule Criminal standard of proof, [15.60] beyond reasonable doubt, [15.60] inferences of guilt, and [15.60] circumstantial evidence, [15.80] improper instruction of jury on onus of proof, [15.70] onus rests upon the Crown, [15.60] presumption of innocence, [15.60] Cross-examination, [2.20], [2.310] argumentative questions, [2.320] Browne v Dunn, rule in, [2.340]–[2.350] breach, [2.370] contradictory evidence or impeachment of credit, and [2.340]–[2.400] direction to disregard evidence, [2.370] inferences drawn from other evidence, [2.340]–[2.400] later contradiction or discredit of witness, [2.340]–[2.400] opportunity to be heard, [2.340]–[2.390] complainants of sexual offences, [2.20] compound questions, [2.320] cutting off answers before completion, [2.320] definition, [2.310], [2.320] improper questions, [2.20], [2.310] inconsistent with parts of evidence, [2.290] miscarriage of justice, [2.290] interjection with personal views, [2.320]

Uniform Evidence Law: Commentary and Materials

Cross-examination — cont leading questions and previous statements, [2.330] limits of permissibility, [2.320] offensive questioning, [2.320] prior inconsistent statement, [2.290], [2.300] application for leave, [2.280] unfairness to appellant, and [2.290] questions resting on controversial assumptions, [2.320] s 38 order, [2.300] purpose of examination, [2.300] scope of leave to cross-examine, [2.90] probative value, [2.90] risk of unfair prejudice to accused, [2.300] straw persons, and [2.300] unfavourable witness, [2.280], [2.290] application for leave, [2.280] leading questions, [2.280] meaning, [2.280]

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D Discretion to exclude evidence common law, at sufficient relevance, [6.20] unfair prejudice, [6.20] improperly or unlawfully obtained evidence, [6.10], [6.160] common law, comparison, [6.160] impropriety, identification, [6.170] unsworn affidavit relied upon to obtain warrant, [6.180] overview, [6.10] probative value, [6.30] issues of credibility, [6.30] prosecution evidence in criminal proceedings,[6.110] ambivalent evidence, [6.130] DNA evidence, [6.110], [6.140] medical evidence in child sexual assault cases, [6.110] probative value outweighs unfair prejudice to defendant, [6.60], [6.110] statistical evidence in the form of exclusion percentage, [6.110] videotape of photo identification, [6.60] unfair prejudice, [6.70], [6.100] ambush an opponent, [6.100] inability to cross-examine, [6.80] meaning, [6.90] misuse of evidence by the trier of fact, [6.70] procedural disadvantages, [6.70], [6.100] undue weight, [6.70] Discretion to limit use of evidence complaint evidence in a rape trial, [6.150] medical opinion in expert medical report, [6.150] multiple relevance, issues, [6.150] DNA evidence, [6.110], [6.140] judicial notice, [16.40]

Documents admissibility, [3.20] bank account statements, [3.80] calling for a document, [3.130] definition, [3.70] foreign countries, in [3.100] principles and rules, [3.20] common law rules abolished, [3.30] proof of voluminous or complex documents, [3.110], [3.120] proving the contents, [3.10], [3.40] adducing evidence of a copy, [3.20], [3.40] authenticity, [3.40], [3.90] CCTV footage, [3.70] foreign broadcasts, [3.60] in summary form, [3.20] phone conversations, [3.50] transcripts and translations, [3.40] request to produce, [4.90]

E Entrapment discretion to exclude improperly or illegally obtained evidence, [6.160] Evidential issues preliminary matters, [1.60] structure of the Act, [1.50] Examination-in-chief excessive judicial intervention, [2.190] limits of questioning by judge, [2.190] order and form, [2.230] parties and the judge, by [2.190] powers of court to control, [2.170] questioning of witnesses, [2.250] reviving memory, [2.260] Expert evidence conflicting evidence, [2.60] failure of prosecution to call witness, [2.60] Expert opinion credibility evidence, [11.130]–[11.150] opinion rule, exception, [8.50] differentiation between assumed facts upon which opinion based and opinion in question, [8.60] inadmissibility of report, [8.90] proof of assumption rule, abolition, [8.80] specialised knowledge, requirement, [8.10], [8.70] training, study or experience, [8.80]

