Uniform Evidence Law Guidebook 0195523806, 9780195523805

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UNIFORM EVIDENCE LAW GUIDEBOOK

John Anderson Anthony Hopkins

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CONTENTS Preface Acknowledgments List of Figures and Tables

viii ix xi

Chapter 1: Getting into Evidence Introduction Sources—the uniform Evidence Acts Kinds of evidence Relevance, admissibility and weight Drawing inferences

1 1 2 6 6 10

Chapter 2: Proof and Presumptions Introduction Burden of proof Standard of proof Circumstantial evidence Burden of proof in civil cases Standard of proof in civil cases Presumptions Common knowledge and judicial notice

19 19 20 22 23 27 29 31 33

Chapter 3: Roles of Judge and Jury and the Judicial Discretion to Exclude Evidence Introduction Order of court proceedings Functions of judge and Jury Preliminary questions—the voir dire and admissibility of evidence Judicial role and powers Judicial obligation and the discretions to limit or exclude evidence Discretion to admit improperly or illegally obtained evidence

41 41 43 44 44 45 47 57

Chapter 4: Witnesses and Adducing Evidence Introduction Competence and compellability of witnesses Conduct of a trial in the adversarial process Warning and information about unreliable evidence

67 67 67 70 86

Chapter 5: Documentary and Real Evidence Introduction Proof of the contents of a document including secondary evidence Authenticity of a document Real evidence Views, demonstrations, experiments and inspections

99 99 100 101 104 104

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CONTENTS

Chapter 6: Privileges and Immunities Introduction The nature and operation of privilege Client legal privilege Loss or waiver of client legal privilege Privilege against self-incrimination Public interest immunity—‘matters of state’ Privilege in aid of settlement Professional confidential relationships Journalists’ privilege Sexual assault counselling communications privilege

112 112 112 113 116 120 122 125 126 127 128

Chapter 7: Hearsay and Exceptions Introduction The hearsay rule and its rationale Exceptions to the hearsay rule Original use of a previous representation First-hand hearsay Statements about health, feelings, state of mind ‘More remote’ exceptions—business records Other exceptions

135 135 138 141 142 145 150 151 153

Chapter 8: Admissions Introduction Nature and effect of admissions Implied admissions—silence Implied admissions—flight and lies Exception to hearsay rule Voluntariness and reliability of admissions Statutory recording requirements for admissions in criminal cases Discretionary exclusion—unfairness Discretionary exclusion—public policy

161 161 162 163 165 166 169 171 173 175

Chapter 9: Opinions, Judgments and Convictions Introduction Fact and opinion distinction The opinion rule Exception 1—multiple relevance Exception 2—lay opinion Exception 3—Aboriginal and Torres Strait Islander traditional laws and customs Exception 4—expert opinion Ultimate issue and common knowledge Criminal convictions Civil judgments

185 185 186 187 188 188 191 192 200 202 203

CONTENTS

Chapter 10: Disposition Evidence I: Credibility and Character Introduction Credibility evidence The credibility rule Exceptions to the credibility rule Credibility of the defendant in criminal cases Character evidence Character of the defendant in criminal cases

211 211 212 213 215 221 223 223

Chapter 11: Disposition Evidence II: Tendency and Coincidence Introduction Common law origins of the exclusionary rule General features of the legislative scheme The tendency rule The coincidence rule Further admissibility restriction in criminal cases Cases not involving tendency or coincidence reasoning Relationship or context evidence

235 235 236 236 237 240 242 244 246

Chapter 12: Identification Evidence Introduction Meaning of identification evidence Exclusion of visual identification evidence Exclusion of picture identification evidence Judicial warning Other kinds of ‘identification’ evidence

256 256 258 259 261 262 264

Table of Cases Table of Statutes Index

272 280 284

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PREFACE The law of evidence provides the framework within which legal contests take place. It provides the rules, principles and processes that regulate proof of disputed facts. For this reason, evidence law is central to the resolution of all substantive legal disputes that are determined in, or in the shadow of, court. The Uniform Evidence Law Guidebook offers students a concise yet comprehensive tool to engage with both the principles and practice of evidence law in the jurisdictions that have adopted the uniform evidence legislation. It provides a summary of the law in key topic areas, together with incisive commentary, cross-referenced to more detailed substantive material in other texts. The guidebook includes short extracts from and summaries of principal cases and key legislative provisions, with tables, checklists, flow diagrams and ‘how to’ tips, bringing together all the relevant and most up-to-date material. Central to this guidebook is its capacity to facilitate student engagement with the process of proof, drawing and maintaining explicit links between theory and practice. Through the use of a Criminal Trial Thread Scenario, the guidebook enables students to become active participants in a trial, promoting deep experiential learning. Witness statements and other materials are provided for the majority of topic areas, with each new statement requiring students to apply their acquired knowledge incrementally in a progressive and continuous manner as either prosecution or defence lawyers. This ‘taste of reality’ experience also allows for incremental development of important skills in oral communication, decision-making and advocacy. For those teachers who choose to adopt this approach, online materials are provided to ensure the efficacy and authenticity of assessment tasks. In other topic areas, review problems are provided to encourage students to develop their analytical problem-solving skills in relation to realistic and typical evidence issues arising in the context of criminal and civil litigation. Guides to answering these problems are available at the online resource centre. This guidebook does not undertake detailed critique or criticism of the law of evidence. However, its premise is not simply that evidence law is best understood in practical context, but that ‘in role’ student engagement fosters a capacity for critique and challenge as the complexities and shortcomings of the trial process are directly revealed.

John Anderson Newcastle October 2014

Anthony Hopkins Canberra October 2014

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ACKNOWLEDGMENTS This guidebook originated from a perceived need for a learner-centred book for students of the law of evidence in the various uniform evidence law jurisdictions of Australia. Thus, our collaboration was launched and the project has evolved over approximately 18 months into this work. John contributed the substantive material for all chapters together with the brain teasers and review problems for Chapters 1, 2, 3 and 6. Anthony contributed the criminal trial thread scenario materials for Chapters 4, 5, 7, 8, 9, 10, 11 and 12 as well as undertaking the review and critique of the substantive content of each chapter. This provided an important check consistent with the Guidebook philosophy and the development of a great collaborative synergy. John specifically thanks Tyler Fox for his invaluable research assistance in November and December 2012. This assistance was generously funded by a Teaching Development Program grant from the Faculty of Business and Law at the University of Newcastle. Further, John’s colleagues at Newcastle Law School, including Emeritus Professor Frank Bates and Michael Guihot have indirectly contributed to this project by sharing materials and through long discussions about the utility of the criminal trial thread scenario. The 2012 cohort of students in the Evidence course at Newcastle Law School were the guinea pigs for John’s testing of the efficacy of the mock trial. They deserve special thanks for admirably rising to the task of examining and cross-examining witnesses, presenting well-formulated arguments on admissibility of evidence in seminar classes each week and ultimately providing important insights and feedback for this project. John’s family was a great support while he was engrossed in drafting the manuscript. His wife, Melissa, was very tolerant and accepting of the time commitment while youngest son, Heath, successfully navigated his HSC exams through this time. Anthony thanks his past and present colleagues at the University of Canberra School of Law and Justice for their support, encouragement and enthusiasm in the development and consolidation of the criminal trial thread scenario model of teaching. In particular, he thanks all those students who have faced their fears and gamely taken to their feet to participate and later share their reflections. Anthony also thanks his colleagues at Burley Griffin Chambers for their support and guidance through his early years at the bar, during which he has straddled the teaching practice divide, enriching his experience and capacity in each field of endeavour. Anthony thanks his partner Kelli and children for their support and unfailing belief in him. We both extend thanks to Michelle Head, Publishing Editor in the Higher Education Division of Oxford University Press. Michelle, and Katie Ridsdale before her, were excited by the unique vision for this project in using the criminal trial thread scenario as the ‘how to’ aspect of this guidebook, reflecting the special challenges

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ACKNOWLEDGMENTS

and needs for students learning the law of evidence. Throughout the subsequent life of this project, Michelle has provided unfailing support and encouragement. Together with the editorial team coordinated by Tiffany Bridger, Michelle has been instrumental in seeing this guidebook through the various processes to final publication. Also, we thank the anonymous reviewers of the original proposal through to the draft chapters and the full draft manuscript, who have all made useful suggestions that have contributed in various ways to the final product. The authors and the publisher wish to thank the following copyright holders for reproduction of their material. Commonwealth of Australia for extracts from the Evidence Act. This legislative material is reproduced by permission, but is not the official or authorised version. It is subject to Commonwealth of Australia copyright; Incorporated Council of Law Reporting for extracts from the Weekly Law Reports (WLR); Lexis Nexis Australia for extracts from Australian Law Reports (ALR); The State of New South Wales through the Department of Police and Justice for extract from Evidence in Chief— The Ten Commandments, 2002, reproduced with the approval of His Honour Judge Peter Graeme Berman SC and the Public Defenders Office; Thomson Reuters (Professional) Australia Limited for extracts from, Australian Capital Territory Reports (ACTR) Australian Criminal Reports (A Crim R), Commonwealth Law Reports (CLR), Federal Court Reports (FCR) New South Wales Law Review (NSWLR), Thomson Reuters Lawbook, 11th ed, 2014 reproduced with permission of Thomson Reuters (Professional) Australia Limited, www.thomsonreuters.com.au. Every effort has been made to trace the original source of copyright material contained in this book. The publisher will be pleased to hear from copyright holders to rectify any errors or omissions.

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LIST OF FIGURES AND TABLES Figures Figure 1.1: The structure of the Evidence Acts

3

Figure 2.1: Circumstantial evidence: links in a chain versus strands in a cable Figure 3.1: The framework of admissibility of evidence

42

Figure 3.2: The order of a criminal trial before judge and jury

43

Figure 4.1: Practical operation of competency test of a witness in s 13 Figure 7.1: Overview of the operation of Chapter 3 EA

68

137

Figure 7.2: Overview of the scheme of Part 3.2 EA—hearsay Figure 8.1: Admissions by the defendant

25

138

168

Figure 9.1: Overview of the scheme of Part 3.3 EA—opinion

186

Figure 9.2: The requirements for admissibility of expert opinion evidence

193

Tables Table 1.1:

Classification of evidence

Table 2.1:

Examples of placing the burden of proof in specific situations

4 28

Table 2.2:

Specific presumptions

Table 4.1:

Categories of unreliable evidence which attract a warning

32

Table 5.1:

Views and related forms of real evidence

Table 6.1:

Loss or waiver of client legal privilege provisions

Table 6.2:

Main circumstances of ‘matters of state’

Table 6.3:

Sexual assault counselling privilege provisions in the uniform evidence law jurisdictions 128

87

105 117

123

Table 7.1:

Original uses of previous representations

Table 7.2:

Other exceptions to the hearsay rule

Table 8.1:

Statutory recording requirements for admissions in uniform evidence law jurisdictions 172

Table 10.1: Exceptions to the finality rule in s 106(2) Table 12.1: Other kinds of identification evidence

143

153

217

264

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CHAPTER 1

GETTING INTO EVIDENCE COVERED IN THIS CHAPTER In this chapter, you will learn about: • sources—the uniform Evidence Acts; • kinds of evidence; • relevance, admissibility and weight; and • drawing inferences.

CASES TO REMEMBER Smith v The Queen (2001) 206 CLR 650

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 55, 56, 57, 142(1)

INTRODUCTION The law of evidence regulates the proof of the facts in issue at a trial through the operation of various rules and principles.1 It is essential to have a good grasp of the rules and principles of evidence to ensure the adequate conduct of any kind of legal practice, particularly in the adversarial context of criminal and civil litigation. The rules of evidence, based on considerations of justice and practicality, shape the way in which judges and lawyers think about fact-finding. As a lawyer preparing a matter for litigation, you must carefully consider how the fact-finder will evaluate the factual material adduced by the parties. Problems about the admissibility or otherwise of information as evidence may be anticipated before trial, but can also arise quite unexpectedly during a trial. In the atmosphere of a trial, with the pace and other constraints operating, it is not always possible to take time to remedy your lack, or depth, of understanding of the relevant rules and principles. The point at which knowledge is necessary will quickly emerge and then subside during the course of a trial. Consequently, evidence is a most important area of study in your law degree program. A major objective of the rules and principles of evidence is to bring integrity to the fact-finding process, and ensure that witnesses and parties are treated equitably and fairly in this process. Importantly, and perhaps ideally, the law of evidence should be a ‘wholly rational body of rules and principles designed to aid the courts in their

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discovery of the truth’.2 They represent a valuable form of knowledge for any person concerned with the fact-finding process. For students of evidence law it is important to emphasise that it is a form of procedural or adjectival law that provides the framework through which the substantive law, such as criminal, contract or tort law, is given practical effect.3 The substantive law determines whether alleged conduct leads to some legal consequence, such as creating a right to damages or liability for a criminal offence, but it is the law of evidence which determines how the parties can attempt to prove that the alleged conduct actually occurred. It is the province of the law of evidence to provide a regulatory framework to decide the information which can and cannot be used to prove the facts in issue in the proceedings, ultimately leading to a determination of what are the true facts. The impact of the rules of admissibility of evidence can often determine the outcome of a case. Accordingly, even though evidence law is procedural in nature, its fundamental importance cannot be underestimated.

SOURCES—THE UNIFORM EVIDENCE ACTS With its focus on the trial process in the courtroom, the law of evidence originated in the hectic adversarial context of court litigation. Accordingly, the traditional primary source was the common law. During the past century, parliaments in all Australian jurisdictions have legislated incrementally to provide various written statements of, and supplements and changes to, the law of evidence, while still preserving the common law foundation. Statutory modifications as supplements to the rules of evidence have varied across the Australian jurisdictions although it is apparent that broader shared aims have underpinned these modifications and were a catalyst for the uniform Evidence Acts (EA) that now exist in the majority of jurisdictions: the Commonwealth, New South Wales, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory.4 The Acts in the various jurisdictions are substantially identical and are largely based on reports by the Australian Law Reform Commission (ALRC) and other state commissions.5 Queensland and South Australia have indicated that they will not adopt the national uniform evidence legislation. Where the legislation does operate it is now the primary legal source, and it has resulted in wide-ranging reforms with simplification and clarification of complex aspects of evidence law. The legislation is not a complete codification6 as some topics associated with the law of evidence are not covered. Clearly though, full effect must be given to provisions that do cover the field and it is not ‘to be used as a means to retain aspects of the common law of evidence which are inconsistent with the operation of the Act’.7 The EA is structured into five chapters and Figure 1.1 on the next page provides a snapshot of the essential contents of this structure.

CHAPTER 1: GETTING INTO EVIDENCE

FIGURE 1.1 The structure of the Evidence Acts Chapter 1 (sections 1-11) – PRELIMINARY: scope of application of Act and its effects on other laws.

Chapter 2 (sections 12-54) – ADDUCING EVIDENCE: general rules about witnesses giving evidence and procedures for witness examination, adducing documentary and other forms of evidence. Chapter 3 (sections 55-139) – ADMISSIBILITY OF EVIDENCE: inclusionary relevance test, various exclusionary rules and exceptions to those rules, privileges, and judicial discretions to exclude otherwise admissible evidence.

Chapter 4 (sections 140-181) – PROOF: standards of proof, where proof not required, presumptions, corroboration, and warnings about unreliable evidence.

Chapter 5 (sections 182-198) – MISCELLANEOUS: various machinery provisions including the voir dire, waiver of rules, and the criteria for giving leave, permission or a direction.

DICTIONARY – definitions of a large number of words, phrases and expressions used in the Act.

There is a significant amount of commentary about the uniform evidence legislation with judges and commentators expressing a variety of opinions about its merits.8 Arguably, the legislation makes the rules of evidence more accessible and simplifies many of them in providing a rational and principled system of trial procedure informed by an understanding of the common law. It is aimed at ensuring procedural justice for the parties to litigation, but it cannot solve all the problems with evidence. Almost 20 years of operation in the Commonwealth and New South Wales jurisdictions have ‘shown [the uniform evidence legislation] to work well in practice and the monitoring and review of its operation by the ALRC have been important in moving further towards ‘harmonisation’ of the laws of evidence across Australian jurisdictions’.9

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BRIEF DESCRIPTION

Witness testifies from personal knowledge to an actual observation or perception of a fact in issue from one of their five senses. The fact-finder must infer that the witness is a credible source for the evidence to be accepted in determining the existence or otherwise of facts in issue in the proceeding.

Witness testifies to facts that go to a fact in issue but are not sufficient to resolve it. If the evidence is accepted, the fact-finder must draw one or more inferences to be in a position to resolve that fact in issue. It can be prospectant (before the subject event), concomitant (at the time of the event) and retrospectant (after the subject event) along a time continuum.11

KIND OF EVIDENCE

Direct ‘[D]irect evidence is evidence which, if accepted, tends to prove a fact in issue’ [Festa v The Queen (2001) 208 CLR 593, 596]

Circumstantial ‘… works by building up a strong pattern of circumstantial detail which convinces by its truth to the sense of reality that we derive from our experience of life’10

TABLE 1.1 Classification of evidence

(Continued )

D is charged with the murder of V, his wife. There are no eyewitnesses. V’s body is found dumped in a creek. At trial, the prosecution evidence comprises: - oral evidence from W, a neighbour of D and V, who heard them arguing loudly, including D shouting ‘I’ll see you dead, miserable bitch!’ the day before V’s body was found in a creek - oral and documentary evidence from I, that D took out a multimillion dollar life insurance policy on V with D as sole beneficiary ten days before V’s body was discovered. - real and forensic evidence from P that D’s hair was found on V’s clothing, discovered on the creek bank near V’s body - oral evidence from A that D asked him the day after the body was found to support his alibi that he was playing golf with him at the time V was killed although this was false. While individually each circumstance does not prove D killed V, when aggregated together they lead to various inferences that firmly support that conclusion.

Issue is whether D stabbed and killed V. When W gives evidence at D’s trial that she saw D stab V, and this evidence is accepted by the fact-finder, it directly answers the question whether D stabbed and killed V. It is direct evidence of that fact in issue.

PRACTICAL EXAMPLE

4 UNIFORM EVIDENCE LAW GUIDEBOOK

BRIEF DESCRIPTION

Witness testimony includes a statement that has ‘independent evidentiary value’12 so that it goes to proof of a fact in issue without relying on its truth. It is relevant simply on the basis the statement was made, and its probative value13 does not depend on the credibility of the person who made the statement.

Witness testimony includes a statement or other representation made out of court by another person not called as a witness, and the statement or representation is only relevant to proof of a fact in issue in the proceeding if it is true.15

Witness testifies as to the contents of a document, which contains writing or symbols that are of evidentiary significance to a fact in issue in the proceeding. Admissibility of documents is governed by special rules.16

Witness testifies as to the existence of an actual thing that the tribunal of fact can perceive and experience for itself. The thing proves itself and the party producing it does not have to rely on inference for its existence although, depending on the nature of the thing, it may become a source of inference.

KIND OF EVIDENCE

Original

Hearsay

Documentary

Real

TABLE 1.1 Classification of evidence (Continued ) PRACTICAL EXAMPLE

W gives evidence that a knife produced in court that was found at the crime scene is what she saw D use to repeatedly stab V. Views, demonstrations, experiments, maps, models, diagrams and the demeanour of a witness are also forms of real evidence.17

P gives evidence of entering into a written contract with D for the supply of building materials and the document is produced as evidence of the terms of the contract. The writing in the document is relevant for proving the existence of the contract.

D is charged with ‘arson’ of a hotel. At trial, the prosecution propose to call W, who made a statement that N told W that N had observed D in the vicinity of the hotel shortly before the fire and that D was carrying a large jerry can. This evidence is hearsay and cannot be given at trial by W unless it comes within an exception to the rule.

Proof of threats by terrorists that D would be killed unless he assisted them by carrying their ammunition is original evidence to prove the threats were made (not that they were true) and had such an effect on D’s state of mind that his will was overborne, supporting his defence of duress.14

CHAPTER 1: GETTING INTO EVIDENCE

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KINDS OF EVIDENCE Let us turn now to the significant classifications of evidence that you will encounter in your study of the law of evidence. Table 1.1 (see page 4) provides a useful summary. In the practical examples, terms used are shortened to an alphabetic letter and the legend for these is as follows: D = Defendant V = Victim W = Witness I = Insurer A = Alibi witness N = Not available as witness P = Prosecution/Plaintiff Finally, an important categorisation for the rules of evidence is the distinction between civil and criminal proceedings. As we proceed through a consideration of the rules of evidence, you will discover that there are some specific rules applicable only to criminal proceedings, some applicable only to civil proceedings and some applicable to both, all within one law of evidence. Generally it can be said that it is more difficult to prove facts in issue in a criminal case because the stakes involved are usually of higher importance than in a civil case, which typically involve resolution of a dispute between two parties about the liability to pay, or the amount of, money. In criminal cases there is a stronger adversarial culture where the liberty of the defendant and the balance between the state and the individual is at the forefront. Public confidence in the criminal justice system is essential, so a corollary is that the rules are more strictly applied to ensure the admission of evidence that is clearly probative of facts in issue and is not unfairly prejudicial to a defendant.

RELEVANCE, ADMISSIBILITY AND WEIGHT RELEVANCE The word ‘relevant’ means that any two facts to which it is applied are so related to each other that, according to the common course of events, one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other.18

This nineteenth century definition is an influential precursor to the contemporary definition of a foundational concept in the law of evidence. Fundamentally, to be admissible as evidence, information must be relevant to a fact in issue. In short, the principle is that one fact is relevant to another if it weighs on the probability that a fact in issue can or cannot be proved to exist. This is now reflected in s 55 EA:

CHAPTER 1: GETTING INTO EVIDENCE

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) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence.

Facts in issue are ultimate facts which the plaintiff and defendant in a civil action or prosecution and defendant in a criminal proceeding must prove for their action, prosecution or defence to be successful.19 The connection between a piece of information and the fact in issue is the linchpin of the concept of relevance in the law of evidence. Information that is relevant is admissible as evidence, unless it is found to be inadmissible through operation of an exclusionary rule or is rejected through the exercise of judicial discretion. Irrelevant information is simply inadmissible without the need to consider the operation of any exclusionary rules. Questions of relevance are questions of fact to be decided according to our experience of the way people and things behave in the world.20 We use a natural logic in applying our life experience to everyday events and transactions. Accordingly, ‘relevance’ is really an extra-legal concept for which the law provides limited interpretative assistance as it is difficult to codify the term into an absolute and precise test. This flows directly from the nature of human reasoning when trying to characterise and construe experiences. The ALRC explained that the definition in s 55 EA requires ‘a minimal logical connection between the evidence and the fact in issue. In terms of probability, relevant evidence need not render a fact in issue probable or sufficiently probable— it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence—that is, it ‘affects the probability’. The definition requires the judge to ask could the evidence, if accepted, affect the probabilities.’21 Accordingly, a broad threshold test is involved under the Act; this test can be distinguished from the common law concept of ‘legal relevance’, which excludes evidence of minimal probative value that would compound difficulties in the proceedings or unduly add to its time and cost. In Festa v The Queen (2001) 208 CLR 593, Gleeson CJ, in considering the threshold issue of the relevance of evidence, stated (at 599): If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration.

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It is not enough to say that it is ‘weak’ … whether it is weak might depend on what use is made of it.

That final point relates to another important evidentiary concept known as ‘weight’, which we will consider later in this chapter.

A CASE TO REMEMBER Smith v The Queen (2001) 206 CLR 650 Smith v The Queen (2001) is a bank robbery case where there was an issue of identification in relation to photographs taken by a security camera. The appellant had been identified as the person in the photograph apparently keeping lookout (‘cockatoo’) while the co-offenders took the money. The identification was made by two police officers who had had previous dealings with the appellant and recognised him as the person depicted in the bank security camera images. The High Court emphasised that the first question to address with such evidence (and by logical extension—any evidence) is whether it is relevant and, if it is not, no further questions about admissibility arise. In determining relevance, the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ at 653–654) stated it is fundamentally important to determine the issues at the trial. In criminal trials, the ultimate issues are expressed in terms of the elements of the offence and, applying s 55(1) EA to the specific facts of this case, there was a narrow issue of whether the appellant is depicted in the bank photographs. The police witnesses were held to be ‘in no better position to make a comparison between the appellant and the person in the photographs than the jurors … who had been sitting in court observing the proceedings’ (at 655). Accordingly, the witness’s assertion that he recognised the appellant was not evidence that could rationally affect the assessment by the jury of the fact in issue. Rather it simply permitted substitution of one view for another and did not promote the process of reasoning from relevant evidence to the conclusion of a fact in issue. Therefore the appeal was allowed because the police evidence was irrelevant and inadmissible, as the jury were as well placed as the police officers to have a view on this fundamental issue of fact.

In the later case of R v Marsh [2005] NSWCCA 331, a similar issue arose involving identification of an appellant from bank security camera images. On this occasion, however, the identification was made by the appellant’s sister from photographs published in a newspaper and was held to have been correctly admitted as relevant evidence, with the Court of Criminal Appeal distinguishing the facts in Smith v The Queen (at [18]): Unlike the police officers in Smith, Ms Wood had grown up with her brother and had an ongoing association with him. The witness had the advantage, not shared by the jury, of the long time opportunity, which she asserted, of observing her brother and of noting his characteristics, his stature, his facial features, and the manner in which he wore his

CHAPTER 1: GETTING INTO EVIDENCE

jacket, which the witness claimed was so familiar to her. Hence the evidence which Ms Wood was able to give and did give satisfied the requirement of relevance.

Basically, in the contemporary context of the EA, a fair summary is that all information that is logically relevant is admissible as evidence although if the connection to a fact in issue is too ambiguous and vague it may not reach this threshold.22 Otherwise it will ultimately be subject to the trial judge having a discretion to exclude evidence on the grounds of remoteness or insufficiency.23

Provisional relevance The relevance of certain information submitted as evidence in a proceeding will sometimes depend upon the proof of another fact,24 which can create inexpedient obstructions to proof if the question of admissibility must be held in abeyance until there is adequate proof of the facts on which its relevance depends. Section 57 EA addresses this problem with a flexible approach allowing the court to make a finding of provisional relevance for certain evidence subject to further evidence being admitted at a later stage of the proceeding based on a test of whether it is reasonably open to a jury to find the fact established when that further evidence is admitted. The party seeking to adduce the information as evidence will ordinarily give an undertaking to the court to adduce it at a later point in the trial. In practical terms it is an issue about the order of calling witnesses. Usually a party will adopt the most logical and practical method of calling witnesses listed in the case having regard to the matters of proof to which each of their evidence is directed and their availability to appear in court at designated times.

ADMISSIBILITY Information is ‘admissible’ as evidence in a proceeding if, in addition to being relevant, it is not rejected through the operation of an exclusionary rule, or in the exercise of judicial discretion, or under one of the procedural provisions in the Act. This position is reflected in s 56 EA: 56 Relevant evidence to be admissible (1) (2)

Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. Evidence that is not relevant in the proceeding is not admissible.

Importantly, evidence may be found to be admissible for one purpose but inadmissible for another. The essential question to be asked is: ‘What is the use which the court is invited to make of the evidence by the party tendering it?’25 Where information is submitted to have multiple relevance to a fact in issue and an exclusionary rule operates to prevent the information from being used in one of those ways, it will not necessarily prevent it from being admitted as evidence to be used in another way.26 If this happens in a trial where a jury is the fact-finder, the trial

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judge will be required to give a carefully framed direction as to how the evidence can be used. If it involves a complex direction which will be an insurmountable barrier to compliance, the trial judge may exercise their discretion to exclude the evidence having regard to the overriding obligation to ensure a fair trial. The question of admissibility is a matter of law for the court to decide and under s 142(1) EA such questions are decided on the balance of probabilities. It is possible that determining a question of admissibility may depend upon a preliminary finding of fact by the court, but it must be distinguished from the weight of evidence, the next evidentiary concept we will consider, which is a question of fact.

WEIGHT Once admitted as relevant, the weight of evidence is its persuasive effect on proof of the fact in issue to which it is directed. There is a close relationship between weight and relevance27 but, rather than simply just advancing proof of a fact in issue, weight is identified with factors that affect the extent to which the jury or fact-finder would accept the evidence in reaching their determination about the existence or otherwise of a fact in issue. The cogency or degree of acceptance of evidence will be paramount in determining the weight it has in resolving disputed factual issues. An important factor which affects the weight of evidence is its source, and whether it is the best that a party can reasonably procure in all the circumstances. Overall, understanding of the evidentiary concept of ‘weight’ can be summed up to be ‘more intuitive than analytical; weight is something we are more likely to “appreciate” than to understand’.28

DRAWING INFERENCES The process of drawing inferences is a prominent evidentiary concept. The significance of drawing inferences was touched on when we considered circumstantial and some other types of evidence above. Essentially there is a two-step process29 where the question to be determined is whether from the existence of a particular fact (A) it should be inferred that another fact (B) existed, exists or will exist. First, in this reasoning process, is it possible or open to draw that inference? Second, if it is, should it be drawn in the particular case? Inferences will be drawn by the tribunal of fact from a consideration of human conduct and experience so that, in the case of R v Ryan (unreported, NSWCCA, 15 April 1994), it was a question of whether the alleged victim’s distress was evidence supporting an inference that the sexual intercourse was non-consensual. Certainly human experience tells us that the inference where A (distress) exists, it is possible to draw an inference that B (forced intercourse) took place. It then remains

CHAPTER 1: GETTING INTO EVIDENCE

to be determined whether, in the particular circumstances of the case before the court, it is the inference that should in fact be drawn: If it be concluded that the inference is open, it remains for the jury to determine whether, in the circumstances, the inference should be drawn. This will be affected by, amongst other things, the jury’s view of what are the circumstances in which sexual assault led to distress of the relevant kind and whether the circumstances in the instant case are such. These are matters in which the jury must act upon its own experience of life.30 (Emphasis added)

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CRIMINAL TRIAL THREAD SCENARIO31 INTRODUCTION It is important for students to get a real feeling for the law of evidence. In this guidebook, a mock thread criminal trial is used to give a realistic context for the operation of the rules and principles of evidence and as useful preparation for problem-based assessments. Other sources can also be utilised to gain a practical sense of evidence law, including trial transcripts, written accounts, video documentaries,32 recreations33 or dramatisations34 of actual cases or fictional cases. One mock criminal trial will be used as a thread throughout eight chapter topic areas commencing in Chapter 4 of this guidebook. This thread trial is not based on a real case, but is designed to be as authentic as possible. The names of the defendant, witnesses and businesses are fictitious. It provides students with an opportunity to engage in authentic experiential learning by ‘participating as defence and prosecution lawyers, and as witnesses, in a fictional trial … [as] a controlled approximation of evidence law in action’.35 This device provides a learning model ‘where students engage directly and actively with the process of proof, applying the rules of evidence in the setting from which they arise’.36 The thread trial brings the courtroom into the classroom and we encourage teachers of evidence law to use it in tutorial classes as an assessment item or as a formative interactive learning activity. Alternatively, it is a useful device for students to use for private or group study in preparation for assessments. The focus is on knowledge, understanding and application of the rules of evidence rather than on advocacy skills. However, to assist students in working out strategies for examining and cross-examining particular witnesses, limited advocacy tips are provided in each chapter where the thread trial is used. In the context of learning to apply the rules of evidence, these advocacy tips are designed to assist students to ‘get into evidence’, not to make them great advocates. Reference is made to specific trial advocacy books if students are interested in delving further into advocacy techniques. Where the thread trial is used in class it is ideal if the teacher can access the law school mock courtroom or even a real courtroom to conduct the trial throughout the teaching semester. The thread trial can be conducted37 by allocating three different students to the roles of (1) prosecution counsel; (2) defence counsel; and (3) prosecution witness for each topic area.38 Usually the teacher will be the judge presiding over the thread trial in class, particularly where students are to be assessed on their presentation. Otherwise, teachers may be able to obtain assistance from members of the local legal profession to act as judges. Depending on the topic area and witness, separate instructions are provided for each of the roles in the ‘Assessment Preparation’ section of the relevant chapters. A witness statement and detailed instructions to both counsel and to the witness are provided in each of the eight chapters where the thread trial is used as assessment preparation. Generally, the instructions to counsel require them to question a witness, make and answer objections, as well as make and respond to submissions or an application in relation to the admissibility of certain evidence. Time limits will have to be imposed to ensure that each counsel can effectively question the witness and present any necessary submissions or applications to the court. Other members of the class who are not participating as counsel or the witness could be required to prepare a trial chart focusing on what evidence is adduced from the witness, its practical importance for the prosecution or defence case at trial, and issues relating to its admissibility in the trial.

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The following is important information to keep for use throughout the conduct of the entire thread criminal trial. It sets the scene for you in providing a summary of the prosecution case, details of the charge against the defendant, the initial instructions from the defendant and his criminal record. It will be necessary for you to research the elements of the ‘aggravated robbery’ charge and identify the facts in issue in the thread trial. This research will inform all decisions made by you as counsel with respect to the progress of the trial, the evidence adduced, and material that will be the subject of objection. PROSECUTION CASE STATEMENT The accused, James Swifty, is charged with ‘aggravated robbery’ (Criminal Code 2002 (ACT) s 310 ). At 12:30 p.m. on Friday 17 January 2014, the defendant entered the Federal Bank on the corner of London Circuit and Ainslie Avenue, Canberra. The bank was busy at the time with tellers and other bank staff serving numerous customers. Dolores Davidson had withdrawn $5000 over the counter from her savings account, consisting of 50 $100 notes, and placed it in her handbag, which was hanging over her shoulder. As she was making her way to the entrance of the bank, the defendant seized Mrs Davidson’s handbag and attempted to make off with it. Mrs Davidson did not initially let go of the bag and she was knocked to the floor as the defendant wrestled it from her before he ran from the bank. As he ran from the bank, the defendant was observed to have a knife in his back pocket. The defendant was pursued and subsequently arrested in Garema Place where he stood in company with others. The knife, the handbag and its contents, including the $5000, have not been recovered. INDICTMENT

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DEFENCE INITIAL INSTRUCTIONS At the initial interview, James Swifty instructs his counsel as follows: It wasn’t me. They must have me confused with someone else. I was just hanging around with me mates in Garema Place. I went off to buy some smokes up in the bus interchange. Not long after I got back with the smokes the coppers turned up and arrested me. Look, I don’t want to talk about it any more. Just get me off. This charge is bullshit. Yeah … I might have been in the bank earlier that day, but I never went back.

Note: In a real case your instructions would ordinarily be much more detailed, but a defendant is not required to give any particular instructions to their lawyer. They could simply say, ‘I want to plead not guilty’. Taking proper instructions is an essential skill for any lawyer, but it is beyond the scope of this mock criminal trial. CRIMINAL RECORD OF JAMES SWIFTY

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Important references For more extensive coverage of introductory material, relevance and associated concepts, see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Introduction and Chapter 1. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) Introduction and 160–180. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapters 1 and 5. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 1 and 4. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) Introduction and 200–246.

ASSESSMENT PREPARATION Short brain-teasers 1 The body of Verity (V) was discovered in bushland. Her death resulted from multiple blows to her head with a blunt instrument. A star-shaped hammer, which is ordinarily used as part of the equipment to tune pianos, was found a few metres from her body. There were traces of blood on the hammer and the DNA profile from these blood traces was found to match that of V. Damien (D), who works as a piano tuner, is charged with the murder of V. At trial, during the evidence of the police officer in charge of the case, the following occurs: Prosecutor: Your Honour, the witness has identified the four star-shaped hammers that were found in D’s garage when a search warrant was executed at D’s premises the day after V’s body was found. I tender those hammers. Defence counsel: I object, your Honour – this evidence is irrelevant. The four star-shaped hammers found in D’s garage are all stainless steel with black star tips and rounded wooden handles of the ‘Keyes’ brand. The hammer found near the body of V is a larger ‘Baxter’ brand hammer made of hardened steel with a silver star tip and nylon handle. Also, D is a piano tuner by trade and it is common for him to have these implements for his everyday work. How would the trial judge rule on defence counsel’s objection? What reasons would be given for this ruling? 2 When David’s (D) vehicle was stopped and searched by police in connection with a drug trafficking surveillance operation, a sports bag was found on the front passenger seat containing a commercial quantity of the prohibited drug, methylamphetamine, and a box of bullets was found in the front passenger door pocket. No handgun in which the bullets could be used was found in the vehicle. D is charged with supplying a commercial quantity of a prohibited drug.

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At trial, what arguments could counsel for D raise to challenge the relevance of the box of bullets to facts in issue? What is the likelihood of counsel for D having the box of bullets successfully excluded on this basis? 3 Paul (P) has taken an action in negligence against his local council (D) for damages for personal injuries resulting from a fall into a concrete drain in a council-owned park. The fall occurred in the early hours of the morning. P was moderately intoxicated at the time and has no recollection as to how he fell into the drain. The drain has a sheer unfenced wall approximately 1.75 metres high at one end, but the sides of the drain have a gentle downward slope, which children use for skateboarding. There were no eyewitnesses to P’s fall and the only information to support P’s assertion that he fell from the sheer unfenced wall and not one of the sides is the following written record made by two ambulance officers who attended the scene several hours after the fall when morning walkers discovered P lying injured in the drain: Found by bystanders—parkland ? Fall from 1.75 metres onto concrete No other history. At the trial of this action before a judge alone, a question arises as to the relevance of this written record. Discuss the arguments for and against a finding that this document is relevant to facts in issue. For additional notes on the brain-teasers, please refer to .

Notes 1 See HML v The Queen (2008) 235 CLR 334, 350–351 per Gleeson CJ for a neat statement of the essential features of the law of evidence. 2 Peter K Waight and Charles R Williams, Evidence: Commentary and Materials (Thomson Lawbook, 7th edn, 2006) 2. 3 See Pollitt v The Queen (1992) 174 CLR 558, 573 where Brennan J describes it as a ‘working tool … [and] the ground on which the dynamics of a trial, especially a criminal trial, are played out’. 4 Evidence Act 1995 (Cth) (commenced operation 18 April 1995), Evidence Act 1995 (NSW) (commenced operation 1 September 1995), Evidence Act 2001 (Tas) (commenced operation 1 July 2002), Evidence Act 2008 (Vic) (commenced operation 1 January 2010), Evidence Act 2011 (ACT) (commenced operation 1 March 2012), and Evidence Act 2011 (NT) (commenced operation 1 January 2013). Hereafter these Acts will be referred to collectively as the Act or EA. The New South Wales Act will be used as the standard in this guidebook with any differences in the legislative provisions of other jurisdictions noted in the relevant part of the text or in an endnote. 5 These include ALRC, Report No 26 (1985) volumes 1 and 2 (hereafter referred to as ALRC26), ALRC Report No 38 (1987) (hereafter referred to as ALRC38), ALRC Uniform Evidence Law Report No 102 (2005), collaborative with the NSWLRC (Report 112) and Victorian LRC (Final Report) (hereafter referred to as ALRC102). 6 See the observations by Einstein J in Idoport Pty Ltd v National Australia Bank (2000) 50 NSWLR 640, 651 that ‘it is obviously correct to say that the Evidence Act is not a code in the sense that it contains a complete and exhaustive statement of the law of evidence’. Note also s 9(1) EA that it does not affect the operation of other legislation or (consistent) common law and equitable rules of evidence.

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7 Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640, 652. 8 See, for example W A N Wells QC, ‘A Critique of the Australian Law Reform Commission Draft Evidence Bill’ (1992) Australian Bar Review 185–201; The Hon. Justice Smith, ‘The More Things Change The More They Stay The Same? The Evidence Acts 1995—An Overview’ (1995) 18 UNSWLJ 1; and Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 25–26. 9 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) 10–11. 10 Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 65. Circumstantial evidence is explored in detail in Chapter 2. 11 Ibid, 66. 12 See Walton v The Queen (1989) 166 CLR 283, 289 (Mason CJ). 13 The term ‘probative value’ is defined in the EA Dictionary Part 1 and this meaning is discussed in Chapter 3. 14 Facts of the case of Subramanian v Public Prosecutor [1956] 1 WLR 965 (PC). 15 The hearsay rule and its exceptions are discussed in detail in Chapter 7. 16 Documentary evidence is covered in detail in Chapter 5. 17 Real evidence is covered in detail in Chapter 5. 18 Sir James Fitzjames Stephen, Digest of the Law of Evidence (Macmillan & Co., 4th edn, 1893) 2. 19 See Goldsmith v Sandilands (2002) 190 ALR 370 in relation to civil actions where McHugh J observed (at [31]) that relevance is determined by reference to the elements of the cause of action and any defence raised by a party in the pleadings. 20 See Martin v Osborne (1936) 55 CLR 367, 375 (Dixon J). 21 ALRC26, vol 1 [641]. Also, see Papakosmas v The Queen (1999) 196 CLR 297. 22 See Lithgow City Council v Jackson [2011] HCA 36 [25]–[26]. 23 This will be by using s 135 EA after the information has been found to be relevant and otherwise admissible. See Chapter 3 for detailed consideration of the judicial discretion to exclude evidence. 24 For some common examples see Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 77–78. 25 Roberts, above n 10, 73. 26 This phenomenon of multiple relevance will be considered in relation to hearsay evidence in Chapter 7, opinion evidence in Chapter 9, credibility evidence in Chapter 10, and tendency and coincidence evidence in Chapter 11. 27 See R v Stephenson [1976] VR 376, 380–381. 28 Roberts, above n 10, 77. 29 See R v Ryan (unreported, NSWCCA, 15 April 1994). Also, see Jones v Sutherland Shire Council [1979] 2 NSWLR 206. 30 R v Ryan, ibid, per Mahoney JA—BC9402482, 7. 31 We are grateful for the assistance of Shane Drumgold, Senior Prosecutor, Office of the Director of Public Prosecutions (ACT) for the initial provision of materials to enhance authenticity of this scenario. 32 See, for example, On Trial (five-part documentary series, ABC Television, 2011); and The Staircase (eight-part documentary about the trial of Michael Peterson for the murder of his wife in North Carolina, USA, Maha Productions, 2004).

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33 See Beyond Reasonable Doubt (four-part series involving presentation, discussion and recreation of four notorious Australian criminal trials, ABC Television, 1977). 34 Useful films include The Accused (Paramount Pictures, 1988), Presumed Innocent (Warner Bros, 1990), Primal Fear (Paramount Pictures, 1996), A Civil Action (Buena Vista Pictures, 1998), and Snow Falling on Cedars (Universal Pictures, 1999). Television series include—North Square (Channel 4 UK, 2000–1), Crownies (ABC Television, 2011), Rake (ABC Television, 2010–2014), Janet King (ABC Television 2014), and Silk (BBC Television UK, 2011–2014). 35 Anthony Hopkins, ‘Teaching Evidence Law within the Framework of a Trial: Relating Theory to Practice as Students Take to their Feet and Take Responsibility for the Trial Narrative’ (2009) 2 Journal of Australian Law Teachers Association 173–184, 173–174. 36 Ibid, 176. 37 See ibid, 177–182 where Anthony Hopkins describes how the thread criminal trial was designed and conducted in the tutorials in his Evidence course at the University of Canberra in 2008. 38 Ultimately the allocation of roles will depend on the number of student enrolments in the course and in each tutorial class. Another strategy for teachers is to organise students into groups and each counsel could be instructed by another student acting as a solicitor to foster the capacity for working in teams.

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CHAPTER 2

PROOF AND PRESUMPTIONS COVERED IN THIS CHAPTER In this chapter, you will learn about: • burden of proof—criminal cases; • standard of proof—criminal cases; • circumstantial evidence; • burden of proof—civil cases; • standard of proof—civil cases; • presumptions; and • common knowledge and judicial notice.

CASES TO REMEMBER Burrell v The Queen [2007] NSWCCA 65 Rees v The Queen (2010) 200 A Crim R 83

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 140, 141, 144

INTRODUCTION The rules relating to burden (or onus) and standard (or degree) of proof, and presumptions are designed to assist a tribunal of fact in determining the existence or not of an ultimate fact in issue in the proceedings. You will recall from Chapter 1 that facts in issue are the ultimate issues that have to be resolved in the legal cause of action or defence relied on by the parties. Behind these ultimate issues there will often be issues about the existence of facts that support or undermine proof of the facts in issue. These have been described as ‘basic facts’.1 If there is uncertainty about the existence of these basic facts, the rules relating to burden and standard of proof may sometimes have application. The Act only deals with the standard of proof in proceedings; it does not deal with the allocation of the burden of proof in respect of facts in issue. This was regarded by the ALRC as a matter of substantive law and so not to be regulated in the statutory scheme.

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BURDEN OF PROOF The term ‘burden of proof’ describes an obligation on a particular party to prove a fact or facts. The general obligation for proof will lie on the party that asserts the existence of particular facts. There are two aspects to the burden of proof: 1 The legal or persuasive burden is the overall burden of persuading the tribunal of fact that the party who has asserted the existence of the ultimate facts in issue has proved them to the necessary standard. In the same proceedings, the burdens on different issues may be distributed between the parties as, for example, in a civil negligence action when the defendant raises the defence of contributory negligence. Simply put, ‘it is the burden of winning the mind of the fact-finder, by the evidence, to those propositions of fact asserted by the party who will fail if those propositions are not accepted’.2 The High Court has recently described it as ‘the burden of establishing a case’.3 2 The evidential burden is the burden of producing sufficient evidence to raise an issue or, as the High Court has described it, ‘the burden of proof in the sense of introducing evidence’.4 That is, for the judge to leave the issue to the jury or, if the judge is sitting alone, to be required to consider the issue when deciding whether the legal burden has been discharged, the party must have produced enough evidence relating to that issue. It is sometimes known as ‘getting past the judge’.5

BURDEN OF PROOF IN CRIMINAL CASES In a criminal trial the defendant is presumed innocent and does not have to explain or contradict what is already in evidence, as the prosecution has the legal burden to prove the elements of the crime charged against the defendant.6 There is no legal onus on the defendant to raise a reasonable doubt.7 Tactically the defendant may have a burden to adduce some evidence to raise a doubt, but this is a practical consideration in the forensic contest and not a legal obligation.8 Historically, the leading case on the incidence of the legal burden of proof in criminal cases is Woolmington v DPP [1935] AC 462. In that case, the defendant had been convicted of the shooting murder of his wife, but had pleaded the defence of accident on the basis of an accidental discharge of the gun. The trial judge had directed the jury that, once the prosecution had proved the killing, it was presumed to be murder and the defendant had to prove circumstances that would excuse the killing as an accident or reduce it to manslaughter. The House of Lords held that this was a material misdirection and quashed the conviction. In the well-known words of Viscount Sankey LC (at 481) it is abundantly clear that the prosecution generally carries the legal burden of proof: Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to … the

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defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Also, it is apparent from the above passage that a legal burden of proof is imposed on a defendant in two principal areas. First, there is a legal presumption of sanity so if this presumption is to be challenged the defendant will raise the defence of insanity9 and they have the legal burden of proof.10 Second, there may be created statutory exceptions which reverse the burden of proof.11 Some examples from the New South Wales jurisdiction are: • s 23A(4) Crimes Act 1900, which provides that the defendant must prove the statutory defence of ‘substantial impairment by abnormality of mind’.12 This defence has been described as ‘a plea of confession and avoidance. Any person, relying on the plea, must prove it … Until an accused tenders evidence in support of the claim of diminished responsibility, the Crown has no issue to meet’.13 • s 29 Drug Misuse and Trafficking Act 1985, which provides that where a certain quantity of a prohibited drug (‘traffickable quantity’) is found in the possession of the defendant they are deemed to be in possession for the purposes of supply and the legal burden falls on the accused to establish that the drug was not in their possession for the purposes of supply. This is also in the nature of a plea of confession and avoidance. If the words of the statutory provision relating to the burden of proof are not in clear terms, the presumption of innocence means the favoured construction of the statute is that an evidential burden, rather than a legal burden, is imposed on the defendant.14 That takes us to the next consideration in burden of proof, the placing of the evidential burden. Logically, where there is a legal burden there will invariably be an evidential burden, so this latter burden will generally also fall on the prosecution in criminal cases. A defendant may, however, bear an evidential burden when defences like self-defence and provocation are raised, having to point to some evidence in support of the defence. This requirement is usually described as a ‘reasonable possibility’ of the existence of the defence by reference to the available evidence taken at its highest for the defendant.15 Generally the evidential burden applies to those defences that would justify or excuse the defendant’s acts even if the prosecution discharges its burden of proof in relation to the elements of the offence.16 These defences raise factual issues which go beyond what may be termed the ‘definitional facts’ as proved by the prosecution, and a significant factor to consider in placing the burdens is whether the nature of the defence is peculiarly within the defendant’s knowledge.

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Overall, it is clear that, in the absence of a defence that specifically casts a legal or evidential burden on a defendant, the onus of proof never shifts from the prosecution.17

STANDARD OF PROOF This term relates to the sufficiency of evidence required for a party to discharge the burden of proof in a proceeding. Essentially it is concerned with the degree to which the party bearing the burden of proof has to persuade the tribunal of fact in order to successfully establish their case. Although quantitative words are often used in this context, it is important to emphasise that proof does not solely depend on the quantity of evidence; it also has a qualitative aspect related to the weight of the evidence, which is for the subjective assessment of the tribunal of fact. Following on from burden of proof, we will first examine the standard of proof in criminal cases.

STANDARD OF PROOF IN CRIMINAL CASES Section 141(1) EA restates the common law on the standard of proof in a criminal proceeding, which was laid down in the seminal case of Woolmington v DPP and followed in a long line of Australian authority:18 141 Criminal proceedings: standard of proof (1) (2)

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. 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.

In relation to the time-honoured phrase ‘beyond reasonable doubt’, the courts have emphasised that it is not necessary to explain or define the three words, which are ordinary, everyday words. If amplification is necessary to assist the jury or resolve confusion,‘it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain’.19 The best course is for the judge to state the rule without comment and as illustrated in R v Southammavong; R v Sihavong [2003] NSWCCA 312, describing them as ‘ordinary everyday words’ simply means ‘they are words which require no further definition’ and that the jury members themselves set a standard of what is reasonable in terms of a doubt in the particular circumstances of the trial. Section 141(2) EA affirms that when a legal burden is imposed on the defendant, the question for the tribunal of fact is whether the evidence available establishes the defence on the lesser standard of the balance of probabilities.20 It is clear that distinguishing the standard of proof for the defence from the higher standard imposed on the prosecution is based on the policy consideration that it is ‘preferable

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that defendants who are probably guilty should be acquitted, than that those who might well not be guilty should be convicted’.21

CIRCUMSTANTIAL EVIDENCE An important exception for where the phrase ‘beyond reasonable doubt’ can be elaborated upon is where the prosecution’s case is substantially dependent on circumstantial evidence. Circumstantial evidence is evidence that does not directly establish the facts in issue which have to be proved beyond reasonable doubt, but can be used to infer the existence of facts in issue.22 In the context of a case based on circumstantial evidence, the tribunal of fact is only entitled to find that guilt has been proven beyond reasonable doubt if it is satisfied that there is no rational hypothesis consistent with the innocence of the defendant.23 If a hypothesis consistent with innocence cannot be excluded as unreasonable, then the defendant must be acquitted.24 Although there is an obligation on the trial judge to provide directions that are necessary to prevent a perceptible risk of a miscarriage of justice, the qualifications in a circumstantial case are that the hypothesis must be both reasonable and available on the evidence—there must be some evidentiary basis for it and there is no obligation on a trial judge to put all conceivable constructions of the facts to the jury.25 It has been emphasised that ‘tortuous reasoning’ should not be engaged ‘in order to explain away every individual circumstance as being consistent with innocence’.26

A CASE TO REMEMBER Burrell v The Queen [2007] NSWCCA 65 In Burrell v The Queen [2007], a case involving a prosecution for murder based entirely on circumstantial evidence, it was contended both at trial and on appeal that the police investigation was inadequate so that there were reasonable hypotheses consistent with the innocence of the defendant that had not been excluded. It was argued that, without further and thorough investigations by the police into any available alternative hypotheses, the prosecution could not exclude them as reasonable possibilities. The trial judge had directed the jury that any finding that they might make that the police investigation was inadequate was not capable of weakening the prosecution case and this was challenged on appeal. The Court of Criminal Appeal held that the trial judge was correct and that evidence of an inadequate police investigation is not in itself evidence of a reasonable hypothesis consistent with the innocence of the defendant. It may be of greater significance if it has a direct bearing upon the cogency of the evidence that is actually before the court, such as where the evidence adversely affects the credibility of police witnesses or reveals that the police did not follow proper procedures in relation to search or identification of suspects. Overall though, the jury must not speculate as to any matter which a more thorough police investigation might have revealed.

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When attempting to prove a case based on circumstantial evidence, the prosecution must establish connecting links between the circumstantial evidence and the facts in issue. These connecting links are inferences and the question is: to what standard must these connecting links and the facts on which they are based be proved when it is also accepted that the prosecution ‘does not bear the onus of solving all the mysteries that may have attended a crime, or of establishing in every detail of how it was committed’?27 In Shepherd v The Queen (1990) 170 CLR 573, the High Court established that 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. In reaching this conclusion, Dawson J emphasised (at 580–581): 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 … 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 … They may in fact draw a number of inferences from the basic facts of which, for one reason or another, they are not so satisfied. They only have to be satisfied to that standard as to inferences which they identify as ‘indispensable’ to the ultimate inference of guilt, i.e. if the ultimate inference is to be the only reasonable hypothesis.

As Dawson J observed in Shepherd, an indispensable link analogy is drawn with links in a chain rather than strands in a rope or cable.28 This distinction is explained in Figure 2.1. The question of whether a particular conclusion of fact is an indispensable link to the further step of drawing an inference of fact depends heavily on the way a case is presented by the prosecution. In Edwards v The Queen (1993) 178 CLR 193, Brennan J makes reference to the ‘concatenation of probabilities’ whereby it is not necessary that each of those ‘number of facts’ which makes up the ‘concatenation of probabilities’ needs to be proved beyond reasonable doubt because none of those is an indispensable link to the inference of guilt—each is rather a strand in a cable, together giving probative force to the formed cable representing the inference of guilt. In this case, the illustration of the telling of a lie by the defendant is used: Although guilt must ultimately be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must

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FIGURE 2.1 Circumstantial evidence: links in a chain versus strands in a cable Circumstantial Evidence: Links in a Chain v Strands in a Cable A. Unbroken links in a chain each link represents an intermediate conclusion of fact (formed from one or more basic facts) that is indispensable in the chain of reasoning from basic facts to ultimate proof. When each link is established beyond reasonable doubt then the ultimate fact in issue will also be established beyond reasonable doubt: that is, there is no rational hypothesis consistent with innocence. B. Break in the chain a broken link means that an indispensable intermediate conclusion of fact is not established beyond reasonable doubt (this may be due to witness credibility or other weaknesses in the evidence such that one or more basic facts are not accepted to support the intermediate inference). Therefore the circumstantial evidence cannot support proof of the ultimate fact in issue beyond reasonable doubt. There is a rational hypothesis consistent with the defendant’s innocence. C. Missing link in the chain a missing link means that there is no evidence available to support an indispensable intermediate conclusion of fact in the chain of reasoning to ultimate proof. The chain is incomplete and there must be a rational hypothesis consistent with the innocence of the defendant so that the available circumstantial evidence does not prove guilt beyond reasonable doubt. versus A. Fully connected strands in a cable all basic facts intertwined to support an inference going directly to prove a fact in issue whereby each strand gives strength to the overall inference, but each strand (unlike each link in the chain) does not have to be proved beyond reasonable doubt. B. Strands of a cable unravelling and separating basic facts joined together, but some of these facts may not be accepted and cannot be used to support the inference. Depending on the weight allocated to particular facts by the fact-finder, this situation does not prevent the drawing of the inference. May not be as strong an inference for proof of a fact in issue, but the basic facts that are accepted may be sufficient to support the inference and together still reach proof beyond reasonable doubt of the ultimate fact in issue. C. All strands of cable separated basic facts separated side by side illustrate that these basic facts cannot combine to support the inference necessary to form the connected cable going to proof beyond reasonable doubt of the ultimate fact in issue. Each fact does not have to be proved beyond reasonable doubt, but may still not be accepted for various reasons (such as credibility of source or conflict with other evidence) by the fact-finder. Ultimate facts in issue cannot be proved beyond reasonable doubt so there will be a rational hypothesis consistent with the innocence of the defendant.

establish guilt beyond reasonable doubt. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. (At 210 per Deane, Dawson and Gaudron JJ)

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The importance of specific context in determining the significance of particular intermediate conclusions of fact is illustrated in a line of cases from R v Merritt [1999] NSWCCA 29. Also, a requirement stated in Merritt and some subsequent cases29 that the trial judge is to identify all facts for the jury which might reasonably be regarded as indispensable intermediate facts in their chain of reasoning to proof of ultimate facts in issue and the guilt of the defendant has been questioned in later cases.30 Most recently, the courts have emphasised that there is a danger of the jury considering such evidence in separate and isolated compartments rather than as a cumulative whole of circumstances. The jury should undertake a holistic assessment of the direct evidence of witnesses and the inferences to be drawn from a combination of events and not approach their task in a piecemeal fashion.31 In order to restrict artificial compartmentalisation of facts, the test for whether a fact is indispensable was stated by Simpson J in the following terms: Whether a fact on which the Crown relies as part of a circumstantial case is or is not ‘indispensable’ may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not ‘indispensable’. Where the answer is in the negative, the fact is ‘indispensable’ and the jury should be directed accordingly.32 (Emphasis added)

The following is a useful case example of the characterisation of the components of a circumstantial case against a defendant.

A CASE TO REMEMBER Rees v The Queen (2010) 200 A Crim R 83 In Rees v The Queen (2010) the appellant had been convicted of two counts of ‘armed robbery’ and one count of ‘aggravated break, enter and steal’ being in a joint criminal enterprise with two other men. The proceeds from one armed robbery included the victim’s wallet and this was later found in the bedroom of the appellant during a police search of the premises. The appellant was not identified as an assailant but was linked to the offences through a combination of circumstances, including being in the company of the co-offenders proximate to the time the offences were committed, and the finding of the victim’s wallet under his bed (at 94–95). One ground of appeal was that the trial judge had failed to direct the jury that they should not convict unless they were satisfied beyond reasonable doubt that the wallet found in the appellant’s bedroom was that stolen from the victim during the course of the robbery. This was argued to be an indispensable link in the chain of reasoning to the guilt of the appellant. The Court of Criminal Appeal found that although this was a strong piece of circumstantial evidence, it was not the only evidence that linked the appellant with the commission of the offences (at 97) and should not be considered as a separate and isolated compartment. The court held that ‘the jury was required to weigh up all of the circumstances and decide whether they were satisfied beyond reasonable doubt of the appellant’s guilt of the three offences with which he was charged’ so that a Shepherd direction was not required in these circumstances (at 97).

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A no-case submission, where it is alleged that the circumstantial evidence cannot sustain a guilty verdict, requires a trial judge to decide whether the evidence and its associated inferences taken at their highest in relation to every element of the offence charged could, if accepted and reasonably open, prove that element beyond reasonable doubt.33 Finally, it is important to emphasise that circumstantial evidence by its nature is not necessarily less reliable than direct evidence and where a case relies on circumstantial evidence to the exclusion of direct evidence it will not be bound to fail.34 In El Hassan v The Queen [2007] NSWCCA 148, Hunt AJA highlighted (at [27]) that in some cases circumstantial evidence can be more convincing, particularly cases of the ‘strands in a cable’ variety: It is a matter of common sense that the more strands in the cable, the stronger the cable is. The more circumstances pointing to the guilt of the accused, the less likely it is that there could be any reasonable explanation for those circumstances other than the guilt of the accused, and thus the stronger is the circumstantial case against him. (Emphasis added)

BURDEN OF PROOF IN CIVIL CASES Generally the plaintiff or applicant bringing the action will bear the burden of proof in civil cases but it will vary depending on the circumstances in which the claim arises. It is well known that it is difficult for a plaintiff to prove a negative35 and it has really become a matter of legal policy as to how the burden is placed in different civil cases. This can be illustrated by comparing and contrasting contract and bailment cases with personal injury cases.36 In a bailment scenario, where a plaintiff has taken an action for damages for breach of contract on the basis that goods were delivered otherwise than in accordance with the contract, they have the initial burden of proving the existence of the contract and the breach. When, however, the defendant, ‘confessing and avoiding—seeks to justify or excuse a failure to deliver in accordance with the contract … [the] burden of proof rests upon him’.37 The burden in these circumstances is on the defendant to justify that breach by proving that the delivery in fact made was a delivery which the plaintiff had authorised. In an action for damages for breach of contract due to delay in delivery of the item contracted for, if the plaintiff alleges that the frustration of the contract claimed by the defendant was due to the negligence of the defendant, the plaintiff has the burden of proving that negligence.38 Generally, the plaintiff bears the burden of proving all elements of negligence by the defendant.39 In an action for damages for personal injury, however, where the defendant claims the plaintiff’s disability resulted from a pre-existing condition, then although the plaintiff has the burden of establishing a prima facie case that their disability resulted from the defendant’s negligence, there is an evidential burden on the defendant to produce sufficient evidence to show that the disability was the result

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of a pre-existing condition.40 Once that burden is discharged by the defendant, the plaintiff has to satisfy the tribunal on the balance of probabilities of the extent of the injury caused by defendant’s negligence on the whole of the evidence.41 Overall, in respect of particular issues of ultimate fact the legal burden lies on the same side throughout the case—sometimes the plaintiff and sometimes the defendant. In relation to an issue of ultimate fact, the evidential burden may lie on one party, and the legal burden on another.42 The phenomenon frequently referred to as ‘the shifting of the burden’ is misleading because a particular legal or evidential burden does not in fact shift in a civil action. The reality is that each party may be required to prove a different matter depending on the circumstances of the case, or it may only be an apparent burden in the sense of tactical considerations in the fluctuations of the adversarial contest.43 Table 2.1 provides a snapshot of some common and useful examples of placing the burden of proof in situations arising in civil cases. TABLE 2.1 Examples of placing the burden of proof in specific situations SPECIFIC CIVIL SITUATION

NATURE OF BURDEN AND PARTY BEARING BURDEN OF PROOF

CASE EXAMPLES

Res ipsa loquitur doctrine (implication from the circumstances of an accident that the defendant has been negligent—‘the thing speaks for itself’). Not a rule of law but ‘a process of reasoning and inference from circumstantial evidence’.44

Legal burden on plaintiff to establish injury would not have occurred without defendant’s negligence. Evidential burden on defendant to provide evidence as to cause of accident or explain how the accident might have occurred in the absence of their negligence.

Fitzpatrick v Cooper (1936) 54 CLR 200; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Anchor Products Ltd v Hedges (1966) 115 CLR 493; Schellenberg v Tunnel Holdings (2000) 74 ALJR 743.45

Statutory provisions

Test of statutory construction applied is whether a complete factual situation must be found to exist before liability is incurred or obligation imposed, or whether there is a general obligation or liability with a qualification, exception or proviso based on new or additional facts. In the first situation the party alleging

Vines v Djordjevitch (1955) 91 CLR 512; Lynch v Attwood [1983] 3 NSWLR 1; Chugg v Pacific Dunlop (1990) 170 CLR 249; Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88; Waters v Mercedes Holdings Pty Ltd [2012] (Continued )

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TABLE 2.1 Examples of placing the burden of proof in specific situations (Continued ) SPECIFIC CIVIL SITUATION

NATURE OF BURDEN AND PARTY BEARING BURDEN OF PROOF

CASE EXAMPLES

breach of the obligation or that liability has been incurred has the legal burden of proof. But if an excuse or justification is provided for not complying with the obligation or not incurring liability, the legal burden of proof is borne by the party alleging they fall within the qualification, excuse or proviso.

FCAFC 80 [16]–[17]; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 [103]–[109].

STANDARD OF PROOF IN CIVIL CASES In civil proceedings both at common law and under the Act the standard of proof is ‘on the balance of probabilities’. The relevant provision is s 140. 140 Civil proceedings: standard of proof (1) (2)

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. 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.

The standard is often translated as meaning ‘more likely than not’ but the more appropriate approximation is ‘more probable than not’.46 Another phrase used is the ‘preponderance of the evidence’. This does not mean that a mathematical probability is required but rather an actual satisfaction as to the occurrence or existence of a fact in issue and, like the ‘beyond reasonable doubt’ standard, the phrase should be interpreted in its ordinary natural sense.47 It is a lower standard of proof having regard to the fact that the personal consequences involved are usually not as serious as in a criminal case, particularly for individuals. The focus is on inferences that prove as a matter of probabilities, not possibilities, and the plaintiff must still offer some evidence even when ‘material circumstances are peculiarly within the knowledge of the defendant’.48 Other expressions for the standard of proof may oversimplify the position and it is actually more complex than the criminal standard due largely to the significant variety of fact situations which are involved in civil litigation. Is the civil standard of proof fixed

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for all cases or does it vary to take account of different types of case? This question relates to the possibility of a third standard intermediate between the existing civil and criminal standards and the notion that the civil standard shifts with the gravity of the issue in the proceeding. It is clear that there is no third, intermediate standard of proof and in Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J emphasised that the same standard applies in all civil cases but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ (at 363). His Honour’s reasoning (at 362) is now echoed in s 140(2) EA pointing to particular features of a case that affect proof on the balance of probabilities to the reasonable satisfaction of the tribunal:49 No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the standard required by the law for various purposes … 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. (Emphasis added)

Later, in Neat Holdings v Karajan Holdings Pty Ltd (1992) 110 ALR 449, a case involving the tort of deceit and whether projected takings of an amusement centre business had been misrepresented by the vendor company to the purchaser company, the plurality judgment in the High Court emphasised the importance of the issue to be proved in applying the civil standard of proof (at 449–450): 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.50

It is apparent that the standard of proof does not shift with the gravity of the issue, but the court must consider the ‘forensic context of forming an opinion as to its satisfaction’ under s 140(2) EA by having more regard to ‘the strength and weakness of evidence before coming to a conclusion’ relative to the ‘consequences of what is contested in litigation’.51

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Finally, where there is only circumstantial evidence in a civil case, it must give rise to more than conflicting inferences of equal degrees of probability or mere conjecture.52 There should be a reasonable and definite inference53 and the existence of other reasonable hypotheses may be taken into account to determine whether a fact in issue should be inferred from facts proved, but as it is a lesser standard of proof it is not necessary that all reasonable hypotheses inconsistent with the existence of a fact be excluded before that fact can be found.54

PRESUMPTIONS The substantive operation of presumptions is not addressed in the Act, but simply put a presumption is that the truth of a particular fact is assumed. In the common law of evidence, a presumption will establish a fact without specific proof. Presumptions may arise from ‘general experience, or probability of any kind; or merely on policy or convenience. On whatever basis they rest, they operate in advance of argument or evidence, or irrespective of it, by taking something for granted; by assuming its existence’.55 Presumptions have traditionally been classified in the following categories: • Conclusive or irrebuttable presumptions of law: these are really substantive rules of law—for example, the age of criminal responsibility or that marriage is not a defence to an allegation of rape.56 • Persuasive or rebuttable presumptions of law: this is the substantive rule of law based on facts which provide prima facie evidence of the matter presumed— that is, proof of a particular fact allows presumption of some other fact but it can be rebutted by sufficient contrary evidence. Taking the example of criminal responsibility of children, the doli incapax presumption applies to children until they are 14 years of age unless there is evidence to prove that they knew the act committed was wrong and not simply naughty or mischievous.57 Specific presumptions, such as regularity, accuracy of instruments, and the formal validity of marriage fall into this category. Another example may be that a testator destroyed their will with the intention of revoking it if a will is traced to the testator’s possession and not located after their death.58 • Rebuttable presumptions of fact: these involve patterns of circumstantial evidence where similar instances of facts have given rise to the same conclusion. The presumption may be refuted by evidence suggesting that in particular circumstances the facts will not lead to that conclusion. The accuracy of transcripts adduced in proceedings is a presumption of fact59 as is the presumption of continuance, namely whether a state of affairs, proved to exist at a certain point in time, existed earlier or continued to exist at a later time. It does not appear to apply when determining whether parties intend to enter into contractual relationships.60

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Table 2.2 outlines the operation of some of the notable specific common law presumptions. TABLE 2.2 Specific presumptions PRESUMPTION

DESCRIPTION

CASE EXAMPLE

Regularity

All people conduct their affairs in a way that complies with the law. The rationale is based on the assumption that ‘most people adopt honest and regular methods or procedures for carrying out their duties and the ordinary transactions of everyday life; and in their personal relationships they maintain those standards of morality and decency which commend themselves to ordinary sober minded citizens’.61

Lee v Burn (unreported, NSWCA, 23 April 1998): in a personal injury action arising out of a motor vehicle accident the legal presumption of regularity operated to establish that a taxi cab was fitted with seat belts because it was duly registered and licensed and so complied with all applicable statutory and regulatory prescriptions. Accordingly, the appellant’s failure to wear a seat belt resulted in 30% contributory negligence.62

Accuracy of instruments

Rebuttable presumption of the functioning accuracy of scientific or technical instruments, such that the recording or reading of an instrument is prima facie evidence of the facts recorded.

Porter v Kolodzeij [1962] VR 75; Dunsmore v Elliott (1981) 26 SASR 496: examples of speedometer, clock, barometer, speed camera, breathalyser. Now reflected in ss 146 and 147 EA, which facilitate proof by presumption that documents or things produced by processes, machines and other devices, if properly used, produced the particular outcome evidenced in the document or thing.

Continuance

Presumption that a particular state of affairs proved to exist at one time continued to exist at a later point in time or had existed from an earlier point of time. It is a way of describing a process of reasoning which involves drawing inferences from proved facts.

Mason v Tritton (1994) 34 NSWLR 572; Potts v Frost [2011] TASSC 55 [34]; R v Hill [2012] ACTSC 121 [27].

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Where presumptions are provided in statutory form, the court is allowed or directed to be satisfied that a certain fact is true either conclusively or prima facie when a certificate is tendered or because appropriate evidence establishes a related fact. Part 4.3 EA, headed ‘Facilitation of Proof’, provides a number of presumptions that can be applied across different types of cases but which do not arise if merely a doubt, which does not have to satisfy the civil standard of proof, is raised:63 • s 149: not necessary to adduce evidence of a witness to the signature and attestation of documents; • s 152: document more than 20 years old produced from proper custody is presumed to be the document it purports to be; • ss 153–159: certain matters of official record, public documents, and official statistics presumed to be what they purport to be; • ss 160–162: matters relating to post and electronic communications: postal articles (s 160) presumed to have been received on fourth working day after being posted; email (s 161) presumed to have been sent and received on the day and at the time appearing from the communication sent. These presumptions are not applicable to proceedings that relate to a contract where the terms are inconsistent with the presumption.

COMMON KNOWLEDGE AND JUDICIAL NOTICE Section 144 EA is an important provision that obviates the need for proof of certain matters of common knowledge and of which judicial notice is taken. This replaces the common law doctrine of ‘judicial notice’.64 144 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.

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In addition to the large number of matters in the world which are common knowledge for adults of ordinary intelligence,65 some recent examples of facts falling within common knowledge of which judicial notice has been taken include: • published statistics;66 • the internet itself may be common knowledge,67 but the specific information on a website of a business or organisation would not be covered;68 • the 2008 global financial crisis.69 On the other hand, a judge cannot use s 144 to inform themselves of issues upon which ‘reasonable minds may differ’,70 so that it may be outside judicial notice to apply dictionary definitions71 as would also be a judge’s views on the particular effects of child sexual abuse.72 In giving an opportunity to the parties to challenge what may or may not be taken into account as common knowledge, a court must accord procedural fairness to ensure that no party is unfairly prejudiced.73

Important references For more extensive coverage of burden and standard of proof and presumptions, see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapter 3. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 26–27, 687–705. 3 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 17 and 18. 4 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 54, 901–928.

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ASSESSMENT PREPARATION Active learning questions 1 ‘… a legal decision depends upon the court discovering the material facts which satisfy the granting of a remedy under a particular legal rule. The common law requires one or other of the parties, normally the claimant initiating proceedings, to substantiate those facts, first by adducing evidence of them and, secondly, by persuading the court that they exist or occurred.’ (Andrew Ligertwood and Gary Edmond, Australian Evidence (5th ed, 2010) 520) With reference to this statement and to the relevant law, what is your understanding of legal and evidential burdens of proof? 2 What is the role of the trial judge sitting with a jury when it is argued that an evidential burden has not been met? What is the consequence of a party failing to meet an evidential burden? 3 In a criminal trial where the prosecution is relying on various intermediate facts from which to draw an inference of guilt of the accused, to what standard must these intermediate facts be proved? Why is this standard set? 4 What is your understanding of the Briginshaw principle? Is it still applicable in any contemporary litigation context? 5 What is a presumption and how does it operate when it is relied on by a party in a proceeding?

Review problems 1 For the two cases set out below, identify: (a) the facts in issue; (b) the incidence of the evidential burden; (c) the incidence of the legal burden; and (d) the standard of proof. Case 1 The plaintiff, Computers-are-us, has brought an action against the defendant, the haulage contractor Roadways Australia, for breach of contract. The contract was for carriage of a consignment of laptop computers by truck from the port to the Computers-are-us regional warehouse. A term of the contract was that Roadways Australia was liable for any loss resulting from fire provided there was no negligence on the part of any of their employees. The truck and the entire load of laptop computers were destroyed by fire during the journey while the truck was parked in a motorway rest area. The defendant denies liability for the loss. The plaintiff alleges that Roadways Australia was facing insolvency and that the truck was deliberately set on fire so that they could make a claim on the insurers of the truck. In the alternative, the plaintiff alleges that the fire was caused by the truck driver, an employee of Roadways Australia, failing to take due care when he parked the truck and its load in the motorway rest area. Case 2 Dwaine is being prosecuted for assaulting Vincent, who received serious head injuries as a result of a dispute and physical altercation they had approximately three months ago outside a city hotel. Vincent spent a week in hospital after the incident due to

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the injuries suffered from being struck on the head by a metal post that was part of a damaged street sign. The prosecution case consisted of Vincent’s evidence that following a short argument with Dwaine about money Vincent allegedly owed Dwaine from a bet, Dwaine started punching Vincent in the head and upper body before picking up a metal post from a damaged street sign and hitting Vincent repeatedly in the head until he was unconscious. Also, medical evidence of the nature and extent of Vincent’s injuries was produced by the prosecution. In his defence, Dwaine testified that Vincent started the argument when they walked outside the hotel, threw a punch connecting with Dwaine’s jaw and then picked up the metal post and started swinging it towards Dwaine. His further evidence was that he eventually overcame Vincent and managed to wrestle the metal post away from him and only struck him once with the post in self-defence when he saw Vincent reach into his jacket pocket for what Dwaine believed was an automatic switchblade knife. Three eyewitnesses were also called in the defence case and they each gave evidence which supported Dwaine’s version of the incident and they were aware that Vincent always carried a switchblade knife, which he had shown to them on a prior occasion. Alternatively, if Dwaine raised the defence of mental illness or mental impairment how, if at all, would this alter the incidence of the evidential and legal burdens? 2 Assume the following facts: Darcy Cunningham (DC) is on trial for attempting to abduct an 11-year-old girl (V). It is alleged that, about 3:50 p.m. on Wednesday 6 November 2013, V, who is a primary school student, was walking home from school when a slow moving white station wagon drove towards her. She noticed the driver of the station wagon looking directly at her. V became concerned and started to walk faster entering the registration number of the vehicle in her mobile telephone as she walked. She heard a car door slam behind her and looked back to see a man walking around the front of the white station wagon. She again quickened her pace but had only taken a few steps when she felt someone grab her arm and say, ‘Get in the car!’ V tried to break free from the grip on her arm but the man maintained his grip and repeatedly told her to get in the car. Even though fearing for her life, V turned around and faced the man and kicked him in the groin area causing him to stumble backwards allowing her to break free and run away. Later in her video-recorded interview with a police officer at the police station, V stated that she noticed that the driver’s seat of the white station wagon was ‘leaning right back’ and observed that the man was wearing blue tracksuit pants and a white T-shirt, which was dirty and stained. She also said that the man had yellow, stained teeth and a very ‘creepy’ smile. She said she had noted the car registration number in her mobile phone because of what she had remembered from a recent police visit to her school when they talked about ‘stranger danger’. Following up on the registration number of the vehicle reported by V, police attended DC’s home at about 5:15 p.m. on the same day. DC’s home was about four blocks away from the primary school and the police found the white station wagon, with the registration number that V had noted, in the yard of DC’s home. Both the driver’s and front passenger’s seat were significantly reclined. V had described the man who attacked her as having brown wavy collar-length hair, brown eyes, short, skinny and about 30 years old. This general description fitted DC although he is aged only 22 years. Further, DC has only two natural teeth; his two front bottom teeth, which are distinctively stained yellow. His other teeth are dentures. DC also has a substantial

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and colourful tattoo of a dragon on his left arm. When spoken to by police, DC was wearing blue denim jeans and a brown-coloured T-shirt with the words ‘Perfect Paints’ in large lettering. The police officers noticed that there was a strong paint and chemical smell on DC’s clothing from the solvents he used at his workplace, a paint factory about 20 minutes’ drive from his home. DC denies that he was responsible for the attack on V and refused to participate in an interview with the investigating police officers. He has given instructions to defence counsel that he is not guilty and that on 6 November 2013 he drove home directly from his workplace after finishing his shift at 3:30 p.m. and had not changed out of his work clothes by the time the police called at his home that afternoon. At the trial the prosecution called V as its first witness to give evidence via closedcircuit television. Following the examination in chief which included the playing of V’s video recorded interview with police to the court, she was cross-examined by counsel for DC. During cross-examination V agreed that she could not remember seeing any other teeth than those yellow, stained teeth of the man who attacked her and couldn’t remember how many teeth he had. She was shown the dentures and agreed that her assailant did not have teeth like that. The dentures were tendered in evidence. V did not remember seeing a large and colourful dragon tattoo on her assailant’s left arm. She did not smell any chemicals or strong odours on her assailant’s clothing and insisted he was wearing track-suit pants and a dirty white T-shirt. She could not recall any writing on the T-shirt. The clothing that V was wearing at the time of the attack was examined for traces of DNA. A sample of DC’s DNA had been taken in accordance with the requirements of the relevant legislation. The only DNA found on V’s clothing was matched to her own and a friend’s profile. The DNA of DC was not found. DC’s girlfriend, Natalie Grahame (NG), was called to give evidence for the defence and testified that on 6 November 2013 DC telephoned NG at home at 3:35 p.m. to advise her that he was leaving work and asked her to open the roller door of the garage and keep their pet dog inside. Further, NG said that this was in accordance with his usual habit and he then arrived home approximately 20 minutes later at 3:55 p.m. wearing his usual work clothes, blue denim jeans and a ‘Perfect Paints’ T-shirt, which smelt strongly of chemicals. Analyse the evidence available to the prosecution to prove DC’s guilt for the offence of ‘attempted child abduction’ to the requisite standard of proof and the prospects of the jury returning a verdict of guilty in this case. In your analysis include a discussion of the judicial directions that you would seek as counsel for DC in relation to the burden and standard of proof, identifying any intermediate facts which might reasonably be regarded as indispensable to proof of guilt.

Notes 1 Shepherd v The Queen (1990) 170 CLR 573, 579 (Dawson J). 2 Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 80. Roberts notes that the legal burden is sometimes referred to as ‘the risk of non-persuasion’. 3 Braysich v The Queen (2011) 243 CLR 434, 453. 4 Ibid, 453–454. 5 Roberts, above n 2, 80–81.

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6 Azzopardi v R (2001) 205 CLR 50, 73–75 (Gaudron, Gummow, Kirby and Hayne JJ); DF v R [2011] ACTCA 11 [4]. Also, see R v Hettiarachchi [2009] VSCA 270 [51]–[52]. 7 DF v R [2011] ACTCA 11 [15]–[28]; R v Fairbairn [2011] ACTSC 78 [11]–[20]; R v Meyboom [2011] ACTSC 13 [9]–[11]; R v Meyboom [2010] ACTSC 90 [2]–[3]. 8 See Roberts, above n 2, 81–82. 9 In the contemporary context this is known as the defence of mental illness (New South Wales) or mental impairment (Victoria). 10 This goes back to M’Naghten’s Case (1843) 8 ER 718, where the court clearly placed the burden of proving insanity on the defendant. 11 A statutory reversal of the burden of proof is not in itself unconstitutional—see, for example, KS v Veitch (No 2) [2012] NSWCCA 266 [47]–[54]. 12 This defence was formerly known as ‘diminished responsibility’ and applies only to murder. 13 Melbourne v The Queen (1999) 198 CLR 1, 8 (McHugh J). 14 Momcilovic v the Queen (2011) 245 CLR 1, 43–44 (French CJ). 15 See R v Youssef (1990) 50 A Crim R 1, 3; Braysich v The Queen (2011) 243 CLR 434, 452–455 (French CJ, Crennan and Kiefel JJ); CTM v The Queen (2008) 236 CLR 440, 456 (Gleeson CJ, Gummow, Crennan and Kiefel JJ); Momcilovic v The Queen (2011) 245 CLR 1, 31 (French CJ), 242 (Bell J); The Queen v Khazaal (2012) 246 CLR 601, 605 (French CJ); Taiapa v The Queen (2009) 240 CLR 95, 98 (French CJ, Heydon, Crennan, Kiefel and Bell JJ). Also, see Criminal Code Act 1995 (Cth) s 13.3(6). 16 See, for example Crimes Act 1900 (NSW) s 417, and Criminal Code Act 1995 (Cth) s 13.3. 17 Chahine v The Queen [2006] NSWCCA 179 [62]. 18 See, for example, Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1974) 126 CLR 28; R v Wilson (1986) 22 A Crim R 130; R v Southammavong; R v Sihavong [2003] NSWCCA 312; R v Li [2003] NSWCCA 386; R v Chami [2004] NSWCCA 36 and RWB v R [2010] NSWCCA 147. 19 R v Wilson (1986) 22 A Crim R 130, 133. 20 Also, see Braysich v the Queen (2011) 243 CLR 43, 454–455 (French CJ, Crennan and Kiefel JJ). 21 Frank Bates, Principles of Evidence (Lawbook, 3rd edn, 1985) 40. 22 See Table 1.1 in Chapter 1 as to the difference between, and practical examples of, direct and circumstantial evidence. 23 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and Shepherd v R (1990) 170 CLR 573 are the leading cases in this regard. 24 Braslin v Tasmania [2011] TASCCA 14 [53]; Wood v The Queen [2012] NSWCCA 21 [50]–[53], [555]–[571]; Gilham v The Queen [2012] NSWCCA 131 [466]. 25 R v Park [2003] NSWCCA 203; Pemble v The Queen (1971) 124 CLR 107. 26 Gilham v The Queen [2012] NSWCCA 131 [466]. Also, see R v Micallef [2002] NSWCCA 480 [42]; and Burrell v The Queen [2009] NSWCCA 193 [55]. 27 Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 568 (Gibbs CJ and Mason J). 28 See Roberts, above 2, 101–102 for an illustration of circumstantial evidence in a murder case and what intermediate conclusions of fact (inferences) must be proved beyond reasonable doubt as an indispensable step in the chain of reasoning from basic facts to ultimate proof. The metaphor using links in a chain and strands in a cable is from Wigmore on Evidence (Chadbourn rev 1981) 412–414. 29 See, for example, R v Whyte [2006] NSWCCA 75.

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30 See, for example, The Queen v Hillier (2007) 228 CLR 618; The Queen v Keenan (2009) 236 CLR 397; R v Davidson (2009) 75 NSWLR 150; R v Burrell [2009] NSWCCA 163; Rees v The Queen (2010) 200 A Crim R 83; and Neill-Fraser v Tasmania [2012] TASCCA 2 [157]–[164]. 31 R v Hillier (2007) 228 CLR 618, 637–638; Shepherd v The Queen [2011] NSWCCA 245 [53]; Gilham v The Queen [2012] NSWCCA 131 [466]. 32 R v Davidson (2009) 75 NSWLR 150, 165 (Spigelman CJ and James J agreeing). 33 See R v XHR [2012] NSWCCA 247 [11]–[18] (Beazley JA), [106] (Hall J), [107] (S G Campbell J). Also, see R v Mocenigo (Ruling No 4) [2012] VSC 442. 34 Wood v The Queen [2012] NSWCCA 21 [51]. 35 See A v State of NSW (2007) 230 CLR 500, 520–521. 36 Evans v Queanbeyan City Council [2011] NSWCA 230 [41] (Allsop P). 37 Tozer Kemsley & Millbourne (Australasia) Pty Ltd v Collier’s Interstate Transport Service Ltd (1956) 94 CLR 384, 400–401 (Fullagar J). 38 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154. 39 See, for example, Harmer v Hare [2011] NSWCA 229 [233]–[239]. 40 Purkess v Crittenden (1965) 114 CLR 164. Also, see Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 [79]–[80]. 41 Ibid, 168 (Barwick CJ). 42 See Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235, 237–238; and Coshott v Sakic (unreported, NSWCA, 3 September 1998). 43 See Poricanin v Australian Consolidated Industries [1979] 2 NSWLR 419, 425–426 (Glass and Hope JJA), 429 (Reynolds JA). 44 Anchor Products Ltd v Hedges (1966) 115 CLR 493, 500 (Windeyer J). Also, see Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403, 413 (Barwick CJ). 45 Compare position in the United Kingdom in Barkway v South Wales Transport Co Ltd [1949] 1 KB 54 and Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, which are authority for the view that the defendant has a legal burden to prove that they were not negligent. 46 TNT Management v Brooks (1979) 53 ALJR 267. 47 Evans v Queanbeyan City Council [2011] NSWCA 230 [42] (Allsop P), [68] (Basten JA); NOM v DPP [2012] VSCA 198 [105]–[112]. 48 See Condos v Clycut Pty Ltd [2009] NSWCA 200 [68]–[70]. 49 Briginshaw is treated as consistent with the operation of s 140(2) EA: see Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345, 381–382, 405; and NOM v DPP [2012] VSCA 198 [113]–[124]. 50 Also, see Palmer v Dolman [2005] NSWCA 361 [47]. 51 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC [2007] FCAFC 132 [30]–[31]. Also, see Helton v Allen (1940) 63 CLR 691; Re Dellow’s Will Trusts [1964] 1 WLR 451; Sands v Channel Seven Adelaide [2010] SASC 202 [48]–[53]; and IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248 [193] for allegations of criminal acts in civil proceedings, such as defamation, succession and insurance cases. 52 Asim v Penrose [2010] NSWCA 366 [143] approving Luxton v Vines (1952) 85 CLR 352, 358.

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53 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC [2007] FCAFC 132 [38]. 54 In the Matter of Idylic Solutions Pty Ltd—ASIC v Hobbs [2012] NSWSC 1276 [1531] applying Doney v R (1990) 171 CLR 207, 211; and Nguyen v Cosmopolitan Homes [2008] NSWCA 246 [55]. 55 James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown & Co, 1898) 314. 56 See PGA v The Queen (2012) 245 CLR 355, 382–384. Also, see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044, 1066 (Gummow and Hayne JJ). 57 See R v CRH (unreported, NSWCCA, 18 December 1996). 58 Mordecai v Rotman [2000] NSWCA 123 [135]; Yazbek v Yazbek [2012] NSWSC 594 [133]–[134] 59 Altaranesi v Industrial Relations Commission (NSW) [2011] NSWCA 351 [91]. 60 Ashton v Pratt (No 2) [2012] NSWSC 3 [32]; Darmanin v Cowan [2010] NSWSC 1118 [206]; Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81 [12]–[21]. 61 William Wells, An Introduction to the Law of Evidence (Government Printer South Australia, 4th edn, 1991) 32. 62 Also, see Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 [111]–[120] in relation to development consents. 63 North Sydney Leagues’ Club v Synergy Protection Agency Pty Ltd [2012] NSWCA 168 [60]. 64 Gattellaro v Westpac Banking Group (2004) 78 ALJR 394, 397; Aytugrul v The Queen (2012) 247 CLR 170, 202–203 (Heydon J). 65 See Wells, above n 61 at 26 where the following facts were instanced: the order of years, the months, and the days of the week; the ordinary weights and measures; the existence of well-known transport links; the gestation period of a normal baby is about nine months; the general geography of Australia and the world; the fact that we live by eating, drinking and breathing; well-known facts in history; and the existence of certain customs and conventions (parliamentary, constitutional and otherwise). 66 ACCC v Edirect Pty Ltd (in liq) [2012] FCA 976 [8]. 67 ACCC v Jutsen (No 3) [2011] FCA 1352 [100]; Jones v Toben [2002] FCA 1150 [64]–[65]. 68 Parmar v Minister for Immigration and Citizenship [2011] FCA 760 [12]–[13]. 69 Brennan v McGuire [2010] FCA 1443 [85]. 70 McGregor v McGregor [2012] FamCAFC 69 [74]. 71 Waller v Yamaha Motor Finance Australia Pty Ltd [2012] FCA 934 [7]. 72 CMG v the Queen [2011] VSCA 416 [13]–[18]. 73 DPP (NSW) v Gramelis [2010] NSWSC 787 [51].

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CHAPTER 3

ROLES OF JUDGE AND JURY AND THE JUDICIAL DISCRETION TO EXCLUDE EVIDENCE COVERED IN THIS CHAPTER In this chapter, you will learn about: • order of court proceedings; • functions of judge and jury; • preliminary questions—the voir dire and admissibility of evidence; • judicial role and powers; • judicial obligation and the discretions to limit or exclude evidence—probative value and unfair prejudice; and • judicial discretion to admit improperly or illegally obtained evidence.

CASES TO REMEMBER R v Haughbro (1997) 135 ACTR 15 R v Lisoff [1999] NSWCCA 364 Robinson v Woolworths Ltd (2005) 64 NSWLR 612 Stanoevski v The Queen (2001) 202 CLR 115

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 11, 135, 136, 137, 138, 189, 192

INTRODUCTION We now turn to an examination of the trial process. An important feature of this process is the application of the rules of evidence to relevant information about an event or dispute so that accurate and fair fact-finding can take place. We are setting up a framework for the operation of the rules of evidence, which are examined in later chapters. Also, at this early stage we will consider the operation of the judicial discretion to exclude what would otherwise be admissible evidence. Although it is usually the last step in the process of the determination of a piece of information as admissible evidence, it is important to understand the fundamental gatekeeping role of judges

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in this regard and to always keep discretionary exclusion in mind in practical problem-solving of admissibility issues. Figure 3.1 shows the framework for the admissibility of a piece of information as evidence. This is a concise diagrammatic reference for the stages of the admissibility process, the operation of which is discussed in further detail throughout the following chapters. FIGURE 3.1 The framework of admissibility of evidence Information to be used as evidence If relevant but privileged or immune from disclosure then information is withheld from court

Is the information relevant to a fact in issue in the case? If no, the information is not admissible as evidence

If yes, then move to the next admissibility consideration

Is the information caught by an exclusionary rule? If yes, the information is not admissible unless it falls within an exception to the particular rule

If no, then move to the next admissibility consideration

Is the information subject to discretionary or mandatory exclusion? If yes, the information is not admissible or discretion exercised not to admit the information

If no, then the information is admissible as evidence

The information is admissible as evidence

Should a judicial warning be given as to evidence of a kind that may be unreliable? If yes, then the evidence is admitted and the judge gives a warning as to its reliability

If no, then the evidence is admitted without a warning as to its reliability

To the tribunal of fact: decide whether to accept and determine the weight to be given to the evidence in accordance with relevant burdens and standards of proof

ɒ Prosecution opens its case Defence may be invited to open their case

Opening Address

ɒ Examination in chief by prosecutor and crossexamination by defence counsel

Witnesses called and examined in prosecution case

other witnesses to be examined in defence case

VERDICT

ɒ If 'not guilty', defendant is discharged

ɒ If 'guilty', judge proceeds to sentence

SUMMING UP & JUDICIAL DIRECTIONS TO JURY (if empanelled)

CLOSING ADDRESS BY EACH PARTY

ɒ Defence may make a no-case submission CLOSE OF depending on PROSECUTION CASE evidence adduced by prosecution ɒ Prosecution Defendant may call may choose CLOSE OF evidence in to give DEFENCE reply in some CASE evidence circumstances and call

ɒ Guilty plea – facts Judicial officer presented to establish calls case and elements of offence lawyers announce ɒ Not guilty plea – appearance jury empanelled by ballot or trial proceeds before judge alone Plea taken

FIGURE 3.2 The order of a criminal trial before judge and jury

CHAPTER 3: ROLES OF JUDGE AND JURY; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE

ORDER OF COURT PROCEEDINGS

A criminal trial generally follows the course set out in Figure 3.2.

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FUNCTIONS OF JUDGE AND JURY The general rule governing the relative functions of judge and jury in a trial is that the judge determines questions of law and the jury determines questions of fact. The importance of this principle has been diminished particularly in the civil jurisdiction where most cases are decided by a judge alone who, in addition to determining questions of law, performs the fact-finding functions of the jury. In most uniform evidence law jurisdictions, the option to have a jury in civil cases is not available.1 In the criminal sphere there is an option for trial by judge alone in some jurisdictions.2 Also, a significant number of indictable offences can be disposed of summarily before magistrates sitting without a jury.3 Accordingly, a jury is only empanelled for more serious criminal charges. The upshot of this practical reality is that some rules of evidence may be less rigorously applied when there is no jury as judges and magistrates are less likely to be confused or prejudiced by inadmissible evidence. An issue of the admissibility of a piece of evidence is a question of law4 whereas whether a piece of evidence is accepted and given weight in the fact-finding process is a question of fact.

PRELIMINARY QUESTIONS—THE VOIR DIRE AND ADMISSIBILITY OF EVIDENCE A significant area of judicial fact-finding, as an exception to the general rule that fact-finding is for the jury, is that the existence of all facts on which the admissibility of evidence depends is determined by the judge. Examples of such facts include those that demonstrate that an admission (that is, a confession by a defendant to the police) was voluntary, a document was privileged or an expert witness has specialised knowledge. In order to establish the existence of facts of this kind, the judge uses the procedure known as the voir dire, which may best be described as ‘a trial within a trial’ because the procedure mirrors the main trial, with the parties calling evidence and cross-examining opposing witnesses. The conduct of the voir dire is governed by s 189 EA and takes place in the absence of the jury.5 This procedure is adopted because if there is a ruling at the end of the voir dire that evidence is not admissible then the jury will not have heard disadvantageous evidence. For example, if a judge rules that an admission by the defendant was not voluntary, and therefore not admissible, then the jury will not be negatively influenced by having heard the alleged admission made by the defendant. If the judge rules the evidence is admissible after the voir dire, the evidence of each witness will be adduced again in the presence of the jury, including cross-examination.6 This is because the ruling on the voir dire is a ruling of law by which only the parties are bound. It doesn’t mean that admissibility

CHAPTER 3: ROLES OF JUDGE AND JURY; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE

equates to a finding that the evidence is established as a question of fact for the fact-finder—for example, that an admission was made and made voluntarily by a defendant. The evidence is admitted for consideration by the fact-finder in their ultimate determination of facts in issue. The standard of proof that must be met by the party adducing evidence of the existence of a preliminary question is the civil standard of proof ‘on the balance of probabilities’.7 Some matters that might appear to be matters of fact are treated as matters of law and so are for the judge to decide. Notably, it is for the judge to say whether sufficient evidence has been adduced to satisfy a reasonable jury on the issue to which the evidence is directed, and then for the jury to say whether the evidence has actually satisfied them on that issue. Accordingly, before evidence can be left to the jury for consideration in fact-finding it must get past the judge. This allows the trial judge to control the particular factual material that ultimately ends up before the jury. If the judge is not satisfied that the jury could reasonably find for a party on the available evidence, the judge must withdraw the case or a particular issue from the jury. This judicial decision on the sufficiency of evidence will often be made after there has been legal argument arising from a ‘no case to answer’ submission.