F Facilitation of proof adverse inferences, [17.10] convictions, acquittals and other judicial proceedings, [17.40] exclusions, [17.50]–[17.60]

Index

Facilitation of proof — cont foreign law, [17.30] formal admissions, [17.70] inferences from a failure to call evidence in an accused’s case, [17.100]–[17.110] accused as witness, [17.120] judicial comment on silence at trial, [17.120] legislative framework, [17.120] permissible comment to the jury, [17.100]–[17.120] prosecution’s failure to call a material witness, [17.130] inferences from absence of evidence, [17.70] Jones v Dunkel, [2.50], [17.80], [17.90] overview, [17.10] presumptions, [17.20] Foreign law facilitation of proof, [17.30]

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H Hearsay rule criminal cases, exceptions, [7.120] admission into evidence of statements of deceased Crown witness, [7.130] representations made when “fresh in memory” of the person, [7.180]–[7.220] statements made “shortly after” the event, [7.140] where maker of the representation is available, [7.170] where maker of the representation is not available, [7.150] definition, [7.20] evidence of oral threats, and [7.30] exceptions, [7.10] admissions, [9.10] business records, [7.230]–[7.240], [7.270] proof by affidavit or written statement, [7.300] representations “in connection with” a proceeding, [7.250] s 69 requirements, [7.260] tags, labels and writing, [7.290] first-hand hearsay exceptions competence requirements, [7.90] expense, delay or practicability, [7.100] maker of previous representation is not available, [7.90]–[7.100] requirement of notice, [7.110] maker’s intended assertion, [7.20] overview, [7.10] previous representations footnotes and appendices of reports, [7.80] hearsay purpose, determination, [7.10] relevant for non-hearsay purpose, [7.50]–[7.60] statements made outside of court, [7.40] summary report of financial records not in evidence, [7.70]

definition, [13.10] identification parade, [13.10] picture identification evidence, [13.10], [13.50], [13.70], [13.80] discretionary exclusion, [13.40], [13.70], [13.80] Facebook profile, [13.60] refusal to exclude, [13.70], [13.80] probative value, [13.10], [13.60] visual identification evidence, [13.10], [13.20] deficiencies of evidence, [13.60] in-court identification evidence, [13.30], [13.50] Inferences absence of evidence, [17.70] Jones v Dunkel, [17.80], [17.90] adverse inferences, [17.10] drawn from other evidence under cross-examination, [2.340]–[2.400] failure to call evidence in an accused’s case, [17.100]–[17.110] accused as witness, [17.120] judicial comment on silence at trial, [17.120] legislative framework, [17.120] permissible comment to the jury, [17.100]–[17.120] prosecution’s failure to call a material witness, [17.130] guilt, [15.60] inspections, demonstrations and experiments, [4.30], [4.50] proof, and [5.70] relevance of a document or thing, [1.130] Inspections, demonstrations and experiments application for leave, permission or discretion, [4.50] conduct in court room, exception, [4.30]–[4.40] “demonstration”, meaning, [4.50] experiments in the course of deliberations, prohibition, [4.70] testing of evidence, distinguished, [4.80] judge and jury presence, requirement, [4.40] juror misconduct, [4.60] disclosing inadmissible and prejudicial material about the accused, [4.60] inspection and experimentation, [4.60] R v Skaf, [4.60] reasonable inferences drawn from, [4.30], [4.50] reproduction or reconstruction, [4.50] subject matter, [4.50] “view” at common law, [4.50] out of court demonstration, distinguished, [4.50]

J Joint trials, [1.140]

I

Journalist privilege order for disclosure, and [14.140] public interest in, [14.140]

Identification evidence admissibility, [13.10] criminal proceedings, [13.10]

Judicial notice Crown certificates on matters international affairs, [16.20]

Uniform Evidence Law: Commentary and Materials

Judicial notice — cont DNA evidence, [16.40] exclusion percentages, [16.40] issues and statistics concerning health, [16.30] legislation, [16.30] matters of fact, [16.20] notorious facts judicially noticed after inquiry, [16.30] notorious facts judicially noticed without inquiry, [16.30] overview, [16.10] relevant to a fact in issue, exception, [16.30] social science material, [16.50] Juror misconduct, [4.60] disclosing inadmissible and prejudicial material about the accused, [4.60] inspection and experimentation, [4.60] R v Skaf, [4.60] Jury directions or warnings — see Corroboration and warnings