JUDICIAL ROLE AND POWERS Section 11 EA provides that the general power ‘of a court to control the conduct of a proceeding is not affected by’ the Act unless it is expressly provided or necessarily implied by other provisions of the Act. The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process8 is not affected by the Act (s 11(2)). The judge’s role is essentially to regulate and control the proceeding so that the issue for adjudication may be put fully and fairly before the court. In the context of an adversary system there are clear limits upon a trial judge, but within those limits it is important to recognise that the judge is clothed with ‘all the discretionary powers necessary for the discharge of the duty, and he may therefore control and regulate the manner in which the evidence is presented or elicited’.9 These important discretionary powers will be examined in detail later in this chapter. An important part of the judicial role is the power to grant leave or permission, or to give a direction to a party to do something. Granting leave is simply the court giving its approval for a party to do something in the case that the party is not automatically entitled to do. An example is s 112 EA where leave is required for the prosecutor to cross-examine about the character of a defendant. The various

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factors that must be considered by trial judges before granting leave are listed in s 192 EA: 192 Leave, permission or direction may be given on terms (1) (2)

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. 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.

A CASE TO REMEMBER Stanoevski v The Queen (2001) 202 CLR 115 In Stanoevski v The Queen (2001), a trial relating to an allegation of conspiracy to cheat and defraud an insurer by a practising solicitor, the prosecution successfully obtained leave to cross-examine the defendant as to character. An expert report was adduced and a witness was called suggesting that the defendant had forged a signature on a form she had purported to witness when in legal practice. The admission of that evidence resulted in the jury being privy to issues about whether the signature was a forgery, the motivations of the prosecution witness and the defendant’s alleged sloppy practices when witnessing forms. The High Court held that this minor evidence ‘was not important enough to be the subject of cross-examination’ given its singularity and the ‘remoteness in time and difference in nature from the very serious charge levelled at’ the defendant. It was a collateral issue that unduly extended the length of the hearing without materially assisting in the resolution of facts in issue in the particular case (s 192(2)(a)). Further, in relation to s 192(2)(b), it was held there was ‘certainty of unfairness’ because the ‘extensive collateral inquiry by the prosecutor’ raised ‘a contest of credibility between the defendant and her alleged co-conspirator’, which had not been addressed in the cross-examination of the co-conspirator and which really should not have been adduced at all in evidence.10 This unfairness was compounded by repeated references to the contents of documents that had not been admitted into evidence. Finally, the evidence that the prosecution sought to adduce was of little weight. Therefore, in terms of s 192(2)(c) it was not important enough to be the subject of crossexamination.

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Overall, it is clear from Stanoevski that whenever consideration is being given to granting leave, permission or giving a direction ‘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’.11 This requirement has been qualified in later cases, such as R v Reardon [2002] NSWCCA 203, where it was held that trial judges do not have to make express reference to all s 192 factors in all cases where the section applies. It is assumed the judge will have regard to all those factors in the context of the potential for frequent consideration of s 192 during the course of a trial. The pragmatic obligation is to give reasons sufficient to understand the substantive basis of a decision, not reference every matter taken into account.12 A court must determine for itself the relative weighting to be given to each matter listed in s 192(2). The provisions that engage the application of s 192 are varied in their operation, but mostly focus on witness questioning13—for example, seeking leave to revive the memory of a witness in court (s 32), cross-examine an unfavourable witness (s 38), recall a witness (s 46), or cross-examine a defendant on matters relating solely to credibility (s 104). Finally, there is the judicial power to make advance rulings and findings under s 192A. Essentially this provision enables the court to give an advance ruling or make an advance finding in relation to the admissibility or use of evidence at any time even before commencement of the actual trial. This means that a party doesn’t have to wait until it would naturally arise in the course of the trial. It particularly arises in relation to character evidence.14 Arguably this provision allows for more efficient use of time at trial and greater certainty in making tactical decisions and preparing for trial generally.

JUDICIAL OBLIGATION AND THE DISCRETIONS TO LIMIT OR EXCLUDE EVIDENCE Before turning to the provisions allowing for a judicial discretion to exclude evidence, it is important to have in mind the definition of ‘probative value’ from the EA Dictionary, which is integral to informing the exercise of the judicial discretion. It is defined 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 55,15 ‘probative value’ in substance means the degree of relevance of a piece of evidence and particularly its incremental relevance in relation to the other evidence admitted in the proceeding. It is important to note, however, that the definition of ‘probative value’ does not specifically import the qualification, ‘if it were accepted’, which is found in s 55

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in relation to determining the relevance of evidence. There have been differing opinions about the significance of this omission from the definition and whether the assessment of probative value involves considerations of the reliability of the evidence and the credibility of its source.16 In R v Shamouil [2006] NSWCCA 112, a restrictive approach was taken by the New South Wales Court of Criminal Appeal to the circumstances in which issues of reliability and credibility are taken into account in determining probative value when adjudicating questions of the admissibility of a piece of evidence. The reasoning in this case emphasises that the meaning of ‘probative value’ has evolved from the Christie direction at common law,17 which did not involve considerations of reliability of evidence. After enactment of s 137 EA, the same approach was taken in a line of cases,18 which provide that evidence must be ‘taken at its highest’ in order to determine its probative value. Consistent with the preponderance of authority that a restrictive approach is to be taken, there may be limited circumstances in which reliability of the evidence and credibility of the witness will be taken into account when determining probative value. This will be only where ‘issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue’.19 It will be rare for a court to make this determination when deciding an issue of admissibility because it is a traditional role for the fact-finder (a jury) to make such assessments, having heard all the evidence in the trial. Factors affecting reliability or credibility of evidence usually emerge during the course of the actual trial, particularly in cross-examination (not in a voir dire). In R v Dupas [2012] VSCA 328, the Victorian Court of Appeal held that the alleged unreliability of the evidence is a factor to be taken into account in determining probative value under s 137 and that the decision in R v Shamouil was wrong.20 The New South Wales Court of Criminal Appeal (CCA) then convened a five-member bench in R v XY [2013] NSWCCA 121 to determine which decision should be followed, and by majority held, following R v Shamouil, that the court should not consider the credibility, reliability or weight of the evidence when assessing the probative value of evidence objected to under s 137.21 Overall, the interpretation by the New South Wales CCA places the focus in determining probative value on the capability rather than the weight of the evidence— what is open, not what the jury is likely to conclude. This is consistent with use of the word ‘could’ in relation to the effect on the assessment of the existence of a fact in issue.22 This approach has been followed in Tasmania23 so that the decision in Dupas applies only in Victoria.

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SECTION 135 135 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.

This discretionary exclusion provision applies in both civil and criminal proceedings. Under s 135 the court is required to balance the probative value of the evidence against the ‘dangers’ listed in the provision. Looking at the actual words of the section, note that these dangers (a) to (c) must substantially outweigh the probative value of the evidence. ‘Substantially’, in its ordinary meaning, means that there is a heavy onus on the party seeking exclusion of the evidence, which will only be satisfied in a clear case. Further, the use of the word ‘may’ permits but does not obligate the judicial officer to exclude the evidence if the probative value is substantially outweighed by one of the specified dangers. The trial judge has significant latitude in making this judicial choice.

SECTION 137 137 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.

This section has similarities to s 135, but s 137 only applies in criminal cases and only to evidence adduced by the prosecutor. The use of the word ‘must’ highlights the mandatory nature of the exercise under s 137 once a judgment has been made as to the balancing of the probative value of the evidence with the danger of its unfair prejudice.24 Another point of contrast with s 135 is that there is no requirement for the danger to substantially outweigh the probative value of the evidence. The formulation of s 137 in terms more favourable to exclusion than s 135 means that s 135 would rarely be used where the defence seeks the exclusion of evidence adduced by the prosecution. An example of a situation where s 137 could be utilised is where the prosecution seeks to tender photographs of the deceased in a murder trial in circumstances where a forensic pathologist has already described the injuries and there is little forensic assistance to be derived from the photographs.25 Each case, however, will depend on its particular facts and the genuine relevance of the evidence to the issues.26

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In making the estimate of the probative value of evidence and how it should be weighed against the danger of unfair prejudice, the courts have stated that it involves a judgment of ‘opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge’s own trial experience’.27

THE DANGERS: (A) UNFAIR PREJUDICE Unfair prejudice doesn’t arise simply because the evidence tends to damage the case of the party or support the case of an opponent;28 that prejudice is to be expected in an adversarial system and is not unfair. The ALRC explanation is that this danger is where the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis—that is, on a basis logically unconnected with the issues in the case. 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’29 may cause the fact-finder to determine issues on these bases rather than the proven facts in the case. Overall, the danger involves a real risk that the jury will misuse the evidence in some unfair way, including giving it more weight than it should be given.

A CASE TO REMEMBER R v Lisoff [1999] NSWCCA 364 R v Lisoff [1999] is a useful case example of the current judicial approach to the core meaning of unfair prejudice in this context. It involved DNA-profiling evidence of the blood found on the defendant’s clothing following a serious assault upon the victim by three assailants. The trial judge excluded the evidence, based on finding there was ‘a real danger that the fact finders might be unduly swayed by the “scientific” nature of the evidence to make a decision on an improper basis, particularly to require a lower degree of probability than they would otherwise require’. In reviewing and reversing the discretionary decision of the trial judge, the CCA assessed the probative value of the evidence as clearly ‘capable of leading to a conclusion, reached beyond reasonable doubt, that the present respondent had been present at, and, to whatever particular extent, involved in, a vicious physical assault by three assailants against one victim’. Then the court considered the ‘unfair prejudice’ against that probative value and adopted the ALRC’s clear and succinct statement that ‘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 CCA held that the trial judge had applied the wrong test in connection with the exercise of the judicial task under s 137 by considering what a jury might do as satisfying the statutory formula of ‘the danger of unfair prejudice’. That test of mere possibility was held to be an error of law as ‘section 137 requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. It is not sufficient to establish that the complexity or nature of the evidence was such that it created the mere possibility that the jury could act in a particular way’.

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Therefore, the DNA-profiling evidence should have been admitted as highly probative in relation to whether adverse inferences to the defendant were available for the jury in determining whether the defendant had been one of the three assailants. There was conflicting expert opinion about whether the blood spots on the defendant’s clothing were from the victim, but that was nothing extraordinary in that a properly directed jury could ‘have decided in a reasoned and responsible way whether the Crown had demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence’. Ultimately, there was no real risk of unfair prejudice to the defendant in considering exclusion of the DNA evidence so the trial judge had erred in the exercise of his discretion.

In R v Duncan and Perre [2004] NSWCCA 431, the court made a clear general statement (at [246]) summing up the authoritative position relating to ‘unfair prejudice’ under both ss 135 and 137 as follows: [I]t is well established that the ‘unfairness’ with which ss 135 and 137 are concerned relate to the risk of the evidence provoking some irrational, emotional or illogical response, or of it being given more weight than it truly deserves … The fact that evidence may be weak, or the subject of challenge [as in this case – argument on the basis of unreliability], is not itself a ground for its exclusion [rather it is a matter of weight for the tribunal of fact].

Other useful case examples of the judicial balancing of probative value with the danger of unfair prejudice are: • R v Cook [2004] NSWCCA 52, where evidence of flight was held to have been wrongly admitted at the appellant’s trial for ‘threatening to inflict actual bodily harm with intent to have sexual intercourse’. The appellant’s explanation for fleeing from the police twice on the same day would have revealed to the jury specific adverse matters, including his ‘prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration’. The CCA held that the considerations under s 137 required an appreciation of what explanation a defendant would give for fleeing. The prosecution evidence of flight had very high probative value as, within five days of the assault on the complainant, the appellant twice fled when police approached to speak to him. But his explanation for why he did this, which could have been believed by a jury, carried a very ‘serious sting’ disclosing ‘criminal offences with a disturbingly close relationship to the offence with which he was charged’. Accordingly, there was a clear danger of unfair prejudice. Overall, Simpson J emphasised that the appellant having to adduce evidence of this nature to meet the flight evidence resulted in a prejudicial effect that was unfair such that it

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•

•

•

•

outweighed the probative value of the prosecution evidence and the evidence had been wrongly admitted. Quinlan v The Queen [2006] NSWCCA 284, where the evidence of flight in an armed robbery case was held to have been correctly admitted. In this case when police stopped the car allegedly used in the robbery, the defendant alighted from the car, approached police, then returned to the car and drove off at high speed. The police lost the car in the subsequent chase and the defendant hid the car. Evidence was given on the voir dire that the defendant had been present when police opened fire indiscriminately on an Aboriginal gathering many years before and that explained why he drove off from the police. On appeal the CCA held (at [21]) that ‘[a]lthough there may be cases where the preferred explanation may be so prejudicial that the evidence of flight should be excluded this was not such a case. Having been involved, with others, in prior dealings with the police did not produce prejudice of concern in this case’. This explanation did not require disclosure of an offence and any prejudice to the appellant was capable of being adequately addressed by the trial judge’s directions. Therefore, the circumstances could be distinguished from those in Cook and there was no danger of unfair prejudice to the defendant. Jamal v The Queen [2012] NSWCCA 198, where Hidden J (at [47]–[59]) found that the defendant’s explanation for flight would have revealed he was suspected of terrorist activity so that the risk of unfair prejudice outweighed the probative value of the prosecution’s flight evidence. Radi v The Queen [2010] NSWCCA 265, where the CCA held that the presence of a box of bullets (but no gun) in a car was relevant and its probative value was not outweighed by the danger of unfair prejudice under s 137 in relation to a charge of ‘supplying a commercial quantity of methylamphetamine’. The bullets had been found near to a sports bag containing the prohibited drug, four mobile phones and $2800 cash. In considering its probative value, Hoeben J emphasised (at [39]) that the evidence was not to be looked at in isolation but with other evidence of the indicia of drug supply so that finding a box of bullets was significant. Against this the danger of unfair prejudice was ‘illusory’ because there was no suggestion from the evidence and submissions at trial ‘that the evidence should be relied on to establish a criminal tendency’ (that is, that the appellant must have had a firearm in the past which he probably used for criminal purposes even if he did not use it on this occasion). Chand v The Queen [2011] NSWCCA 53, where the CCA held that 20 Computerised Operational Policing System (COPS) entries/reports involving the defendant (complaints showing animosity by the defendant towards his various neighbours) were wrongly admitted in a case involving allegations that the defendant wounded his neighbour with intent to do grievous bodily harm by driving his motor vehicle at

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him. Thirteen of the reports did go to motive and as a result were relevant to the issue of intention in the case; however, the nature of these reports also clearly had potential to have a prejudicial effect on the defendant’s credibility. The evidence was capable of leading the jury to believe that the defendant was ‘(i) a vexatious complainant to the police about his neighbours and other people; (ii) a person who perhaps suffered from paranoia or some other form of undiagnosed mental illness; (iii) a person who felt victimised by various neighbours in the street and others and (iv) a person whose credibility due to his beliefs was diminished [both in the Electronically Recorded Interview of a Suspected Person (ERISP) and at trial when he gave evidence]’ (at [81]). Although no objection was taken to this evidence at trial, the CCA held that the balancing exercise under s 137 still had to be undertaken. It was evidence capable of assisting the prosecution in establishing intent, but this probative value was outweighed by the danger of unfair prejudice with the clear potential for misuse of the evidence by the jury to decide that the defendant was a person who could not be believed because he possibly suffered some form of paranoid mental illness (at [83]–[84]).30 Unfair prejudice may also or alternatively arise from procedural considerations. For example, an opposing party may be significantly prejudiced by hearsay evidence if unable to cross-examine on an important issue in the litigation.31 Alternatively, the opposing party may be unfairly prejudiced by evidence if prevented from properly challenging its reliability—that is, weight and credibility of the evidence cannot be effectively tested. Breach of the rule in Browne v Dunn (1894) 6 R 6732 might justify exclusion of evidence adduced in contradiction of a witness who was not properly cross-examined when they were giving evidence.33 These procedural considerations encompass the common law residual discretion to reject any evidence if the strict rules of admissibility would operate unfairly against the defendant—that is, it would result in an unfair trial. In Galvin v R [2006] NSWCCA 66, a witness (another alleged victim) in a child sexual assault case could not be cross-examined as he had died before trial. The trial judge had allowed his evidence to be admitted by playing his video-recorded police interview in court. The CCA allowed the appeal on the basis that the witness could not be cross-examined on important aspects of his version of events, most notably an alleged admission made to him by the defendant in relation to the female complainant. This was held to be highly prejudicial to the defendant so that it outweighed the probative value of the alleged admission made to the witness. The CCA has emphasised that the reasons for judgment must make clear what the unfair prejudice is and why it is of such a kind that the evidence must be rejected despite its probative value. Simple statements that s 137 applies, or bare findings that the probative value of the evidence is outweighed by the unfairly prejudicial effect of the evidence, are inadequate.34

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THE DANGERS: (B) MISLEADING OR CONFUSING This danger, which must substantially outweigh the probative value of the evidence under s 135 only, is where the particular evidence is adduced in a way that is not sufficiently clear to the fact-finder having regard to other ways in which it could be adduced. An example is the way in which an expert witness expresses statistical information interpreting the outcome of DNA testing. In R v GK (2001) 53 NSWLR 317, 324, the court observed that there will be ‘unusual cases where the judge has reason to fear that the jury will be overawed by the scientific garb in which the evidence is presented and will attach greater weight to it than it is capable of bearing’. This may raise the danger of unfair prejudice (as considered above) or that the factfinder will be misled or confused by the evidence. In the later case of Aytugrul v The Queen (2012) 247 CLR 170, there was a question of the admissibility of the way in which results of DNA profiling were expressed in a murder case. There was expert evidence that the defendant could not be excluded as the donor of a hair found on the deceased’s thumbnail with differing opinions as to weight to be attached to that conclusion. An expert prosecution witness expressed it as an exclusion percentage of 99.9% (that is, 99.9% of people in Australia would not be expected to have the DNA profile found in the hair specimen). The New South Wales CCA held that the evidence was not unfairly prejudicial under s 137 or confusing or misleading under s 135, and dismissed the appeal against conviction by a majority of 2:1. The defendant appealed to the High Court, and the appeal was unanimously dismissed. Essentially the court held that there was no reason to reject evidence of the exclusion percentage: The evidence given was clear. It was evidence adverse to the appellant but was in no sense unfairly prejudicial or misleading or confusing. The exclusion percentage given was high—99.9%—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% to the certainty of 100% … 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.35

The overlap between this head of danger and unfair prejudice is that this head may apply where a court decides the tribunal of fact would be misled by ‘incorrectly assessing the weight of the evidence’—a real danger that evidence of limited probative value will be given much more significance by the tribunal of fact than it deserves. An example of the use of s 135(b) in a civil case is Reading v ABC [2003]

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NSWSC 716, where Shaw J excluded a transcript of a television program because there was a video recording available accompanied by a danger that the jury would focus unduly on the transcribed words and fail to give due consideration to tone of voice and non-verbal actions recorded in the video. Danger of ‘confusion’ has significance in jury trials, but has also been used in judge-alone trials to exclude evidence that presented only part of the relevant picture so that the true situation was distorted.36 In contrast, Campbell J in Re: GHI (a protected person) [2005] NSWSC 466 at [8] said ‘there is something bizarre in submitting to a judge sitting alone that he or she should reject evidence on the ground that it might mislead or confuse him or her. I propose to trust myself, so far as that is concerned’. Another example may be evidence which is ambiguous and will invite speculation as to its meaning rather than providing enough information for the tribunal of fact to decide which competing inference should be drawn from known facts. Ambiguity will not always, however, equate to unfair prejudice or be misleading or confusing.37

THE DANGERS: (C) CAUSE OR RESULT IN UNDUE WASTE OF TIME There must be a danger that the resulting waste of time will be ‘undue’, which focuses attention on the proportionate value of the evidence in the overall determination of facts in issue. Where relevant evidence only has slight probative value it would not necessarily be a waste of time to receive it unless there was a disproportionate complexity created by its admission when compared to its ability to resolve facts in issue.38 A significant factor in this context is the incremental probative value of the evidence. Even though there may be appreciable probative value in relation to a piece of evidence when considered in isolation, there may have been other evidence admitted to establish the same fact. Accordingly, there is no or only nominal incremental probative value and the discretion could be exercised to prevent unnecessary duplication of evidence. If there is a peripheral issue to which the evidence relates, it has slight probative value and proper evaluation of the issue would significantly extend the length of the trial, then there may be a strong argument for discretionary exclusion under s 135(c).39 Overall, s 135(c) may be seen as having a neutralising effect on the breadth of the s 55 relevance test. Section 135(c) is likely to be used constantly at trial without specific reference because it is expected that the trial will finish within a specific time frame.

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STUDY TIP Summary points The obligation or discretion to exclude otherwise admissible evidence in both civil and criminal proceedings is very important to keep in mind for application at the end of the consideration of the various exclusionary rules of evidence (see Figure 3.1 above). In problem-solving you must clearly set out what the probative value of the evidence is, what the unfair prejudice is and why it is of such a kind that admissible and probative evidence must be rejected in the particular circumstances of the case.

SECTION 136 Instead of excluding evidence, the court has the option in s 136 of limiting its use in both civil and criminal proceedings: 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.

This discretion to limit has particular application in cases where evidence is relevant for multiple uses and in relation to different facts in issue. For example, evidence of a past statement made by a witness out of court might be used as evidence to prove the truth of the statement (a hearsay use), or to prove that person has said something inconsistent with their present testimony in court (a credibility use). Where the jury is justified in making a particular use (among a number of legitimate uses) of an item of evidence, but the trial judge considers that such a use might be unfairly prejudicial to a party or be misleading or confusing, a limiting direction under s 136 may be given. The application of the discretion to limit use regularly arises where s 60 or s 77 EA has been applied40 and the judge might direct the jury that it should not make a hearsay use or an opinion use of particular evidence even though the strict operation of the rules would allow them to do so. This needs to be put more clearly into a context of operation when we later consider certain exclusionary rules: hearsay rule and opinion rule. In making a decision about giving a limiting direction under s 136 an important factor for the trial judge is whether there is a jury and it will not simply be given because of the operation of s 60 or s 77.41 Also, the considerations relating to ‘danger that a particular use of the evidence might be unfairly prejudicial to a party’ or ‘might be misleading or confusing’ are largely the same as the considerations taken into account in deciding whether to

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exclude evidence under s 135 or s 137 (examined above). Importantly, though, the way in which the discretion in s 136 is exercised will be affected by the fact that the use of the evidence is to be limited rather than completely excluded and the probative value of the evidence is not specifically considered.

DISCRETION TO ADMIT IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE The discretion to admit evidence even if improperly or illegally obtained is enacted in s 138 EA: 138 Discretion to exclude improperly or illegally obtained evidence (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 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

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(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.

This provision applies in both civil and criminal proceedings although it most often arises in the context of criminal proceedings. It closely follows the discretionary approach to dealing with illegally and improperly obtained evidence developed by the High Court at common law in cases including R v Ireland (1970) 126 CLR 321, Bunning v Cross (1978) 141 CLR 54 and Ridgeway v The Queen (1995) 184 CLR 19. These cases developed the relevant principles dealing with the competing public policy requirements of bringing to conviction those who commit crime and of protecting the individual from unlawful and unfair treatment. The rationale of the public policy discretion is that convictions obtained by means of unlawful conduct may be obtained at too high a price. The ultimate question to be asked is whether to admit the evidence would be to convict at a price that is unacceptable having regard to contemporary community standards.42 ‘Improperly’ obtained evidence is a separate category from evidence obtained illegally or as a consequence of an ‘impropriety’ under s 138(1). The word ‘improperly’ is not defined in the Act and it is of a potentially broad reach. Evidence obtained in this way is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the improper way in which the evidence was obtained.43 In practical operation it is important to note that an onus lies on the party seeking exclusion to establish the impropriety or illegality. Once this onus has been discharged, the burden is placed upon the party seeking its admission (usually the prosecution) to persuade the trial judge that the evidence should, nevertheless, be admitted. In Employment Advocate v Williamson (2001) 111 FCR 20, Branson J observed that s 138(1) requires the court to undertake an exercise of judgment and that ‘it is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to’ the conduct of police in carrying out effective investigations into various types of criminal activity. Note that s 138(1) contains no express limitation restricting it to evidence obtained by police or other law enforcement agencies and such a limitation shouldn’t be implied. Section 138(3) sets out the matters to be taken into account when exercising the discretion to admit evidence in s 138(1). These matters are not exhaustive, but generally reflect those emphasised in the leading common law decisions of Bunning v Cross and Ridgeway v The Queen. They include the nature and gravity of the offence charged against the defendant, the importance and probative value of the evidence in question, the gravity and intent of the illegality or impropriety, the nature

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A CASE TO REMEMBER Robinson v Woolworths Ltd (2005) 64 NSWLR 612 In Robinson v Woolworths Ltd (2005), the major issue was whether there was conduct that was capable of constituting ‘improper conduct’ for the purposes of s 138(1). The New South Wales Department of Health procured minors to purchase cigarettes as part of compliance testing of businesses retailing cigarettes. The business in this case was a Woolworths Plus Petrol Station. On appeal by stated case from the District Court judge’s decision that the conduct was improper and not to be admitted as evidence (and, therefore, that there was no case against Woolworths), the CCA held that the conduct complained of was not capable of constituting an impropriety for the purposes of s 138. The conduct amounted to a ‘mere opportunity’ for commission of the offence with no intrusion on individual rights and freedoms, and no harassment. Also, the offence was contextualised as regulatory involving no criminal intent, so that ‘random checking’ conduct by the Department of Health was a principled, viable and practical means of achieving compliance as one strategy to combat the illegal sale of tobacco to young people. Basten JA set out (at [23]) important propositions in identifying whether there was ‘impropriety’ in a particular context: (1) the ‘minimum standards’ a society would expect of law enforcement authorities; (2) that the conduct of the authorities must be ‘clearly inconsistent’ with those standards; and (3) that there must be ‘some level of encouragement, persuasion or importunity in relation to the commission of the offence’ to amount to ‘harassment’ and ‘manipulation’.

of the impropriety (for example, whether it is a breach of an international covenant or legislation designed specifically to protect citizens), the ease with which the evidence could have been obtained without illegality or impropriety, and the likelihood of those committing the illegality or impropriety being otherwise dealt with.44 They don’t all have to be expressly considered, but attention to each factor will give a full judicial appreciation of the nature and extent of any illegal or improper conduct by law enforcement authorities.45

A CASE TO REMEMBER R v Haughbro (1997) 135 ACTR 15 R v Haughbro (1997) demonstrates how the balancing requirements of s 138 are specifically undertaken by a trial judge with particular focus on the factors set out in subs (3). In this case, the police targeted the defendant for investigation in illegal drug trafficking and used an undercover police officer to obtain evidence through him participating with the defendant in a series of transactions involving the sale of illegal drugs. The process of judicial reasoning undertaken by Miles CJ is transparent in demonstrating how he ultimately reached the conclusion that the desirability of admitting

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the evidence outweighed the undesirability resulting from the particular contravention of the law by the undercover operative, Johnson participating in the serious drug-trafficking offences as a conspirator and aider and abettor. The probative value of the evidence was assessed to be very high (s 138(3)(a)) and therefore it was considered to be important (s 138(3)(b)). Drug trafficking offences (s 138(3)(c)) were involved and considered to be serious. Taken together those matters greatly favoured admission of the evidence. As to the gravity of impropriety and whether it was deliberate or reckless (s 138(3)(d) and (e)), Miles CJ observed (at 24–25) that the police ‘do not regard it is as improper to engage in a certain amount of deception in order that suspected criminals may be apprehended … [and] most people … would regard some deception as justified in order to properly investigate serious crime’. Accordingly, although the undercover operative’s conduct was illegal it was not otherwise improper. As to the gravity of the illegality, there was no intention by any officers involved in the operation to use the proceeds of the drug supply for an unlawful purpose so that the contravention of the law was not particularly serious. Section 138(3)(f) was not applicable as the defendant was not the subject of victimisation or discrimination by the police and no prosecution witnesses were prosecuted in relation to their part in the supply of drugs by the defendant (s 138(3)(g)). Finally as to s 138(3)(h) it was apparent that ‘without the use of informers and infiltration of the supply process by undercover operatives [in the highly organised drug trafficking trade] it is unlikely that law enforcement authorities would be able to expose the more serious wellorganised activities for the purpose of prosecution’ (at 27). Overall, Miles CJ carefully considered how the public interest was best served in balancing the s 138(3) factors and concluded that the evidence should be admitted. The prosecution had established that the desirability of admitting the evidence outweighed the undesirability so that the evidence was not ‘obtained at too high a price such as to offend against a sense of fair play or immediately to arouse feelings of moral outrage. Rather it presents itself as the now “normal” police subterfuge and rather squalid perception which is one of the more depressing by-products of the hermetically sealed drug culture’ (at 28).

A further useful illustration of the s 138(3) factors at work is in the case of R v Camilleri [2007] 169 A Crim R 197, which involved a charge of fatal dangerous driving to be balanced against an illegally obtained blood sample by a nursing sister at the hospital. The trial judge’s ruling had rejected the evidence of the blood alcohol analysis supporting the charge under s 52A Crimes Act 1900 (NSW) with a reading of 0.153, because the blood sample was improperly obtained at the hospital and it was a ‘very grave’ impropriety. On appeal the CCA held, in allowing the appeal, that the nursing sister had acted honestly under a misapprehension that the defendant was attending for examination or treatment as a consequence of a road traffic accident so that there was only a minimal level of impropriety involved. In balancing ‘the competing interests [of] obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders’ (Howie J at [31]), it was held that the high probative value of the evidence made the desirability of admitting the evidence

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outweigh the undesirability given the minor nature of the impropriety in innocently taking the blood sample at the hospital. Finally, in Fleming v The Queen [2009] NSWCCA 233, it was held that there was no ‘impropriety’ or ‘unlawfulness’ in the initial ‘trick’ used by police to obtain a DNA sample from a suspect in an ‘old’ murder case to compare to a DNA profile from semen recovered from the deceased’s body in 1984 but not tested until 2004. The sample was obtained from spittle on a sketch drawn by the suspect in an unrelated matter. The appellant was tricked into cooperating with the police sergeant but the CCA was not persuaded that the line that would make the sergeant’s conduct improper was crossed. The CCA found that the discretionary decision by the trial judge was not accompanied by any error or that he had regard to any irrelevant matter or failed to consider a relevant matter so that the conclusion to admit the evidence was open (at [22]).

STUDY TIP Summary points The major factors to be taken into account in exercising the ‘public policy’ discretion under s 138 are: 1 the nature of the relevant offence: in R v Dalley [2002] NSWCCA 284, the CCA held that ‘the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity’ (Simpson J dissenting). Similarly, it is relevant that a civil, rather than a criminal proceeding was 2

involved (Employment Advocate v Williamson (2001) 111 FCR 20). the gravity of impropriety: this includes consideration of the consequences of the impropriety or contravention on the individual concerned, having regard to that individual’s personal characteristics (R v Helmhout (2001) 125 A Crim R 186) coupled with whether it was deliberate or reckless. The CCA held in R v Dalley, a finding that police officers in breach of their statutory obligations ‘were neither reckless nor dishonest’ but rather inexperienced and inadequately trained was ‘a significant matter affecting the s 138 judgment’.

In conclusion, there are two points to keep uppermost in your mind when considering the judicial discretions to exclude or admit evidence: 1 the general relaxation of the exclusionary rules of evidence brought about by the Act will inevitably mean that more challenges to the admissibility of evidence must be mounted on discretionary grounds, and 2 exclusionary discretions under the Act are significantly broader in scope than at common law.

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Important references For more extensive coverage of the roles of judge and jury, and the judicial discretions to exclude evidence see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapters 2 and 4. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 28–32, 631–681, 807–810, 814–820. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) 13–19 and Chapter 14. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 16 and 20. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 55–57, 825–896, 1046–1050, 1055–1061.

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ASSESSMENT PREPARATION Active learning questions 1 Explain the judicial role, including any procedural contingencies that determine its extent, in a criminal or civil trial? What is the significance of s 192 EA to the judicial role in a criminal or civil trial? 2 ‘The power to give advance rulings carries significant benefits in relation to the efficiency of trials’ (ALRC102 [16.108]). Discuss the benefits of the power provided to the court by s 192A EA. 3 Consider the scope of s 137 EA, including the meaning of ‘unfair prejudice’ in this section. How does this section compare to s 135? What types of information and/or material might be the subject of exclusion under s 137? 4 ‘Unlike [ss 135 and 137], s 136 does not involve a balancing test and this will affect the manner in which the section applies’ (ALRC102 [16.64]). Discuss the circumstances in which, and give examples of when, it will be appropriate to seek limitation of the use of evidence pursuant to s 136? 5 Consider the scope of s 138 EA, including the extent of its application to evidence sought to be adduced at any trial. What does the term ‘improperly’ mean in this section and how is it different to the term ‘illegally’? What factors have to be taken into account and balanced in making a decision to exercise the discretion to exclude evidence under this section?

Review problem Don Jaegar has been charged with ‘robbery in circumstances of aggravation’. The prosecution allege that Don Jaegar was driving a purple Holden Commodore registered number AKK 55P when the vehicle suddenly swerved up on to the footpath and knocked down a pedestrian, Beryl Finch, who was walking along the path. It is alleged that Don then stopped the vehicle, jumped out and forcibly pulled the handbag from the right arm of Beryl Finch who was lying on the ground screaming in pain. Don then got back into the car and drove away. On the basis of the information supplied from an eyewitness, police officers traced the vehicle to Sharon Jaegar. Two police officers then drove in a marked police vehicle to Jaegar’s house and as they turned into the street they saw a purple Holden Commodore driving into the street from the opposite end. They observed the Commodore drive into Sharon Jaegar’s driveway and as the police vehicle was slowing to park opposite Jaegar’s house they saw a man jump out of the Commodore and run around to the back of the house. The officers noticed that the registration plate on the Commodore was AKK 55P before they chased the man and caught him hiding in a shed in the backyard of the property. As the police officers were escorting the man back to the Commodore to conduct a search of the vehicle, Sharon Jaegar came out the front door of the house and said, ‘Hey, what’s going on? Who are you and where are you taking my Donnie?’ One of the police officers then replied, ‘I am Senior Constable Pink and this is Constable Newbury. We are making enquiries into an aggravated robbery that occurred approximately 25 minutes ago and we believe that this man was driving the Commodore at the time and may have been involved in the robbery’. Constable Newbury then conducted a search of the Holden Commodore registered number AKK 55P and located a woman’s handbag. Inside

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the handbag, Constable Newbury located a purse with various cards in the name of Beryl Finch. Don’s case is that he was not responsible for the robbery and the prosecution have been notified of his alibi defence—that is, he was at a mate’s place all morning until he returned to his house and found the police there. His instructions to his lawyer are that he ran and hid from the police as he thought they were coming to see him about some stolen car parts that he had received a couple of days before and that he had breached his parole order. Don has an extensive criminal record and is currently on parole having recently been released from prison after serving four years imprisonment for two robbery offences. 1 At Don’s trial, the prosecution seek to adduce evidence from Senior Constable Pink as to the chase and capture of Don Jaegar in the backyard of his house. Counsel for Don objects to this evidence being adduced on the basis that its probative value is outweighed by the danger of unfair prejudice to Don. How is the trial judge likely to rule on this objection? 2 Further, the prosecution seek to adduce evidence from Constable Newbury as to his search of the Holden Commodore and the items that were seized as a result of that search. Counsel for Don objects to this evidence being adduced on the basis that it was illegally obtained because the police did not have a search warrant or permission from Don or Sharon Jaegar to search the car. How is the trial judge likely to rule on this objection? For additional notes on the review problem, please refer to .

Notes 1 The only option for trial by jury is in defamation cases, which is available in New South Wales, Victoria and Tasmania but not in the Australian Capital Territory or Northern Territory. 2 Criminal Procedure Act 1986 (NSW) s 132; Supreme Court Act 1933 (ACT) s 68B (limited). 3 Criminal Procedure Act 1986 (NSW) ss 260–263, Schedule 1 Table 1 and Table 2; Criminal Procedure Act 2009 (Vic) ss 28–29 and Schedule 2; Magistrates Court Act 1930 (ACT) ss 92A and 108A; Criminal Code Act 1983 (NT) ss 4, 314 and 379; Criminal Code Act 1924 (Tas) s 7. 4 See below for further exposition of this point. 5 See subs 189(4) (unless the court orders). The matters to be taken into account in this regard are set out in s 189(5). 6 Note s 189(8) on the use of voir dire testimony. There is a restriction that such evidence given by a witness at a hearing of a preliminary question can be used only where it is (1) inconsistent with other evidence given by the witness in the proceeding or (2) the witness has died. 7 See s 142 EA. This standard of proof is considered in more detail in Chapter 2. 8 See, for example, Walton v Gardiner (1993) 177 CLR 380; Dupas v The Queen (2010) 241 CLR 237, 244; and Moti v The Queen (2011) 245 CLR 456, 463–466. 9 Mooney v James [1948] VLR 22, 28. 10 At 126 (Gaudron, Kirby and Callinan JJ).

CHAPTER 3: ROLES OF JUDGE AND JURY; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE

11 Ibid (emphasis added). 12 Also, see R v RTB [2002] NSWCCA 104; R v Ambrosi [2004] NSWCCA 23, and R v MDB [2005] NSWCCA 354. 13 Witness questioning provisions are considered in detail in Chapter 4. 14 See TKWJ v The Queen (2002) 212 CLR 124. Character evidence is specifically discussed in Chapter 10. 15 This is discussed in Chapter 1. 16 See, for example, McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 and compare to Gaudron J in Adam v The Queen (2001) 207 CLR 96. 17 See R v Christie [1914] AC 545. 18 For example, see R v Yates [2002] NSWCCA 520. For a critique of the narrow construction of this term, see Tim Smith and Stephen Odgers, ‘Determining “Probative Value” for the Purposes of Section 137 in the Uniform Evidence Law’ (2010) 34 Criminal Law Journal 292. 19 Reference by Spigelman CJ in R v Shamouil at [63] to Simpson J in R v Cook [2004] NSWCCA 52. 20 Initially in Victoria the decision in Shamouil had been followed in KRI v The Queen [2011] VSCA 127 [34] and [53]. 21 At [66] (Basten JA), [86]–[88] (Hoeben CJ at CL), [175] (Simpson J), [207] (Blanch J). Price J dissented and considered the approach in Dupas was correct as enhancing the fair trial principle (at [224]). Also, see LP v The Queen [2013] NSWCCA 330 [83]–[89]. 22 R v Shamouil [61]–[62] (Spigelman CJ); and R v Mundine (2008) 182 A Crim R 302. 23 A different approach had initially been adopted by the Tasmanian Supreme Court in Tasmania v Mayne [2009] TASSC 82, but was reversed in KMJ v Tasmania [2011] TASCCA 7 [30]–[40] (Evans J), [42] (Blow J), and [43] (Tennent J), to accord with other Australian appellate court decisions. Also, see Neill-Fraser v Tasmania [2012] TASCCA 2 [183]. 24 R v Blick [2000] NSWCCA 61 [19]–[20]; R v GK [2001] NSWCCA 413; R v Le (2002) 130 A Crim R 44, 65; Steve v The Queen [2008] NSWCCA 231 [60]–[76]. 25 R v Allen (unreported, NSWCCA, 1 December 1996). 26 In R v Ames [1965] NSWR 1489, the court held such photographs were properly admitted because they showed the direction of the flow of blood, a matter relevant to the question of whether the deceased had been murdered or had committed suicide. 27 R v Blick [2000] NSWCCA 61 [19]. 28 Papakosmas v The Queen (1999) 196 CLR 297. 29 ACLR26 vol 1 [644]. 30 Note that reference is not made to R v FDP (2008) 74 NSWLR 645 in this case where the CCA held that there was no duty upon a trial judge to reject evidence under s 137 when no objection was taken to the evidence at trial. This is because the trial judge is not aware of any tactical considerations that may have led defence counsel to not object to the admission of the evidence. 31 Hearsay evidence is defined and discussed in detail in Chapter 7. 32 The rule in Browne v Dunn is considered in detail in Chapter 4. 33 Compare Khamis v R [2010] NSWCCA 179 [42]–[53], which provides alternative options for a judicial officer to remedy a violation of the rule in Browne v Dunn. Also, see Lysle v R [2012] NSWCCA 20 [31]–[51], and Llewellyn v R [2011] NSWCCA 66 [137]. 34 See R v Harker [2004] NSWCCA 427.

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35 At 184–186 (French CJ, Hayne, Crennan and Bell JJ). Also, see R v MK [2012] NSWCCA 110 [43]–[49]. 36 See Hughes Aircraft Systems International v Airservices Australia (No 3)(1997) 76 FCR 151. 37 See, for example, R v SJRC [2007] NSWCCA 142. 38 See, for example, Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 [21]. 39 See, for example, R v Esposito (1998) 105 A Crim R 27, 71; R v Smith (2000) 116 A Crim R 1; R v Taylor [2003] NSWCCA 194 [128]. 40 Section 60 will be examined in detail in Chapter 7. Section 77 will be examined in detail in Chapter 9. 41 See Papakosmas v The Queen (1999) 196 CLR 297, 310 (Gleeson CJ and Hayne J), and 327 (McHugh J); Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 [21]; Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 [65]–[72]. 42 See R v Swaffield; Pavic v The Queen (1998) 192 CLR 159. Also, see CCR v The Queen [2012] VSCA 163 [37]–[44]. 43 Section 138(2) deals with the specific situation of admissions obtained during questioning where there has been some impropriety. This will be briefly considered in Chapter 8. 44 Note that the Charter of Human Rights and Responsibilities Act 2006 (Vic) applies to the Evidence Act 2008 (Vic). 45 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296, 305; R v Haughbro (1997) 135 ACTR 15, 18.

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CHAPTER 4

WITNESSES AND ADDUCING EVIDENCE COVERED IN THIS CHAPTER In this chapter, you will learn about: • competence and compellability of witnesses; • conduct of a trial in the adversarial process; and • warnings and information about unreliable evidence.

CASES TO REMEMBER Azzopardi v The Queen; Davis v The Queen (2001) 205 CLR 50

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 13, 18, 20, 26, 29, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, 46, 164, 165, 165A, 165B

INTRODUCTION Our focus in this chapter is on witnesses and the rules governing the adducing of oral evidence in the trial process. We will also examine judicial directions and warnings that can be given about certain witnesses or evidence that may be unreliable. Most material in this chapter forms part of the process relating to the sources of information to be used as evidence, the first link in ‘The framework of admissibility of evidence’1 chart. Whether the evidence is unreliable and a warning is necessary are considered at a later stage of the overall admissibility framework.

COMPETENCE AND COMPELLABILITY OF WITNESSES In adducing evidence, a lawyer must initially consider whether the people to be called as witnesses in their case are competent (that is, legally capable of giving evidence) and compellable (that is, legally obliged to give evidence).2 The general rule is that all people are competent and compellable to give evidence as witnesses, which is reflected in s 12 EA. First, as to the competence of a witness, it is important to understand the operation of s 13. The essential requirement is that a person must be competent to give evidence about a fact and they are presumed to be competent unless the contrary is established. Figure 4.1 shows the s 13 test for the competency of a witness to give either sworn or unsworn evidence.

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FIGURE 4.1 Practical operation of competency test of a witness in s 13

A person is presumed competent to give evidence about a fact: s 13(6)

Person is not competent to give evidence about a fact if (1) does not have capacity to understand a question or (2) does not have capacity to give an answer that can be understood: s 13(1)

Person competent to give evidence about a fact but not competent to give sworn evidence if they do not have capacity to understand the obligation to give truthful evidence: s 13(3)

Person competent to give unsworn evidence if court has told them (1) it is important to tell the truth; and (2) to tell the court if they don't know an answer or cannot remember; and (3) to only agree with statements they believe are true and no pressure to agree with statements they believe are untrue: s 13(5)

A person may be incompetent for any reason, including a mental, intellectual or physical disability. To determine a person’s competency to give evidence, a court ‘may inform itself as it thinks fit’, including using expert evidence under s 13(8). The judge or magistrate determines this as a preliminary question on the voir dire and neither party bears a burden of proof in this regard.3 It is essentially an inquiry, which requires ‘skilled questioning’ from the judicial officer and lawyers so that the witness can understand and answer the questions, particularly where the witness is a young child ‘with limited skills and language’.4 It is possible for an incapacity to be overcome, noting that s 31 permits witnesses who cannot hear or speak adequately to be questioned ‘in any appropriate way’ and to give evidence ‘by any appropriate means’. The sworn evidence of a witness must be on oath or by making an affirmation.5 Oaths have religious overtones, but ss 24 and 24A do not require a religious text to be used or for the witness to believe in the existence of a god. Making an affirmation does not involve any religious beliefs, with the witness stating: ‘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.’ The emphasis is on an understanding of the obligation to give truthful evidence. The requirements for unsworn evidence in s 13(5) are ‘designed to limit the danger that people with a limited understanding of the concept of truth telling, especially children, may be confused or intimidated by the fact that a person with apparent authority is seeking agreement to a proposition’, albeit in the context of legislative provisions that allow video-recording of a child’s testimony.6

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Also, note s 13(7) that where a witness dies or ceases to be competent before finishing their evidence, the evidence they have already given is still admissible. Depending on the particular circumstances, discretionary exclusion by the judicial officer under ss 135 or 137 may be appropriate. Second, as to the compellability of a witness, there are several exceptions to the rule in s 12(b) that a competent witness is compellable to give evidence, which can be summarised as follows: •

• • •

where ‘substantial cost or delay’ would result from ensuring a person was capable of understanding questions or of giving answers that could be understood and there is adequate evidence otherwise available on that matter (s 14); heads of state and members of parliament on parliamentary sitting days (s 15); judges and jurors in a proceeding (s 16); a defendant in a criminal proceeding and an associated defendant unless being tried separately from the defendant (s 17). Importantly, although competent to give evidence only in their own defence,7 a defendant cannot be forced to testify and this right cannot be waived.8

The law relating to compellability of witnesses has largely developed in relation to the spouse and family members of a defendant in criminal proceedings. Under the Act, the general rule applies but certain family members may object to giving evidence for the prosecution under s 18(2). Where such an objection is raised the court must not require the person to give evidence if it finds under s 18(6) that: (a)

There is a likelihood that harm would or might be caused to the person, or to the relationship between the person and the defendant, if the person gives evidence; and (b) The nature and extent of that harm outweighs the desirability of having the evidence given.’

Section 18(6)(b) involves a balancing test, which usually will be determinative of the issue because in most situations it will be likely that harm ‘might’ be caused to the relationship between the family member and the defendant if evidence is given by that person for the prosecution against the defendant. The relevant considerations to be taken into account in the balancing test are set out in s 18(7) with a focus on the nature of the offence and the importance and exclusivity of the family member’s evidence against the nature of the relationship and whether giving the evidence would mean the family member disclosing a confidence from the defendant. Ultimately it is a matter of judicial discretion in assessing the ‘harm’ and balancing that against ‘the desirability of having the evidence given’ in the particular circumstances of the case.9 Finally, s 18 does not apply in certain criminal proceedings as set out in s 19. This provision varies between jurisdictions but typically includes offences involving domestic violence or abuse and neglect of children.

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CONDUCT OF A TRIAL IN THE ADVERSARIAL PROCESS Once it is established that a witness in a trial is both competent and compellable and there is no, or an unsuccessful, claim for privilege,10 we must consider the rules governing the presentation of facts to the court. These facts are ascertained by means of questions to and answers from witnesses called by the lawyers for the respective parties. Apart from the common law recognition of a right to a fair trial for both the defendant and the community represented by the prosecution,11 there may be a legislative obligation on judicial officers in the Australian Capital Territory and Victoria to ensure a fair trial.12 The general rules about giving evidence, examination in chief, cross-examination, and re-examination are contained in Part 2.1 Divisions 3–5 EA. Initially, s 26 confers wide powers on a court regarding ‘(a) the way in which witnesses are to be questioned, (b) the production and use of documents and things in connection with the questioning of witnesses, (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’. Relevant considerations concerning the order in which parties may call witnesses are fairness and efficiency.13 It remains the practice that potential witnesses, apart from parties to the proceedings, wait outside court until they are called to give evidence unless the court orders otherwise under s 26(1)(d).

EXAMINATION IN CHIEF The prosecution14 in criminal cases and the plaintiff in civil cases present their case in chief as the first stage of a trial. This will mostly be composed of the oral evidence of witnesses and the questions asked of these witnesses by the prosecution or plaintiff are referred to as the ‘examination in chief’ of the witness.15 Its object is to adduce relevant and admissible evidence from each witness that assists the case of that party. It is essentially the telling of a story where each witness provides an episode as part of a chronological narrative resulting in a connected, coherent and persuasive complete version of the events. A question and answer format is the usual way in which witnesses give their evidence at trial. This format is supported by the adversarial nature of litigation with questions restricted to those to which a particular party wants answers, to ensure a witness does not give answers that are inadmissible as evidence, and in the interests of the most efficient use of available time. Section 29(2), however, provides that a witness can be directed to give evidence ‘wholly or partly in narrative form’, that is, speaks without being questioned. Section 29(4) reflects the position at common law that 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’.16

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Leading questions In examination in chief, the foremost rule is that leading questions are not allowed. The rationale for this general prohibition is that ‘the search for the truth and the proper administration of justice are best served by having witnesses testify in their own words rather than those of the questioner’.17 Any suggestions by counsel who has called a particular witness, and is likely to be viewed as an authority figure in the imposing atmosphere of a courtroom, may influence the independence of the evidence of that witness. There is a perceived alignment of interests, which may make a witness particularly suggestible to questioning by the counsel whom they know has called them to support their case. There are two types of leading question, mirrored in the definition of this phrase in the EA Dictionary Part 1: ‘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.

The first type is a question where the advocate is seeking a particular answer and it is formed in such a way to clearly suggest the answer to the witness. An example is where the witness is provided with a significant amount of detail in the question of what really should be their own observations, such as the following in relation to a glassing incident, ‘On Tuesday 31 December 2013 at 11:55 pm, did you see the defendant forcefully strike the victim’s face with an empty beer glass?’ When it is put that way it is clear what answer is being sought. The evidence should rather be adduced from the witness through a series of non-leading questions until all the relevant information is provided. Accordingly, it would be necessary to first ask the witness where they were on the relevant night before asking them to provide details of who they saw and what other observations they made at the time. The second species of leading question is best illustrated by the classic example, ‘“have you stopped beating your wife yet?” when the witness has not yet admitted that he had ever beaten his wife at all. Whether the witness answers “yes” or “no”, the answer seems to imply an admission that the witness has, at some time, beaten his wife’.18 A test of whether a question can only be answered ‘yes’ or ‘no’ is not conclusive in categorising leading questions. For example, the question, ‘Was there another person in the building?’ is not a leading question, even though it can be answered ‘yes’ or ‘no’, because it neither suggests a desired answer nor assumes that another person was present in the building.

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The prohibition against leading questions applies to all matters in dispute; however, there are circumstances where leading questions are permitted so the rule is subject to certain exceptions. Section 37 EA deals specifically with leading questions and it is structured so as to prohibit leading questions in examination in chief and re-examination unless one of the exceptions from subs (1)(a) to (e) applies. As to 1(a) you must cross-reference to s 192(2), which deals with the grant of leave generally and permits the court to give leave ‘on such terms the court thinks fit’.19 Introductory matters in 1(b) usually involve matters that are not contentious such as the name, address and occupation of the witness; and 1(d) extends this to any matters not in dispute. Where the parties are legally represented there must be an objection taken to a leading question otherwise it will be permitted under 1(c). This provision was considered in Ta and Nguyen v R [2011] NSWCCA 32, where it was held that, even though it was a leading question for the prosecutor to ask a detective, ‘Did you find anything similar to a remote control for a garage door?’ when questioning about searching the defendants’ car, it was not prohibited by s 37 because the defence counsel did not object to it (at [68]). It should have been rejected if there had been an objection. The court went on to emphasise at [69] that the same evidence could have been adduced without otherwise contravening s 37, ‘by breaking up of the single question into two questions along the lines of “Did you find anything?” [and upon receiving an affirmative answer] “What did you find?”’ The final exception is 1(e) in relation to expert witnesses where ‘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’. This is not an open-ended exception to allow leading questions of expert witnesses generally. It is clearly limited in scope to allowing an expert to be led in relation to facts that have been or will be adduced in evidence even if disputed in the particular case, and then expressed as a hypothetical scenario upon which they can give an opinion using their expertise. For example, where there is an issue as to the causal link between a particular incident and an injury to a plaintiff in a civil case, an expert witness may be asked hypothetical questions to adduce an opinion as to the link between the incident and the injury.20 The consequence of asking a leading question without leave, or if it doesn’t fall within one of the exceptions, is not set out in s 37. The ALRC explained that ‘the form of question will affect the weight of the answer’21 and this is illustrated by the case of Re Nguyen and Minister for Immigration and Multicultural Affairs [1999] AATA 292, where answers to clearly leading questions were ignored by the Deputy President of the AAT who commented, ‘having put words in the witness’s mouth, the answers were predictable and of no probative value’ (at [68]).

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STUDY TIP Advocacy and the criminal trial thread scenario THE 10 COMMANDMENTS OF EVIDENCE IN CHIEF22 1 2 3 4

5 6 7 8 9

10

The primary purpose of evidence in chief is to persuade. A good start is important—make the listener interested and wanting to hear more. Organisation and structure should be planned in advance. You can’t persuade if you can’t communicate—use language that is most likely to be understood by the witness, look at the person with whom you are communicating, and listen to the answers given by the witness. Remember the listener—make sure the judge and jury feel included and are attentive. Use non-leading questions. Use physical things as much as possible—plans, photographs and objects. Use piggyback questions—that is, questions that incorporate some information from the previous answer. Fake sincerity—although the answers from the witness should be predicted, make it look like you don’t know what the witness is going to say and enthusiastically encourage the witness that what they have ‘to say is worth listening to’. Don’t ask stupid questions, particularly using ‘lawyerspeak’.

Refreshing memory As there will often be a lengthy delay between an event and a person giving evidence about that event in court, many people called as witnesses in a trial will not be able to remember some or all of the detail of the events they observed. This will particularly be the case for a witness whose profession means they have been involved in a multitude of similar fact situations or where the facts involved are complex or highly technical. As a result of the rule against leading questions in examination in chief a lawyer cannot (unless leave is given) prompt a witness about matters they have forgotten. A witness’s memory can be refreshed, however, by reference to a written record of the events, subject to certain safeguards. Section 32 EA provides for refreshing the memory of a witness in court, and by s 32(1) the court can grant leave for a witness to use a document to attempt to revive their memory about certain facts. In deciding whether to give leave, the court is to take into account the matters in s 32(2), namely whether there is adequate recall without using the document and whether the events recorded in the document

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were ‘fresh in his or her memory’ or ‘found by the witness to be accurate’ when the document was made.23 These must be established from the witness concerned through the use of non-leading questions. There is no requirement that the witness’s memory be ‘exhausted’ as at common law, but it must have reached a point where their memory is no longer trustworthy and requires assistance to ensure the witness is not misled. Where a document has been used in refreshing a witness’s memory, the court may give leave under s 32(3) for the witness to read the document aloud to the court as part of their evidence. If a s 32 application fails or is withdrawn, then depending on the circumstances, the prosecution may make an application under s 38 to treat their witness as unfavourable, thus allowing cross-examination.24 Section 33(1) goes even further in recognising the unique position of police officers in criminal proceedings by allowing them to ‘give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer’ at the time of or soon after the occurrence of the events referred to in the statement. This time frame would not be likely to include a fortnight from when the events are alleged to have taken place.25 Where a party requests that a document used by a witness in an attempt to refresh their memory be produced to them, the court is required to direct under s 32(4) that ‘so much of the document as relates to the proceeding’ be produced to the requesting party. This is a broad expression and may potentially include more information than was used by the witness to refresh their memory. In any event, once the document is produced and inspected, by s 35(1) the requesting party is not obliged to tender the document as was the case at common law.26 Further by s 45(5), production of the document to the witness during cross-examination does not give rise to an obligation to tender the document. A witness may refresh their memory outside of court by any means that is available and useful for this purpose, including a statement they made at an earlier time. By s 34(1) the court may direct that ‘specified documents and things’ used by a witness to try to revive their memory out of court be produced to the opposing party. If the direction is not complied with then under s 34(2), the court may refuse to admit the evidence of facts relating to the documents used by the witness to revive their memory.

Failure to call evidence—the rule in Jones v Dunkel The Act is silent on the topic of the failure of a party to call a particular person as a witness, so it is necessary to have an understanding of the common law in this regard.27 Where a particular person is not called as a witness this may, depending on the specific circumstances, result in the inference that the person’s evidence would not have assisted the case of the party who would have been expected to call that witness. This is known as the rule in Jones v Dunkel, which derives from the principles established in the much earlier case of Blatch v Archer (1774) 98

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ER 969.28 Whether the inference can be drawn is a discretionary decision of the primary judge.29 In the contemporary context, a majority of the High Court approved the application of the rule and that it extended to circumstances where a witness is called but not questioned on particular topics such that it is an ‘implied admission or circumstantial evidence permitting an adverse inference’.30 Jones v Dunkel (1959) 101 CLR 298 was a civil negligence case where one of the defendants, a truck driver involved in a collision that resulted in the death of the husband of the plaintiff, was not called to give evidence. There were no eyewitnesses to the collision and no skid marks were found on the roadway due to the weather conditions. In the High Court, Menzies J emphasised (at 312) that a proper direction in the circumstances of this case ‘should have made three things clear: (i) that the absence of the defendant … 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.

The conditions precedent to the making of the inference that the evidence of a particular witness would not have assisted a party’s case are that: •

•

•

the missing witness would be expected to be called by one party rather than another in the proceeding; the evidence of this witness ‘would elucidate a particular matter’, that is they would have ‘a close knowledge of the facts’; and the absence of the witness is not explained.31

Although the rule in Jones v Dunkel applies in both civil and criminal proceedings,32 there have been distinct modifications in criminal cases particularly when it is the defendant who does not give evidence in a trial. The upshot of the cases is that such an inference should not generally be drawn.33 In a criminal trial a defendant faces a stark choice between giving evidence and facing cross-examination by the prosecutor, during which their credibility could be destroyed, or not giving evidence and risking that this will be interpreted to their detriment by the jury who may consider that the defendant should provide an explanation or version of events. It is an important tactical decision for the defence counsel. The significance of a defendant’s failure to give evidence involves an interaction between the case law and s 20 EA. An important early case prior to the enactment of s 20 is Weissensteiner v The Queen (1993) 178 CLR 217. The defendant in this case was tried for the murder of two people whom he had worked for and sailed with on their boat from Cairns around various Pacific islands. The two boat owners were never seen again after

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setting sail with the defendant from Cairns. An entirely circumstantial case of murder was presented against the defendant, including that various personal possessions of the two boat owners which they wore continuously were found on the boat, and that the defendant had told a series of inconsistent stories about who owned the boat and the whereabouts of the two owners when no trace was found of them after extensive searches. The defendant did not give evidence or call any witnesses at trial and the trial judge directed the jury that they might more safely draw an inference of guilt from the evidence because the defendant did not give evidence of relevant facts which could be perceived to be peculiarly within his knowledge. Ultimately, a majority of the High Court held that the tribunal of fact could use a defendant’s failure to give evidence but only when it ‘is clearly capable of assisting them in the evaluation of the evidence before them’ (at 228), which will usually be in an entirely circumstantial prosecution case. In the particular and unusual circumstances of this case, it could be used when deciding whether the prosecution had discharged its burden of proof but not as actual evidence of the defendant’s guilt (at 229). Turning to s 20 EA, which applies only in a criminal proceeding for an indictable offence, it provides that ‘the judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence … [but] 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’.34 The cases interpreting and applying this provision demonstrate that there are substantial limitations on the scope for adverse judicial comment and this is largely bound up in the fundamental accusatorial principles applicable to a criminal trial where the prosecution bears the onus of proving the guilt of the defendant beyond reasonable doubt. This is exemplified in the following passage from the majority judgment in RPS v The Queen (2000) 168 ALR 729, 738: In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations. If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor ‘has the responsibility of ensuring that the Crown case is presented with fairness to the accused’ and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.

There was considered to be some tension between the decisions in Weissensteiner and RPS so a full bench of the High Court convened in Azzopardi v

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The Queen; Davis v The Queen (2001) 205 CLR 50 to provide a clear statement of the appropriate judicial directions to be given where the defendant does not give evidence in a criminal trial.

A CASE TO REMEMBER Azzopardi v The Queen; Davis v The Queen (2001) 205 CLR 50 Azzopardi v The Queen involved a case of soliciting to murder where the defendant did not give evidence and the trial judge instructed the jury that they ‘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’ and that where a 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’. Davis v The Queen involved allegations of sexual offences committed on a nine-yearold girl when she was staying at the defendant’s house. Davis did not give evidence and the trial judge stated in the course of his summing-up to the jury that the defendant’s ‘failure to give evidence here may affect the value or weight that you give to the evidence of some or all of the witnesses who have testified in the trial if you think the accused was in a position to himself give evidence about the matter’. Both cases turned on the application of s 20(2) and in Azzopardi the appeal was allowed and a new trial ordered because the judge’s direction contravened that provision by suggesting that the defendant did not give evidence because he was guilty of the offence charged and he was deprived of a fair chance of acquittal. Although there was also held to be a misdirection in Davis, the case against the defendant was overwhelming and he was not deprived of a real chance of acquittal so special leave was refused. Overall, the majority of the High Court held that comments to the jury in accordance with Weissensteiner will be ‘rare and exceptional’ (at 366). They will only be justified in a case where there is a basis for concluding that there are additional facts to those already given in evidence by the witnesses who were called, which would explain or contradict the inference which the prosecution seeks to have the jury draw, and if those facts exist they would be peculiarly within the knowledge of the defendant. It will not be sufficient that the defendant could have contradicted evidence already given. If an adverse comment is to be made it should be expressed as a failure to provide an explanation rather than a failure to give evidence. Ultimately, the safest course may be for the judge to make no comment on the facts beyond reminding the jury of the arguments of counsel in the course of identifying the issues before them. Importantly, the High Court went on to hold that where a defendant 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

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the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt’ (at 70, emphasis added). The judges also made an important distinction between comment and direction: ‘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’ and, because it is a comment, the jury 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’ (at 70).

In relation to the judicial warning about the defendant’s silence at trial, commonly referred to as an Azzopardi direction, it has been confirmed in subsequent cases that, although desirable, it is not compulsory and a ‘ritual incantation’ of the whole direction is not required.35 Also, by s 20(3) and (4), the restrictions on comments extend to the spouse, de facto partner, parent or child of a defendant. In DJF v R [2011] NSWCCA 6, a case involving the alleged sexual assault of a child by her uncle in a spa bath when her aunt was also present, the Crown Prosecutor’s comment suggesting an expectation that the defence might have called the child’s aunt to give evidence was held to be contrary to s 20(3) as a comment on the failure of the defendant’s wife to give evidence and resulted in a miscarriage of justice. In contrast, s 20(2) and (4) allow greater scope for another defendant to comment on the failure of the defendant (or their spouse, de facto partner, parent or child) to give evidence. There is no express prohibition on any comment which suggests that the defendant failed to give evidence because they were guilty of the offence charged. In Azzopardi, the majority of the High Court observed that the limitations applying to judicial comment don’t apply to comment by a co-defendant; a co-defendant will want to urge the jury to contrast the different courses taken where evidence was given by them demonstrating their innocence while the defendant ‘stayed silent because, unlike the [co-defendant] who did give evidence, he or she was guilty’.36 Finally, as to inferences open from a failure by the defendant to call witnesses, Dyers v The Queen (2002) 210 CLR 285, demonstrates that very similar considerations apply in relation to the giving of a Jones v Dunkel direction as where the defendant fails to give evidence. It was emphasised by the High Court that if people are able to give credible evidence about matters directly in issue at the trial, that would ordinarily suggest the prosecution should call them as material witnesses: [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

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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 requires the prosecution to call all available material witnesses unless there is some good reason not to do so. (At 293)

Overall, the cases in which a Jones v Dunkel direction may be given in a criminal trial are severely restricted, especially against the defence. Much of the joint judgment in Dyers is based on fundamental principles of criminal justice such as the prosecution’s burden of proof. The dicta by Gaudron and Hayne JJ in Dyers that a Jones v Dunkel direction should not generally be given in a criminal case even where it is an alleged failure by the prosecution to call evidence has been affirmed as the law in later cases, most notably Mahmood v Western Australia (2008) 232 CLR 397 and Louizos v The Queen [2009] NSWCCA 71.

STUDY TIP Summary points Overall, the cases highlight that, as a general rule a Jones v Dunkel direction should not be given in a criminal trial.37 Essentially it goes to the overall burden of proof of the prosecution and whether the jury should entertain a reasonable doubt about the guilt of the defendant not to drawing adverse inferences about certain issues of fact.

Unfavourable witnesses When a party, usually the prosecution in criminal proceedings, calls a witness that does not assist their case then there is scope to have the witness declared ‘unfavourable’ and proceed by way of cross-examination rather than examination in chief. This procedure is governed by s 38 EA. 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.

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… (4)

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.

The expression ‘unfavourable’, is not defined in the Act, but it does not mean simply neutral or ‘adverse’.38 The scope of s 38(1)(a) was considered by the High Court in Adam v The Queen (2001) 207 CLR 96 where an eyewitness had made a statement to the police describing events leading up to the stabbing of the victim, which supported the prosecution case against the defendant. The eyewitness resiled from that statement when giving evidence at the trial in relation to who was standing proximate to where the victim was stabbed. Leave was given to cross-examine the witness and the majority of the High Court upheld that ruling on the basis ‘that to give evidence which, at best, is unhelpful to the party calling the witness, and to do so without “making a genuine attempt to give evidence” is to give evidence “unfavourable” to that party’ (at 106), which to some extent runs s 38(1)(a) and (b) together in giving meaning to the expression. Further, it was held that s 38 is available even though the conduct of the witness is expected by the party calling them.39 Also, it may be permissible to use s 38 to call a witness for the purpose of discrediting them.40 As to the procedure, s 38(6) specifies two matters that the court must take into account in deciding whether to grant leave. The factors in ss 135, 136, 137 and 192 should also be taken into account.41 Where questioning under s 38 is permitted, the right to cross-examine is not general;42 it is initially restricted to the material that provided the basis for the granting of leave. This means that if the grant of leave was under s 38(1)(c) because the witness made a prior inconsistent statement then crossexamination will be restricted to the making of the prior inconsistent statement. The grant could extend to the content of the statement to avoid ‘distributing small dollops of leave in response to repeated small-scale applications’.43 The phrase ‘in the first instance’ takes account of s 38(3), which provides that the court may also grant leave for the witness to be cross-examined about matters relevant only to credibility44 and the second matter to be taken into account in s 38(6) seems more appropriate to a s 38(3) application given that s 38(4) requires that questioning of an unfavourable witness is to take place before the other parties cross-examine the witness. Further, the judge can tell the jury of a ruling made pursuant to s 38 EA but it is not obligatory and if the judge does elect to comment, care is to be taken to avoid the possibility of any implication adverse to the creditworthiness of the witness.45

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Overall, s 38 is less strict than the common law relating to ‘hostile’ witnesses and allows the court to consider more ‘useful evidence’ and permits the testing of evidence that may not otherwise have occurred.46

CROSS-EXAMINATION Cross-examination47 is directed to casting doubt upon evidence given by a witness during examination in chief and to establishing facts favourable to the crossexamining party’s case. In practice, such objects may be demonstrated by the witness contradicting themselves or other witnesses on important matters, or by discrediting the witness or vital parts of the evidence they have given. Crossexamination has been described as ‘the greatest legal engine ever invented for the discovery of truth’48 because it ‘provides the parties with a means of probing and testing the evidence against them and so exposing the flaws and weaknesses in the evidence to the tribunal of fact’.49 In contrast to examination in chief, leading questions are permitted in crossexamination and are an important device for allowing the cross-examiner to exercise maximum control over the witness. Notwithstanding that, leading questions of the second kind50 are most likely to be challenged as unfair to the witness or as potentially adducing misleading or confusing answers and so will probably be disallowed by the judge. Matters of form are still to be observed in cross-examination as in other questioning so that only one question at a time must be asked and expressed as a question, not a comment. Equally, the exclusionary rules apply to cross-examination so that questions that would breach these rules, such as adducing hearsay, opinion, credibility or tendency evidence, cannot be asked. Under the Act, s 42(1) gives discretionary power to the court to disallow leading questions in cross-examination. Considerations to be taken into account in making the decision whether to exercise this discretion are set out in s 42(2). Most of the considerations relate to where the witness might be described as being in the ‘camp’ of the cross-examining party—that is, where they were unfavourable to the party calling them in chief, have a consistent interest, or are sympathetic to the crossexamining party. The final consideration relates to the danger that the witness is unusually susceptible to suggestive questioning because of a particular characteristic or disability. In addition, s 42(3) provides that leading questions must be disallowed if the court is ‘satisfied that the facts concerned would be better ascertained if leading questions were not used’. Section 41 requires the court to disallow questions that are ‘misleading or confusing’, or ‘unduly, annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive’. Further, questions based solely on stereotype or put in ‘a manner or tone that is belittling, insulting or otherwise inappropriate’ are disallowable questions under this broadly drafted section. The judge is obliged to disallow such questions,51 but depending on the particular circumstances the party calling the

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witness may bear the onus of showing that the cross-examination should not be allowed under s 41.52 A primary method of discrediting a witness in cross-examination is by adducing evidence that the witness has made a prior statement which is inconsistent with the evidence they have given in court.53 By s 43(1) EA a witness may be cross-examined about a prior inconsistent statement made by the witness without first being given particulars of, or being shown, the statement.54 If the witness doesn’t admit to making the statement, and the cross-examiner wants to prove it was made, then by s 43(2) the witness must be informed ‘of enough of the circumstances of the making of the statement to enable the witness to identify the statement’ and then direct ‘the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence’. This ensures that a witness whose credit is about to be attacked is treated fairly.55 If the witness still doesn’t admit making the statement, the cross-examiner will be allowed to independently prove it was made. Section 44 covers the previous representations made by people other than the witness and a witness cannot be cross-examined as to these unless that statement has been admitted in evidence or the court is satisfied that it will be admitted.56 If that is not the case, s 44(3) operates to allow the questioning of a witness as to the document if certain matters are complied with, including producing the document to the witness and asking them whether they stand by the evidence they have given without identifying the document or disclosing any of its contents. Once so used a document may be marked for identification (s 44(4)) as opposed to being admitted in evidence.

STUDY TIP Advocacy and the criminal trial thread scenario THE 10 COMMANDMENTS OF CROSS-EXAMINATION57 1 2 3 4 5 6 7 8 9 10

Be brief. Use plain words. Use only leading questions. Be prepared—never ask a question you don’t know the answer to. Listen to the answer. Do not quarrel with the witness. Avoid repetition of examination in chief. Disallow witness explanation. Limit questioning—stop when you have made your point. Save for submissions—do not argue in cross-examination but bring argument together in final submissions or address.

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The rule in Browne v Dunn An important rule of practice in cross-examination in the adversarial system is known as ‘the rule in Browne v Dunn’, which originates from the case of Browne v Dunn (1894) 6 R 67 (HL). The rule requires that a contradiction be put to a witness in crossexamination where the cross-examining party intends to adduce evidence which is at odds with the evidence given by that witness. Equally, the cross-examiner is required to put to the witness the substance of any attack on their evidence which the crossexaminer intends to raise in their address to the court or in submissions on appeal. In Allied Pastoral Holdings v Commissioner of Taxation [1983] 1 NSWLR 1, Hunt J deftly stated the rationale for the rule (at 22–23): There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack … Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in light of the contradiction of which warning has been given and to explain or qualify the other evidence upon which the challenge is to be based.

The basis of the rule is fairness both to the witness whose evidence or credibility is attacked, and to the party calling the witness. It ensures that the issues in dispute are ‘well and truly joined on the evidence’.58 Section 46 EA provides for the court to 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’ and ‘it contradicts evidence about the matter given by the witness in examination in chief; or the witness could have given evidence about the matter in examination in chief’. This provision supplements the rule in Browne v Dunn as a method of dealing with any breach of the rule in a case. Other possible remedies or sanctions for breach of the rule include allowing a party to reopen its case to adduce evidence to rebut the contradictory evidence, or to corroborate the evidence of the witness to whom the contradictory evidence should have been put; making a comment adverse to the party in breach while directing the jury on the evidence;59 or if a judge, sitting alone, may be less likely to draw the intended inference when it has not been adequately tested.60 The court cannot, however, reject relevant and otherwise admissible contradictory evidence because it should have been put to a witness in cross-examination.61 Depending on the significance of the contradictory evidence, it is likely to become an important matter of weight to be attached to such evidence when the tribunal of fact comes to making their decision in the case.

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Importantly, the rule will have been complied with where the substance of the contradictory version has been put to the witness. It isn’t necessary to put every detail of the variance62 unless a detail is particularly significant.63

RE-EXAMINATION Re-examination of a witness is directed to resolving doubts or clarifying matters which have been raised in cross-examination. 39 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.

In a broader sense, it has been judicially observed that: One of the objects in re-examination is to afford the witness an opportunity to explain the real character of the matter or transaction which has been brought out in crossexamination, particularly where his credibility has been assailed and the statement got out of him in cross-examination, if unexplained, would be apt to discredit him. It is proper for counsel in re-examination to ask suitable questions of the witness to enable him to give a full explanation of a matter or transaction which is susceptible of more than one construction.64

This extends to re-examining a witness about their state of mind when they made a particular statement as it may provide an explanation that is material to the assessment of their overall testimony: ‘a witness might wish to explain that he made the statement because he was fearful or suspicious or distraught or for a variety of subjective reasons’.65 Further, it is not possible to devise a formula which sets the bounds of re-examination with precision for every case because there are a great variety of circumstances where re-examination may be required.66 Leading questions are prohibited during re-examination, but leave would most likely be given under s 37(1)(a) to direct the witness to that part of the cross-examination which is subject to clarification or amplification. When a witness has been cross-examined with the imputation that their evidence is concocted or a ‘recent invention’, this may allow a prior consistent statement to be admitted into evidence during re-examination.67

STUDY TIP Advocacy and the criminal trial thread scenario Re-examination should only be ventured if it is necessary. That will usually be where ‘there is some matter that the witness is able to explain and, left unexplained, could leave the witness in an unfavourable light or leave a matter ambiguous or confused or allow the opponent to invite the court to draw an inference from the lack of explanation’.68

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REOPENING AND CASE IN REPLY The general rule is that the prosecution or plaintiff must adduce all their evidence to prove their case before the defendant is asked to adduce any evidence. Therefore in the interests of fairness, the prosecution or plaintiff cannot split its case. Reopening is where a party has closed their case and then leave is sought to reopen it in order to adduce new or additional evidence in support of their case. Whether leave is granted depends essentially on the judge’s view as to whether the interests of justice are served better by granting than refusing the application.69 The judge’s discretion to allow reopening of a case is rarely applied when the necessity for its exercise could have reasonably been foreseen by the party seeking it.70 The following matters may be relevant in making a determination about granting leave to reopen: • whether it was an inadvertent oversight by counsel; • the time when the application is made, particularly the proximity to the formal closing of their case; • fairness to all parties; • costs and delay; • probative value of evidence to be adduced; • whether the evidence was discoverable by reasonable diligence at an earlier stage; • public interest in timely completion of litigation; and • any explanation for not calling the evidence in their case in chief.71 Case or evidence in reply is where a party seeks leave to rebut evidence adduced by the other party following the close of that other party’s case. The question is whether the evidence of the other party was not reasonably anticipated by the prosecution or plaintiff. It should rarely happen in civil cases given extensive pre-trial disclosure in the contemporary context. In criminal cases it has been emphasised that a case in reply is exceptional.72 In R v Soma (2003) 212 CLR 299, the High Court held that there is no rigid formula to define the very special or exceptional cases where a case in reply may be allowed due to ‘the almost infinite variety of difficulties that may arise at a criminal trial’ (at 308–309).73 Some specific defences in criminal cases are: • alibi: there are generally procedural provisions that require the defence to give notice of an alibi74 to enable it to be investigated before trial and such evidence could be adduced in chief from police witnesses where an alibi is still to be raised by the defendant at trial; • accident: the prosecution is expected to anticipate certain kinds of case theory that the defence may advance, but may be allowed a case in reply to negate a precise misadventure claimed by the defendant;75

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•

substantial impairment by abnormality of mind: in New South Wales the defendant is required to notify the prosecution when claiming this defence.76 In fairness to the defendant, the prosecution should adduce all of its psychiatric evidence in chief and not split this evidence to reserve some for reply even though that is permitted in the legislative provision.77

WARNING AND INFORMATION ABOUT UNRELIABLE EVIDENCE Historically, certain classes of witnesses were regarded as inherently untrustworthy and unreliable. At common law, three main categories of witnesses were regarded as unreliable: accomplices, children, and complainants in sexual offence cases. Judges were required to warn the jury regarding the supposed dangers of convicting solely on the evidence of such people—that is, without corroboration of their version of events. Corroboration of a witness is no longer required as a matter of law.78 Section 164 EA abolishes all common law corroboration requirements apart from those that apply to prosecutions for ‘the offence of perjury or a similar or related offence’.79 All corroboration warning requirements have been abolished under s 164(3) subject to other provisions in the Act. Therefore this provision must be read in conjunction with ss 165–165B. Section 165 governs the giving of warnings with respect to evidence of a kind that may be unreliable. It provides for a guided discretionary approach to these kinds of warnings, including flexibility in relation to judicial directions to the jury. As Spigelman CJ has observed, these provisions ‘constitute an attempt at a fresh start’, required as a result of the complexities that had developed at common law under the law of corroboration.80 Corroboration warnings are not prohibited under s 165 and when the circumstances warrant a warning about the dangers of convicting on the uncorroborated evidence of a witness, it is still possible for a judge to do so,81 apart from where it is a child witness.82 Section 165(5) provides that s 165 ‘does not affect any other power of the judge to give a warning to, or to inform, the jury’. Accordingly, common law warnings operate with s 165(2) warnings and may be necessary to ensure a fair trial83 and ‘avoid the perceptible risk of miscarriage of justice arising from the circumstances of the case’.84 Generally, however, the phrase ‘dangerous or unsafe to convict’ should not be used in such a warning.85 Also, if a warning or information is to be given to the jury about the consequences of a delay in reporting an alleged criminal offence, a limitation is imposed by s 165B(2) that the defendant must have suffered a ‘significant forensic disadvantage’ because of the consequences of the delay. The factors regarded as establishing a significant forensic disadvantage include the death

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of, or inability to locate, any potential witnesses, and the loss or unavailability of potential evidence.86 Turning to a more comprehensive consideration of the discretionary system of warnings in s 165, a judge in both civil and criminal proceedings where there is a jury and when requested by a party,87 is obliged to warn the jury regarding evidence of a kind that may be unreliable unless there are good reasons for not doing so.88 Such reasons are determined by the opinion of the trial judge and an important question is whether it involves a type of evidence where the court has some special knowledge or experience that a jury may not have in evaluating its worth.89 When it is given, the warning must be by the trial judge because counsel urging a need for caution will not substitute for such a judicial warning.90 The warning under s 165(2) must inform the jury that (1) the evidence may be unreliable; (2) the matters that may cause the evidence to be unreliable; and (3) of the need for caution in, first, determining whether to accept the evidence and, second, in determining what weight to give to it. In giving the warning or information, it is not mandatory to use particular words, but judges should avoid the complex and technical ‘corroboration’ directions required at common law. Ideally a clear and concise warning to draw the jurors’ attention to the risks of accepting the unsupported evidence of the witness should be given, including formulations about searching for independent evidence which might confirm the evidence in question. Generally it is important to refer to the experience of the courts in relation to particular kinds of witnesses and ‘failure to mention such experience in relation to matters about which a jury may be unaware is calculated to weaken the impact of a warning and a judge who fails to mention such experience when it exists certainly increases the risk of any warning being regarded as insufficient’.91 The categories of evidence that may be unreliable and attract a warning include those set out in s 165(1) and they are summarised in Table 4.1. Otherwise there is a potentially broad range of evidence that may come within the scope of ‘evidence of a kind that may be unreliable’.92 TABLE 4.1 Categories of unreliable evidence which attract a warning SECTION

CATEGORY DESCRIPTION

EXAMPLE (CASE REFERENCES)

165(1)(a)

Evidence in relation to which Part 3.2 (hearsay evidence)93 applies: features of unreliability include compounding perception, memory, narration skills and sincerity of both the maker of the representation and the witness; lack

Hearsay: R v TJF (2001) 120 A Crim R 209; R v Nemeth [2002] NSWCCA 28; R v Le (2002) 130 A Crim R 256, 267–8; R v Harbulot [2003] NSWCCA 141 [117]; Brown, Barwick, Brown v The (Continued )

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TABLE 4.1 Categories of unreliable evidence which attract a warning (Continued ) SECTION

CATEGORY DESCRIPTION

EXAMPLE (CASE REFERENCES)

of oath; and unable to be tested by cross-examination.94 Part 3.4 (admissions)95 applies: ss 84, 85 and 90 EA reduce scope for unreliability but may arise where made by another person (s 87), or the person has poor coping skills or only some of the matters in ss 84 and 85 are present and the admission is held to be admissible.

[Queen [2006] NSWCCA 69 [40]–[45]; Homsi v The Queen [2011] NSWCCA 164 [80]–[95]. Admissions: DS v R [2012] NSWCCA 159 [99]–[114]; R v Fowler (2003) 151 A Crim R 166; R v Tofilau (2006) 160 A Crim R 549; Em v The Queen (2007) 232 CLR 67, 9–100 (Gleeson CJ and Heydon J).

165(1)(b)

Identification evidence: applies generally but because of the special provision for defendants in criminal proceedings (s 116),96 more likely to arise in civil proceedings or from defence evidence in criminal proceedings.

R v Stewart (2001) 52 NSWLR 301; R v Camilleri [2001] NSWCCA 527; R v Kirby [2000] NSWCCA 330; R v Rose (2002) 55 NSWLR 701.

165(1)(c)

Reliability is affected by age, ill health (whether physical or mental), injury or the like.97

R v Flood [1999] NSWCCA 198; R v Yammine [2002] NSWCCA 289; Allen (A Pseudonym) v The Queen [2013] VSCA 263 [17]–[38]: ‘mental condition’ or ‘disorder’.

165(1)(d)

Criminally concerned in the events giving rise to the proceeding:98 unreliable because out of self-interest such a person might fabricate their evidence to implicate another person or to exaggerate the role of others while minimising their own involvement. Grant of immunity against prosecution to a witness who is also criminally concerned in the events raises specific issues.

R v Stewart (2001) 52 NSWLR 301; R v Clark (2001) 123 A Crim R 506; Kanaan v The Queen [2006] NSWCCA 109 [165]–[166] (immunity); Kutschera v The Queen [2010] NSWCCA 150; Chen v The Queen [2010] NSWCCA 224 [24]– [26]; Oliveri v The Queen [2011] NSWCCA 38 [18]; Hawker v The Queen [2012] VSCA 219 [12]–[18]; Raad v The Queen [2012] NSWCCA 268 [69]–[82]; Lee v The Queen [2013] NSWCCA 68 [168]–[175].

165(1)(e)

Prison informers: unreliable as an admission is easily concocted; usually difficult for a defendant to corroborate their denial of having

Pollitt v The Queen (1992) 174 CLR 558; R v Clough (1992) 28 NSWLR 396, 405–6; R v Ton [2002] NSWCCA 337 [34]; R v Dupas (Continued )

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TABLE 4.1 Categories of unreliable evidence which attract a warning (Continued ) SECTION

CATEGORY DESCRIPTION

EXAMPLE (CASE REFERENCES)

made the admission; likely to be of bad character; and may be motivated to fabricate evidence through hope of some benefit.

(No 3) [2009] VSCA 202 [26]–[52]; Dupas v The Queen [2012] VSCA 328 [285]–[299].

165(1)(f)

Oral evidence of questioning of a defendant recorded in writing by an investigating official but not signed or otherwise acknowledged in writing by the defendant.

McKinney v The Queen (1991) 171 CLR 468: warning where the making of an admission is not reliably corroborated by audiovideo recording or an independent person.99 Nicholls v The Queen (2005) 219 CLR 196.

165(1)(g)

Evidence by or on behalf of a person seeking relief in proceedings against the estate of a deceased person about a matter which the deceased could have given evidence if alive.

Birmingham v Renfrew (1937) 57 CLR 666, 674 (Latham CJ) and 681–682 (Dixon J); Nolan v Nolan (2003) 10 VR 626 [146] –[156].

One area of potentially unreliable evidence in relation to s 165(1)(c) and warnings based on ‘age’ is that of children. There are important qualifications to warnings about the evidence of children. The ALRC identified ‘lack of cognitive development’ as a primary concern in relation to a child’s competence as a witness and if that child does give evidence then this lack of cognitive development may well affect the reliability of their evidence, particularly if the child was young at the time of the events and when they gave evidence at trial.100 Subsection 165(6) EA, however, precludes a judge from warning under s 165 that the reliability of a child’s evidence may be affected by the child’s age. Any warning in that regard must be given in accordance with s 165A(2). Section 165A provides that a judge must not warn or suggest to a jury ‘that children as a class are unreliable witnesses’.101 Where a party requests the giving of a warning or information, then s 165A(2) requires the court be satisfied that ‘there are circumstances (other than solely the age of the child) particular to that child that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information’ (emphasis added). The effect of these provisions in combination is that the party who requests the warning or information must persuade the trial judge on the balance of probabilities that there are circumstances particular to the child witness that do actually affect the reliability of the child’s evidence and the giving of a warning or information to the jury is appropriate in those circumstances. In addition to young age these may include particular relationships with the defendant or other

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witnesses, the nature of the questioning in the video-recorded interview with the police, individual level of cognitive development, specific suggestible disposition as a witness, and inconsistences in testimony.102

STUDY TIP Summary points One final general point about unreliable evidence and the necessity for a warning is neatly summed up in the following quote: In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s 165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence or because there is a danger that the jury may over-estimate the probative value of certain evidence.103

Important references For more extensive coverage of witnesses and adducing evidence see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) 133–142 and Chapter 6. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 33–139 and 732–777. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapters 3 and 12. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 2 and 19. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 58–174 and 953–1016.

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ASSESSMENT PREPARATION Active learning questions 1 Give an example of a leading question. Why are such questions usually prohibited in the examination in chief and re-examination of a witness? 2 In adducing evidence in chief from a witness, when would you consider invoking the procedures for refreshing their memory? 3 When would you consider seeking a declaration that a witness is unfavourable? If a witness is declared unfavourable and they have made a prior inconsistent statement, explain when and how you would attempt to have that statement admitted into evidence. 4 What is your understanding of the rule of practice known as the rule in Browne v Dunn? Given the ‘sanctions’ available for breach of this rule, how effective is it in the adversarial trial process? 5 Describe and outline the application of the rule in Jones v Dunkel to civil and criminal cases. Is this rule of enduring utility?

CRIMINAL TRIAL THREAD SCENARIO We are now commencing the mock criminal trial of James Swifty. The first prosecution witness is Trevor Gangland, a friend of the defendant. Initially, it will be useful to refer back to Chapter 1 and review how students and teachers can use the thread trial in class or as a study device. Also, important introductory case material, including the indictment, should be reviewed at this point. The Crown Prosecutor will conduct the examination in chief of the witness seeking to adduce all relevant and admissible evidence going to proof of facts in issue in the case. Counsel for the defendant will make objections as necessary during examination in chief and then cross-examine the witness. Further important instructions follow the witness statement. INSTRUCTIONS TO COUNSEL Counsel for the prosecution must be prepared to make an application to cross-examine the witness in accordance with s 38 EA. This submission must be supported by reference to the relevant case law, including R v Hogan [2001] NSWCCA 292, and R v Le (2002) 130 A Crim R 44. Counsel for the defence must be prepared to respond to the application under s 38 and support the submission drawing on relevant case law, including Hogan and Le. Defence counsel must be prepared to cross-examine Trevor Gangland using his statement if the witness gives evidence that is different from his statement, and that evidence does not support the defence case. Your cross-examination must comply with the s 43 procedure. Make a decision as to whether you wish to tender the document having regard to s 45 and s 46. Counsel for the prosecution should be familiar with these sections in case defence counsel fails to comply with them. Both prosecution and defence counsel must be prepared to make and answer objections relating to relevance and to the form or appropriateness of opposing counsel’s questions. Counsel may also make submissions in relation to whether the probative value of any evidence sought to be adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (see s 137).

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Further, both counsel should make sure they have an unmarked copy of the statement of Trevor Gangland in case it becomes necessary to show the witness a copy and tender it. Both counsel should be prepared to use a map of the area to take the witness through his testimony. Counsel for the defence must comply with the rule in Browne v Dunn. INSTRUCTIONS TO WITNESS Background: James is your good mate and you don’t want to give evidence against him. However, you’re not very smart and you think both lawyers are out to get him. Act slow and follow the instructions below. When being examined by the prosecutor You will give all of your personal information and background as asked, though don’t volunteer any answers. Generally you should give the impression that you are not happy to be giving evidence, but you will reluctantly comply. However, when you are asked anything about whether James left the group you will insist that he was with you in Garema Place all day. An application will be made by the prosecutor to cross-examine you—it will be successful. Once the prosecutor begins to cross-examine you, you will reluctantly agree with everything that is in your statement except you will now say that ‘James walked towards the Canberra Centre, along city walk, and came back from that direction’—not the interchange. You will not say anything about James looking surprised. When being cross-examined by defence counsel If asked you will agree that: 1 you never saw a knife; 2 you didn’t see James puffing or sweating or anything to indicate that he had been running; 3 you didn’t see a handbag; 4 you didn’t see any money; 5 James was not wearing a red jacket when he returned to the group; 6 James looked surprised when he was arrested. But you will stick by your story that he walked to the Canberra Centre along City Walk, not the interchange, to buy smokes and that he returned from the direction of the Canberra Centre. Only after you are shown your statement by defence counsel will you agree that it says that James went in the direction of the interchange and came back from that direction. You will agree, if asked, that you made the statement when the events were fresh in your memory. You will ultimately agree that you now remember that he did walk towards the interchange and returned from the same direction. You do not recall whether James returned with cigarettes or not. For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 See Figure 3.1 in Chapter 3. 2 A compellable witness who refuses to give evidence may be imprisoned for contempt of court.

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3 4 5 6 7 8 9 10 11 12

13 14 15

16 17 18 19 20 21 22

23

24

25 26

27

RA v R [2007] NSWCCA 251 [11]. R v RAG [2006] NSWCCA 343 [43]–[45]. Section 21 EA. SH v R [2012] NSWCCA 79 [12]–[13], [23], [26]. Note that by s 17(2) ‘a defendant is not competent to give evidence as a witness for the prosecution’. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. See, for example, R v Khan (unreported, NSWSC, Hidden J, 22 November 1995); and R v Glasby (2000) 115 A Crim R 465, 472–473. See Chapter 6 for a discussion of the various privileges. See R v NZ [2005] NSWCCA 278 [4]; and Velevski v The Queen (2002) 187 ALR 233 [47]. Human Rights Act 2004 (ACT) s 21; and Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24. Also, see Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9 [38]. NMFM Property Pty Ltd v Citibank Ltd No 8 (1999) 161 ALR 581. The prosecution in criminal cases is referred to as the ‘Crown’ in most Australian jurisdictions. Section 28 EA confirms that examination in chief of a witness occurs first ‘unless the court otherwise directs’. Note that the phrase ‘examination in chief’ is defined in the EA Dictionary Part 2 subcl 2(1) as ‘questioning of a witness by a party who called the witness to give evidence, not being questioning that is re-examination’. See Butera v DPP (Vic) (1987) 164 CLR 180. Kenneth J Arenson & Mirko Bagaric, Rules of Evidence in Australia: Text & Cases (LexisNexis Butterworths, 2nd edn, 2007) 114. Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 40. This provision is considered in detail in Chapter 3. See Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 522. ALRC26, vol 1 [619]. These were written by Peter Berman SC, DCJ when he was a Deputy Senior Public Defender in 2002. Accessed online at on 10 March 2014. Section 32(2) is not a limiting provision so the factors in s 192(2) should also be considered by the court when deciding whether to grant leave. See, Salmon v R [2012] NSWCCA 119 [113]. DPP (Cth) v Carey [2012] VSCA 15 [20]–[23]; R v Ryan (No 2) [2012] NSWSC 1034 [6]–[13]. Unfavourable witnesses and the procedures under s 38 EA are discussed later in this chapter. Salmon v R [2012] NSWCCA 119 [106]–[114]. See Walker v Walker (1937) 57 CLR 630. The ‘penalty’ for calling for a document at common law is that the opposing lawyer can force the party calling for the document to tender it in evidence. This ‘penalty’ doesn’t apply to the parts of a document consulted by a witness to refresh their memory—see R v Harrison [1966] VR 72. The only possible reference is found in s 55(2)(c) EA: ‘evidence is not taken to be irrelevant only because it relates only to: (c) a failure to adduce evidence’. In Australian Securities Commission v AS Nominees Ltd (1995) 62 FCR 504, it was held that this provision does not change the common law position on the topic.