O Oaths and affirmations, [2.20], [2.160] interpreters, [2.240]

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Objections to evidence, [1.110] Opinion rule evidence of an opinion to prove the existence of fact, exclusion [8.10], [8.20], [8.80]–[8.90] exceptions admissions, [9.10] seeing, hearing or perceiving matters or events, [8.10] specialised knowledge, [8.10] “experience” distinguished, [8.10] expert opinion, exception, [8.50], differentiation between assumed facts upon which opinion based and opinion in question, [8.60] inadmissibility of report, [8.90] proof of assumption rule, abolition, [8.80] repeated viewing of CCTV images, [8.70] specialised knowledge, requirement, [8.10], [8.70] training, study or experience, [8.80] lay opinion exception, [8.30] narrowing of permissibility, [8.30] scope, [8.30] overview, [8.10] ultimate issue and common knowledge rules abolished, [8.110]

P Powers of court judicial rulings on evidence, [1.100] advance ruling, [1.100] leave, permission or direction, [1.100]

preliminary questions, determinations, [1.120] uniform evidence legislation, under, [1.90] Previous representations footnotes and appendices of reports, [7.80] hearsay purpose, determination, [7.10] leading questions, and [2.330] persons who are not witnesses, by [11.60] relevant for non-hearsay purpose, [7.50]–[7.60] reviving memory, [2.260] police officers, [2.270] temporal requirement, [2.270] translated and intercepted conversations, [2.270] Prima facie case defendant not leading evidence, [19.20] “no case to answer”, [19.30] overview, [19.10] Prior inconsistent statements cross-examination, [2.290], [2.300] application for leave, [2.280] unfairness to appellant, and [2.290] Privilege “anticipated” litigation, [14.10] client legal privilege — see Client legal privilege confidential communications, [14.10] criminal proceedings, in protected confidences in sexual assault prosecutions, [14.10] self-incrimination, against, [14.10], [14.170] Crown privilege, [14.210] Loan Council documents, [14.210] dominant purpose test, [14.10] journalist privilege — see Journalist privilege legal advice, meaning, [14.10] loss of, [14.10] matters of state, [14.10], [14.200]–[14.220] decisions of Budget Cabinet Committee, [14.220] negotiation of settlement of dispute, [14.10], [14.250] nature and extent of protection afforded, [14.260] “not to disclose” terms of settlement, [14.280] oral or in writing, [14.270] terms of settlement, exclusion, [14.250] “without prejudice” rule, [14.270] overview, [14.10] professional confidential relationship privilege — see Professional confidential relationship privilege protection of identity and sources of information to journalists, [14.10] public interest immunity, [14.10] confidential police informer, [14.230], [14.240] judicial decisions, [14.190] religious confessions privilege, [14.160] self-incrimination, against [14.170] unrepresented parties in legal proceedings, [14.10]

Index

Probative value attacking credibility, [11.40] competence and compellability, [2.80] complaint evidence, [5.50] identification evidence, [13.10] discretion to exclude evidence, [6.30] circumstantial evidence, [6.30] issues of credibility, [6.30] rationale, [5.40] Professional confidential relationship privilege discretion to adduce evidence, [14.130] express or implied obligation not to disclose, [14.130] protected confidences, [14.120] Prosecutor calling witnesses Australian position, [2.50] grounds of unreliability, [2.30], [2.50] New South Wales Bar Rules, [2.50] obligation to call, [2.30], [2.50] failure to call witness [2.30] expert evidence, conflicting, [2.60] grounds for setting aside conviction, [2.60] miscarriage of justice, [2.50] Public interest immunity, [14.10] confidential police informer, [14.230], [14.240] judicial decisions, [14.190]