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28 For more recent applications of the rule, see Jovic v Lamont [2007] NSWCA 47 [57]; Manly Council v Byrne [2004] NSWCA 123 [45]–[67]; Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Trust v Thompson [2012] NSWCA 340 [57]–[60]; Best v R [2012] VSCA 277 [79]–[89]; Rossi v Westbrook & RACQ Insurance Limited [2013] QCA 102 [25]–38]; and New South Wales v Beck [2013] NSWCA 437 [63]–[67]. 29 Kraus v Menzie [2012] FCAFC 144 [44]. 30 Kuhl v Zurich Financial Services Australia [2011] HCA 11 [63]–[64]. 31 See Payne v Parker [1976] 1 NSWLR 191, 201–202. Also, see Booth v Bosworth (2001) 114 FCR 39 for a useful and more contemporary example of the operation of the rule in civil cases. 32 It may also apply in civil penalty proceedings—see ASIC v Hellicar [2012] HCA 17 [143]–[170]. 33 Louizos v R [2009] NSWCCA 71 [54]–[58]; R v Riscuta and Niga [2003] NSWCCA 6 [103]; and Mahmood v WA [2008] HCA 1 [27]. 34 Section 20(2) EA. Note that the proviso in relation to comments suggesting the defendant failed to give evidence because they were guilty of the offence does not apply to ‘another defendant’ in the same proceeding. 35 R v Wilson [2005] NSWCCA 20 cf R v Macris [2004] NSWCCA 261. Also, see Johnston v R [2007] NSWCCA 133; Sever v R [2007] NSWCCA 339; and Burke (A Pseudonym) v The Queen [2013] VSCA 351 [63]–[73]. 36 Azzopardi v the Queen (2001) 205 CLR 50, 71 (Gaudron, Kirby, Gummow and Hayne JJ) 37 Most recently, see Ahmed v The Queen [2012] VSCA 200 [14]–[25]. 38 R v Ryan (No 2) [2012] NSWSC 1034 [11]–[12]; Klewer v Walton [2003] NSWCA 308 [30]. Also, see R v Souleyman (1996) 40 NSWLR 712, 715; R v SH, MV and KC [2011] ACTSC 198 [29]–[33]. 39 Also, see Razzak v R [2008] NSWCCA 304 [69]; and R (Cth) v Petroulias (No 29) [2007] NSWSC 1005 [14] where a s 38 examination may be granted ‘in the interests of justice’. 40 Gilham v R [2012] NSWCCA 131 [405]–[408]. 41 Razzak v R [2008] NSWCCA 304 [66]; R v Le (2002) 54 NSWLR 474, 479–480; and Lane v The Queen [2013] NSWCCA 317 [160]–[166]. 42 Whereas it is for ‘hostile’ witnesses at common law—see R v Hogan [2001] NSWCCA 292; R v Le (2002) 54 NSWLR 474; and Lane v The Queen [2013] NSWCCA 317 [162]–[168]. 43 R v Le (2002) 54 NSWLR 474, 488: ‘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.’ 44 This is subject to Part 3.7 EA, particularly s 103. See Chapter 10 for a discussion of credibility. 45 See Lee v The Queen [2009] NSWCCA 259 [38] where the judge told the jury that the evidence of the defendant’s wife was unfavourable to the prosecution in a particular respect and leave had been given to the Crown to cross-examine her on certain limited areas. 46 DPP v Nair [2009] ACTCA 17 [33]–[34]. 47 This term is defined in EA Dictionary Part 2 subcl 2(2) as a reference ‘to the questioning of a witness by a party other than the party who called the witness to give evidence’.

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48 John Henry Wigmore, Wigmore on Evidence (Little, Brown & Co, 3rd edn, 1940) 1367. 49 Gans and Palmer, above n 18, 43. 50 See above in ‘Examination in Chief—Leading Questions’ for an explanation of the two kinds of leading questions. 51 DPP (NSW) v Wililo [2012] NSWSC 713 [47]. 52 Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 [50]. 53 The admissibility of prior inconsistent statements is discussed in Chapter 10. In this chapter we assume the statement is admissible and are concerned with the form of questions in cross-examination. The phrase ‘prior inconsistent statement’ is defined in EA Dictionary Part 1 to mean ‘a previous representation that is inconsistent with evidence given by the witness’. 54 This reverses the common law position in Queen Caroline’s Case (1820) 129 ER 976. 55 See Aslett v The Queen [2006] NSWCCA 49. 56 Section 44(2) EA. See R v S [2003] NSWCCA 122; and R v Perrish [2011] NSWSC 1112 [9]. 57 Taken from Irving Younger, The Art of Cross-Examination (American Bar Association Section on Litigation, 1975). 58 Reid v Kerr (1974) 9 SASR 367, 373–374. 59 This remedy is to be used with caution in a criminal trial where the defendant’s counsel doesn’t comply with the rule. This is because of the essential accusatory character of the criminal trial and the very different position to a defendant in civil proceedings. See R v Birks (1990) 19 NSWLR 677; MWJ v The Queen (2005) 222 ALR 436; RWB v The Queen [2010] NSWCCA 147; Khamis v The Queen [2010] NSWCCA 179; Lysle v The Queen [2012] NSWCCA 20 [44]; and TP v The Queen [2012] VSCA 166 [43]–[59]. 60 Bale v Mills [2011] NSWCA 226 [79]. 61 R v Allen [1989] VR 736. 62 Jardein Pty Ltd v Stathakis [2007] FCAFC 148 [29]; Llewellyn v The Queen [2011] NSWCCA 66 [91]. Also, see the latter case at [137] for guidelines on the operation of the rule in a criminal case. 63 Khamis v The Queen [2010] NSWCCA 179 [36]. 64 R v Lavery (No 2) (1979) 20 SASR 430, 435 (Walters J). 65 R v Szach (1980) 23 SASR 504, 569. 66 Ibid. 67 See Chapter 10 for a full discussion of this process in the context of credibility evidence and s 108. 68 Roberts, above n 20, 373. 69 Urban Transport Authority v Nweiser (1992) 28 NSWLR 471, 476. 70 Johnston v Western Australia [2012] WASCA 148 [100]–[101]; Manyam v Western Australia [2010] WASCA 107 [19] (Pullin JA), [96]–[106] (Buss JA). 71 See Urban Transport Authority v Nweiser (1992) 28 NSWLR 471, 475–477; Hines Exports Pty Ltd v Mediterranean Shipping Co SA [2001] SASC 311 [39]; ASIC v Rich [2006] NSWSC 826 [18]. 72 Shaw v The Queen (1952) 85 CLR 365; and Killick v The Queen (1981) 56 ALJR 35. 73 Also, see International Finance Trust Co Ltd v NSC Crime Commission [2009] HCA 49 [47] (French CJ); and R v Morris [2010] NSWCCA 152. 74 See, for example, Criminal Procedure Act 1986 (NSW) s 150; Criminal Procedure Act 2009 (Vic) s 190; Criminal Code Act 1924 (Tas) s 368A; and Crimes Act 1900 (ACT) s 288.

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75 76 77 78

79 80 81 82 83

84 85 86 87

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93 94 95 96 97

R v Natasien [1972] 2 NSWLR 227. Criminal Procedure Act 1986 (NSW) s 151. R v Fraser [2003] NSWCCA 965 [20], [25]. See generally R v Lewis [1998] NSWSC 408; R v Stewart (2001) 52 NSWLR 301; R v RMM (unreported, NSWCCA, 19 August 1996); MJ v The Queen [2012] NSWCCA 146 [49]–[53], [60]; and Best v The Queen [2012] VSCA 277 [57]. Section 164(2) EA. R v Stewart (2001) 52 NSWLR 301. Conway v The Queen (2002) 186 ALR 328; R v Chen [2002] NSWCCA 174 [58]. Section 165A(1)(d) EA Longman v The Queen (1989) 168 CLR 79; R v V (1998) 100 A Crim R 488; R v PLV (2001) 51 NSWLR 736; R v WSP [2005] NSWCCA 42; Tully v The Queen (2006) 81 ALJR 391. See TJ v R [2009] NSWCCA 257 [25]–[68]. GG v The Queen [2010] NSWCCA 230. Section 165B(7) EA. Also, see Greensill v The Queen [2012] VSCA 306 [27]–[57] as to when a ‘forensic disadvantage’ direction is appropriate or desirable. Where a defendant is not legally represented at trial, the judge is obliged to inform the defendant of the right to request a warning under s 165 in relation to certain evidence— see R v Baker [1999] NSWCCA 129 [47]; and Andelman v The Queen [2013] VSCA 25 [53]–[66]. Sections 165(2) and (3). Also, see R v Beattie (1996) 40 NSWLR 155; R v Flood [1999] NSWCCA 198; Wood v The Queen (2001) NSWCCA 228 [18]; R v Johnstone (2004) NSWCCA 58; Oliveri v The Queen [2011] NSWCCA 38 [17]–[18]; Homsi v The Queen [2011] NSWCCA 164 [82]–[97]; and RRS v The Queen [2013] NSWCCA 94 [83]–[91]. See R v Flood [1999] NSWCCA 198 [18]; R v Baartman [2000] NSWCCA 298 [62]; R v Stewart (2001) 52 NSWLR 301 [122]; R v Diaz [2004] NSWCCA 251 [11]; and R v El Azzi [2004] NSWCCA 455 [312]. R v Raad [2012] NSWCCA 268 [80]–[82]. Chen v R [2010] NSWCCA 224 [15], [27]. The relevant case law shows that this includes expert opinions—Keller v The Queen [2006] NSWCCA 204 [51]; evidence from a person affected by alcohol or drugs— R v Murphy [2000] NSWCCA 297 [83]–[88]; police informers—R v Reardon [2002] NSWCCA 203 [135]–[145]; complainant in a sexual offence trial where there are particular circumstances suggesting fabrication—R v Lane (1996) 66 FCR 114, R v Vawdrey (1998) 100 A Crim R 488, and RRS v The Queen [2013] NSWCCA 94 [60]–[88]; ‘recovered memory’ through hypnosis or similar means—R v Tillott (1995) 38 NSWLR 1, and R v WB [2009] VSCA 173 [36]–[39]; and an unfavourable (s 38 EA) witness—R v Fowler [2003] NSWCCA 321 [192]. See, generally Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook Co, 11th edn, 2014) 982–988. See Chapter 7 for a full discussion of hearsay evidence. See ALRC26 vol 1 [662]–[667]. See Chapter 8 for a full discussion of admissions. See Chapter 12 for a full discussion of identification evidence and the judicial warning required under s 116 EA. See separate discussion below in relation to the evidence of children and the operation of s 165A.

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98 Largely equivalent to the common law category of ‘accomplice’—Davies v DPP [1954] AC 378. 99 All jurisdictions now have mandatory requirements for the audio and/or video recording of admissions by defendants in criminal matters. See, for example, Criminal Procedure Act 1986 (NSW) s 281; and Crimes Act 1958 (Vic) s 464H. This is discussed in Chapter 8 under the heading ‘Statutory recording requirements for admissions in criminal cases’. 100 ALRC26, vol 1 (1985) [242]. 101 See Clarke v The Queen [2013] VSCA 206 [20]–[27]. 102 Martin v The Queen [2013] VSCA 377 [87]–[90]. 103 R v Diaz [2004] NSWCCA 251 [11] (emphasis added) where Hidden J referred with approval to the judgment of Kirby J in R v Baartman [2000] NSWCCA 29. Also, see R v El Azzi [2004] NSWCCA 455 [312].

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DOCUMENTARY AND REAL EVIDENCE COVERED IN THIS CHAPTER In this chapter, you will learn about: • proof of the contents of a document including secondary evidence; • authenticity of a document; • real evidence; and • views, demonstrations, experiments and inspections.

CASES TO REMEMBER Evans v The Queen [2006] NSWCCA 277

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 47, 48, 50, 52, 53, 54, 58, 146, 147

INTRODUCTION Documents can comprise an important and/or significant part of the information to be adduced as evidence in a civil or criminal proceeding. Where a document is tendered for its physical properties—for example, if it is found at a crime scene and the defendant’s fingerprint or DNA is detected on it and it is adduced to prove the presence of the defendant at the scene—it is a form of ‘real’ rather than documentary evidence.1 More often, a document is relevant for its contents, namely the assertions that it contains. Therefore, such contents have to be carefully analysed to ensure they are relevant to the facts in issue and that they do not infringe any exclusionary rules of evidence in relation to the intended use of those contents by the party adducing the document.2 If there is an objection to a document that a party proposes to tender, a description of the nature of it is likely to be enough to enable the judge to rule on its admissibility without being aware of its exact content.3 The contents of a document are likely to be hearsay as they will generally be statements that a party will seek to adduce to prove the truth of what is stated. Accordingly, to be admissible as evidence the document must first fall within an exception to the hearsay rule4 and then satisfy the requirements for documentary evidence considered in this chapter. Other relevant uses of a document may be as a prior consistent or inconsistent statement going to the credibility of a witness, which will initially invoke admissibility considerations based on the credibility rule.5

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If relevant and admissible then there are additional requirements relating to proof of documentary evidence. These are whether a document can be: 1 proved by secondary evidence, depending on the availability of the original; and 2 properly authenticated, by reliable sources that prove the document is what it is purported to be by the party adducing it.

PROOF OF THE CONTENTS OF A DOCUMENT INCLUDING SECONDARY EVIDENCE The term ‘document’ is defined in EA Dictionary Part 1 to mean: any record of information, and includes (a) anything on which there is writing, or (b) marks, figures, symbols …, or (c) sounds, images or writings can be reproduced …, or (d) a map, plan, drawing or photograph.

This definition has to be read with that in s 47(1), which sets the scope for the rules contained in Part 2.2 EA, that is, they only apply when the contents of the document have evidentiary relevance. The EA Dictionary definition has a broad compass, and includes various types of evidence such as films, digital recordings, photographs, files and images on computer hard drives and memory sticks. Some of these ‘documents’ can be experienced by the tribunal of fact in real time and would have traditionally been considered as items of ‘real’ evidence but under the Act they are subject to the ‘documentary evidence’ rules. Turning now to the admissibility of secondary evidence of the contents of a document, namely anything other than the original document, the Act replaces the common law ‘original document’ and ‘best evidence’ rules6 with more flexible provisions. In the contemporary landscape, a photocopy of the original document is the standard kind of secondary evidence. Section 48(1) EA provides for a liberal variety of secondary methods of proof by tendering: (a) evidence of an admission made by another party to the proceeding; (b) a copy produced by a duplicating device, such as a photocopier; (c) a transcript of recorded words (sound or code); (d) a document produced after retrieval from a storage device, such as a computer drive; (e) a copy or extract from a document that forms part of the records of a business;7 (f) a copy of the document, which has been printed by an official government printer, or by authority of a Commonwealth, state or territory government or Parliament where the document in question is a ‘public document’.8 By s 48(2) these various modes of tender apply whether or not the original document is available.9 Where the original document is actually unavailable,10 s 48(4) permits evidence of the contents through tendering a copy, extract or summary, or by adducing oral evidence of the document in question. Unavailability of the document

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and that the copy is genuine must be established through drawing reasonable inferences from the tendered copy.11 A person can give evidence in the form of an affidavit or statement about documents, including when they are unavailable, as provided in ss 170–173.12 Where a document is in a foreign country there are additional notice requirements under s 49 before s 48(1) can apply to that document. Section 50 provides a practical means of simplifying the issues where there is a large volume of, or complexity in the, documents in a case.13 A party can apply at any time for a direction from the court that such documentary evidence be produced in the form of a summary if a copy of the summary has been served on, and a reasonable opportunity provided for examination or copying of the documents to, each other party. The tender of an audiovisual recording with a transcript is permitted.14

AUTHENTICITY OF A DOCUMENT Apart from complying with s 48, a party seeking to tender the original or secondary evidence of a document through the testimony of a witness or witnesses must also establish that the document is what the party claims it to be: authentic. In National Australia Bank v Rusu (1999) 47 NSWLR 309, Bryson J emphasised that ‘the authenticity of a document tendered in evidence may (not) be determined simply on the basis of the form and contents of the document’.15 His Honour also observed (at 312) that the simplest method of authenticating a document is through evidence of one or more of its authors or a person who saw it being made and can explain its contents. It will have little weight if its truth and reliability are at issue when the author of the document is unknown and there is no way of knowing how the information was prepared or obtained.16 Otherwise, there are various provisions in the Act that can be used by a party to assist with proof of the authenticity of certain types of documents. Sections 146 and 147 provide presumptions for documents produced by processes, machines and other devices that ‘in producing the document on the occasion in question, the device or process produced that outcome’ such as photocopiers and computers. Accordingly, a party tendering a copy of a document that forms part of the records of a business will not usually have to prove the accuracy of any machine or device that was used to produce the copy of the document. The effect of ss 146 and 147 is that the court will presume the device produced an accurate and reliable copy of the document provided that it was either of a kind that is ordinarily reliable, or was being used for the purposes of a business. One difference in s 146(2) is that it requires the court to be satisfied that ‘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’. Importantly s146 is of limited scope and is not concerned with the underlying accuracy of information contained in a document or record.17 It is merely a presumption,18 which does not arise if a doubt about the accuracy or reliability of

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the device is raised.19 Restrictions on the operation of s 147(2) are set out in s 147(3), notably that it doesn’t apply to the contents of a document that was produced for the purposes, or in contemplation, of litigation or ‘in connection with an investigation relating or leading to a criminal proceeding’. Section 152 overcomes any difficulties in authenticating very old documents by providing a presumption that a document more than 20 years old that is produced from ‘proper custody’ is the document that it purports to be and was properly executed or attested unless another party proves the contrary. Section 58 extracted below is designed to facilitate proof of authenticity of a document through a ‘self-authentication’ process when a court examines the document itself and as a result draws ‘any reasonable inference from it’.20 58 Inferences as to relevance (1)

(2)

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

In National Australia Bank Ltd v Rusu, Bryson J held (at 313) that s 58 did not provide a basis for authenticating the bank statements in that case; however, his Honour’s reasoning did not exclude s 58 from facilitating an authentication process through inferences drawn from the actual document. In ASIC v Rich [2005] NSWSC 417, Austin J highlighted (at [117]–[119]) that Bryson J’s reasoning established ‘that authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance … Rusu establishes that there must be something more than the mere tender of the document itself, where the tender is contested’.21 In R v Colby [1999] NSWCCA 261, a magazine was a piece of documentary evidence which was relevant to proof that a person, the complainant in relation to numerous sexual assault allegations, to whom it was accessible had certain knowledge from reading it. The authenticity of the magazine and ultimately its admissibility was established through an inference drawn from where it was specifically located in the appellant’s house, namely the bedroom which the complainant occupied when she lived in the house.22 Overall, the abolition of the common law ‘best evidence’ and ‘original document’ rules, and the simplified procedures for authentication under the Act, have allowed for more efficient proof of documents in court. The procedural protections that remain in place through the requests and discovery mechanisms ensure that the testimony of witnesses subject to cross-examination remains crucial where there is a real dispute about a document.

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STUDY TIP Advocacy and the criminal trial thread scenario Laying the groundwork for the tender of a document as part of a witness’s evidence in chief may be done in the following way. Hand the document to the witness through the court officer and proceed with questions. Q: Please look at the document. Do you recognise that document? A: Yes Q: What is the document? A: It is a statement I made to the police about this case. Q: What date did you make the statement? A: 12 August 2013. Q: Did you sign the statement? A: Yes, my signature is on the bottom of every page. Q: Is the document the same today as when you signed it on 12 August 2013? A: Yes, no changes have been made. After the witness confirms authorship of the statement and that no changes have been made, you can then seek to tender it to the court. If there is no objection by the other party it will be admitted as a documentary evidence exhibit.23

Finally, we discuss some practical considerations about the weight of documentary evidence in the trial process. In certain cases it may be prudent to argue that documentary evidence should be preferred to the oral evidence of witnesses in the case. The court may give weight to documentary evidence over oral testimony if it is reliable.24 It is important to note that there is a distinction between the authenticity of a document before it is adduced as evidence and matters going to the credibility and weight of documentary evidence once it has been authenticated and admitted in the case.25 These latter matters are the focus for formulating arguments about the relative importance of the documentary evidence in a case. Depending on the particular circumstances, your arguments will likely centre on a blend of the following points: •

• • •

The contemporaneity of the documents with the events they describe—so that the documents can be said to have been made while the events were still fresh in the memory of their creator; The fact that they were created before litigation was contemplated—so that they are less likely to be self-serving than the oral testimony; The degree to which the documents were to be relied on by their creator or someone else, and the consequent need for them to be accurate; and The steps taken to ensure the accuracy of the documents, either in relation to a specific document, or in relation to the class of documents to which the document belongs.26

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REAL EVIDENCE Real evidence is distinct from documentary evidence under the Act in that it comprises evidence that the tribunal of fact can directly perceive and experience without assistance. Section 52 provides that the Act doesn’t affect existing laws or rules of practice about the adducing of evidence from witnesses in ways other than oral testimony and tendering documents. Therefore, this area remains largely governed by common law rules and practices, including the requirements for relevance and authenticity of real evidence. The principal examples of real evidence are physical objects, such as weapons, clothing, money and drugs. The object will ordinarily be produced during the evidence of a witness who can connect the object to a fact in issue in the case. Sometimes the authenticity of real evidence might be challenged and will require the party seeking to tender the object to prove a ‘chain of custody’—that is, to ensure the object is the same as that found at the relevant location even though it may have passed through the hands of various people since that time. The demeanour of a witness, such as their tone of voice, facial expressions and body language generally when giving evidence, is also a form of real evidence.27 Audio and video recordings, photographs, maps, models, charts and diagrams may be real evidence although, depending on their use in a particular case, they may also be documentary evidence as considered above. Similar to observing a witness in court, audio and video recordings provide the tribunal of fact with an opportunity to listen to or watch the sounds or images recorded and make their own decisions about the tone of voice, facial expressions and body language of the people in the recordings. Photographs depict visual information that may provide another source of evidence to supplement or contradict that given orally by witnesses in a case. Depending on when and by whom the photographs were taken they may assist in evaluating the evidence of witnesses and thus carry weight in the fact-finding process, but ‘cannot trump testimonial evidence’.28 Visual aids to the evidence of a witness, such as by a map, diagram or chart, are usually designed to summarise complicated descriptions by the witness, so are limited forms of real evidence that are encouraged to aid comprehension and save time in the trial process.29

VIEWS, DEMONSTRATIONS, EXPERIMENTS AND INSPECTIONS Views, demonstrations, experiments and inspections are forms of real evidence and Table 5.1 gives a short overview of each.

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TABLE 5.1 Views and related forms of real evidence VIEW/INSPECTION

DEMONSTRATION

EXPERIMENT

The parties and all court personnel, including judge and jury attend a specific location to view and inspect the entire physical environment of where certain events occurred relevant to the case.

‘A special kind of view, whose distinguishing mark is movement: … [movement] may be acting or behaviour of a man or an animal, or the physical motion or function of some inanimate object.’30 Can take place in court or at another location.

Testing an hypothesis by a specified procedure conducted either in court or at another location and reporting the results to the tribunal of fact.31

A party can make an application under s 53 EA that a demonstration, experiment or inspection be held. The judge has a discretion to make the order after taking into account the matters in subs (3) but cannot make the order unless they are satisfied under subs (2) that the parties will be given a reasonable opportunity to be present and the judge and jury (if empanelled in the case) will be present. These are mandatory requirements in an attempt to ensure a fair trial, although a party (not including their legal representatives) may choose not to be present.32 Importantly subs (4) confirms the common law position from Kozul v R (1981) 147 CLR 221 that the court, including a jury, ‘is not to conduct an experiment in the course of its deliberations’—that is, they cannot go on an independent evidence-gathering exercise by going ‘beyond a mere examination and testing of the evidence’ (at 227) adduced before them.33 An in-court demonstration does not fall within the operation of s 53 so that its admissibility is restricted to considerations of relevance, the operation of any exclusionary rules, and judicial discretion.34

A CASE TO REMEMBER Evans v The Queen [2006] NSWCCA 277 The application of s 53 to in-court demonstrations was considered in Evans v The Queen [2006] NSWCCA 277. The primary issue was whether the appellant was the man who committed the robberies the subject of the charges at trial. The perpetrator wore overalls and a balaclava and during cross-examination of the appellant the Crown Prosecutor asked him to put on the balaclava and overalls that were exhibits in the trial, together with a pair of sunglasses, and walk up and down in front of the jury, speaking the words used by the person during the robberies. The appellant argued before the Court of Criminal Appeal (CCA) that these were ‘demonstrations’ and the trial judge should have considered

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the requirements of s 53 before allowing them to take place. The CCA rejected this argument and held that the ‘elaborate procedure’ in s 53 ‘is limited to demonstrations, experiments or inspections taking place outside the courtroom’ (at [177]). There are practical considerations in that witnesses often provide demonstrations when giving evidence in a trial as to how a movement was made or an object was held. Section 53 was not intended to be invoked every time this happened in court (at [181]–[185]). On further appeal to the High Court—Evans v The Queen (2007) 241 ALR 400—the High Court unanimously agreed on this interpretation of the parameters of s 53 although the appeal was allowed by majority on other bases.35

Section 54 changes the common law position that a view can only be used as an aid to understanding the other evidence adduced in the case and not evidence in itself.36 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.

Views are thus recognised as a form of real evidence, and the High Court observed in Pledge v Roads and Traffic Authority (2004) 78 ALJR 572, that ‘s 54 … elevates an inspection to the status of evidence in that it can provide a foundation for the drawing of inferences … [so that] inspecting the site of the accident and driving along the road towards the accident site … [have an] enhanced utility’.37

Important references For more extensive coverage of documentary and real evidence, see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapter 7. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 140–159. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 4. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapter 3. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 174–198.

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ASSESSMENT PREPARATION Active learning questions 1 Outline the steps you would take to adduce evidence of the contents of a document using s 48 EA. What can you do to prove a document if the original document is not available? 2 Is a USB flash drive containing business records and photographs admissible as a document? Why? 3 How can s 58 EA be used in assisting to prove that a document is what a party seeking to tender it in evidence claims it to be? 4 What factors will a trial judge use in making a determination as to whether or not the court should go on a view to a particular location? 5 What is your understanding of an ‘in-court demonstration’? Should s 53 EA be applied to such demonstrations or is the court guided by similar principles in any event?

CRIMINAL TRIAL THREAD SCENARIO The second prosecution witness in the ‘armed robbery’ trial of James Swifty is Sammy Teller, an employee of the bank and eyewitness to the incident when Dolores Davidson’s handbag was taken from her inside the bank. The Crown Prosecutor will conduct the examination in chief, seeking to adduce all relevant and admissible evidence going to proof of facts in issue in the case. Counsel for the defendant will make objections as necessary during examination in chief and then cross-examine the witness. INSTRUCTIONS TO COUNSEL Prosecuting counsel should consider whether to make an application for a view prior to the commencement of evidence in chief. If the choice is made to do so, the prosecutor will need to advance argument pursuant to the considerations contained in s 53. Defence counsel will need to consider their own position and be prepared to advance an argument against the prosecution application or consent to it. Either way defence counsel should be prepared to explain the reasons for the approach taken by reference to s 53. Prior to Dolores Davidson having her bag taken from her, Sammy Teller had electronically created a record of the withdrawal of $5000 in her account. A copy of Mrs Davidson’s account has been disclosed with the brief of evidence provided to police (see the document below). During evidence in chief the prosecutor should seek to tender this document through the witness. The prosecutor must seek to adduce evidence in relation to past robberies at the bank. The precise scope of the evidence that is proposed to be adduced is a matter for prosecuting counsel. Defence counsel must make a relevance objection in relation to past robberies at the bank, supported by submissions in relation to ss 55 and 56 and Smith v The Queen (2001) 206 CLR 650. Prosecution counsel must be prepared to answer this objection, supporting their response to the objection with submissions drawing on Smith and any other relevant cases. Both prosecution and defence counsel must be prepared to make and answer objections relating to the form or appropriateness of opposing counsel’s questions.

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For example, defence counsel may object to leading questions asked by the prosecutor. Counsel may make limited reference to whether the probative value of any evidence sought to be adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (see s 137). Defence counsel must comply with the rule in Browne v Dunn. Both counsel should be prepared to use a map of the area to take the witness through their testimony. The witness should be familiar with the map and be ready to make place and directional markings, etc. on the map as to what they saw. For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 2 3 4 5

Real evidence is considered further below in this chapter. Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 242 [34], [48]. Williams v Brian [2010] ACTSC 39 [10]. Exceptions to the hearsay rule are considered in Chapter 7. The credibility rule and exceptions to the rule are considered in Chapter 10.

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6 See s 51 EA, which provides ‘the principles and rules of the common law that relate to the means of proving the contents of documents are abolished’. 7 This includes emails and should be compared with the s 69 exception to the hearsay rule considered in Chapter 7. See Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578 [9]; and Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978 [10]. 8 There is a separate definition of this term in EA Dictionary Part 1. 9 The scope of, and necessity to ensure compliance with, s 48 where the original document was not tendered by the party seeking to adduce evidence of the contents of that document was considered in Polygram Records v Raben Footwear [1996] FCA 797. 10 Refer to ‘Unavailability of documents and things’, EA Dictionary Part 2 cl 5, for what is encompassed by this phrase. 11 This involves use of s 183 EA, which provides: ‘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.’ See Roads and Traffic Authority of New South Wales v Tetley [2004] NSWSC 925 [22]. 12 See DPP v Koopelian [2012] NSWSC 309 [11]–[17]. 13 See, for example, R v Pearce [2001] NSWCCA 447 [125]; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues [2005] NSWSC 621. 14 R v SH (No 2) [2010] ACTSC 158 [14]–[19]. 15 At 315. Also, see ASIC v Rich [2005] NSWSC 417 [117]; Re Idylic Solutions Pty Ltd – ASIC v Hobbs [2012] NSWSC 1276 [1551]–[1555]; Scott MacRae Investments Pty Ltd v Baylily Pty Ltd [2011] NSWCA 82 [101]. Further, note Bryson J’s reference to ss 166–169 EA at 318, which are machinery provisions that do not provide ‘a means of proof of authenticity’ of a document that a party seeks to have admitted into evidence. They provide a request procedure in relation to the calling of evidence to determine a question of the authenticity or admissibility of a document (among other things), but do not provide a legal basis for the admission of the document into evidence or proof of its authenticity. See Lin v Tasmania [2012] TASCCA 9 [131]–[147] for a recent case example of the operation of these provisions. 16 Eire Contractors Pty Ltd v O’Brien [2012] NSWCA 400 [1] (McColl JA), [115] (Barrett JA), [188] (Preston CJ of LEC). 17 North Sydney Leagues’ Club v Synergy Protection Agency Pty Ltd [2012] NSWCA 168 [63]. 18 E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 [128]. 19 North Sydney Leagues’ Club v Synergy Protection Agency Pty Ltd [2012] NSWCA 168 [60]. 20 Compare to s 183, above n 11, which is directed to facilitating proof of matters other than the authenticity of a document. It relates only to consideration of whether a provision of the EA applies in relation to a document or thing—see ASIC v Rich [2005] NSWSC 417 [117]. 21 Also, see Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 [25]; and Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 [30]. 22 At [144]–[148]. Compare to R v Burrell [2001] NSWSC 120 where the prosecution unsuccessfully sought to use proof of the place where a magazine was found, and of its

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23

24

25 26 27 28

29 30

31

32

33

34

35 36 37

contents, to establish that the accused had knowledge of the contents of the magazine or as a basis to infer that he had a particular motive, namely to kidnap the deceased. See Thomas Mauet and Les McCrimmon, Fundamentals of Trial Techniques (Thomson Reuters Lawbook, 3rd Australian edn, 2011) 167–169; and J L Glissan QC, Advocacy in Practice (LexisNexis Butterworths, 4th edn, 2005) 141–142. Fox v Percy (2003) 214 CLR 118, 146–147 (McHugh J); McJannett v Bulloch [2012] FCA 1233 [253]; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3 [63]–[64] (Gaudron, Gummow and Hayne JJ). Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578 [14]; ASIC v Rich [2005] NSWSC 417 [118]. Andrew Palmer, Proof: How to Analyse Evidence in Preparation for Trial (Thomson Reuters Lawbook, 2nd edn, 2010) 90–91. See Bou-Hamdam v NRMA (1998) 28 MVR 283, 286; and R v Li [2003] NSWCCA 386 [41]. Tran v Nominal Defendant [2011] NSWCA 220 [172]. Also, see Blacktown City Council v Hocking [2008] NSWCA 144 [7]–[13], [167]–[173], [240]; Bathurst City Council v Thompson [2012] NSWCA 340 [71]–[72]; and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 [66], [76]. See s 29(4) EA; Smith v R (1970) 121 CLR 572, 577; and Butera v DPP (1987) 164 CLR 180, 189–190. W A N Wells, Evidence and Advocacy (Butterworths, 1988) 165. A relevant case example is Scott v Numurkah Corporation (1954) 91 CLR 300 where a demonstration was held to provide evidence of the effect of noise from the band in one part of the Town Hall on a cinema in another room in a case of ‘nuisance’. See, for example, Thompson v The Queen (1986) 23 A Crim R 340. Also, see Kozul v R (1981) 147 CLR 221, 227 for restrictions on the jury conducting their own experiments with physical exhibits. Chotiputhisilpa v Waterhouse [2005] NSWCA 295 [86]–[89]; Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111 [7]; Jamal v R [2012] NSWCCA 198 [30]–[35], [41], [46]. Note subs (5) that s 53 does not apply in relation to the inspection of an exhibit by the court or jury. This exception only applies to an inspection of an exhibit tendered in the case and does not extend to conducting an experiment. Evans v The Queen (2007) 241 ALR 400, 407 (Gummow and Hayne JJ), 414 (Kirby J), 441–454 (Heydon J with whom Crennan J agreed); and Gilham v The Queen [2012] NSWCCA 131 [416]. See Gummow and Hayne JJ at 406–407, and Kirby J at 423–424. See Scott v Numurkah Corporation (1954) 91 CLR 300, 303. At 580 and 583 (Callinan and Heydon JJ).

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CHAPTER 6

PRIVILEGES AND IMMUNITIES COVERED IN THIS CHAPTER In this chapter, you will learn about: • the nature and operation of privilege; • client legal privilege; • loss or waiver of client legal privilege; • privilege against self-incrimination; • public interest immunity—‘matters of state’; • privilege in aid of settlement; • professional confidential relationships; • journalists’ privilege; and • sexual assault counselling communications privilege

CASES TO REMEMBER Chapman v Luminis Pty Ltd (2000) 100 FCR 229

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 118–126, 126B–126E, 126K, 128, 130, 131A, 132, 133, 134

INTRODUCTION We will consider the various circumstances under which witnesses who are called and compelled to give evidence can assert a privilege through which they have a lawful excuse to refuse to testify about certain things. Further, we will examine public interest immunity, which involves a balancing exercise in relation to whether it is in the public interest to disclose certain sensitive information about ‘matters of state’ in court.

THE NATURE AND OPERATION OF PRIVILEGE Privilege pertains to the legal right of a party to a proceeding or a witness to object to giving evidence about or divulging information that they would otherwise be legally compelled to give as evidence in court. Privilege can be applied to oral evidence, documents and other communications. Part 3.10 EA contains the provisions relating to privileges. The rule in s 56 is qualified by these provisions so that the end result

CHAPTER 6: PRIVILEGES AND IMMUNITIES

of a successful claim of privilege is to withhold relevant information from a court rather than rendering it inadmissible. Even though in the ‘search for the truth’ it is important that courts should be able to access all relevant information, the policies underpinning the various privileges acknowledge that ‘the truth may sometimes cost too much … [and] each category [of privilege] reflects a different form of public policy and, in that sense, represents a “public interest”’.1 The question is ‘whether the public policy on which the particular privilege is based really does outweigh the public interest in ensuring that a court considers all relevant information in fact finding before reaching a conclusion on the facts. Failure to take into account relevant information obviously creates a risk that the wrong conclusion will be reached. The public policy reason for allowing relevant information to be withheld therefore needs to be a compelling one’.2 Generally, as to the procedural operation of a privilege in proceedings, it must be claimed by the witness to prevent the evidence from being adduced. Section 132 EA operates, however, ‘to ensure fairness to the witness or party who has a basis for making an objection’3 by providing that the court must be satisfied that a witness or party is aware of any right to claim a privilege. If the court breaches this obligation, for example, by failing to inform a witness about the privilege against self-incrimination, the resulting evidence may be excluded in a subsequent proceeding under s 138.4 Section 133 permits a court to inspect a document if an issue involving privilege arises in relation to it.5 When a claim of privilege is made, the court must determine its validity. If evidence is given before an objection or application is made, for example by a witness responding immediately to a question without proper consideration of a potentially applicable privilege, then by s 134 this evidence is inadmissible and must be disregarded by the tribunal of fact if the objection would have been upheld on the basis of privilege. Privileged information will only be admissible under the Act if the privilege has been ‘waived’ and we now turn to examine the various privileges under Part 3.10.

CLIENT LEGAL PRIVILEGE This is a primary privilege in contemporary legal practice.6 The label ‘client legal privilege’ reflects the fact that it belongs to the client rather than the lawyer and a person cannot be forced to waive this privilege in cross-examination by revealing what they have discussed with their lawyers.7 At common law, this privilege is called ‘legal professional privilege’ and it operates both as a rule of evidence in court proceedings and as a general right to protect confidential communications from disclosure outside the trial context. The EA originally operated only in the trial context of adducing evidence; however, s 131A now extends the operation of certain

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privileges to the pre-trial context or preliminary proceedings of courts, such as discovery, subpoenae and notices to produce documents.8 All privileges in Division 1 Part 3.10 EA are covered by s 131A, which includes client legal privilege. Confidential communications between a lawyer and their client are protected by this privilege if made or prepared for the dominant purpose of providing the client with legal advice (s 118); or in relation to the provision of legal services for litigation in progress or which was anticipated at the time the communication was made (s 119). 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.

In relation to s 119 the proceedings must actually be contemplated; it is not sufficient that the litigation is apprehended as a possibility. The objective test has been distilled as ‘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’.9 Section 120 provides for a limited privilege in favour of unrepresented litigants. It protects confidential communications between the party and another person or the contents of a confidential document prepared for the dominant purpose of preparing for or conducting the proceeding. It doesn’t apply to any communications or documents prepared for an anticipated proceeding.

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The rationale behind client legal privilege is the encouragement and fostering of trust and candour in the lawyer–client relationship. Where the client feels confident they can fully disclose information, both favourable and unfavourable to their case, then they can be ensured that a lawyer is in a position to provide comprehensive and accurate legal advice to the client.10 This rationale takes account of the adversary system of litigation, and the privilege promotes an effective operation of this system in the broader administration of justice. The concept of ‘client’ is widely defined in s 117 to include: (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;11 (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) … (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.

This definition effectively and considerably extends the ordinary understanding of ‘client’ (a person using the services of a lawyer), particularly noting it continues throughout the client’s life, and may be claimed by a successor. Also, parts (a) and (c) of the definition demonstrate that lawyers in private firms, in a company or government department may be in a lawyer–client relationship with the firm, company, or government department as the client. To qualify for the privilege, the communication must be characterised as a consultation in confidence to obtain legal advice or professional legal services arising from the lawyer–client relationship. This must be distinguished from the policy, administrative or other non-legal duties of an employed lawyer, and communications made while working in any of those capacities would not be privileged.12 Both oral and written communications are within the scope of the protection of the privilege, which also extends to confidential documents that are not communications, provided they were brought into existence for the relevant legal advice or litigation purposes. For example, draft pleadings and certain other documents in a lawyer’s file that are confidential in nature. The communication or document must be confidential as defined in s 117. Essentially this means that when the communication was made or document was prepared, the circumstances were such that there was ‘an express or implied obligation not to disclose its contents’ by the people involved in the making of the communication or preparation of the document. An example

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is a statement obtained by a party’s solicitor from a witness whose interests in the litigation were adverse to that party,13 whereas file notes of conversations between the plaintiff’s solicitor and the defendant in a civil action in the Federal Court were held to be inherently non-confidential.14 Also, it has been held that the obligations referred to in the s 117 definition may extend to unspoken ethical and moral obligations of which parties are aware even when a lawyer is not involved.15 When this privilege is brought into play ‘on objection by a client’, the person asserting the privilege carries the onus of establishing it on the balance of probabilities. A prosecutor in a criminal case may have a duty to disclose all documents even if the privilege applies.16 Turning to the nature of the test of the purpose for which the communication was made or document created, ascertaining the dominant purpose involves an objective test, but the court will take account of the intentions of the person who made the communication as well as the status of the person to whom the communication was made. The court may examine any document in which the communication is noted and any relevant communications and transactions on prior occasions involving the same parties in determining the purpose of the present communication. Ultimately, it is open to a judge not to give determinative weight to the lawyer’s subjective intention.17 The High Court has clearly stated, ‘In its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing, or most influential purpose’18 (emphasis added). In later cases it has been emphasised that ‘dominant’ must be distinguished from ‘primary’ and ‘substantial’ in that ‘the element of clear paramountcy should be the touchstone’.19 A purpose may be greater or more important but that does not make it the dominant purpose.20

LOSS OR WAIVER OF CLIENT LEGAL PRIVILEGE A distinctive feature of a privilege is that it can be ‘waived’ or lost. Waiver is the client, as the owner of the privilege, acting inconsistently with the claim of confidentiality that underpins the operation of the privilege.21 Mere inadvertent disclosure will not lead to loss or waiver22 nor will communicating the gist of a privileged communication.23 There is a series of provisions in the Act which set out the circumstances in which the prohibitions on adducing evidence contained in ss 118, 119 and 120 do not apply, and it is the party asserting non-application of the privilege who has the onus of satisfying the court of the matters constituting the relevant exception on the balance of probabilities. These provisions are summarised in Table 6.1.

ELEMENTS OF LOSS/WAIVER

(1) Communications are relevant to the intentions or competence of a deceased client or party. (2) If evidence in question were not adduced, it could reasonably be expected that the court would be prevented from enforcing an order of an Australian court. (3) A communication or document that affects a right of a person directly.

The client (or party s 120) waives the privilege, either expressly or impliedly —particular conduct of the holder of the privilege is inconsistent with the maintenance of confidentiality which the privilege is intended to protect (subs (2)). This is by (subs (3)): • knowing and voluntary disclosure of substance to another person;26 or • substance disclosed with express or implied consent of client or party. But not where disclosed (subs (5)): (a) (i) in the course of making a confidential communication or preparing a confidential document; or (ii) as a result of duress or deception; or (iii) under compulsion of law; or

EA PROVISION

Section 121

Section 122

TABLE 6.1 Loss or waiver of client legal privilege provisions

(Continued )

Mann v Carnell (1999) 201 CLR 1; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12; DPP v Kane (1997) 140 FLR 468; Sovereign Motor Inns v Bevillesta [2000] NSWSC 521: ‘sheer inadvertence or carelessness’ is not ‘knowing and voluntary’ disclosure; Doran Constructions Pty Ltd (in Liquidation) [2002] NSWSC 215: ‘substance’ is the ‘essence or vital part of the advice’; Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97; British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107 [47]: partial disclosure of legal advice for forensic advantage while preventing the other party from the opportunity to see the whole communication is not inconsistent with maintaining its confidentiality; Osland v Secretary, Department of Justice (2008) 234 CLR 275, 292–3; Akins v Abigroup Ltd (1998) 43 NSWLR

(1) Setting aside or resisting a grant of probate on grounds of testamentary incapacity or undue influence.24 (2) The location of a child removed from the jurisdiction in breach of a custody order.25 (3) R v P (2001) 53 NSWLR 664, 679; Green v AMP Life [2005] NSWSC 95 [24]–[30]. Other examples: defamatory statements, act of bankruptcy, threats (constituting a tort or crime), a contractual offer.

EXAMPLE OR CASE REFERENCE

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Where ‘2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter’,29 evidence may be adduced by any party of a communication made by any of the parties to the lawyer, or a confidential document prepared by or for any of the parties, in connection with that same matter.

Section 124 (applies only to a civil proceeding)

Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 101. The section differs from joint privilege at common law where all privilege holders must consent to waiver. Therefore, it will encourage ‘a wide range of clients with similar interests to take separate advice, rather than take advice jointly, to avoid the risk of communications becoming the subject of evidence’.30

Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121. This provision ‘is unlikely to have a significant practical effect because … [it] does not provide the foundation for the operation of any compulsory process by means of which a defendant might be able to obtain access to privileged information’.28

539: ‘compulsion of law’ in (5)(a)(iii) is a broad concept extending to ‘procedural directions’; Southern Cross Airlines Holdings Ltd (in liquidation) v Arthur Andersen & Co (1998) 84 FCR 472: in relation to (5)(c), disclosure was by a liquidator to the company’s creditors who had a ‘common interest’ relating to the action. Other examples of a ‘common interest’ may include disclosure by insured to insurer, and partner to partner.

(b) if it concerns a matter where the same lawyer is providing professional legal services to both the client and the other person; or (c) the client had a common interest with the person relating to the proceeding or an anticipated or pending court proceeding.

Adducing evidence of a communication or document by a defendant in criminal proceedings, unless it is a confidential communication between an associated defendant27 and the lawyer acting for that person in connection with the prosecution of that person. Only applies to the adducing of evidence to which the defendant already has access (s 131A does not apply).

EXAMPLE OR CASE REFERENCE

ELEMENTS OF LOSS/WAIVER

Section 123 (applies only to a criminal proceeding)

EA PROVISION

TABLE 6.1 Loss or waiver of client legal privilege provisions (Continued )

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Misconduct: fraudulent, criminal or other wrongful conduct of the client or the lawyer, including an act that renders a person liable to a civil penalty (subs (1)(a)). Deliberate abuse of power: where only one of the client or lawyer knew or ought reasonably to have known that the communication or the document was made or prepared in furtherance of such an abuse (subs (1)(b)). Standard of proof is whether there are reasonable grounds to find that fraud, etc was committed and the communication, etc was made in furtherance of its commission (subs (2)(a) and (b)).

Another document is reasonably necessary to enable a proper understanding of the voluntarily disclosed communication or document (as a result of ss 121–125).

Section 125

Section 126

A useful example is provided in a note to s 126: ‘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.’ ‘Proper understanding’ is assessed by an objective standard. Therefore, where ‘a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privilege’, ordinarily the section will be satisfied: Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401, 414.

A finding of ‘fraud’ must involve an element of dishonesty, and ‘deliberate’ in s 125(1)(b) requires knowledge that the acts in question are an abuse of power, not merely that acts are deliberately done which are in fact an abuse of power: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 [64]; Kang v Kwan [2001] NSWSC 698 [37]; Bare v Small [2011] VSC 639 [6]. As to the s 125(2) test there must be sufficient evidence ‘to give colour to the charge’, so that at a prima facie level there is a factual foundation to grounding such a claim: Kang v Kwan [2001] NSWSC 698 [37].

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PRIVILEGE AGAINST SELF-INCRIMINATION This privilege was created by the courts and is now contained in s 128 EA, but only applies in respect of a witness giving evidence at trial as s 131A does not extend to this privilege.31 Importantly, this privilege is not available to the defendant in criminal proceedings in relation to evidence going to the issue of whether they committed the crime actually charged in those proceedings.32 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, including facts from which the doing of the act or having the state of mind in issue can be inferred.33 It is not available to a corporation.34 The justification for the privilege is succinctly stated by Brennan J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 514: The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction wrung out of the mouth of the offender.

This reflects the unfairness of forcing someone to provide the evidence upon which they will be convicted35 and upholds the idea ‘that those who allege the commission of a crime should prove it themselves’.36Accordingly, this privilege represents one means by which an attempt is made by the law of evidence to attain a fair balance between the competing demands of law enforcement and personal liberty. It can be seen as a corollary to the right to silence and the right of the accused not to be compelled to give evidence.37 Adverse inferences cannot be drawn from using s 128 but it may leave matters unexplained.38 It is, however, entrenched and can only be clearly abrogated by statute.39 Turning to the practical operation of the privilege, it is available in civil and criminal proceedings if particular evidence ‘may tend to prove’ that the witness has committed an offence against or under Australian law or a law of a foreign country, or is liable to a civil penalty (s 128(1)). The privilege can be claimed by the witness objecting to giving particular evidence,40 which includes answers to questions and production of documents. If the particular evidence sought to be adduced through an answer to a question put to the witness would implicate the witness in a criminal offence or expose them to imposition of a civil penalty, the ‘may tend to prove’ test will be fulfilled. Once claimed, the judge must be satisfied under s 128(2) that ‘there are reasonable grounds for the objection’ (emphasis added). No legislative guidance is provided as to what constitutes ‘reasonable grounds’. Common law principles may assist in interpretation, so that there would not be reasonable grounds if the person could not be convicted and punished for the offence.41 For example, if there is no real risk of the witness being prosecuted by the relevant authorities, even though ‘the evidence may tend to prove that the witness’ committed the offence, there would not

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be reasonable grounds for the objection. Certainly a claim to privilege will be rejected if the witness could not be tried for the offence, such as where they had already been convicted or acquitted following an earlier trial. Likewise, if the evidence has previously been disclosed in another context, any further disclosure would be unlikely to increase the risk of conviction. A consideration that may prevent evidence being given is when the witness may be forced to reveal evidence they would seek to have excluded in an unrelated proceeding.42 If a finding is made that there are reasonable grounds for objection, the court is not to require the witness to give evidence but must then inform the witness of the matters under s 128(3). This effectively gives the witness a choice of either voluntarily giving the evidence, having been informed that they will be given the protection of a use-immunity certificate under s 128(5), or of refusing to give the evidence with the risk of being required to do so by the court under s 128(4). The court may require the witness to give the evidence once satisfied that ‘(a) the evidence does not tend to prove that the witness has committed an offence against … a law of a foreign country; and (b) the interests of justice require that the witness give the evidence’. Importantly, this provision requires the court to determine that it is an offence under Australian law and not the law of a foreign country because there is no guarantee that a use-immunity certificate would be effective in a foreign country. As to the ‘interests of justice’ that will require the witness to give the evidence, there is again no legislative assistance as to the matters to inform this judicial determination. Due to the similarity with ‘the public interest’ terminology in s 130,43 it has been suggested by Odgers that the factors which might properly be considered in determining ‘the interests of justice’ would include: • • • • • • • • •

•

the importance of the evidence in the proceeding; the likelihood that the evidence will be unreliable even if a certificate is given; if the proceeding is a criminal proceeding—whether the party seeking to adduce the evidence is a defendant or the prosecutor; the nature of the offence, cause of action or defence alleged in the proceeding; the likelihood of any proceeding being brought to prosecute the offence or impose the penalty; any resulting unfairness to a party …; the likely effects of requiring the giving of the evidence, and the means available to limit its publication; whether the substance of the evidence has already been published; where a charge or charges has/have already been brought arising out of the events to which the evidence relates, whether the charge or charges have been finally dealt with; if the witness is not to be required to give evidence, the way in which the refusal to give evidence is to be approached by the tribunal of fact …44

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The onus is on the party who is seeking to override the privilege and have the particular evidence forcibly adduced from the witness to satisfy the court that this is required in the ‘interests of justice’. This will involve the trial judge giving careful attention to the possible consequences of compelling the witness to give such evidence.45 Once the witness gives the evidence, whether willingly or under compulsion, the court must cause the witness to be given a use-immunity certificate under s 128(5). Also, a certificate must be given if the objection is overruled but after the evidence has been given the court finds that there were reasonable grounds for the objection.46 The effect of the certificate is manifest in s 128(7), so that, in general, the evidence cannot be used against the witness in a proceeding in any court or other body authorised ‘to hear, receive and examine evidence’. Further, ‘any information, document or thing obtained as a direct or indirect consequence of the person having given evidence’ cannot be used against the person. This highlights the direct and derivative nature of the immunity; however, it ‘does not apply to a criminal proceeding in respect of the falsity of the evidence’, that is, ‘perjury’ proceedings.

PUBLIC INTEREST IMMUNITY—‘MATTERS OF STATE’ This is another common law doctrine which has been retained as an exclusionary rule for ‘matters of state’ in s 130 EA, and both involve a very similar two-stage process.47 Section 131A applies to s 13048 so that the immunity extends to pre-trial and other compulsory processes for disclosure. Public interest immunity, although usually treated as part of the law of privilege, has two important distinguishing features from the privileges we have considered in this chapter. It is not personal, so it doesn’t belong to a person and thus cannot be waived.49 The court can, by its own motion, determine whether the immunity applies even if it is not claimed to apply by a party to the proceeding (s 130(2)). The court may also consider appointing a special counsel or amicus curiae to examine the evidence.50 The second distinguishing feature is that unlike deciding the validity of a claim of privilege, which if valid must simply be upheld, public interest immunity requires a two-stage approach. First, the court assesses the public interest in allowing all parties access to the information and, second, assesses the public interest in preserving the confidentiality of that information. The character of the information or document as it relates to ‘matters of state’ under s 130 and the public interest if disclosure would prejudice the proper functioning of government is an important part of the court’s assessment.51 The court undertakes a balancing exercise during which it determines, on a case-by-case basis, which of the two public interests is greater: divulging or preserving the confidentiality of the information or document the subject of the claim.52

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130 Exclusion of evidence of matters of state (1)

(2) (3)

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. The court may give such a direction either of its own initiative or on the application of any person (whether or not the person is a party). In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

Section 130(4) then defines a number of situations which ‘may be taken … to relate to matters of state’. This is a non-exhaustive list of the types of information or documents that can fall into this category. Even though these categories show that public interest in non-disclosure has been recognised as a valid concern in relation to such information or documents, it does not necessarily follow that they will be immune from disclosure in a particular case. This recognition provides material for the court to assess the extent of the public interest in preserving secrecy, which will then be balanced against the assessment of the public interest that all relevant information should be available to all stakeholders in the proceedings. Table 6.2 provides a succinct summary of the main circumstances in which information or a document is taken to relate to matters of state. TABLE 6.2 Main circumstances of ‘matters of state’ SECTION

CIRCUMSTANCES

EXAMPLE OR CASE REFERENCE

130(4)(a)

‘prejudice the security, defence or international relations of Australia’

Particularly important in time of war where disclosure might aid the enemy: Duncan v Cammell Laird [1942] AC 624. Also, information held by security organisations: Parkin v O’Sullivan (2009) 260 ALR 503.

130(4)(b)

‘damage relations between the Commonwealth and a State or between 2 or more States’

130(4)(c)

‘prejudice the prevention, investigation or prosecution of an offence’

Police investigation methods, informers and assessment of information gathered in an inquiry: Eastman v The Queen (1997) 76 FCR 9 cf more routine information in possession of the police: Bruce v Waldron [1963] VR 3. (Continued )

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TABLE 6.2 Main circumstances of ‘matters of state’ (Continued ) SECTION

CIRCUMSTANCES

EXAMPLE OR CASE REFERENCE

130(4)(e)

Disclose ‘a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State’

Identity of police informers: Eastman v The Queen (1997) 76 FCR 9; Attorney-General (NSW) v Smith (1996) 86 A Crim R 308; R v Young (1999) 46 NSWLR 68; AttorneyGeneral (NSW) v Kaddour [2001] NSWCCA 456: R v Lipton [2011] NSWCCA 247 [84], [86]–[111]; Attorney-General (NSW) v Lipton [2012] NSWCCA 156 [28], [36]–[39], [52], [65]–[68]; Derbas v R [2012] NSWCCA 14 [6], [22]–[30], [43]–[44].

130(4)(f)

‘prejudice the proper functioning of the government of the Commonwealth or a State’

High level government documents, such as Cabinet minutes and papers, memoranda between ministers and their departmental heads, and policy papers for consideration by ministers: Commonwealth v Northern Land Council (1993) 176 CLR 604, 615–618; NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 [45], [53]–[56]; Spencer v Commonwealth [2012] FCAFC 169 [27]–[33], [43] cf R v Dowe [2007] NSWDC 70 (routine documents produced by public servants).

Finally, s 130(5) provides a non-exhaustive list of the matters that the court ‘is to take into account’ for determining the balancing of the competing public interests under s 130(1).53 The ‘importance of the information or document in the proceeding’ (s 130(5)(a), emphasis added) is a significant consideration, including whether it is of current importance or only of historical value, and the cases show that this is a necessary condition to defeating a plausible claim of immunity.54 The following case is a good illustration of the practical application of s 130(5).

A CASE TO REMEMBER Chapman v Luminis Pty Ltd (2000) 100 FCR 229 Chapman v Luminis Pty Ltd (2000) 100 FCR 229 related to the building of the Hindmarsh Island bridge in South Australia and the ‘secret women’s business’ of the Indigenous women of this area. In the Federal Court, the issue that brought s 130 into consideration was whether a document given to an expert anthropologist witness by Dr Kartinyeri (on behalf of the Ngarrindjeri women) should be the subject of questioning or production of

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associated notes that would disclose restricted women’s knowledge such that it would prejudice the proper functioning of the government, and in particular the protection of Aboriginal culture and heritage in the manner intended by the Heritage Protection Act 1984 (Cth) (HPA). This had to be weighed against the public interest in the proper administration of justice requiring the availability of all relevant evidence to help elucidate the full facts in the proceeding. Von Doussa J paid careful attention to the matters in s 130(5) in deciding which aspect of the public interest predominated in this case. The disclosure of the restricted women’s knowledge was relevant and important to the proceedings in establishing the factual base upon which the issues raised between the parties must be resolved (s 130(5)(a) and (c)). As to s 130(5)(d), the likely effect of adducing the evidence and the means available to limit its publication, it was likely to cause affront and distress to those women who are proponents of the existence of the restricted women’s knowledge but it would be unlikely that the disclosure would have the effect of deterring other Aboriginal people from seeking protection of Aboriginal heritage under the HPA. Finally as to s 130(5)(e) there would already have been publication of the information supplied in connection with the application for the declaration under s 10 HPA but to a limited class of people. Further publication could be required if judicial review proceedings were to eventuate. Von Doussa J declined to make a direction under s 130, finding the balance in favour of admitting the information into evidence rather than preserving its confidentiality. There was, however, some compromise through the ‘in-camera’ order and restriction on further dissemination order made, thus limiting the class of people to whom the knowledge would be revealed.

PRIVILEGE IN AID OF SETTLEMENT Section 131 EA provides for the exclusion of evidence of settlement negotiations, which is, in practical operation, a privilege that can be waived by the parties to a dispute. It is also commonly referred to as the ‘without prejudice’ privilege and is a joint privilege of all the people in dispute. Essentially s 131 prohibits evidence being adduced of the contents of communications made in an attempt to settle a civil dispute, and documents prepared in connection with such an attempt, unless an exception in s 131(2) applies. The privilege does not apply to attempts to settle a criminal proceeding,55 such as negotiations between the prosecution and counsel for the defendant in relation to the charges against, or pleas to be entered by, the defendant. This privilege is based on the rationale that ‘the efficient administration of justice depends on the fact that the vast majority of civil proceedings are settled’.56 Negotiation is an integral part of settling any dispute and it is important that statements made during this process are privileged to ensure the ongoing willingness of people involved in such disputes to negotiate. Any offer to settle a civil action by a defendant could be interpreted as an admission of liability or a plaintiff’s willingness to settle for a lower amount of money could be construed as an admission about the actual quantum of damage or that their case otherwise lacks merit. If such offers or

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concessions made in negotiations were admissible as evidence, the whole settlement process would be halted, which controverts the public policy of encouraging out-ofcourt settlements to facilitate the efficient and cost effective administration of justice. A number of situations in which the privilege will not apply are exhaustively prescribed in ss 131(2)(a)–(k). Apart from waiver through express or implied consent of the people in dispute or their authorised employee or agent,57 there is an assortment of other exceptions. These include a statement to the effect that the communication was not to be treated as confidential, with the example of an option to renew a lease as an objective act having legal consequences.58 Also, the privilege will not apply where the making of an agreement to settle the dispute is in issue59 or the relevant material must be presented or else the court is likely to be misled by the evidence already adduced in the case.60 Further exceptions are in relation to determining liability for costs particularly having regard to the genuine and realistic nature of the negotiations,61 or where there has been a fraud or deliberate abuse of a power by people involved in the communications during settlement negotiations.62 Note that whether or not the words ‘without prejudice’ are included on a document or in any other form of communication is not determinative of whether the document or communication is privileged.63

PROFESSIONAL CONFIDENTIAL RELATIONSHIPS The ‘professional confidential relationships’ privilege is provided in Division 1A of Part 3.10 of the New South Wales, Australian Capital Territory and Tasmanian Acts.64 This privilege enables a court to direct that information amounting to a ‘protected confidence’ not be adduced in evidence in a proceeding if doing so would or might cause harm to a ‘confider’. The privilege could arise in diverse relationship contexts, including various medical professionals and their patients, social worker or counsellor and patient, journalist and source,65 and accountant and client. The key provisions are: 126B Exclusion of evidence of protected confidences (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;66 or (b) the contents of a document recording a protected confidence; or (c) protected identity information.

… (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.

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Section 126B(3) illustrates that it is really analogous to public interest immunity rather than an absolute privilege due to the evidentiary protection depending on a judicial balancing exercise of harm67 to the confider against the desirability of all relevant evidence being adduced in the proceeding. In Wilson v NSW [2003] NSWSC 805, the court refused to give a s 126B direction preventing the plaintiff from inspecting a subpoenaed file containing information from the Psychology section of the New South Wales Police Service about the confider’s (a former police detective) psychological profile because there was no evidence of the nature and extent of any harm to the confider. Section 126B(4) then provides a non-exhaustive list of factors which the court must take into account in carrying out this balancing exercise. These include the probative value and ‘importance of the evidence in the proceeding’, the ‘nature and gravity of the relevant offence’ and the ‘availability of any other evidence concerning the matters to which the protected confidence relates’. The privilege may be lost where the confider consents to the evidence being adduced (s 126C) or where the information was prepared in the furtherance of a fraud or an offence (s 126D). The court can order that the evidence be heard ‘in camera’, or suppress publication of any evidence to protect the safety and welfare of the protected confider (s 126E).

JOURNALISTS’ PRIVILEGE In Australian Capital Territory, New South Wales, Victoria68 and the Commonwealth69 jurisdictions, a journalist can claim a privilege to protect them from divulging the identity of their source or ‘informant’. The informant must give information to a journalist with the expectation that it will be published in a news medium. If a journalist has promised an informant that their identity will remain confidential, the journalist and their employer cannot be compelled to disclose this identity by answering any questions or providing any documents. This privilege differs from the professional confidential relationships privilege considered above in that there is no requirement to establish that disclosure of the identity of, or information from, an informant would cause harm to the informant. It has been held that a journalist’s promise to preserve confidentiality does not provide automatic protection to the informant,70 but equally it cannot be used to confirm a party’s suspicions as to the identity of the informant.71 Following the application by a party, the court may order disclosure of an informant’s identity under s 126K(2) EA by reference to a balancing test. This again illustrates the analogy to immunity rather than privilege. To make the order the court must be satisfied by reference to the particular issues to be determined in the case that the public interest in the disclosure of evidence of the identity outweighs ‘(a) any likely adverse effect of 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 … in the ability of the news media to access sources of facts.’

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Overall, this privilege is a strong protection for journalists to maintain the anonymity of their sources.72

SEXUAL ASSAULT COUNSELLING COMMUNICATIONS PRIVILEGE This is a specific privilege that protects confidential communications between an alleged victim of sexual assault and their counsellor. Essentially the privilege requires the party seeking disclosure to make an application for the disclosure of the protected confidence. This application is decided by the court using a test based on balancing the substantial probative value of the document or evidence and the public interest in preserving the confidentiality of this kind of confidential communication and protecting the confider from harm. There are different wordings for this test in assorted legislative provisions across the various uniform evidence law jurisdictions and a snapshot of these is provided below in Table 6.3. TABLE 6.3 Sexual assault counselling privilege provisions in the uniform evidence law jurisdictions Cth

NSW

Vic

Tas

NT

ACT

No provisions

Evidence Act 1995 ss 126G–126I (civil) Criminal Procedure Act 1986 ss 295–306 (criminal)

Evidence (Miscellaneous Provisions) Act 1958 ss 32AB–32G (civil and criminal)

Evidence Act 2001 s 127B* (criminal)

Evidence Act 1939 ss 56–56G (criminal)

Evidence (Miscellaneous Provisions) Act 1991 ss 54–67 (civil and criminal)

* Not to be disclosed unless victim consents

Important references For more extensive coverage of privileges and immunities see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) 142–186. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 540–630. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 13. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 14 and 15. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 658–824.

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ASSESSMENT PREPARATION Active learning questions 1 What are the competing considerations in privileging information and disclosure of that information in the trial process? 2 Select the most accurate answer from options (a), (b), (c) or (d). Ordinary Advocate wants to make a claim of client legal privilege in a civil action in relation to a draft pleading he sent to his client, Nick. To establish the document is protected by the privilege and cannot be adduced in evidence: (a) Ordinary must prove that the contents of the document are confidential and it was prepared solely for the purpose of Nick being provided with legal advice or professional legal services and that it has not been knowingly and voluntarily disclosed to another person. (b) Ordinary must prove that the contents of the document are confidential and it was prepared for the dominant purpose of providing legal advice to Nick in relation to any pending or anticipated proceeding. (c) Ordinary must prove that the public interest in preserving the confidentiality of the contents of the document outweighs the public interest in admitting the document into evidence. (d) Ordinary must prove that the contents of the document are confidential and it was prepared for the dominant purpose of Nick being provided with professional legal services relating to a current or pending court proceeding to which Nick is a party. 3 Select the most accurate answer from options (a), (b), (c) or (d). During a custody hearing in the Family Court, counsel for Alma is cross-examining Matt, Alma’s former husband. Counsel asks Matt a question alleging that Matt sexually assaulted his and Alma’s seven-year-old daughter. This is the first time that such an allegation has been made to Matt. Matt objects to answering the question. Court J finds there are reasonable grounds for the objection. Court J now: (a) must inform Matt that he doesn’t have to answer the question unless he chooses to do so or if he is required by the court to answer the question because the evidence does not tend to prove Matt committed an offence against a law of a foreign country and the interests of justice require Matt to give the evidence and that he will be given a use-immunity certificate. (b) may give Matt the choice of answering the question and being provided with a use-immunity certificate, not answering the question at all, or answering the question with the proceedings held in camera together with an order for suppression of the publication of any evidence given in answer to the question. (c) must immediately require Matt to answer the question and only provide him with a use-immunity certificate if he requests one. (d) must not require Matt to answer the question unless he chooses to do so having been informed he will be given a use-immunity certificate, or if the evidence tends to prove Matt committed an offence against an Australian law or a law of a foreign country and the interests of justice require Matt to give the evidence. 4 What do you understand by the concept of ‘waiver’ and how it operates in practice, particularly in relation to client legal privilege? 5 How does the court determine the dominant purpose of a document or other communication in the context of litigation?

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Review problems 1 On Saturday 26 January 2013, a single vehicle accident occurred on a semi-rural roadway. There were no eyewitnesses and the driver, Abigail Arkwright (A), was alone in the vehicle. It appears that she lost control on a sweeping right-hand bend and her car left the road and collided with a large tree causing multiple injuries from which she later died. At that time the local council was resurfacing two sections of the road in this area and the work had not been finished. There was loose gravel on the surface of the road in those areas proximate to where the accident involving A’s vehicle occurred. One of the local council’s warning devices on a guidepost before the bend had been knocked down by a council grader on Friday 25 January 2013 and had not been repaired or replaced. There had been another single vehicle accident in that area earlier on 26 January 2013. Reports were prepared in relation to both accidents. On 8 February 2013, Bill Bennett (B), the Director of Works for the local council, sent a facsimile with the reports attached to their insurance company, Robilliards. After reading the reports from B, an officer from Robilliards, Colin Carter (C), instructed Sly & Associates, a firm of insurance investigators, to investigate the accident involving A and to provide him with a report. At that time another claim against the local council in relation to unfinished roadworks in a nearby part of the council area had only recently been resolved by Tipping, Portland & Co, a firm of solicitors permanently retained by the local council. C had also been involved in working to resolve this case and decided to commission the report from Sly & Associates in relation to the death of A to both obtain relevant information and to supply to Tipping, Portland & Co in the event that proceedings were brought against the local council. After receiving the report from Sly & Associates (the Sly Report) in April 2013, C sent a copy of this report to the local council, which was reviewed by Debbie Dyson (D), the General Manager. Because of concerns about matters in the report relating to the unfinished roadworks, another single vehicle accident nearby shortly before A’s accident, and the loss of the warning device, D sent a memorandum dated 6 May 2013 to B, and to Eddie Everingham (E) the project manager for the relevant roadworks in the area. This three-page memorandum contained extracts from the Sly Report as well as commentary as to roadworks projects in the subject and other parts of the local council area. In an action against the local council for negligence, counsel for the plaintiff, Kevin Arkwright (the father of the deceased), has subpoenaed documents from the local council including (a) the Sly Report and (b) the memorandum by D dated 6 May 2013. The defendant council claims that both documents are privileged and refuses to produce them in answer to the subpoena. Discuss whether the claims for privilege in relation to both the Sly Report and the memorandum by D will be successful in this case. 2 Assume the following facts. Seth Arrowsmith was a 25-year-old successful futures trader. He had become very wealthy and led a fast and extravagant lifestyle. In January 2013 Seth decided that he needed to drop out from the pressures of life and the stock market for a while so he arranged with his driver and bodyguard, Zoran Jokanovic, to take an extended trip in a four-wheel drive vehicle into the Australian outback areas. Zoran had worked as Seth’s driver and bodyguard for approximately eight months at that time. Seth and Zoran

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began their trip together on 26 January 2013 and travelled to various remote parts of the outback. Seth wanted to get right away from everyone and everything so he didn’t take a mobile phone or any other forms of communication with him. His closest confidant was his sister, Sophie. Seth told her that he would contact her when he needed someone to talk to but not to expect that he would contact her on a regular basis. Early in May 2013, Zoran returned alone in the four-wheel drive vehicle. The last contact that anyone had had with Seth was on 26 April 2013 when Seth telephoned his sister, Sophie, and told her that he was ‘thinking of coming back soon’. Following Zoran’s return, Sophie reported to the police that Seth was ‘missing’. Zoran was then asked to assist the police with their enquiries. Zoran said he did not know where Seth was and that he last saw him in Tibooburra when Seth said he was ‘going to find a phone to ring Sophie’. Over the ensuing months there was an extensive search for Seth and a lengthy police investigation into his disappearance. There was no trace found of Seth but by November 2013 the investigating police decided they had gathered sufficient information to arrest Zoran Jokanovic. Zoran was arrested at the airport where he was waiting to board a plane to the Czech Republic, his original homeland. Zoran was taken to the police station but refused to take part in a recorded interview with police. Zoran was then charged with the murder of Seth. Zoran has been seeing a psychologist, Darin Holt, since February 2012 in relation to anger management issues arising out of his previous employment as a nightclub ‘bouncer’. When Zoran started working as the driver and bodyguard for Seth Arrowsmith in May 2012, he stopped seeing Darin Holt and Holt noted that Zoran seemed to have settled into stable employment. In July 2012, however, Zoran returned to consulting Darin Holt on a regular basis as there had been some incidents where Zoran had been finding it hard to control his temper with Seth. Zoran told Holt that he thought Seth was ‘an arrogant young asshole who treated everyone (including Zoran) like second class citizens’ and that he just wanted to ‘pound him into pulp’. Zoran also told Holt that he didn’t want to leave the job with Seth as it ‘paid too well’ and he wanted to try to manage his anger. Zoran continued to consult Darin Holt throughout 2012 and into January 2013. Holt noted that the visits stopped abruptly on 23 January 2013. Zoran is now facing trial for Seth’s murder in the Supreme Court. The prosecution have subpoenaed all the records of consultations between Darin Holt and Zoran. The Crown Prosecutor seeks to adduce evidence of these consultations. You are counsel for Zoran and object to these ‘protected confidences’ being adduced in evidence at trial. Discuss the arguments supporting your objection and the matters the court must take into account in determining whether any of this information may be adduced in evidence. For additional notes on the review problems, please refer to .

Notes 1 R v Young (1999) 46 NSWLR 681, 696–697 (Spigelman CJ). 2 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 273.

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3 R v Ahmed [2001] NSWCCA 450 [37]. 4 LGM v CAM [2011] FamCAFC 195 [159]–[176]. 5 See Bailey v Department of Land and Water Conservation [2009] NSWCA 100 [57]–[65]. 6 See, for example, Michael Wilson & Partners Ltd v Nicholls [2009] NSWSC 763 [10]–[20]. 7 Lysle v R [2012] NSWCCA 20 [34]. 8 Prior to the insertion of s 131A the pre-trial context was regulated by the common law. See Mann v Carnell (1999) 201 CLR 1 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49. 9 Mitsubishi Electric Australia Pty ltd v Victorian Workcover Authority (2002) 4 VR 332 [19]. Also, see Australian Competition and Consumer Commission v Australian Safeway Stores (1998) 81 FCR 526, 558–560; Ensham Resources Pty Ltd v Aioi Insurance Co Ltd [2012] FCAFC 191 [52]–[56]. 10 See Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49, 64. 11 See Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904 for a discussion of the current status of agents in relation to legal advice and litigation privilege. 12 See, Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 [17]–[24]. 13 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393. 14 Raunio v Hills (2001) 188 ALR 409. 15 NSW v Jackson [2007] NSWCA 279 [41], [52], [60]. 16 R (Cth) v Petroulias (No 22) [2007] NSWSC 692 [63]–[65]. 17 Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 [44]. 18 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, 416. 19 Dick Smith Electronics Pty Ltd v Westpac Banking Corporation [2002] FCA 1040, [34]. Also, see State of Victoria v Tabcorp Holdings Ltd [2013] VSCA 180 [20]–[21], [42]–[44]; Sexton v Homer [2013] NSWCA 414 [91]–[108]. 20 Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 [49]. Also, see Sparnon v Apand Pty Ltd (1996) 68 FCR 322, 328. 21 Mann v Carnell (1999) 201 CLR 1, 13; Osland v Secretary, Department of Justice (2008) 234 CLR 275, 296–297. 22 ACCC v Cathay Pacific Airways Ltd [2012] FCA 1101 [23]–[25]. See also Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 [45]. 23 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107 [44]. 24 ALRC26, vol 1, [884]. 25 State Central Authority v Blyth [2010] FamCA 90 [35]. 26 An employee, agent or lawyer of the client or party must be authorised to make any disclosure under s 122 (4). 27 See EA Dictionary, Part 1 for the meaning of the term ‘associated defendant’.

CHAPTER 6: PRIVILEGES AND IMMUNITIES

28 Gans and Palmer, above n 2, 309. Note though that this provision could be useful where there has been inadvertent disclosure of privileged information by the prosecution to the defendant. 29 All joint privilege holders do not have to expressly retain the lawyer—one privilege holder may ‘retain the lawyer for its benefit and for the benefit of other privilege holders’: Great Southern Managers Australia Ltd (recs & Mgrs apptd) (in liq) v Clarke [2012] VSCA 207 [21]. 30 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 564. 31 Section 128A EA sets out other limited contexts in which the privilege might be claimed in ancillary proceedings in civil cases. 32 Section 128(10) EA. 33 Cornwell v The Queen [2007] HCA 12—now reflected in s 128(10) EA. 34 Section 187 EA. 35 Also, see NSW v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 [14]–[16]. 36 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 532 (Deane, Dawson and Gaudron JJ). 37 R v Seller [2012] NSWSC 934 [145]–[156]; R v CB; MP v R [2011] NSWCCA 264 [96]; NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 [155]–[159]. Also, see Suzlon Energy Ltd v Bangad [2011] FCA 1152 [51]; Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 [109]–[117]; and Lin v Tasmania [2012] TASCCA 9 [141]. 38 Evans v Evans [2011] NSWCA 92 [52]. 39 See, most recently, ANZ Banking Group Pty Ltd v Konza [2012] FCAFC 127 [32]–[35]; Binetter v DCT [2012] FCAFC 126 [17]–[31]; NSW v Public Transport Ticketing Corporation (No 3) [2012] NSWCA 200 [16]; and Stewart v Australian Crime Commission [2012] FCAFC 151 [76]. 40 See Song v Ying [2010] NSWCA 237 [26]–[29]. 41 R v Bikic [2001] NSWCCA 347. 42 R v Lodhi [2006] NSWSC 638 [54]–[55]. 43 This is the provision for exclusion of evidence of ‘matters of state’ and is discussed below. 44 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 768–769. 45 See, for example, Attorney-General (NSW) v Borland [2007] NSWCA 201 [19]; R v Lodhi (2006) 199 FLR 328; and R v Mayhew [2010] ACTSC 41 [7]. 46 Section 128(6) EA. 47 NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 [42]–[43]. Also, see Police Federation of Australia v Nixon [2011] FCAFC 161 [81]–[82]. 48 This is not the case in relation to the Commonwealth Act where the operation of s 131A does not extend to the public interest immunities in Division 3 of Part 3.10 EA. 49 See Attorney-General (NSW) v Lipton [2012] NSWCCA 156 [34]; and R v Lipton [2011] NSWCCA 247 [85]. Also, note that ss 130 and 131A do not impose obligations on the State that would make the Crown ‘a person’ for those sections, but the Crown is capable of objecting to adducing of evidence on a public interest immunity ground—

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50 51 52 53 54

55 56 57 58 59 60 61 62

63

64

65 66

67 68 69 70 71 72

see NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 [38]–[39]; and Derbas v R [2012] NSWCCA 14 [8]. Commissioner of Police v Sleiman [2011] NSWCA 21 [184]–[185]; NSW v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200. NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 [42]; R v Debono [2012] VSC 476 [20]. See NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 [45]–[57]. Also, see R v Debono [2012] VSC 476 [22]. See, for example, Public Transport Ticketing Corporation v Integrated Transit Solutions [2010] NSWSC 607 [22]; NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 [52], [82]; and R v Debono [2012] VSC 476 [24]–[25]. Section 131(5)(b). Gans and Palmer, above 2, 289. Sections 131(5)(c) and (d) EA. Section 131(2)(d)—see Bloom v Mini Minors Pty Ltd (unreported, NSWSC, McLelland J, 26 August 1996). Section 131(2)(f)—see Gippsreal Ltd v Action Cycles Pty Ltd [2012] VSC 279. Section 131(2)(g)—see Nader v Sutherland Shire Council [2008] NSWCA 265 [51]. Section 131(2)(h)—see Silver Fox Co Pty Ltd (as trustee for Baker Family Trust) v Lenard’s Pty Ltd (No 3) (2004) 214 ALR 621, 624. Sections 131(2)(j) and (k)—see Lawcover Pty Ltd v Commissioner of Police (NSW) (unreported, NSWSC, Hodgson J, 28 November 1997); and Van Der Lee v New South Wales [2002] NSWCA 286. See Gregory v Philip Morris Ltd (1988) 80 ALR 455; Lukies v Ripley (No 2) (1994) 35 NSWLR 283, 287; Harrington v Lowe (1996) 190 CLR 311; and Rosebanner Pty Ltd v Energy Australia (2009) 223 FLR 460 [390], [415]. Section 131A applies to this Division. This Division is not included in the Victorian and Northern Territory Acts. In the Commonwealth Act, Div 1A commences at s 126G and applies only to professional relationships with a journalist, which will be considered below. NRMA v John Fairfax [2002] NSWSC 563. This term is defined in s 126A to mean a communication made in confidence in the course of a relationship where the confidant was acting in a professional capacity and under an express or implied obligation not to disclose its contents. This word is broadly defined in s 126A and includes physical and psychological harm as well as financial loss, stress or shock. Division 1C of Part 3.10—ss 126J–126L. This Division is not included in the Northern Territory and Tasmanian Acts. Division 1A of Part 3.10—ss 126G–126H. Ashby v Commonwealth (No 2) [2012] FCA 766 [4]–[7], [20]–[23]. Ashby v Commonwealth (No 2) [2012] FCA 766 [16]–[24], [33]. See New South Wales, Parliamentary Debates, Legislative Assembly, 27 May 2011, Evidence Amendment (Journalist Privilege) Bill 2011—Agreement in Principle (Greg Smith, Attorney-General).

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CHAPTER 7

HEARSAY AND EXCEPTIONS COVERED IN THIS CHAPTER In this chapter, you will learn about: • the hearsay rule and its rationale; • exceptions to the hearsay rule; • original use of a previous representation; • statements about health, feelings, state of mind; • ‘more remote’ exceptions—business records; and • other exceptions.

CASES TO REMEMBER Lee v The Queen (1998) 195 CLR 594 R v Ambrosoli (2002) 55 NSWLR 603 Vitali v Stachnik [2001] NSWSC 303

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 59, 60, 62, 63, 64, 65, 66, 66A, 67, 69, 70–75

INTRODUCTION We now turn to the exclusionary rules contained in Chapter 3 of the EA, which are considered once a determination has been made that the information sought to be adduced as evidence in a proceeding is relevant to a fact in issue in that proceeding.1 Figure 7.1 is a reproduction of the flow chart that appears in the Introductory Note to Chapter 3 EA, illustrating how that chapter applies to particular evidence. This will be a useful ready reckoner for you as you progress through the various exclusionary rules examined in Chapters 7 through to 12 of this guidebook.

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STUDY TIP Relevance reminder You will note that the flow chart begins with the question: ‘Is the evidence relevant?’ You will recall that we considered the concept of relevance in Chapter 1 and that the statutory test is in s 55 EA. All information that a party seeks to adduce as evidence in a proceeding must first be considered by reference to the statutory relevance test. That is, if the evidence were accepted, could it rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding?2

Judicial discretion reminder You will also note that the flow chart finishes with the question: ‘Should a discretion to exclude the evidence be exercised or must it be excluded?’ You will recall that we considered the judicial discretion and obligations to exclude or limit the use of evidence in Chapter 3. The important sections to remember are ss 135, 136 and 137, together with the concepts of ‘probative value’ and ‘unfair prejudice’. If the evidence is relevant and admissible, and not ruled out by an exclusionary rule, the final question for admissibility is essentially whether the probative value of the evidence outweighs the danger of unfair prejudice to a party to the proceeding, usually the defendant.3

The first exclusionary rule of evidence that we encounter is the rule against hearsay in Part 3.2 EA. It has been described as ‘one of the oldest, most complex and most confusing of the exclusionary rules of evidence’.4 In practice it is one of the most often raised barriers to adducing evidence in a proceeding. Traditionally, students have difficulty with this important rule, and approach its study with apprehension. Largely this has been due to the lack of clarity in the definition of, and scope of exceptions to, the rule. The codification of the hearsay rule and its exceptions in the Act has significantly assisted with clarification of this difficult area. The hearsay provisions in the Act differ from the common law in several respects.5 The hearsay rule applies to out-of-court statements and conduct adduced to prove the truth of intentionally asserted facts, but it does not apply when the statement or conduct is adduced for another, ‘original’, purpose.6 If a party intends to make a hearsay use of evidence they must give notice to the other parties in the proceeding and, if necessary, seek a ruling regarding its use.7 A party seeking to have evidence excluded under the hearsay rule must make an objection on this basis and the trial judge will determine admissibility of the evidence.8 What follows in this chapter will simplify a complex area of evidence law so that you will be able to readily understand the operation of this exclusionary rule and feel confident in analysing its practical application.

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FIGURE 7.1 Overview of the operation of Chapter 3 EA

Is the evidence relevant? (See Part 3.1)

No

Yes Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

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

Does the evidence contravene rule about evidence of judgments and convictions? (See Part 3.5)

Yes

No Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8 on character evidence.)

Yes

No Does the credibility rule apply? (See Part 3.7. See also Part 3.8 on character evidence.)

Yes

No Does the evidence contravene the rules about identification evidence? (See Part 3.9)

Yes

No Does a privilege 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

No

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THE HEARSAY RULE AND ITS RATIONALE Figure 7.2 provides an overview of the scheme of Part 3.2 EA containing the hearsay rule and exceptions to the rule. Amplification of the rule and its exceptions, including relevant case authorities, will be provided in the subsequent commentary. FIGURE 7.2 Overview of the scheme of Part 3.2 EA—hearsay

Is the relevant evidence hearsay?

ɒ If 'yes', excluded by s 59 unless it falls within an exception to the rule ɒ If 'no', admissibility is not subject to Part 3.2 EA

Does an exception apply to allow admission of the hearsay evidence? ɒ s 60: original use ɒ V62: first-hand hearsay & written notice provided [s 67] ɒ V69: business records ɒ V70-75: other forms of second-hand hearsay

Is the maker of the first-hand hearsay representation available to give evidence? ɒ No: s 63 (civil); s 65 (criminal) ɒ Yes: s 64 (civil); s 66 (criminal) ɒ V66A: statements about health, feelings or state of mind

At the outset, it is important to emphasise that the rule against hearsay is only exclusionary of evidence adduced with the objective of establishing the truth of the matters contained in the out-of-court statement. The classic judicial exposition of the rule is in Subramaniam v Public Prosecutor [1956] 1 WLR 965, where the defendant had been charged with unlawful possession of ammunition and, in defence, pleaded duress. The defendant sought to support this defence by giving evidence that he had been captured by terrorists and of what they had said to him. The judge at first instance refused to admit this evidence on the grounds that it was hearsay, and the accused was convicted. The Judicial Committee of the Privy Council quashed the conviction as it found the evidence had been tendered to prove that the threats were made and the effect they had on the defendant, not to prove the truth of anything said by the terrorists. Da Silva MR emphasised (at 970) that: 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 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. (Emphasis added)

CHAPTER 7: HEARSAY AND EXCEPTIONS

The important overall question when conceptualising the operation of the hearsay rule is: what is the out-of-court statement probative of? The rationale for the development of the hearsay rule at common law was that, in a system principally based on witness testimony where the actual person who made the out-of-court statement was not available to be tested on oath as to the accuracy or truth of their observation or recollection, the evidence was not considered to be reliable for decision-making by a tribunal of fact. The witness giving the hearsay evidence could be cross-examined as to what they heard that person say, but the credibility of the maker of the statement could not be tested. In this way, the rule has been seen to promote a ‘best-evidence’ principle by ensuring that a first-hand account of disputed events is presented to the court rather than having to rely on versions from more remote sources. Human nature and memory are such that the accuracy of information that has been communicated through a number of people may be affected to such an extent that it becomes unreliable. Essentially the rule maintains the common law mode of trial and effectively preserves ‘the right of a party to insist on proof of witnessed events by sworn testimony, which can be tested by cross-examination’.9 The lack of an opportunity to cross-examine the maker of the statement is probably ‘the best all-embracing reason that can be given for (the existence and continuation of) the rule’.10 Even when hearsay evidence is admitted, it may be subject to a warning under s 165 due to these concerns about reliability.11 As you might imagine, the hearsay rule excluded what may have been highly reliable evidence, but rather than change the rule to generally admit hearsay evidence that was regarded as sufficiently reliable12 the common law allowed several specific exceptions. These exceptions were closed and included dying declarations, res gestae (contemporaneous statements), statements forming part of business records, statements identifying a party to a telephone conversation, and admissions by the parties. For our purposes, however, the modern uniform evidence law of hearsay is statutory and we now turn to examine this law. 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.

This provision replaces the common law hearsay rule. The terms ‘previous representation’ and ‘representation’ are defined in the EA Dictionary Part 1. A previous representation is essentially a representation that was made outside of the court proceeding in which a party seeks to adduce evidence of it. A representation can be an express oral or written statement, or implied from such a statement. Representations can also be inferred from conduct, not intended to be communicated, or not in fact communicated. Of significance is the requirement

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that ‘it can reasonably be supposed’ that the maker of the representation must have intended to assert the existence of the fact which it is sought to prove in the proceeding. Subsection (2A) provides assistance in determining whether it can reasonably be supposed that the person intended to assert a particular fact through the representation by allowing the court to have regard to the circumstances surrounding its making.13 In this sense, it is an objective test of intention as to what the reasonable person in the position of the maker of the representation could infer in all the circumstances.14 There are two questions to consider: 1 Is the evidence of a previous representation adduced by a party to prove the existence of a fact asserted by the representation? In other words, does the evidence have a testimonial purpose? 2 Can it reasonably be supposed that the maker of the representation (often described as the ‘declarant’) intended to assert the existence of that fact? Both questions must be answered ‘yes’ for the evidence to be caught by the hearsay rule. Accordingly, where evidence of a previous representation is adduced for a purpose other than proof of the truth of any fact asserted in it, it won’t be caught by the hearsay rule and is said to be adduced for a ‘non-hearsay’ or ‘original’ purpose. Importantly, the party adducing that evidence still must establish that it is relevant to a fact in issue and is otherwise admissible for the non-hearsay purpose before a judge will admit the evidence. This will be explored further with examples when we consider s 60 as an exception to the hearsay rule below, but a ‘useful guide is to consider that there is a non-hearsay or original use if the fact-finder is not being asked to accept that the declarant believed, or correctly perceived, what he or she asserted to be the fact’.15 As to the second question about the declarant’s intention to assert the existence of a fact, you need to consider whether it is an express or implied assertion. Where an express assertion is made, such as ‘I saw Jack repeatedly stab Ken in the chest’, it will usually be logical to infer that the declarant intended to assert the existence of that fact.16 Other forms of express assertions are non-verbal gestures made with the same intention—for example, when the declarant points to a particular location when asked, ‘Where is the library?’ As to implied assertions, implications (sometimes multiple) can arise from statements or conduct. In practice, implied assertions create more difficulties as, depending on the specific circumstances, they will not always unequivocally demonstrate an intention in the declarant to assert a particular fact.17 For example, determining the declarant’s intention in making an

CHAPTER 7: HEARSAY AND EXCEPTIONS

oral statement may depend on the tone or inflections used in the declarant’s voice. Also, if a person’s conduct towards another is harsh or violent this may give rise to an implied assertion of hatred or self-defence or measured discipline. Depending on the precise circumstances, the implication may be narrowed to one of these alternatives or it may be equivocal. Section 59(2A) operates to ensure regard is had to all the circumstances in which the representation was made in deciding what can reasonably be supposed was implied by the assertion made in the declarant’s statement or conduct.

STUDY TIP Summary points When analysing the application of the hearsay rule to a specific previous representation in the form of a statement or conduct by a person not called as a witness in a proceeding:18 1 2 3 4

Ensure you identify the facts in issue you are seeking to prove by using that previous representation (express or implied assertion). Then ask whether the intended assertion in the previous representation goes to proof of the facts in issue whether or not the declarant’s assertion was truthful. If ‘yes’, then the assertion is not being adduced for the truth of the facts asserted so it has an original use and is not caught by the hearsay rule in s 59(1). If ‘no’, or in other words if the previous representation is being adduced only to prove the truth of the intended asserted facts, then the assertion is caught by the hearsay rule in s 59(1) and will be inadmissible unless it comes within one of the statutory exceptions.

EXCEPTIONS TO THE HEARSAY RULE The general purport of the exceptions to the hearsay rule, notably the first-hand exceptions, is to allow the admission of more ‘hearsay’ evidence to assist in determination of facts in issue in proceedings. This is particularly the case when the hearsay evidence is likely to be reliable. As a preliminary point, there is an overriding requirement in s 61(1) that, before evidence can be given by a witness of a previous representation to prove an asserted fact, the declarant must have been competent ‘to give evidence about that fact’ at the time when they made the representation. This relates back to the competency test in s 13(1)(b)19 so that the declarant must then have been

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capable of answering a question about that fact in a way that could be understood. Competence is presumed by s 61(3) so that a party who alleges the declarant was not competent at the relevant time has the burden to displace the presumption. Mental illness at the time of making the statement does not automatically mean the declarant is incompetent.20 By s 61(2) the requirement in s 61(1) ‘does not apply to a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind’. Essentially this means that whatever a person says about their state of mind or feelings remains the best evidence of that fact even if they are not thinking rationally. The admissibility of these representations will be considered below in discussion of the s 66A exception.

ORIGINAL USE OF A PREVIOUS REPRESENTATION 60 Exception: evidence relevant for a non-hearsay purpose (1) (2) (3)

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. 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)). However, this section does not apply in a criminal proceeding to evidence of an admission.

We touched on original use of a previous representation above in relation to the two questions to be asked about the application of the hearsay rule and we will now expand that consideration in the context of the s 60 exception. At common law, where evidence of a previous representation is admitted for a non-hearsay purpose, it can only be used for that purpose. Thus, although the accused was held to be entitled to depose to what was said by the terrorists to him in Subramanian v Public Prosecutor to prove that particular words were spoken, evidence of those words, once admitted, could not then be used to prove that what was asserted was true. Section 60 of the Act marks a ‘considerable change to the common law’.21 The approach to the situation in Subramanian under s 60 would be that since the evidence of the terrorists’ words was relevant for a purpose other than to prove the truth of those words (that is, relevant to prove that the words were spoken and that they operated on the defendant’s mind), it would then be permissible to use that evidence to prove the truth of what the terrorists asserted, assuming that was also relevant to facts in issue in the proceeding. The hearsay rule in s 59(1) is excluded by s 60 and unless the discretion to limit the use of the evidence is invoked by the trial judge under s 13622 the evidence is admissible for all relevant purposes. It must be emphasised that the non-hearsay purpose for adducing evidence of the out-of-court

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statement must be specifically relevant to some issue in the proceedings before s 60 can be invoked23 and it can’t simply be used as a convenient method of avoiding the hearsay rule. By subs (2), s 60 applies to second-hand and more remote forms of hearsay24 and in this operation has been described as an ‘unsatisfactory’ section and ‘unfair’.25 However, s 136 can be invoked to limit its use where its operation will be unfairly prejudicial to a party or misleading or confusing, or ss 135 or 137 might be used to exclude the evidence entirely. In Welsh v The Queen (1996) 90 A Crim R 364, 367 evidence of statements made to a psychiatrist by the defendant were admitted for the non-hearsay purpose of providing the basis of her opinion as an expert witness. The effect of s 60 was that the hearsay statements also became admissible for their truth as facts asserted by the defendant.26 Apart from this form of evidence, s 60 has been applied in various situations as summarised in Table 7.1.