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R Rebuttal and reopening common law, [2.450] deliberate decision not to call witness, where [2.470] failure to lead evidence under misapprehension, [2.470] inadvertent overlooking of facts, [2.470] interests of justice served by excluding evidence, [4.250] reopening of case to call further witnesses, [2.470] reopening of prosecution case after close of case for defence, [2.460] judicial discretion, [2.450] marginal, minimal or doubtful relevance, [2.460] Re-examination of witness, [2.20] clarifications or explanations for ambiguity, [2.440] definition, [2.430] matters arising out of evidence given, [2.440] prohibitions attempts to alter or reverse witness answers, [2.440] cross-examination of own witness, [2.440] leading questions, [2.430] s 39 limitations, [2.430]–[2.440] Real evidence common law, admission, [4.10]

inspections, demonstrations and experiments — see Inspections, demonstrations and experiments physical objects, [4.20] views of relevant locations, [4.20] Relevant evidence admissibility, [5.10] admission and use, distinction, [5.20] apology as admission, [5.55] definition, [5.20] “except as otherwise provided by this Act”, [5.20] complaint evidence, [5.50] absence of consent, [5.50] credibility of complainant, [5.50] probative value, [5.50] sexual assault, [5.50] apology, interpretation of, [5.55] inadmissible, [5.55] discretionary or mandatory exclusions, [5.10] “facts in issue” in proceedings, to [5.30] hearsay rule, [5.50] “first-hand” exception, [5.50] identification evidence, and [5.40] one use or purpose, [5.10] proof and inferences, [5.70] provisional relevance, [5.20] rationale probative value, [5.40] dressing the appellant in the items of a robber, [5.60] “real” evidence, and [5.40] reasonable inferences, [5.20] sexual assault proceedings, [5.40] statements outside of court, [5.50] nature and degree of connection, [4.50] Religious confessions privilege, [14.160] Reviving memory from previous statement, [2.260] police officers, [2.270] temporal requirement, [2.270] translated and intercepted conversations, [2.270] Rules of evidence functions, [1.20]

S Sexual assault communications privilege NSW legislative framework, [14.150]

T Tape recordings admissibility, [3.40] foreign media, [3.40]–[3.50] Tendency and coincidence rule accidental death, rebuttal — see Coincidence rule

Uniform Evidence Law: Commentary and Materials

Tendency and coincidence rule — cont civil proceedings, in [10.60] conduct, character or reputation, [10.10] credibility of witness, exception, [10.10] notice of intention to adduce evidence, [10.10] previous sexual history of complainant, [10.10] relevant to a fact in issue, [10.10] significant probative value, [10.10], [10.50] “similar fact” or “propensity” evidence, [10.20]

U Unfavourable witness, [2.280] inconsistent with parts of evidence, [2.290] miscarriage of justice, [2.290] prior inconsistent statement, [2.280] unfairness to appellant, and [2.290] Uniform evidence legislation background, [1.30] common law interpretation, [1.40] powers of court — see Powers of court relationship to other laws, [1.40] review of the laws of evidence, [1.30] structure of the Act, [1.50]

W

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Waiver of rules of evidence, [1.110] Witnesses adducing evidence, [2.20] ascertaining unreliability, [2.50] calling of witness, [2.30] Australian position, [2.50]

expert evidence, conflicting, [2.60] Jones v Dunkel direction, [2.50] competence and compellability — see Competence and compellability cross-examination — see Cross-examination examination-in-chief, [2.250] excessive judicial intervention, [2.190] limits of questioning by judge, [2.190] order and form, [2.230] parties and the judge, by [2.190] powers of court to control, [2.170] expert evidence — see Expert evidence failure to call witness, [2.50] miscarriage of justice, [2.50] Heads of State, [2.20] judges may not call a witness without consent of both parties, [2.40] oaths and affirmations, [2.20] overview, [2.10]–[2.20] priority of children in the legal process, [2.80] prosecutor’s obligation to call, [2.30], [2.50] questioning witnesses, [2.190] re-examination — see Re-examination of witness rebuttal and reopening — see Rebuttal and reopening requests to produce witnesses, [4.90] reviving memory from previous statement, [2.260] police officers, [2.270] temporal requirement, [2.270] translated and intercepted conversations, [2.270] special rules, [2.20] unfavourable witness, [2.280] inconsistent with parts of evidence, [2.290] miscarriage of justice, [2.290] prior inconsistent statement, [2.280] unfairness to appellant, and [2.290] vulnerable persons, [2.20]