TABLE 7.1 Original uses of previous representations ORIGINAL USE OF PREVIOUS REPRESENTATION

CASE EXAMPLE

To prove the terms of an alleged agreement for sale

R v Macraild (unreported, NSWCCA, Sully, Dunford & Simpson JJ, 18 December 1997)

To establish a person’s state of mind

R v Ung [2000] NSWCCA 195; South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1270

As a prior statement consistent with the witness’s in court testimony (credibility)

R v H (1997) 92 A Crim R 168; R v Singh-Bal (1997) 92 A Crim R 397

As a prior statement inconsistent with the witness’s in court testimony (credibility)

Lee v The Queen (1998) 195 CLR 594. Cf Raimondi v The Queen [2013] VSCA 194 [18]–[31]

To explain why certain conduct occurred after the oral representations

R v Georgiou; R v Harrison [2005] NSWCCA 189

To infer the identity of a person

R v Lodhi (2006) 163 A Crim R 526

To infer matters being discussed in a conversation

Li v The Queen [2010] NSWCCA 40; R v Fairbairn [2011] ACTSC 78

As translations by an interpreter of another person’s communications

Tsang Chi Ming v Uvanna Pty Ltd (1996) 140 ALR 273; DPP v BB [2010] VSCA 211

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A CASE TO REMEMBER Lee v The Queen (1998) 195 CLR 594 In Lee v The Queen (1998), an interesting scenario is presented where the prosecution adduced evidence of a prior inconsistent statement of a witness (Calin) in which he had described the appellant coming out of a location where a robbery had occurred and then admitting to robbing a person and firing shots from a gun. That is, there was evidence both of representations made by the witness to the police about what he had seen and heard and of representations made to the witness by the appellant about what the appellant had done. Due to the operation of the hearsay rule in s 59, the evidence was not admissible to prove the existence either of the facts which the witness intended to assert to the police, or of the facts which the appellant intended to assert to the witness. When the witness failed to give this evidence for the prosecution at the appellant’s trial and was declared unfavourable, s 60 operated only to allow admission of the representations to the police with the purpose being to prove that the witness had made a prior inconsistent statement, thus affecting his credibility. It was held that, as the truth of the appellant’s alleged admissions was not within the personal knowledge of the witness, s 60 only allowed the prior inconsistent statement to be used to make inferences from what the witness had personally observed, such as the demeanour of the appellant at the time of the events. This meant that the part of the witness’s statement setting out what the appellant had said after emerging from the crime scene should not have been admitted into evidence. While evidence of the witness’s prior inconsistent statement went to his credit as a witness, it could not be used as evidence that the accused had done a job and fired two shots. Section 60 was held not to extend to the use of the secondhand accounts for their hearsay purpose—‘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 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’ (at 604).27

Section 60 was subsequently amended with the addition of subs (2) to overcome the High Court decision in Lee as the ALRC stated that it was not intended ‘to limit s 60 to first-hand hearsay either in relation to prior statements or in relation to the factual basis of expert opinion evidence’.28 This means that when statements are made by a declarant with personal knowledge of the asserted fact and are adduced as evidence from a witness in a proceeding they can become evidence of the truth of that fact if there is an original use, such as the making of a prior inconsistent statement by the witness. Admissions in a criminal proceeding are excluded from the operation of s 60 by subs (3), so there would be no change to the decision in the specific circumstances of Lee as what the appellant had represented to the witness about doing a job and firing shots from a gun are characterised as admissions and must be first-hand to be admissible.29

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FIRST-HAND HEARSAY Division 2 of Part 3.2 EA provides for exceptions to the hearsay rule for first-hand hearsay, which is defined in s 62 (1) to mean ‘a previous representation that was made by a person who had personal knowledge of an asserted fact’. For this purpose, a person is taken to have personal knowledge of an 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’ (s 62(2)). For example, if a witness gives evidence of what they heard another person (A) say, and it is known or can be inferred that A had personal knowledge of the asserted fact such that A’s knowledge did not come from what they were told by someone else, then the witness’s evidence to that effect will be first-hand hearsay.30 Where, however, it is apparent that A’s knowledge of the truth of what A has said is derived from what A has been told by B, then the witness’s evidence is not first-hand hearsay. The admissibility of first-hand hearsay depends on the availability of the maker of the hearsay statement to give evidence and whether the proceedings are civil or criminal.

FIRST-HAND HEARSAY—CIVIL PROCEEDINGS The two important exceptions in civil proceedings are ss 63(2) and 64(2) EA. The exceptions allow the admission of first-hand hearsay made by a person who is either unavailable to give evidence (s 63), or whom it would not be reasonably practicable or would be unduly expensive to call as a witness (s 64). The effect of s 63 is that where it can be established that the person who made a representation from their personal knowledge is not available to give evidence then a person who saw or heard the making of the representation can give oral evidence of it. This extends to a representation in a document and other representations to which it is reasonably necessary to refer to understand the representation. The important features are the first-hand nature of the representation and the unavailability of the declarant. Part 2, cl 4 EA Dictionary provides that: 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, not competent to give the evidence about the fact; or (c) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability; or (d) it would be unlawful for the person to give evidence about the fact; or (e) a provision of this Act prohibits evidence being given; or

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(f)

all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to 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 evidence, but without success.

The importance of proving the unavailability of the declarant is highlighted in the case of Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108, where in major patent litigation the hearsay rule still operated to exclude the deposition from United States court proceedings of one of the inventors of the patent in the Australian proceedings. The court held that all reasonable steps were not taken to secure or compel the inventor’s attendance at court so that he was taken to be available to give evidence. Further, considering s 64 it was held that it would not be an ‘undue expense’ to bring the witness to Australia. Accordingly, neither exception operated to overcome the application of the hearsay rule to the inventor’s US witness deposition. The difference between paragraphs (f) and (g) is that the former deals with securing the person’s attendance and the latter is concerned with compelling a person whose attendance has been secured.31 This may not require physical attendance when a video link may be implemented.32 A person may be unavailable when a witness is avoiding a subpoena and police process to bring them before the court.33 Overall, proving unavailability can still be a high threshold to satisfy when the person is in another country.34 Section 64(2) allows first-hand hearsay evidence to be adduced in civil proceedings where the maker of the out-of-court representation is ‘available’ to give evidence but ‘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’ (emphasis added). The word ‘undue’ imports a broad discretion and relevant considerations include the nature of the proceedings and the various factors listed in the general discretionary provisions.35 If undue delay is relied upon, then the applicant must provide evidence to establish why any delay will be of that nature.36 In relation to reasonable practicality, factors to consider include ‘the location of the person, their age and medical condition, the cost of calling them to give evidence, any delay in the proceeding which would be caused, the importance of the evidence and the extent to which it is disputed’.37 In Ordukaya v Hicks [2000] NSWCA 180 where the 92-year-old defendant was ‘available’ but found to be unable to give evidence because it was not reasonably practicable to call her to give oral evidence due to her frailty and ill-health, a statutory declaration made by the defendant was admitted into evidence under s 64. In addition under s 64(3), if the maker of the out-of-court representation has been, or will be, called to give evidence in the proceeding, the hearsay rule does not apply to evidence of the representation given by the maker or a person who saw, heard or perceived the making of the out-of-court representation. One justification

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for s 64(3) is based on the ability of the party against whom the representation is tendered to cross-examine the maker.38 It is ultimately a matter of weight and for cross-examination rather than for arguments about the freshness of the previous representation in the memory of the maker in relation to operation of this section.39

FIRST-HAND HEARSAY—CRIMINAL PROCEEDINGS Turning to criminal proceedings, there is much stricter regulation of the admission of hearsay evidence, at least when adduced by the prosecution. Section 65 applies only where the declarant is unavailable as a witness. The same dictionary provision applies in relation to unavailability of people as in civil proceedings considered above, but otherwise there are some substantial differences between ss 63 and 65. Section 65(2) provides that the application of this exception to the hearsay rule applies only in limited circumstances, namely first-hand hearsay by a person who saw or heard the previous representation where it was: (a) made under a duty to make it; or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) made in circumstances that make it highly probable that the representation is reliable; or (d) (i) against the interest 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. These requirements are designed to provide a degree of certainty about the accuracy and reliability of the out-of-court representation. As to (a), where a person is under a legal duty to record their observations, they will usually take more care to ensure that the record is accurate. Section 65(2)(b) covers unusual, alarming or extraordinary events which provoke a quick instinctive reaction to the event rather than allow for methodical reflection. It has clear similarities to the common law res gestae exception although is not as strict in its practical application. Further, it applies to the tender of documentary evidence when the person giving evidence perceived the document being made.40 Looking at the two limbs of s 65(2)(b) it is apparent that the first limb requires the representation to have been made contemporaneously or shortly after the occurrence of the asserted fact so that actual time lapse is the primary consideration in ensuring accuracy of the evidence. It is ‘considered to be reliable because [it is] made spontaneously during, or under proximate pressure of, events’.41 The second limb requires consideration of the circumstances surrounding the making of the representation to provide some guarantee of its authenticity. In R v Mankotia [1998] NSWSC 295, these circumstances were confined to those existing at the time the representation was made; however, the later case of R v Ambrosoli (2002) 55 NSWLR 603 challenged this seemingly narrow operation of the second limb.

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A CASE TO REMEMBER R v Ambrosoli (2002) 55 NSWLR 603 R v Ambrosoli (2002) involved wounding and assault charges arising out of a fracas during a New Year’s celebration at a hotel near Taree, New South Wales. On appeal against conviction, the New South Wales Court of Criminal Appeal (CCA) was not satisfied that the circumstances in which a signed statement was given to the police about the fight in the hotel made it highly probable that the statement was reliable. An eyewitness (C) had made the statement five to six months after the event, had given evidence at the committal proceedings 11 months after the event, attended only the first day of the trial 15 months after the event and could not then be contacted throughout the trial. The court pointed to the fact that a police officer had typed C’s statement, he hardly read it before signing, he admitted when questioned about it at the committal hearing that it seemed ‘a little incorrect’, and he said that a considerable number of matters in it were wrong. The CCA adopted a broader view of s 65(2)(b) and (c), which looks at all of the circumstances of the case to determine unlikelihood of fabrication under (b) or high probability of reliability under (c). Mason P stated (at 615) that the paragraphs are directed at the circumstances of the making of the representation ‘[b]ut it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this’. Overall Mason P found (at 616) that the earlier authorities of R v Mankotia, Conway v The Queen and R v Williams were in accord with this interpretation as prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation.42 So the upshot in the present case was that material disclosed in cross-examination at committal was pertinent to the circumstances of the making of the written statement and should have led the trial judge to be not convinced that the s 65 exception was satisfied—the earlier signed statement was not given in circumstances that necessarily made it highly probable that it was reliable.

Section 65(2)(c) has a higher threshold for admissibility and, construed strictly, is more onerous relative to s 65(2)(b).43 A previous representation is not likely to be reliable when it is ambiguous and it contains lies,44 although it is not entirely clear as to the types of previous representations that will come within the bounds of a high probability of reliability. Section 65(2)(d) includes, but is not limited to, a representation if it tends (a) to damage the person’s reputation; (b) to show a 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 (s 65(7)). Proof that a person has told lies earlier would ‘tend’ to damage their reputation when ‘tend’ refers to a possibility, not an actuality.45 Section 65(8) provides ‘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

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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’. Essentially this subsection allows the defendant in a criminal proceeding to adduce first-hand hearsay through oral or documentary evidence of a previous representation where the maker of that representation is not available to give evidence of it. This provision does not require the defendant to satisfy the conditions that the prosecution must satisfy under s 65(2). Arguably then a defendant in criminal proceedings is in the same position as a party in civil proceedings in relation to first-hand hearsay. The ALRC justified this distinction between prosecution and defence in criminal proceedings on the basis that enabling ‘the exonerating statements of the alleged victim to be received, [as well as] the confessions of third parties and statements of deceased persons who could have given evidence’46 would minimise the risk of conviction of the innocent. If ‘evidence of a previous representation about a matter’ has been adduced by the defence then s 65(9) allows another party to the proceedings to lead evidence of other, first-hand representations ‘about the matter’. The reference to ‘another party’ plainly includes the prosecution and the decision in Eastman v The Queen (1997) 76 FCR 9 shows that the retaliation by the prosecution may be on a wide front. There is broad scope for a trial judge in determining what ‘matter’ the previous representation adduced by the defendant was ‘about’. It is, however, important to note Hidden J’s comments in R v Mrish (unreported, NSWSC, 4 October 1996) as to the relative weight of hearsay evidence produced by the prosecution, which may ultimately lead to its rejection under s 137 even though the defence evidence under s 65(8) has been admitted.47 Section 66 applies when the person who made the previous representation is available to give evidence. In these circumstances where the maker of the representation has been or will be called to give such evidence,48 the hearsay rule does not apply to evidence of that representation where the evidence is given by the maker or any person who saw, heard or otherwise perceived it being made, if the occurrence of the fact asserted in the representation was fresh in the memory of the maker (s 66(2)). Subsection (2A) makes it clear that freshness of the memory of the maker may be determined by taking into account all matters the court considers relevant, not just the temporal relationship between the occurrence of the asserted fact and the making of the representation.49 This subsection directs that the court may take into account all matters considered relevant to the question of freshness of memory, including the nature of the event, 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. The period of time is thus only one factor to be considered alongside other factors that may be decisive, including the person’s reactions50 so that ‘fresh in the memory’ does not mean recent or immediate but will typically involve unusual

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or significant events.51 Section 66 does not require the person to remember having made the representation, only that the asserted fact was fresh in the memory of the person when the representation was made.52 By s 67 it is a condition of admissibility of first-hand hearsay under ss 63(2), 64(2) and 65(2), (3) and (8) that a written notice with the prescribed particulars be served on other parties to the proceedings within a ‘reasonable’ time of the party’s intention to adduce the evidence. Reasonableness is determined in the particular circumstances, but it will not normally be five minutes before the hearing of the application, especially when it brings a procedural disadvantage.53 The notice is necessary so that the asserted facts to be proved are understood by the court and the other parties in determining whether and how the hearsay rule applies.54 The court can dispense with the notice requirement under ss 67(4) and (5) upon the application of a party. Examples include where no real prejudice is suffered by the party against whom the previous representation is adduced as evidence55 or where the nature of the hearsay evidence could not reasonably be ascertained in advance with the particularity needed to prepare a s 67 notice.56

STUDY TIP Advocacy and the criminal trial thread scenario If evidence is admitted over your objection on the basis that it falls within an exception to the hearsay rule then when you come to cross-examine the witness, your focus will be on probing to undermine the accuracy and reliability of such evidence. This will involve searching questions directed to the reliability of the witness’s memory, hearing or observations in relation to the source of the evidence. If appropriate, it may extend to attacking the witness’s credit on the basis of personal bias or selective memory of events.57

STATEMENTS ABOUT HEALTH, FEELINGS, STATE OF MIND Section 66A provides for the displacement of s 59 where the previous representation about a ‘person’s health, feelings, sensations, intention, knowledge or state of mind’ was made contemporaneously with the ‘occurrence’ of the fact of the particular intention, feeling, or state of mind of the person. Examples include proof that a person didn’t like, or was fearful or scared of another person;58 and that a person intended to end a relationship with someone.59 ‘Contemporaneous’ is not defined in the Act, but literally means ‘at the same time’ as the previous representation is made. It has been held to be a ‘matter of degree’, depending on what fact is asserted and in

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what circumstances. Evidence that a complainant in a sexual assault trial had written about the accused in an exercise book, ‘Shane is a spunk. I wouldn’t mind being screwed by him’, was held to be admissible as a contemporaneous representation about her feelings and state of mind.60 It is a first-hand hearsay exception only so that the previous representation in s 66A must be made by a person with personal knowledge of the asserted fact. The operation of s 66A is restricted in this way to provide a reliability constraint.

‘MORE REMOTE’ EXCEPTIONS—BUSINESS RECORDS Exceptions for forms of second-hand or even more remote hearsay are found in Part 3.2 Division 3 EA. The ALRC expressed the view 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’.61 Accordingly, there are few exceptions and they are restricted in the scope of their operation. Section 69 excludes the application of the hearsay rule to previous representations in business records, which are ordinarily understood to be highly accurate and reliable. This is the most important of the exceptions for second-hand hearsay and is concerned with the reliability of the evidence itself when no ulterior purposes are suspected and testimony is not required.62 Specifically, the records to which the exception applies are documents that are, or form part of, ‘records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a “business”; or at any time [were] or formed part of such a record’, and which contain ‘a previous representation made or recorded in the document in the course of, or for the purposes of, the business’ (s 69(1)(a) and (b)). The word ‘business’ has a very broad ambit as set out in the EA Dictionary Part 2 cl 1. Significantly, a business does not have to be engaged in for profit, and includes ‘a profession, calling, occupation, trade or undertaking’. The courts have held the following to be a ‘business’: • • •

a solicitor’s practice: R v Taylor [2003] NSWCCA 194; a Royal Commission: Nye v NSW [2002] NSWSC 1268; and a religious mission: Harrington-Smith v WA (No 8) [2004] FCA 338.

‘Document’ is also defined widely as we encountered when we considered documentary evidence in Chapter 5. A business record may be a draft letter or email created by the author as part of their role in the organisation’s business and that is kept by the author.63 A business record cannot prove itself.64 Once it is proved to be a business record, it must be otherwise admissible and not breach any other exclusionary rules, such as the opinion rule.65 A further requirement is that the previous representation must have been made ‘by a person who had or might reasonably be supposed to have had personal

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knowledge of the asserted fact’ (s 69(2)(a)), or ‘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’ (s 69(2)(b)). For example, ambulance officers who arrive at the scene and write about how the injured person fell would not have the required personal knowledge of the fall occurring.66 The business record may be inadmissible if personal knowledge or an author cannot be located and, if admitted, would be given little weight.67 The s 69(2) requirements show that it is not necessary for the person who makes the assertion to be employed by, or otherwise connected with, the business if they have direct knowledge of what is asserted or their knowledge is derived from another person who has or can reasonably be supposed to have personal knowledge of the facts asserted in the representation. A qualification to the business records exception is found in s 69(3). It does not apply if the representation in the business record ‘was prepared or obtained for the purpose of conducting, or in contemplation of or in connection with, an Australian or overseas proceeding’ or ‘was made in connection with an investigation relating to or leading to a criminal proceeding’.68 A useful case example as to the operation of s 69, including subs (3), is Vitali v Stachnik [2001] NSWSC 303, summarised below.

A CASE TO REMEMBER Vitali v Stachnik [2001] NSWSC 303 Vitali v Stachnik [2001] involved documents amounting to business records under s 69(1) created by people with personal knowledge of asserted facts under s 69(2). These documents related to payments to or due to freelance nurses whose services Campaign Nursing Agency Pty Ltd (a company of which the defendant was the sole director and shareholder) arranged for hospitals, nursing homes and other clients. The issue in this case was in relation to s 69(3)(a). Litigation between the parties had begun when one of the documents was prepared (referred to as ‘MFI 2’) so that the hearsay rule applied to that document and made it inadmissible, but the other document (referred to as ‘MFI 3’) was prepared when these proceedings could not have been in contemplation so it was admissible. Discretionary exclusion under s 135 was then considered but it was determined there was clear probative value in the document and it was not so unfairly prejudicial to the plaintiff as to outweigh ‘substantially’ that probative value. In relation to the operation of s 69(3)(a), Barrett J importantly stated: The purpose of the exclusion is … 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. (Emphasis added)

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Finally, note s 69(4), which is a discrete exception to s 59 as a type of ‘negative hearsay’. It facilitates proof that something did not occur by adducing evidence of the absence of a record of that thing in a particular business record. For example, the failure to pay one or more instalments of a debt can be adduced by evidence that there are no entries detailing payments on due dates in a document kept for recording instalment payments of that debt.

OTHER EXCEPTIONS TABLE 7.2 Other exceptions to the hearsay rule SECTION

NATURE OF EXCEPTION

RELEVANT CASE

70

Tags, labels or other writing on an object, including a document, attached or placed in the course of business.

Kessing v R [2008] NSWCCA 310 [42]–[48]

71

Representations in documents recording an electronic communication detailing identity of sender and recipient, date and time message sent but not contents of message.

Miletich v Murchie [2012] FCA 1013 [100]— corresponding presumption in s 161

72

Aboriginal and Torres Strait Islander traditional laws and customs.

Inserted by Evidence Amendment Act 2007 (NSW) 2008 (Cth)

73 (2) and (3)

Reputation relating to: • whether a person was, at a particular time, or at any time, a married person; or • whether a man and woman cohabiting at a particular time were married to each other at that time; or • a person’s age; or • family history or family relationships. Limitations in criminal proceedings.

Cvetkovic v The Queen [2010] NSWCCA 329 [353]—beliefs may need to be held by more than one person

74 (2)

Reputation concerning the existence, nature or extent of a public or general right. Restricted to defence evidence in criminal proceedings unless led by prosecution to rebut defence evidence.

Yarmirr v Northern Territory (1998) 82 FCR 533 [21]; Gumana v Northern Territory [2005] FCA 50 [157]

75

In interlocutory proceeding where source of evidence is adduced by party seeking to adduce the evidence (usually by affidavit).

NSW Crime Commission v Vu [2009] NSWCA 349 [43]; Liu v The Age (Continued )

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TABLE 7.2 Other exceptions to the hearsay rule (Continued ) SECTION

NATURE OF EXCEPTION

RELEVANT CASE

(Note, that applications are interlocutory if they do not finally dispose of the parties’ rights)

Company [2010] NSWSC 1176 [38]–[39];Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637 [9]–[16]; Ashby v Commonwealth (No 3) [2012] FCA 788 [8]–[11]; ACCC v Prysmian Cavi e Sistemi Energia SRL [2011] FCA 938 [220]–[226]

Important references For more extensive coverage of the hearsay rule and exceptions see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapter 8. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 187–291. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 6. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 5 and 6. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 248–337.

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ASSESSMENT PREPARATION Active Learning questions 1 Explain what you understand to be classified as hearsay evidence. How is it different from original evidence? 2 What is the evidentiary effect when s 60 is applied to a previous representation? How does this differ from the position at common law? 3 What do you understand by ‘first-hand’ hearsay? Illustrate your understanding with a relevant example. 4 Outline the circumstances when a representation in a document is admissible under s 69. Why does this exception to the hearsay rule exist?

CRIMINAL TRIAL THREAD SCENARIO The third prosecution witness is Iya Heardim and the Crown Prosecutor will conduct the examination in chief, seeking to adduce all relevant and admissible evidence from this witness going to proof of facts in issue in the case. Defence counsel must object where necessary during examination in chief and then will cross-examine the witness seeking to cast doubt on the accuracy and reliability of her evidence where possible. INSTRUCTIONS TO COUNSEL Counsel for the prosecution must endeavour to adduce evidence of the statements made by Noluck, ‘Serves him right, he never did get me those fucken cigarettes’; and ‘I saw James talking with some fella just before the cops showed up, it looked like he gave him a handbag or something.’ This will be objected to on the basis that it is hearsay. Defence counsel must make and argue the objection to the evidence on the basis of s 59. Counsel for the prosecution must seek admission of the statement on the basis of s 65 and relevant case law. Defence counsel must be prepared to argue against the admission of the statement, addressing s 65 and any relevant cases. Defence counsel must be prepared to cross-examine Iya Heardim using her statement if she gives evidence that is inconsistent with her statement. Your cross-examination must comply with s 43. Make a decision as to whether you wish to tender the document having regard to ss 45 and 46. Counsel for the prosecution must be familiar with these sections in case defence counsel fails to comply with the procedures. Both prosecution and defence counsel must be prepared to make and answer objections relating to the form or appropriateness of opposing counsel’s questions and the relevance of any evidence that is sought to be adduced. Counsel may (if necessary) make limited reference to whether the probative value of any evidence sought to be adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (s 137). Defence counsel should make sure they have an unmarked copy of the statement of Iya Heardim in case it becomes necessary to show the witness a copy and tender it. Both counsel should be prepared to use a map of the area to take the witness through her testimony. Defence counsel must comply with the rule in Browne v Dunn.

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INSTRUCTIONS TO WITNESS You don’t remember much about the incident, except for what you have said in your statement. You will change your evidence from that which appears in the statement in the following ways: •

•

In evidence in chief: You will now say that James was away from the group for ‘a while’. You don’t really know how long. You will also say, if asked, that you ‘think he walked off in the direction of the Canberra Centre, along City Walk [that is, in the direction of the bank], and came back from that direction’. Again you are pretty hazy about what happened. In cross-examination: You will only agree that ‘it didn’t seem like long’ or that he ‘walked off’ and ‘came back’ from the interchange if defence counsel shows you your written statement in cross-examination. Once they do, you will agree with what you said in your statement.

Feel free to attempt to give evidence about the drug taking of Simon Noluck, James Swifty or Trevor Gangland. You are no longer in a relationship with Trevor so you don’t owe him any favours. If asked, you may elaborate in relation to incidents where you have seen them ‘shooting’ up, but stop if there is an objection to this evidence. For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 See Figure 3.1, ‘The framework of admissibility of evidence’, in Chapter 3 for where the exclusionary rules are considered in determining the admissibility of information as evidence. 2 See Chapter 1 for a discussion of the meaning of the term ‘fact in issue’ and full discussion of the concept of ‘relevance’. 3 The precise question for the judicial obligation or discretion to exclude or limit the use of evidence is determined by the nature of the proceedings (civil or criminal) and whether s 135, s 136 or s 137 is invoked in this regard. See Chapter 3 for a full discussion of the judicial obligations and discretions to exclude or limit the use of evidence. 4 John Dyson Heydon, Cross on Evidence (LexisNexis Butterworths, 9th Australian edn, 2013) 1011. 5 See, for example, Baker v The Queen (2012) 245 CLR 632, 649. 6 Lee v The Queen (1998) 195 CLR 594, 600; Li v The Queen [2010] NSWCCA 40 [35], [50], [55]. 7 Ghebrat v The Queen [2011] VSCA 299 [47]. Reasonable notice in writing is only required where a party intends to rely on the exceptions to the hearsay rule in ss 63(2), 64(2) and 65(2), (3) and (8)—see s 67(1) EA. These exceptions will be considered in detail later in this chapter. 8 Gonzales v The Queen [2007] NSWCCA 321 [21]–[26]; Salmon v The Queen [2012] NSWCCA 119 [59]–[60]. Also, see Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 [24]–[27]. 9 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 83. 10 Heydon, above n 4, 1017.

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11 Biddell v Ervin [2012] FMCAFAM 926 [57]; Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 [27]; Homsi v The Queen; Karamalakis v The Queen [2011] NSWCCA 164 [87]–[103]. See Chapter 4 for a detailed discussion of warnings for unreliable evidence under s 165 EA. 12 Bannon v The Queen (1995) 185 CLR 1. 13 This requirement was added by the Evidence Amendment Act 2007 (NSW) and Evidence Amendment Act 2008 (Cth) with the aim of excluding unintended implied assertions from the ambit of s 59 and overcoming the confusion generated by the decision in R v Hannes (2000) 158 FLR 359. 14 See Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 255–257. 15 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) 286. 16 See Russell v The Queen [2013] VSCA 155 [27]–[30] in relation to the application of s 59 to what a police officer had been told as to the address of the family home of the defendant by the defendant’s brother, who was not called to give evidence in a criminal trial involving sexual assault offences alleged to have occurred at the defendant’s home in the 1960s. 17 See R v Heeng Ung [2000] NSWCCA 195; and R v Hannes (2000) 158 FLR 359. Also, see ALRC102 [7.34]–[7.62]. 18 Alternatively, see the approach suggested in Vickers v The Queen (2006) 160 A Crim R 195 [51]. 19 See Chapter 4 for a detailed discussion of the competency test in s 13. 20 R (Cth) v Baladjam (No 43) [2008] NSWSC 1461 [11], [49]. 21 Lee v The Queen (1998) 195 CLR 594, 604. 22 See Chapter 3 for a discussion of the operation of s 136. 23 Eastman v The Queen (1997) 76 FCR 9. 24 CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 2) [2012] FCA 47 [11]. 25 Mulcahy v The Queen [2012] ACTCA 3 [81]. See also Quick v Stoland Pty Ltd (1998) 87 FCR 371, 377–378 (Branson J), 382 (Finkelstein J). 26 Also, see Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 [142]–[143] in relation to the operation of s 60 for the judge to use evidence of the history of a back injury set out in various medical reports tendered without objection in the proceeding. 27 Contrast this to Adam v The Queen (2001) 207 CLR 96, where the same complication didn’t exist because the prosecution witness who was declared unfavourable only detailed in his prior inconsistent statement to the police what he saw of the attack on the deceased and did not report any statements made by others from their personal knowledge, which may or may not have been true. 28 ALRC102 [7.97]. 29 See ss 81 and 82 EA. These sections and the rules relating to the admissibility of ‘admissions’ are discussed in detail in Chapter 8. 30 A useful case illustration is R v Vincent [2002] NSWCCA 369. 31 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 [11]. 32 Ibid, [13], [24]–[25]. 33 R v Rossi [2010] VSC 459 [31]–[40].

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34 See R v Sarbandi [2012] ACTSC 180. Note there are differences in the Dictionary definitions under Australian Capital Territory, New South Wales and Commonwealth Evidence Acts in this regard. 35 See ss 135 and 192(2) considered in Chapter 3. 36 CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 2) [2012] FCA 47 [15]. 37 Odgers, above n 14, 273. 38 Osborne Metal Industries v Bullock (No 1) [2011] NSWSC 636 [26]. 39 This subsection was amended by the Evidence Amendment Act 2007 (NSW) and Evidence Amendment Act 2008 (Cth) to remove the requirement that the occurrence of the asserted fact was fresh in the memory of the declarant at the time the representation was made. Contrast to s 66 discussed below where this requirement has been retained in relation to criminal proceedings. 40 Cvetkovic v The Queen [2010] NSWCCA 329 [343]. Also, see Conway v The Queen (2000) 98 FCR 204, 244. 41 See R v Williams (2000) 119 A Crim R 490 [49]. Also, see Harris v The Queen [2005] NSWCCA 432 [44]–[46] where it was held to be ‘open’ to find a written statement, made to police 24 hours after the incident by the victim of a beating who subsequently died, came within the phrase ‘shortly after the asserted fact occurred’. This somewhat flexible approach to the temporal proximity requirement seems to have been because of the circumstances in which the statement was made, including that the victim’s version was not ‘inherently unlikely’ and the available medical evidence did not put the victim in a position to fully appreciate the nature and extent of his injuries. 42 See subsequent application of this interpretation in Youkhana v The Queen [2013] NSWCCA 85 [51]–[58]. 43 See Conway v The Queen (2000) 98 FCR 204; R v Williams (2000) 119 A Crim R 490; and R v Bond (Ruling No 4) [2011] VSC 536 [11]. 44 R v Mocenigo (Ruling No 3) [2012] VSC 408 [13]. 45 R v El Masri [2010] NSWSC 1277 [19]. 46 ALRC26 Vol 1 [692]. 47 See further Anderson and Bayne, above n 15, 348. 48 Cvetkovic v The Queen [2010] NSWCCA 329 [347]. 49 R v Crisologo (1997) 99 A Crim R 178, Graham v The Queen (1998) 195 CLR 606, R v Dwyer [1999] NSWCCA 47, R v Adam (1999) 47 NSWLR 267, R v Vinh Le [2000] NSWCCA 49, Skipworth v The Queen [2006] NSWCCA 37 and Gordon-King v The Queen [2008] NSWCCA 335 illustrate the judicial emphasis on the temporal nexus in determining whether an asserted fact is ‘fresh in the memory’ of the maker of a representation prior to the insertion of s 66(2A) by the Evidence Amendment Act 2007 (NSW) and Evidence Amendment Act 2008 (Cth). 50 LMD v The Queen [2012] VSCA 164 [23]–[26]. 51 R v XY [2010] NSWCCA 181 [77]–[79]; ISJ v The Queen [2012] VSCA 321 [40]–[49]. 52 Singh v The Queen [2011] VSCA 263 [18]. 53 Puchalski v The Queen [2007] NSWCCA 220 [103]–[104]; Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 [20]. 54 Azizi v The Queen [2012] VSCA 205 [32]. 55 Re Hicks; ex parte Lamb (unreported, FCA, 13 August 1996). 56 Markoff v Lautogo (unreported, NSWSC, 5 March 1997, Santow J).

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57 See J L Glissan QC, Advocacy in Practice (LexisNexis Butterworths, 4th edn, 2005) 119, 128; Thomas Mauet and Les McCrimmon, Fundamentals of Trial Techniques (Thomson Reuters Lawbook, 3rd Australian edn, 2011) 285–286; Hugh Selby, Advocacy: Preparation and Performance (Federation Press, 2009) 176–178, 184–185. 58 See R v Clark (2001) 123 A Crim R 506, 577; and R v Toki (2000) 116 A Crim R 536, 548. 59 See R v Serratore (1999) 48 NSWLR 101. 60 R v Van Dyk [2000] NSWCCA 67. This case was decided when the relevant provision was s 72. It was moved to s 66A as a first-hand hearsay exception by Evidence Amendment Act 2007 (NSW). Therefore, this evidence about the complainant’s previous representation from her personal knowledge would now only be admissible if the person giving evidence of what was written in the exercise book actually saw the complainant writing it down. 61 ALRC26 Vol 1 [678]. 62 De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) [2011] FCA 645 [35]–[37]; Thomas v NSW [2008] NSWCA 316 [10]. 63 ACCC v Cement Australia Pty Ltd [2011] FCA 562 [14]. 64 ACCC v Allphones Retail Pty Ltd (No 4) [2011] FCA 338 [80]; Scott MacRae Investments Pty Ltd v Baylily Pty Ltd [2012] NSWCA 82 [101]. See ss 48–50, 146–147, and 183 EA, which may facilitate proof and authentication of documents presented as business records. These provisions are discussed in Chapter 5. 65 Lithgow City Council v Jackson (2011) 244 CLR 352, 362–364 (French CJ, Heydon and Bell JJ). 66 Ibid, 361–362 (French CJ, Heydon and Bell JJ). 67 Eire Contractors Pty Ltd v O’Brien [2012] NSWCA 400 [1] (McColl JA), [111]–[115] (Barrett JA), [188] (Preston CJ of LEC). 68 See Nye v New South Wales [2002] NSWSC 1268 [20]; Timms v Commonwealth Bank [2003] NSWSC 576 [15]; and Thomas v New South Wales [2008] NSWCA 316.

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ADMISSIONS COVERED IN THIS CHAPTER In this chapter, you will learn about: • nature and effect of admissions; • implied admissions—silence; • implied admissions—flight and lies; • exception to hearsay rule; • voluntariness and reliability of admissions; • statutory recording requirements for admissions in criminal cases; • discretionary exclusion—unfairness; and • discretionary exclusion—public policy.

CASES TO REMEMBER Em v The Queen (2007) 232 CLR 67 R v Dalley (2002) 132 A Crim R 169

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 81, 82, 84, 85, 87, 89, 90, 138, 139

INTRODUCTION Have you seen an intriguing Australian film called The Interview? It stars Tony Martin and Hugo Weaving and is based on a police interrogation that begins with a stolen car, leads on to missing persons, and ends up with allegations about a bizarre murder. It is an excellent dramatisation of the official interview process resulting in a contrived ‘confession’ to obtain a meal. Also, the documentary Saving Andrew Mallard, about a Western Australian murder investigation, provides another, albeit extreme, example of a so-called ‘confession’ obtained by police from a vulnerable suspect through the interview process. In this chapter we examine ‘admissions’, which may technically qualify as exceptions to the rule against hearsay.1 You may also see the term ‘confession’ used in this context.2 In practice, ‘confession’ has become interchangeable with ‘admission’ and the rules governing admissibility are the same for both. For consistency and clarity, ‘admission’ will be used throughout this chapter.

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NATURE AND EFFECT OF ADMISSIONS According to the EA Dictionary Part 1, an admission is defined to mean: a previous representation that is: (a)

made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person’s interest in the outcome of the proceeding.

It must be a ‘representation’ in the sense of an assertion as to the existence or non-existence of a fact in issue or a fact going to a fact in issue.3 A representation can be by words or conduct and the definition incorporates the common law position that guilt can be inferred from a defendant’s conduct.4 The representation must be adverse to the interests of the person who made it, so essentially it supports the case of the other party or makes it more difficult for the person’s own case. Also, the representation must be capable of being construed as an admission and by s 88 ‘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’ (emphasis added). If it is reasonably open and the evidence is admitted, it is a matter for the tribunal of fact to decide in the context of all the evidence whether to accept the representation as evidence of an admission.5 In R v Hall [2001] NSWSC 827, Greg James J stated (at [29]) that ‘a trial judge can only determine whether evidence has the capability (reasonably open) of rationally affecting a matter in issue by application of his or her own senses’—that is, an exercise of judgment. So the court’s finding under s 88 does not involve conjecture as to what others (such as the jurors) might conclude about the evidence. As an admission is made against a person’s financial or self-interest, and as people do not generally act in this way, it is powerful and weighty evidence in a trial. In Sinclair v The King (1946) 73 CLR 316,334, Dixon J stated: Confessions, like other admissions out of court, are received in evidence as narrative statements made trustworthy by the improbability of a party’s falsely stating what tends to expose him to penal or civil liability.

Accordingly, a fact-finder, particularly a jury, will most likely give considerable weight to evidence of an admission.6 This inclination has provided the impetus for the courts and legislatures to develop a number of rules regulating admissibility of admissions, which will be a focus in this chapter. The important judicial decision about admitting evidence of an admission can, depending on the particular circumstances of the case, be instrumental in the final outcome. The risk that admissions can be concocted by police officers or a defendant confessing to a crime that they did not commit created a significant challenge for the law to decide

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which admissions, if any, allegedly made by a suspect can be reliably admitted. At the same time, the proper and thorough investigation of criminal incidents by police officers will inevitably involve questioning suspects and if an informed choice is made by a suspect to make admissions, the prosecution should be able to use those admissions as part of the proof of their case against the defendant. Accordingly, there is no cogent basis for a general rule excluding evidence of admissions.

IMPLIED ADMISSIONS—SILENCE One difficult kind of admission by conduct is silence. In some circumstances, it may be reasonably open to infer an admission from silence in response to questioning or in a failure to reply to correspondence. Mundey v Askin [1982] 2 NSWLR 369 provides an example of a civil case where the silence of the defendant (then New South Wales Premier) in relation to media reports that he referred to the plaintiff (a trade union official) as ‘vermin’ at an election launch was alleged to be an admission in defamation proceedings. The defendant asserted that the comment was intended to apply to some interjectors at the launch, but had not sought to correct the reporting error at the time. Ultimately, the plaintiff’s action was not successful and on appeal the New South Wales Court of Appeal affirmed and applied the established principle in civil cases (at 373): Silence is not evidence of an admission, unless there are circumstances which render it more reasonably probable that a man would answer the charge made against him than that he would not.

In application to the particular circumstances, the court found that ‘it cannot be said that it is the ordinary habit of the maker of an election speech to take steps to have corrections made to errors in press reports …[about] his speech … [and his] failure to correct such reports was [not] evidentiary of their truth’7 The critical question is: ‘When is it reasonable to expect a denial if the statement is untrue?’ There is no bright-line test for when a defendant’s silence or refusal to answer will be deemed to be an adoption of the statement; this will depend heavily on the specific circumstances of the case. In criminal cases, although it might be expected that an innocent person would assert their blamelessness, it is well established that where a defendant exercises their right to silence initially in response to official questioning and later at their trial then no adverse inferences can be drawn by a fact-finder from the defendant’s silence. In Petty and Maiden v The Queen (1991) 173 CLR 95, a majority of the High Court affirmed (at 99): 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

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supply information by any person in authority about the occurrence of an offence, the identity of the participants, and the roles which they played … An incident of the right to silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information … 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 Crown Prosecutor, that an accused’s exercise of the right to silence may provide a basis for inferring a consciousness of guilt.

This fundamental rule of the common law is now reflected in s 89 EA.8 89 Evidence of silence (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; 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.

The effect of this provision is that complete or selective silence by a defendant or another person9 at the investigatory stage cannot be treated as inferring a ‘consciousness of guilt’ or as being adverse to the defendant’s credibility if they give evidence at trial.10 By s 89(2) the evidence will be admissible if it has another legitimate use apart from the purposes proscribed by s 89(1). An example of such a use is provided in s 89(3) where the failure or refusal to answer questions or respond to a representation is a fact in issue in the proceeding rather than being used to draw any adverse inference.11 In the context of a criminal trial where and how the right to silence has been infringed must be clearly identified12 and merely admitting a recorded interview into evidence in which the defendant states ‘no comment’ does not violate s 89.13 If, however, a defendant chooses to break their silence and give an explanation before trial that is inconsistent with an account later given in evidence, the prosecution can use the inconsistency to attack the credibility of the defendant and to infer consciousness of guilt.14 Modification of the right to silence has recently occurred through the enactment in New South Wales of s 89A EA,15 which essentially provides for the drawing of unfavourable inferences where during official questioning the defendant failed or refused to mention a fact they ‘could reasonably have been expected to mention in the circumstances existing at the time, and that is relied on in his or her defence in that proceeding’. Before it is possible to draw any adverse inference, a special caution16 must have been given to the defendant under s 89(2) in the presence of a

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lawyer and before any failure or refusal to mention the fact. This provision effectively reverses part of the High Court decision in Petty and Maiden that previous silence about a defence could not be a basis to infer the defence, if put forward at trial, was a recent invention and therefore not credible.17

IMPLIED ADMISSIONS—FLIGHT AND LIES Apart from silence, other examples of ‘implied admissions’ or ‘admissions by conduct’ include lies, flight, suborning a witness to give false evidence, or concealing evidence. These post-offence conduct categories, which may be capable of rationally supporting an inference that the defendant is conscious of their guilt in a criminal case or a party is conscious of their liability or a particular weakness in a civil case, are not closed.18 Essentially the conduct impliedly acknowledges the truth or accuracy of their opponent’s case. Although a person who runs away from the scene of a crime doesn’t intend to show they are guilty, their flight may be used as evidence of a consciousness of guilt. In Holloway v McFeeters (1956) 94 CLR 470, the fact that the driver of the car involved in the accident drove off without reporting the accident was held to be available to be used against the nominal defendant as evidence of an admission of negligence. There are also various criminal cases where the prosecution have used flight from the crime scene as unequivocal evidence of consciousness of guilt of the offence charged,19 but depending on the circumstances there may be scope to argue for exclusion of this type of evidence under s 137, particularly if it points to ‘some other offence or discreditable conduct’20 or it is capable of explanation on another basis.21 An important authority dealing with the use of lies as a form of admission is Edwards v The Queen (1993) 178 CLR 193, where the High Court considered the implied assertion of guilt when the prosecution can establish the falsity of a denial or other statement by the defendant: Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. … It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate and … relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged …Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. (At 208–209)

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The jury must be carefully directed as to how to use a lie as evidence of consciousness of guilt where the prosecutor puts the evidence forward on that basis.22 If cross-examination of a defendant gives rise to a risk of consciousnessof-guilt reasoning, the trial judge should seek clarification from the prosecutor in this regard before formulating directions to the jury.23 The direction will usually include being informed of any possible innocent explanations for the behaviour (such as panic, confusion, protection of others, or to avoid consequences not related to the offence) and of any conditions the jury should be satisfied of before they can use the behaviour as evidence of guilt. If there is more than one lie and each could bear an innocent explanation, they should be isolated for separate directions.24 It is essential that the apparent lie be considered in its complete context for the jury to make a proper assessment of its evidentiary value; otherwise exclusion under ss 135 or 137 may be necessary.25

STUDY TIP Summary points In many cases, evidence of lies told by a defendant may have value only in relation to their credibility, as was ultimately the case in Edwards.26 In Zoneff v The Queen (2000) 200 CLR 234, the majority of the High Court stressed the importance of clearly identifying the purpose for which a lie is used and if it is to be used to constitute evidence of consciousness of guilt then the trial judge must ‘require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged’ (at 244). There was a risk of misunderstanding the significance of the possible lie in this case so that the direction was also held to be appropriate in such circumstances. Where the prosecution does not contend that a lie is evidence of guilt then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.27

EXCEPTION TO HEARSAY RULE If evidence of an admission by words or conduct is adduced to prove a fact that it can reasonably be supposed was intentionally asserted to exist by the person making the admission, the hearsay rule should operate to exclude it. It is the ‘intention to assert’ that triggers the hearsay rule in s 59 EA, but s 81 provides the statutory exception to this rule for an admission so that it becomes admissible for the truth of the fact asserted.28 Otherwise, if it can reasonably be supposed that the person making the admission did not intend to assert a fact comprising the admission then s 59 will not apply. It depends on application of the test in s 59(2) as to what can reasonably be supposed was intended by the person engaging in the conduct or making the statement; unintended implied admissions are not caught by s 59(2). This is a very important and frequently relied upon exception to the hearsay rule in practice so, to illustrate its practical operation, we will use some hypothetical

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examples of statements made by James Swifty from our criminal trial thread scenario involving an armed robbery offence.29

PRACTICAL GUIDANCE ON APPLICATION OF THE HEARSAY RULE AND THE S 81 EXCEPTION FOR ADMISSIONS 1

Consider the following examples of hypothetical statements made by and conduct of James Swifty: (a) ‘I robbed her’ (oral response to Sammy Teller when she said, ‘You were casing the bank all morning. Admit it, you bastard, you robbed Mrs Davidson, didn’t you?’) (b) ‘I’m rich’ (oral statement heard by Johnny Parkbench when he ran past him across the road from the bank) (c) ‘I’ve just come from the bank’ (oral statement to Simon Noluck when he came back from the interchange and recounted to Iya Heardim) (d) ‘I’m buggered—can you see anyone chasing me?’ (oral statement to Trevor Gangland when he came back from the bus interchange) (e) Alternative to (a) that in response to Sammy Teller’s statement, he said, ‘Yep’ (f) In response to the question asked by Constable Dredd, ‘Did you rob her?’, he raised his right thumb.

2

To determine whether the statements and/or conduct are hearsay: (a) Identify the previous representation. (b) Determine the intended asserted fact in the representation. (c) Determine whether the previous representation is being tendered to prove the intended asserted fact in the representation.

If the previous representation is being tendered to prove the intended asserted fact in the representation, it is hearsay and caught by s 59. 3

To determine whether the statements and/or conduct are admissions and thus within the s 81 exception, think whether it is reasonably open to find the previous representation was: (a) made by a party to the proceeding; and (b) adverse to that person’s interest in the outcome of the proceeding.

Taking example 1(a), the previous representation by Swifty is ‘I robbed her’ and the context shows that he intended to assert that he robbed Mrs Davidson at the bank. The prosecution will tender this previous representation through the witness, Sammy Teller, to prove that Swifty robbed Mrs Davidson. It is hearsay and inadmissible under s 59 unless it is an admission within the s 81 exception. The previous representation was made by the defendant (a party to the proceeding) and, because it directly proves the prosecution allegation of robbery and thus the defendant’s guilt, it is adverse to the defendant’s interest in the outcome of the proceeding. Therefore, it is reasonably open to find that it is an admission and the s 81 exception to the hearsay rule applies for this statement to be admissible in evidence. Arguably examples 1(b), (c) and (d) are also oral admissions; 1(e) is an admission by adoption of another’s statement; and 1(f) is an admission by conduct.

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Despite being an exception to the hearsay rule, independent rules as to the admissibility of admissions have developed at common law and this structure has flowed through to Part 3.4 EA, which begins with s 81 providing that the hearsay rule does not apply to evidence of an admission.30 The hearsay rule still applies, however, if evidence of the admission does not come from a ‘first-hand’ source,31 including a document (s 82) or if evidence of an admission is being used against ‘a third party’ (s 83).32 Section 87 provides for admissions made with authority so that s 87(1)(a) and (1)(b) allow evidence to be adduced against a party to proceedings where a statement amounting to an admission is made by a third party who has the party’s authority to make it or who is an employee of that party. This situation is more readily imaginable in civil cases and includes solicitors during the progress of their client’s litigation.33 It must be ‘reasonably open’ to find the existence of the relevant authority or employment relationship and s 87(2) assists in proof by allowing evidence of a person’s own previous representation that they had such authority or were an employee of the party. Further independent evidence may, however, be required to establish the scope of that person’s authority or employment.34 Section 87(1)(c) is more readily applicable to criminal cases as it has been held to reproduce the common law relating to representations made by co-conspirators or in furtherance of a common purpose.35 The co-conspirators’ rule states that when two or more people work together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible against the others. Essentially it facilitates an authority for each person to speak on behalf of the others and it has been observed that this common law rule is not inconsistent with the operation of s 87(1)(c).36 Turning now to the independent rules of admissibility for admissions as a special species of hearsay evidence, we will examine the operation of ss 84–85, 90 and 138(2) EA, which can be diagrammatically represented in a flow chart (Figure 8.1). We will also briefly consider the common law principles underpinning the legislative scheme.

s 84

Would it be unfair to use the admission as evidence?

s 138 (Caution s 139)

s 85 If NO, then Part 3.4 EA does not apply.

If NO, then the admission is not admissible in evidence.

If YES, then the admission is not admissible in evidence.

If YES, then the admission is not admissible in evidence.

Was the admission obtained by illegal or improper methods?

If YES, then the judge has a discretion to exclude evidence of the admission.

If YES, then the judge has a discretion to exclude evidence of the admission balancing test of desirability.

NO

Were the circumstances unlikely to have adversely affected the truth of the admissions?

NO

Was there influence by violent or degrading conduct?

NO

Is there compliance with any applicable statutory recording requirements?

NO

Is it evidence of an admission?

YES

FIGURE 8.1 Admissions by the defendant YES

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The admission is admissible as evidence.

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VOLUNTARINESS AND RELIABILITY OF ADMISSIONS As we have noted, admissions are usually powerful evidence and can be instrumental in securing a conviction in a criminal case, so the common law has developed certain safeguards to ensure that an admission could be safely admitted into evidence and relied upon in proving the case against a defendant. One such safeguard is that, to be admissible, an admission must have been made voluntarily and that rule of law is encapsulated by the following words of Dixon J in McDermott v The King (1948) 76 CLR 501, 511: If the (defendant) … speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his 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.

In later cases, ‘voluntary’ was held to mean that the admission was ‘made in the exercise of a free choice to speak or be silent’37 and it is a threshold question for admissibility. As the quote from Dixon J illustrates, it is possible to challenge the voluntariness of an admission in two distinct ways: oppressive conduct or inducements by people in authority. In determining whether an admission was voluntary there is a focus on the effect of the conduct or inducement on the will of the particular defendant. This subjective test involves considerations as to the age, maturity, intellectual level, and physical and psychological condition of the defendant at the time of making the admission. Whether conduct by the investigators is oppressive may involve a trial judge considering the length and nature of the police questioning particularly repetitive accusations, leading questions and other crossexamination techniques, deprivation of sleep, food or liberty, and the use of violent, intimidatory or degrading tactics to pressure the defendant to answer questions or to answer in a particular way. Involuntary does not mean that the defendant was merely tricked, especially by undercover police officers in a ‘scenario’ situation.38 As to inducements held out by a ‘person in authority’, these come in various forms and may include: • • • • •

A threat to lay further charges if the suspect doesn’t confess to the offence which is being investigated; A threat to arrest and lay charges against another person, such as the suspect’s spouse, lover or child; A promise to release the suspect on bail if he or she confesses; An express or implied threat to use violence against the suspect if he or she does not confess; or A threat to leave the suspect in the cell for a significant period of time if he or she does not confess.39

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The effect of an inducement could be removed if it is expressly withdrawn or the circumstances change making it ineffective or inoperable. Where an admission is made after the inducement has ceased to operate it is likely to be admissible in evidence. The common law requirement for a voluntary admission is replaced in the Act with two slightly different tests of admissibility. Although the term ‘voluntary’ has not been used in Part 3.4 EA, the common law rule is preserved and strengthened by ss 84 and 85. Section 84 applies to all proceedings, whether civil or criminal and provides: 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.

There are no statutory definitions of the various forms of conduct set out in s 84(1) so the common law, dictionary definitions and international human rights instruments, such as the International Covenant on Civil and Political Rights,40 may be of use in guiding judicial interpretation. They are harsh words so the conduct must clearly be of an extreme nature. The meaning of ‘oppressive’ conduct has been considered by the courts and reference made to the ALRC report in emphasising that such conduct involves ‘techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect … [including] acts of violence, threats of violence, torture or inhuman or degrading conduct’.41 Examples of the aspects of oppressive police conduct that resulted in the exclusion of an admission under s 84 in R v LL (unreported, NSWSC, Smart J, 1 April 1996) were the searching questioning, relentless testing of denials, further questioning after the suspect indicated he didn’t wish to comment on the allegations, and repeated suggestions of guilt through information from ‘friends’. Later authorities have pointed out that ‘violent’ is a well-known word that requires no further definition while it is permissible to refer to dictionary meanings of ‘oppressive’.42 The words ‘influenced by’ in s 84(1) require a minimal causal connection between the oppressive conduct and the making of the admission, as opposed to the common law requirement that the defendant’s will must be overborne.43 Accordingly, if there is any evidence of violent or other oppressive conduct, the prosecution must establish that it did not have any causal effect on the making of the admission.44 Section 84(2) requires ‘the party against whom evidence of the admission is adduced’ to raise an issue about ‘whether the admission or its making were influenced by’ the proscribed conduct. In criminal cases this would invariably be the defendant and where they can point to information raising a material question as to admissibility then the usual procedure will be to hold a voir dire for the court to

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determine the issue.45 The prosecution has the burden on the balance of probabilities (s 142(1)) to prove that there had not been any proscribed conduct or, if there has been, that it had no influence on the making of the admission. The second statutory test for admissibility is in s 85. It is restricted in operation to criminal proceedings and only to admissions made by the defendant either to an investigating official who was investigating the commission of an offence, or because ‘of an act of another person who is capable of influencing’ decisions about the prosecution of the defendant. Then the additional test of admissibility is provided in subs (2): 85 Criminal proceedings: reliability of admissions by defendants … 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.

The prosecution bears the onus of establishing admissibility.46 The evidence of an admission will not be admissible unless the prosecution proves on the balance of probabilities that ‘the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected’. The reliability of the admission in the particular circumstances in which it was made is the core consideration here and the trend of authority shows in making that determination the court will engage in a subjective analysis of the circumstances affecting the defendant,47 which is further reflected in the matters the court must take into account under s 85(3). These include the subjective characteristics and conditions of the defendant and the nature of any questioning directed to, or threats, promises or inducements made to, the defendant. Overall, this provision represents an additional safeguard designed to exclude admissions made in circumstances not as extreme as those envisaged by s 84, but which may still be of questionable reliability.

STATUTORY RECORDING REQUIREMENTS FOR ADMISSIONS IN CRIMINAL CASES There are statutory provisions in each jurisdiction that provide for the mandatory recording of admissions made during official questioning in a police investigation before such evidence can become admissible in a criminal trial.48 They operate in addition to any admissibility requirements in the EA and are summarised in Table 8.1. The provision in s 86 EA that documentary records of admissions allegedly made to an investigating official are inadmissible unless the defendant has acknowledged it is a true record ‘by signing, initialling or otherwise marking the document’ is of limited practical utility given the statutory recording requirements set out in Table 8.1. It will

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s 23V Crimes Act 191449

Inadmissible unless ‘tape-recorded’: subs (1)

Nil—applies to all offences

Interests of justice or not practicable to comply: subs (5) and (6)

Legislative provision

Rule

Limitations— offence types

Exceptions to rule

COMMONWEALTH AND ACT

Reasonable excuse: subs (2)(b) and (4)51

Indictable offences (excluding Table 2 offences) Exceptional circumstances justifying reception: subs (2)

Indictable offences

Inadmissible unless ‘recorded by audio … or audiovisual recording’: subs (1)

s 464H Crimes Act 1958

s 281 Criminal Procedure Act 1986 Not admissible unless ‘taperecorded’: subs (2)(a)

VIC

NSW

Reasonable explanation, or exceptional circumstances: subs (1)(b)–(d) and (2)

Serious offence

Not admissible unless ‘audio visual record of an interview’: subs (1)(a)50

S 85A Evidence Act 2001

TAS

TABLE 8.1 Statutory recording requirements for admissions in uniform evidence law jurisdictions

Interests of justice in circumstances of case: s 143

Relevant offence—max penalty of 2 years imprisonment or more: s 139

Not admissible unless ‘electronically recorded’: s 142(1).

ss 139–143 Police Administration Act 1979

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still have practical application for offences not covered by the statutory recording requirements, such as summary offences. The effect of s 86 is the prosecution cannot put that evidence before the court in documentary form; a police officer can still give oral evidence about any such admissions allegedly made by the defendant.

STUDY TIP Advocacy and the criminal trial thread scenario Cross-examination of investigating officials on the voir dire with the aim of having an ‘admission’ ruled inadmissible as involuntary and/or unreliable will involve a cautious approach to putting any assertions of oppressive conduct or unfair treatment of the defendant. Depending on the circumstances it may be appropriate to directly attack the witness or witnesses, confronting them with the defendant’s version of the interview. This will be with the aim ‘to force an admission of falsity; or failing admission, to prove a contradiction'.52 On the other hand, the circumstances may call for a careful probing of the details surrounding the making of the alleged ‘admission’ and attempting to reveal that the witnesses are dishonest.53 In considering your tactics, carefully and critically evaluate the plausibility of the defendant’s version, including the availability of any independent and objective witnesses, documents, or other information that confirms or casts doubt on this version.

DISCRETIONARY EXCLUSION—UNFAIRNESS Once it has been found as a matter of law that an admission was voluntarily made, the defence can still argue that the trial judge should exercise their discretion to exclude the admission. The grounds for exclusion originate at common law and have been incorporated into the Act. They are commonly referred to as the ‘fairness discretion’ and the ‘public policy discretion’. The fairness discretion developed from the cases of McDermott v The King (1948) 76 CLR 501 and Lee v The King (1950) 82 CLR 133, 149. The question to be determined is aptly stated by Dawson J in Cleland v The Queen (1982) 151 CLR 1, 30 as ‘whether it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured’. Therefore, the reliability of the admission is a primary consideration, but it is not the only ground a defendant can raise in seeking to persuade the judge that the use of the admission would be unfair. It may be that the obtaining of the admission places the defendant in a forensically disadvantaged position, which because of the specific circumstances is unfair.54 Alternatively, the unfairness could arise from the possibility that the admission would never have been made at all but for the unlawful conduct of the investigating police, or the possibility of fabrication of the ‘admissions’ through police ‘verballing’ of the defendant.55 This latter potentiality led the High Court to promulgate a rule of practice in McKinney v The Queen (1991) 171 CLR 468 that where there is no independent reliable corroboration of an admission made by

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a defendant, the trial judge must warn the jury to carefully scrutinise such evidence. The warning had to go further to highlight the danger of convicting on that evidence alone if it was the sole or principal evidence against the defendant while pointing out a defendant’s vulnerability to police fabrication in a one-sided forensic contest controlled by the police. The upshot of McKinney was a concerted effort by most Australian jurisdictions to move to a regime requiring the electronic recording of police interviews, thus leaving less room for the exercise of the unfairness discretion.56 Under the scheme of the uniform evidence legislation, where an admission meets the legal requirements of admissibility it is still open to discretionary exclusion and the common law fairness discretion is mirrored in s 90 EA: 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.

The approach adopted by the High Court in R v Swaffield, Pavic v The Queen (1998) 192 CLR 159, even though a decision relating to the common law, included a discussion of the convergence of common law and the legislative provisions in this area. Accordingly, it has been influential in respect of the practical application of s 90 and, specifically in relation to unfairness to a defendant as a basis for rejection of an admission, the majority stated that ‘the purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person’, notably ‘the right to a fair trial’.57 The case law illustrates that ‘fairness’ is an amorphous concept, which is very difficult to define with precision. The following is a comparatively recent case as to the interpretation and operation of s 90 and highlights the vagaries surrounding the concept of ‘fairness’.

A CASE TO REMEMBER Em v The Queen (2007) 232 CLR 67 In Em v The Queen (2007), the High Court considered whether covertly recorded admissions made by the appellant should have been excluded as it was asserted that the circumstances made it unfair to the appellant under s 90 for the prosecution to use them at trial. The admissions related to home invasion robbery offences and a murder, and were recorded by the police in a park using approved listening devices after the appellant had

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been initially interviewed and refused to have anything recorded. The appellant alleged that the police deceived him because they knew he believed that anything he said could not be used against him and they didn’t attempt to correct his misconception. The majority (Kirby J dissenting) dismissed the appeal, holding in all the circumstances—notably, that the appellant knowingly and willingly spoke to the police officers and was aware of his rights—that there was no unfairness (at 95–96, Gleeson CJ and Heydon J). Importantly, some general observations were made about the ‘fairness’ discretion in s 90, particularly that its meaning and scope are unclear, but this gives it the desired flexibility in practical operation. It cannot be described exhaustively, as ‘unfairness’ can arise in different ways and is likely to be ‘highly fact specific’ (at 89, Gleeson CJ and Heydon J). It is a very broad and uncertain provision applied on a case-by-case basis, and the specific facts require ‘careful analysis’.58 While circumstances may be relevant to the application of either s 85 or s 90, the onus is on the defendant to demonstrate why the evidence should be rejected59 and the appellant could not discharge that onus in all the circumstances of this case.

In subsequent cases it has been emphasised that the role of the judge to caution and direct the jury should not be forgotten when assessing whether to admit the evidence is unfair to the defendant.60 The ‘scenario’ situation61 and covertly recorded conversations are lawful and do not automatically trigger s 90 and/or s 138.62 A voluntary confession obtained during a covertly recorded conversation with a defendant in prison would be admitted in evidence.63

DISCRETIONARY EXCLUSION—PUBLIC POLICY The public policy discretion also developed through a string of cases at common law64 and in relation to confessional evidence it is a particular application of the discretion to exclude unlawfully obtained evidence.65 Rather than being persuaded by the defendant to exercise the discretion to exclude evidence of the admission, the public policy discretion requires the judge to balance two competing objectives. These are disapproval of and discouragement of illegal and improper law enforcement methods of gathering evidence of an admission balanced against the public interest in ensuring offenders are detected and the guilty are convicted. It is important that individuals are protected from unlawful and unfair treatment, but at the same time there is a clear community concern that offenders be properly convicted and punished. In R v Swaffield; Pavic v The Queen, the majority of the High Court related the common law ‘public policy’ discretion and the balancing exercise under s 138 EA to determining the price at which ‘the admission of evidence or the obtaining of a conviction … is bought’:66 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. (At 202)

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Subsequent decisions of the New South Wales Court of Criminal Appeal have emphasised the need for the courts to ‘be vigilant to ensure that evidence is not permitted to be introduced at an unacceptable price’ while recognising that ‘it is always a matter of degree as to whether police questioning has gone too far, recognising the duty of the investigating police officer on the one hand and the right of the suspect on the other hand’.67 ‘Contemporary community standards’ have been aligned to ‘the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement’68— fundamental concepts on which our democratic society is based. Section 138 EA arises again for consideration in the specific context of admissions; we have explored this section generally in Chapter 3. You will recall that s 138 provides that evidence obtained illegally or improperly is not to be admitted unless the desirability of admitting it outweighs the undesirability of doing so having regard to the manner in which it was obtained, and the factors that the court may take into account in exercising its discretion are set out in subs (3). Subsection (2) makes specific reference to when admissions are taken to have been obtained improperly by a person conducting questioning—that is, when the person did or omitted to do something which ‘was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning’ or knowingly made a false statement that ‘was likely to cause the person who was being questioned to make an admission’. Essentially this involves coercion or deception on the part of the questioner and automatically triggers judicial consideration of whether it is undesirable to admit the evidence of the admission obtained in this way. An important example of consideration of this discretion under s 138 in the context of admissions, is the following case.

A CASE TO REMEMBER R v Dalley (2002) 132 A Crim R 169 In R v Dalley (2002), the appellant was charged with murder and he had made significant admissions to police during an electronically recorded interview. The interview was conducted in breach of the then applicable law relating to detention and questioning of suspects, particularly failure by the custody manager to caution the defendant and failure by the investigating officers to verify an application for extension of the investigation period by affidavit, thus affecting the validity of the detention warrant. The trial judge decided to admit the interview into evidence despite the breaches and the appellant challenged this decision on appeal. During the appeal, the court raised the issue as to whether the gravity of the alleged offence may be taken into account and, if so, how in determining whether to admit the illegally obtained evidence under s 138. It was held by the majority (Spigelman CJ and Blanch AJ, Simpson J dissenting on this point) in dismissing the appeal that the public interest in admitting evidence in criminal proceedings varies directly with the

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gravity of the offence. The more serious the offence, the more likely it is that the public interest requires the admission of the evidence: ‘The public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity, both at common law and pursuant to s 138(3)(c)’ (at 172) so that in this case of murder the desirability of admitting the evidence of the admission outweighed the undesirability due to the illegalities involved in obtaining it.69

Section 139 EA deals with the cautioning of suspects and relates back to the exercise of discretion under s 138 in that evidence of a statement made by a person during questioning by an investigating official is taken to have been obtained improperly if the person was under arrest and a caution that they do ‘not have to say or do anything …[and] anything [they do] say or do may be used in evidence’ was not administered by the investigating official before the statement was made by the person. One final point to note is that a defendant in a criminal proceeding may make formal admissions as to matters of facts under s 184 EA if they have been advised by their lawyer, or the court is satisfied they understand the consequences of making the admission. Where these admissions are to an element of the offence charged, they must be of such a nature as to prove that element beyond reasonable doubt.70

Important references For more extensive coverage of admissions and confessions, see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapter 10. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 319–356. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 8. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapter 8. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 402–462.

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ASSESSMENT PREPARATION Active learning questions 1 2 3 4

What is your understanding of the meaning of the word, ‘admission’? Outline the effect and interaction of ss 81, 82 and 83. What is an ‘implied admission’? Give some examples of implied admissions. In what circumstances does s 84 operate to render an admission inadmissible in evidence? What additional safeguard is provided by s 85? 5 Even if an admission is found to have been voluntarily made by a defendant, are there other bases on which that admission might be excluded from evidence at a trial?

CRIMINAL TRIAL THREAD SCENARIO The fourth prosecution witness in the ‘armed robbery’ trial of James Swifty is Constable Judy Dredd, the arresting and principal investigating police officer who conducted a tape-recorded interview with the defendant. The Crown Prosecutor will conduct the examination in chief seeking to adduce all relevant and admissible evidence going to proof of facts in issue in the case. Defence counsel will make objections as necessary, including seeking a voir dire as to the admissibility of the record of interview during examination in chief and then cross-examine the witness. INSTRUCTIONS TO COUNSEL Counsel for the prosecution must endeavour to adduce evidence of what Sammy Teller said to James Swifty and of James Swifty’s response. This will be objected to by defence counsel, and the prosecution will argue for its admissibility on the basis that it is an admission, with defence counsel endeavouring to counter this submission. Counsel must refer to s 81 and definitions in the dictionary and elsewhere as necessary. Limited reference may be made to s 23V Crimes Act 1914 (Cth). At the conclusion of the witness’s evidence in chief, counsel for the prosecution must seek to tender the transcript of the tape-recorded interview. This will be objected to by defence counsel on the basis that its admission would be unfair (s 90) and contrary to public policy (s 138) having regard to s 23H Crimes Act 1914 (Cth) and Em v The Queen (2007) 232 CLR 67. Counsel for the defence will be arguing that the judge should exclude the record of interview, and counsel for the prosecution will seek to counter this argument. Before submissions in relation to the admissibility of the tape-recorded interview are heard, counsel for the defence will be permitted to cross-examine the witness about the manner in which the witness conducted the tape-recorded interview. Defence counsel does not need to cross-examine the witness about the fact that no knife, bag, jacket or cash (over $100) was found by police. Cross-examination in this case is an opportunity for defence counsel to adduce evidence that will support their submission that the record of interview is not admissible. It will take place in the absence of a jury on the voir dire. Both prosecution and defence counsel must be prepared to make and answer objections relating to the form or appropriateness of opposing counsel’s questions and the relevance of any evidence that is sought to be adduced. Counsel may make limited reference (if necessary) to whether the probative value of any evidence sought

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to be adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (s 137). Defence counsel must comply with the rule in Browne v Dunn. INSTRUCTIONS TO WITNESS You must read the record of interview carefully. You will be cross-examined on what took place during the interview. You think James Swifty is guilty. You also believe that good policing is about getting tough with criminals and sometimes, just sometimes, ‘old school’ police tactics are useful to get them to confess. You certainly don’t like lawyers getting involved as they just get criminals off. You think you are pretty good at getting criminals to confess. For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 See Chapter 7 for detailed consideration of the hearsay rule and exceptions. 2 See Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 481. 3 See DPP v Leonard (2001) 53 NSWLR 227, 247 as to the meaning of a ‘representation’ being ‘an assertion stating, alleging, picturing or portraying of some matter other than itself’. 4 McKey v The Queen [2012] NSWCCA 1 [30]; Zhu v The Queen [2013] VSCA 102 [28]–[49]. 5 See Tunja v The Queen [2013] VSCA 174 [27]–[32] (Maxwell P and Weinberg JA). 6 Although note that it is a misdirection to include a statement that ‘normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or interest’ in a charge to the jury, which may amount to a miscarriage of justice—see Tunja v The Queen [2013] VSCA 174 [2]–[7] (Maxwell P and Weinberg JA), [68]–[92] (Priest JA dissenting). 7 At 373. Cf Permewan v Ippolito (1965) 85 WN PT 1 (NSW) 90, where a failure to object to his description as a tenant in receipts for payment of rent was evidence of an admission by the defendant supporting the inference of a tenancy in circumstances of litigation pending between the parties. 8 See R v Coe [2002] NSWCCA 385 [49]. 9 See Jones v The Queen [2005] NSWCCA 443 as an example of where s 89 extended to ‘another person’ failing to respond to a representation. In this case the defendant’s wife (another person) had failed to tell the police during the initial investigation that she was responsible for the crime for which the defendant was subsequently tried. She gave evidence at the defendant’s trial that she had committed the subject offence and it was held that her initial silence was not available to draw an adverse inference against the defendant (a party). 10 See the meaning of ‘inference’ in s 89(4). 11 For example, failing to provide information, such as disclosure of identity, required by a police officer under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 11–18, or Road Safety Act 1986 (Vic) ss 59–60, or Road Transport (General) Act 1999 (ACT) ss 58–60. 12 Kuehne v The Queen; Humphries M v The Queen; Humphries A v The Queen [2012] NSWCCA 270 [62] (Fullerton J) applying RPS v The Queen [2000] HCA 3 [630].

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13 Ross v The Queen [2012] NSWCCA [46]–[55]. 14 Jones v The Queen [2005] NSWCCA 443 [75]. See also Sanchez v The Queen [2009] NSWCCA 171 [54]–[55]. 15 This section was added to the Act by Evidence Amendment (Evidence of Silence) Act 2013 (NSW), which commenced operation on 1 September 2013. It applies only to criminal proceedings for a serious indictable offence. 16 This is a caution that ‘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 anything the person does say or do may be used in evidence’ (s 89A(9)). 17 Petty and Maiden v The Queen (1991) 173 CLR 95, 100–101. 18 Kuehne v The Queen; Humphries M v The Queen; Humphries A v The Queen [2012] NSWCCA 270 [6]–[8] (Latham J), [66]–[70] (Fullerton J); McKey v The Queen [2012] NSWCCA 1 [26]; Shepherd v The Queen [2011] NSWCCA 245 [69]–[76]. See also Farquharson v The Queen [2012] VSCA 296 [111]–[112]. 19 See R v Quinlan [2006] NSWCCA 284 [22]–[24]; Ristevski v The Queen [2007] NSWCCA 87 [34]; and Zhu v The Queen [2013] VSCA 102 [28]–[43]. 20 R v Cook [2004] NSWCCA 52 [47]–[49]. 21 R v Adam (1999) 106 A Crim R 510, 517. It should be noted, however, that evidence of discouraging potential witnesses from giving evidence in this case and of a lie told by the defendant were held to be admissible and capable of manifesting a consciousness of guilt (at 517–518, 522–523). 22 Edwards v The Queen (1993) 178 CLR 193, 210–211; Brooks v The Queen [2012] VSCA 197 [47], [69]–[70]; Smith v The Queen [2012] VSCA 187 [40]–[44]; Ahmed v The Queen [2012] NSWCCA 260 [43]. 23 McKey v The Queen [2012] NSWCCA 1 [35]. 24 R v Lane [2011] NSWCCA 157 [24], [30]. 25 R v Dwayne Anthony Carr (No 2) [2011] NSWSC 724 [32]–[37]. 26 Credibility of a defendant in a criminal case is considered in detail in Chapter 10. 27 See, for example, Dhanhoa v The Queen (2003) 199 ALR 547; and R v Ray [2003] NSWCCA 227. 28 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 [153]–[155]. 29 For what actually transpired in this scenario see the statement of Constable Judy Dredd and the transcript of the record of interview between Constable Dredd and James Swifty at the end of this chapter in the ‘Assessment preparation’ section under the subheading ‘Criminal trial thread scenario’. 30 Note that s 81(2) provides a discrete exception to s 59, allowing the statement against interest to be considered in the context of any related previous representations which qualify or modify it—see R v Cassell (1998) 45 NSWLR 325, 338. It is a fairness consideration that admissions are not to be taken out of context, by allowing previous representations ‘intimately associated’ with the admission to clarify or explain it but not extending to ‘self-serving after-thought, re-construction or alteration’—Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 [48]. 31 That is, ‘a person who saw, heard or otherwise perceived the admission being made’. 32 In this context, a ‘third party’ is a party to the proceedings ‘other than the party who: (a) made the admission; or (b) adduced the evidence’ (s 83(4)). An example is where there are two defendants in a proceeding so that if one defendant makes an admission

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33

34 35 36 37 38

39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55

56 57

58 59 60

it cannot be used as evidence against the other defendant unless that defendant consents to such use. See, for example, DJZ Constructions Pty Ltd v Paul Pritchard [2010] NSWSC 1024 [24]; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369; Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1083 [46]–[48]. See ACCC v World Netsafe (No 2) [2002] 119 FCR 307 [15]. R v Macraild (unreported, NSWCCA, 18 December 1997); Landini v NSW [2007] NSWSC 259 [25]. R (Cth) v Baladjam (No 38) [2008] NSWSC 1458 [34], [45]–[55]. R v Lee (1950) 82 CLR 133. Tofilau v The Queen (2007) 231 CLR 396, 403–406, 408–410 (Gleeson CJ), 412–413, 421, 432–433 (Gummow and Hayne JJ), 465, 468–470, 490, 495–498 (Callinan, Heydon and Crennan JJ). Jeremy Gans and Andrew Palmer, Australian Principles of Evidence (Cavendish Publishing Ltd, 2nd edn, 2004) 482–483. See R v Truong (1996) 86 A Crim R 188, 192; and R v JF [2009] ACTSC 104 [32]. R v Heffernan (unreported, NSWCCA, Smart J, 16 June 1998). Habib v Nationwide News Pty Ltd [2010] NSWCA 34 [244]–[245]. Ibid, [237]; R v Ul-Haque [2007] NSWSC 1251 [119]. R v Ye Zhang [2000] NSWSC 1099 [44]. See R v GH (2000) 105 FCR 419 [59]. FMJ v The Queen [2011] VSCA 308 [39]. See R v Helmhout [2000] NSWSC 185 [38]; R v Ye Zhang [2000] NSWSC 1099 [44], [51], [62]–[64]; R v McNiven [2011] VSC 397 [70]. The rationale for these recording provisions is discussed in Kelly v The Queen (2004) 218 CLR 216, 225–230 (Gleeson CJ, Hayne and Heydon JJ). This provision also applies in the ACT—see Crimes Act 1900 (ACT) s 187(3); and R v JF [2009] ACTSC 104. See Tasmania v B [2012] TASSC 38; and Tasmania v Cadman [2012] TASSC 2 [17]–[32]. See Doklu v R [2010] NSWCCA 309 [29]–[31]. See J L Glissan QC, Advocacy in Practice (LexisNexis Butterworths, 4th edn, 2005) 119 (and generally 117–119). Ibid, 119–125. In this regard, see Van der Meer v The Queen (1988) 82 ALR 10. See Carr v The Queen (1988) 165 CLR 314, 329–330 (Brennan J), 338–339 (Deane J), 341–344 (Gaudron J); Duke v The Queen (1989) 180 CLR 508, 513; and McKinney v The Queen (1991) 171 CLR 468. See above n 48 and the section ‘Statutory recording requirements for admissions in criminal cases’. At 188–189 (Toohey, Gaudron and Gummow JJ). Also, see Foster v The Queen (1993) 67 ALJR 550, for a useful case example of the operation of the ‘unfairness’ discretion at common law. Also, see for example, JB v R [2012] NSWCCA 12 [44]; R v Sonnet (Ruling No 2) [2011] VSC 551 [38]–[42]; Tasmania v Hudson and Whiting [2012] TASSC 31 [3]–[10]. Also, see Doklu v The Queen [2010] NSWCCA 309 [41]. Riley v The Queen [2011] NSWCCA 238 [151]–[158].

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61 R v Weaven (Ruling No 1) [2011] VSC 442 [36]–[52]. 62 See the list of possible factors that can be applied in Pavitt v The Queen (2007) 169 A Crim 452, [70]–[71]. See application in R v Borg (Ruling No 3) [2012] VSC 33 [15]–[17]; and WK v The Queen [2011] VSCA 135 [49]–[53]. 63 CCR v The Queen [2012] VSCA 163 [42]–[50]. 64 These cases were considered in the analysis of s 138 in Chapter 3. 65 The public policy discretion principles from The Queen v Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54 were held to apply to confessional evidence in Cleland v The Queen (1982) 151 CLR 1. 66 (1998) 192 CLR 159, 194 (Toohey, Gaudron and Gummow JJ). 67 R v Fernando [1999] NSWCCA 66 [30]. 68 R v Suckling [1999] NSWCCA 36 [40]. 69 Also, see R v MM [2004] NSWCCA 364 [54]; and R v Camilleri (2007) 169 A Crim R 197. 70 The Queen v JM (No 2) [2011] ACTSC 60 [20]–[21].

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OPINIONS, JUDGMENTS AND CONVICTIONS COVERED IN THIS CHAPTER In this chapter, you will learn about: • fact and opinion distinction; • the opinion rule; • exception 1—multiple relevance; • exception 2—lay opinion; • exception 3—Aboriginal and Torres Strait Islander traditional laws and customs; • exception 4—expert opinion; • ultimate issue and common knowledge; • criminal convictions; and • civil judgments.

CASES TO REMEMBER Cadbury Schweppes v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Partington v R [2009] NSWCCA 232 R v Drollett [2005] NSWCCA 356 R v Tang [2006] NSWCCA 167

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 76, 77, 78, 78A, 79, 80, 91, 92, 93

INTRODUCTION The ‘opinion rule’ is one of the more puzzling of the exclusionary rules, largely because of the definitional vagaries of the concepts of ‘fact’ and ‘opinion’. Essentially this rule excludes evidence of the opinions of a witness.1 It is based on the requirement that witnesses give evidence about events they have observed or otherwise experienced and not about opinions they may have formed as a result of such observations or experiences. An opinion, although not defined in the EA, is usually taken to mean the inferences drawn by a witness from facts they have observed or, if an expert witness, assumed to exist.2

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Figure 9.1 provides an overview of the scheme of Part 3.3 EA containing the opinion rule and exceptions to the rule. Amplification of the rule and its exceptions, including relevant case authorities, will be provided in the subsequent commentary. FIGURE 9.1 Overview of the scheme of Part 3.3 EA—opinion Is it evidence of an opinion? ɒIf ‘yes’, excluded by s 76 unless it falls within an exception to the rule ɒIf ‘no’, admissibility is not subject to Part 3.3. EA Does the opinion evidence fall within an exception to the rule? ɒIs the evidence relevant for another purpose? s 77 ɒIs it a ‘lay’ opinion? s 78 ɒIs it evidence by a member of an Aboriginal or Torres Strait Islander group about their traditional laws and customs? s 78A ɒIs it an ‘expert’ opinion? s 79

FACT AND OPINION DISTINCTION Both at common law and through the opinion rule in s 76, it is presupposed that there is a distinction between evidence of fact and evidence of an opinion drawn from a fact or facts. In practice, however, because all evidence is really of inferences drawn from observable data it may be difficult to differentiate between statements of fact and statements of opinion in particular cases. Further, in some cases it would be very difficult, if not impossible, to resolve facts in issue unless a witness or witnesses were allowed to give their opinion. Ultimately the question is: ‘When is the outcome of fact-finding by others admissible as evidence?’ The fact/opinion distinction has been legally viewed as partly form (that is, the manner in which a witness gives their evidence) and partly degree (that is, in relation to the number of inferences contained in the complete oral statement of a witness). Making the distinction can be difficult.3 Generally evidence is more factual the more tied it is to the direct observation or perception of a witness,4 and it has been held that a statement that questions the occurrence of an event is not an opinion.5 In R v Leung and Wong (1999) 47 NSWLR 405, Simpson J usefully stated: The line between opinion evidence and evidence of fact is not always clearly defined. 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. The ordinary observer would regard evidence given by a man identifying his wife of thirty years as evidence of fact; but a witness who identifies a suspect [being a stranger] in a police line-up would be perceived as giving evidence more closely allied to opinion evidence.

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In R v Smith (1999) 47 NSWLR 419, Sheller JA emphasised (at 422) that the fact/ opinion distinction is ultimately a matter of degree: If a distinction must be made it can only be one of degree, calling for a decision, as to whether, on a continuum which is unmarked and for which there is no exact measure, particular testimony has past the point where it has become evidence of an opinion.

Overall, it ‘is not a difference between opposites or contrasting absolutes, but a mere difference in degree with no recognisable line to mark the boundary’.6

A CASE TO REMEMBER R v Drollett [2005] NSWCCA 356 In R v Drollett [2005] NSWCCA 356, there was an identification of Drollett as one of the prisoners involved in an attack on the victim of a serious assault in ‘6 yard’ at Goulburn Correctional Centre. Evidence revealed that the Corrective Services Officer (Stephens) was not a direct eyewitness to the entire melee and that he had in fact identified Drollett from the security camera images. He did not (as the trial judge believed) give evidence of what he had independently observed but rather from the film footage. Apart from a minimal piece at the end, Stephens had not personally observed the event in which the victim was severely injured. As Simpson J stated (at [56]–[57]), his evidence was an opinion as the primary evidence was the ‘film footage’ and Stephens’s evidence ‘was not more than an educated interpretation of what was depicted in the footage’.

Ultimately, to be admissible, opinion evidence must be relevant, and must overcome the exclusionary hearsay7 and opinion rules.

THE OPINION RULE 76 The opinion rule (1)

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

This section does not remedy the difficulty in the fact/opinion distinction nor does it confine an opinion to be about matters of fact—its role is to direct attention to why the party tendering the evidence says it is relevant and to what finding that party will ask the fact-finder to make.8 The opinion rule does not only apply to evidence given by a witness in court, but it also includes hearsay representations of opinions made out of court.9 Two restrictions on its operation are implicit in the statutory formulation of this exclusionary rule. First, the only opinions that are inadmissible are opinions about the ‘existence of a fact’. The opinion rule does not apply to opinions that do not address the existence of actual facts—for example, hypothetical questions, such as ‘What

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would you have done if … ?’10 Further, the rule doesn’t operate to exclude evidence that a person held an opinion about a fact where: • that is a fact in issue in the proceedings;11 or • it is relevant to the assessment of the credibility of a witness. Second, like other exclusionary rules of evidence, the practical operation of the opinion rule depends on the use that the fact-finder might make of the particular evidence. It prevents the fact-finder from using evidence of an opinion about a fact to infer that the opinion is accurate, but allows the fact-finder to infer that the opinion was actually held by a person. For example, if a defendant in a murder trial raises self-defence on the basis that they perceived the victim was violent, that opinion can be used to support an inference that the defendant believed the killing was necessary in self-defence, but cannot be used to infer the victim was in fact violent. In these circumstances the opinion evidence is admissible but it has dual relevance. At common law, a direction restricting the jury to the non-opinion use of the evidence, namely that the defendant believed the victim was violent, would be required. Under the Act, however, s 77 would also permit the defendant’s evidence to be used to prove the existence of the fact asserted by the opinion, namely that the victim was actually violent. Admissibility for such multiple uses is subject to the judicial discretion to limit the use of evidence in s 136.12

EXCEPTION 1—MULTIPLE RELEVANCE The first exception to the opinion rule follows on from the last point made about the restricted scope of its operation: 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.

This exception relates to where an opinion has multiple relevance and if the evidence has been admitted for that other purpose, namely a non-opinion use, it may also be used to prove the fact in respect of which the opinion is expressed.13 The judicial discretions in ss 135 and 136 can be applied to limit to the non-opinion use or to entirely exclude the evidence.14

EXCEPTION 2—LAY OPINION The main exceptions to the opinion rule are to allow the fact-finder to benefit from two categories of information held by certain individuals: expertise and perception.

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The perceptions exception is now expressed as the lay opinion exception in s 78 EA: 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.

Essentially, the opinion rule confirms that witnesses must give evidence directly as to what they have perceived through their senses; they cannot usually draw inferences or make conclusions from their perceptions. It is apparent, though, that the perceptions and memory of human beings cannot always be described without making inferences or stating conclusions. Accordingly, ‘a strict application of the opinion rule would deny to courts a considerable portion of a vital category of evidence: the complex perceptions of eyewitnesses’.15 In dealing with this reality, the courts have allowed witnesses to state their opinions about a wide variety of perceived matters and it has been observed that ‘the list of circumstances where non-expert opinion is admissible is lengthy and not closed’.16 The lengthy list is featured in the following statement of examples from the case of Hardy v Merrill 56 NH 227 (1875), approved almost a century later by Lord MacDermott LCJ in Sherrard v Jacob [1965] NI 151, 161: [Q]uestions of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness and health; questions also concerning various mental and moral aspects of humanity, such as disposition, and temper, anger, fear, excitement, intoxication, veracity, general character, and particular phases of character, and other conditions and things, both moral and physical, too numerous to mention.

The s 78 exception now allows a witness to give evidence of a factual inference if they can’t describe their perceptions or if their evidence would be confusing or incomprehensible without making such inferences. An example is the perception of moving parts of the body, arms and legs, as ‘running’ and there being no other way to accurately and intelligibly describe such human movement even though it is a conclusion drawn from the observation of the actions of the body.17 Turning to the specific requirements of s 78, ‘it must be possible to extract from the form of what the person stating the opinion said … 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 the matter or event’.18 In addition, the

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requirement in s 78(b) is to make up for incapacity to remember the perception or where the primary facts on which it is based are too complicated to be separately narrated by the witness.19 Importantly the opinion must be necessary to ensure the witness’s account is understood by the fact-finder, as illustrated in the following case.

A CASE TO REMEMBER Partington v R [2009] NSWCCA 232 In Partington v R [2009], the appellant was charged with murder but convicted of manslaughter on the basis that he caused the death of the deceased by hitting his head against a door and breaking his neck. The teenage prosecution witness was in her grandmother’s downstairs unit of an apartment building when she heard banging noises outside her unit. She heard the voice of the appellant (which she was familiar with as he was resident of an upstairs unit in the same building). She went to the front wooden door of her unit where she heard bangs on the door. The door shook and she heard male voices yelling and swearing. After each bang against the door she heard the sound of a man moaning. She opened the door and found the deceased slumped at the bottom of the door and bleeding from the mouth. She then observed from her balcony the appellant stumbling in the street. In her evidence at trial, the witness said there was a man being pushed against the door and moaning. In cross-examination it was adduced that she was actually on the other side of the door, didn’t see any of this happening and just assumed that somebody was being pushed up against the door. The trial judge rejected an application to discharge the jury; however, on appeal it was conceded that when the witness said ‘somebody’s head was being pushed up against the door’ she was expressing an opinion and the Court of Criminal Appeal (CCA) held that she could not give evidence of that opinion because it was not necessary to obtain an adequate account or understanding of her perception of the events which she saw and heard (referring to s 78(b) EA). McClellan CJ at CL summed it up (at [47]): ‘[T]he witness both saw the door and heard noises outside it. That is the event, or in fact the sequence of continuous events, which she both saw and heard. There was no difficulty in understanding her account of that event. However, she did not see, although obviously she heard, the sounds of the event which was happening on the other side of the door. Although she may have had an opinion, either speculative or an informed guess, as to what was happening outside the door she did not relevantly perceive that event. Her perception was confined to what she could see and hear on the inside. The door deprived her of any capacity to perceive what was happening on the outside … She was able to give an account of her perception of the event—what she saw and heard—without proffering her opinion as to what she believed was taking place on the other side of the door.’ The appeal was allowed, conviction quashed and a new trial ordered.

In all cases, s 78 requires that there should be a rational basis for the holding of the opinion. This is not an express requirement, but has been judicially interpreted as implicit in the provision through the fundamental precondition of relevance in s 56.20 The case of R v Panetta (1997) 26 MVR 322 shows it is clear that an element of experience must underpin the formation of the opinion, and the probative value may

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be affected by matters such as a witness’s opportunity for perception of the event that becomes the subject of the opinion. Overall, the witness must demonstrate experience so as to be better equipped than the fact-finder to form the opinion and in all the circumstances of the Panetta case there was no rational basis for the witness’s opinion as to the speed of the vehicle, so ultimately the evidence was not relevant to a fact in issue. Even if there is a rational basis for the opinion there may be grounds to exclude it under ss 135 or 137. In Guide Dog Owners’ & Friends Association Inc v Guide Dog Association of NSW & ACT (1998) 154 ALR 527, an opinion of a witness that the terms ‘seeing eye dog’ and ‘guide dog’ were used interchangeably, and not used to distinguish between any particular organisation or its method of training guide dogs on the basis of his travels within Australia, was excluded by exercise of the judicial discretion under s 135. The basis for exclusion was that the probative value of the evidence, being slight with no attempt made by the witness to recount the nature and context of the conversations he had in this regard, was substantially outweighed by the danger that it might be unfairly prejudicial to the other party, considering it went to ‘the heart of the issues to be decided in this case’. It was emphasised that the witness should be able to provide sufficient examples of the conversations to give content to his opinion and to afford a full and fair opportunity to test that opinion in cross-examination. This was not a precondition to the admissibility of the evidence as Sackville J held that s 78 permits opinion evidence to be admitted without evidence of the primary facts on which it is based. However, clearly the absence of such evidence may affect the weight that can be attached to the opinion and so attract the exercise of discretion to exclude it under s 135 or 137 as was ultimately the decision in this case.

EXCEPTION 3—ABORIGINAL AND TORRES STRAIT ISLANDER TRADITIONAL LAWS AND CUSTOMS 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.

Importantly, ‘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’ (EA Dictionary Part 1), so that this exception allows a member of such a group to give evidence of their opinions about these traditions without having to establish they have specialised knowledge based on training, study or experience within the meaning of s 79

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considered below. If the witness is not a member of the relevant group, they must satisfy the s 79 exception to give expert opinion evidence. This specific exception was added because there are several contexts where it is necessary to adduce such evidence, including native title claims, heritage protection, criminal law defences, sentencing, coronial matters, succession, and family and child law matters, which can only be provided by members of an Aboriginal or Torres Strait Islander group who have a close and continuing connection with the group; they should not be required to prove ‘expertise’ under the s 79 exception.21

EXCEPTION 4—EXPERT OPINION The second main exception to the rule in s 76 is to provide for witnesses who hold expertise in relation to certain disciplines or fields of knowledge to give evidence in the form of an opinion. The benefit of such evidence is that it assists the generalist fact-finders in the court to become informed about matters relevant to their task that they would not otherwise know. 79 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.22

An expert can play an integral part in trial proceedings, and it is necessary to carefully consider the various requirements of s 79 to ensure that the evidence it is proposed to be adduced from the expert is admissible and will carry weight in the fact-finding task. Figure 9.2 provides a useful diagram of the synergy between the requirements for admissibility of expert opinion evidence23 and these are amplified with commentary and case examples in the sections following the diagram.

SPECIALISED KNOWLEDGE BASED ON TRAINING, STUDY OR EXPERIENCE The possession of ‘specialised knowledge’ is a key element—the expertise is acquired not innate. In Ocean Marine Mutual Insurance Assoc (Europe) OV v Jetopay Pty Ltd [2000] 120 FCR 146, the Federal Court held that the expertise of a witness cannot be inferred from evidence of their opinions; rather the witness’s knowledge and how it was obtained must be explicitly stated by the witness. This involves what is known as ‘qualifying the witness’ through the opening questions of examination in chief directed to the education, practice, publications and specific experience of the witness or by simply tendering the expert’s curriculum vitae. It is important that the expert demonstrates they have specialised knowledge in the field in which they want to give evidence of their opinion. In Clark v Ryan (1960) 103 CLR 486, a witness stated his opinion about the behaviour of semi-trailers on tight corners, based on his experience as an insurance loss assessor investigating

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FIGURE 9.2 The requirements for admissibility of expert opinion evidence

Witnesss has specialised knowledge based on training, study or experience

In a recognised field of specialised knowledge (expertise)

The opinion by the witness is wholly or substantially based on the witness’s specialised knowledge

STUDY TIP Advocacy and the criminal trial thread scenario To ensure effective examination of an expert witness you must familiarise yourself with the field of knowledge and ask qualifying questions that directly relate to the matters in issue in the proceedings, for example: • •

• •

Are you a practising professional in the field? Have you published on the particular issue in peer-reviewed journals or other sources? Have you given evidence in other similar cases? If so, was your opinion evidence admitted by the court?24

accidents involving such vehicles for 50 years. A majority of the High Court held that his evidence was inadmissible, because the witness had neither driven semi-trailers himself nor studied the physics behind their behaviour. It was relevantly observed by the court that a person who was experienced in their actual use might give evidence ‘not of opinion, but of actual fact’ about how semi-trailers of a particular kind behave

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when making turns25 whereas a person with specialised knowledge of the physics behind the behaviour of semi-trailers when making turns might give evidence of their opinion based on this knowledge. Although this case was decided prior to the EA, the principle of the primacy of specialised knowledge is still applicable under the Act.26 The requirement that specialised knowledge be ‘based on the person’s training, study or experience’ is a contemporary variant of ‘expertise’ that allows for recognition of knowledge based on more informal sources. In Idoport Pty Ltd v National Australia Bank [2001] NSWSC 128, Einstein J warned against ‘too narrow an approach to the route or categorisation of specialised knowledge’, noting that both conceptual understanding and technical experience may yield useful bases for the formation of relevant opinions. Ultimately, the relevant question is whether the witness has the capacity to form opinions based on the specialised knowledge—that is, they must be able to actively engage with their acquired knowledge to form an opinion. Accordingly, passive forms of learning, such as simply having read articles or books written about a particular field of knowledge, will not usually be sufficient to establish the necessary specialised knowledge. It is possible for a witness to qualify as an ad hoc expert where there is specialised knowledge in relation to a particular situation or based on a specific point ‘that would not ordinarily call for or warrant or be susceptible to specialised training, study or experience’.27 An example is in R v Leung and Wong (1999) 47 NSWLR 405, 425 where a foreign language translator was able to identify the voices on recordings as matching particular persons speaking in that language after having repeatedly listened to the recordings.28

FIELD OF SPECIALISED KNOWLEDGE The requirement for a field of specialised knowledge is derived from the common law precondition of a recognised ‘field of expertise’, involving a determination of ‘whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court’29 (emphasis added). The scope of human knowledge is ever expanding so the ‘fields of expertise’ accepted by the courts will increase and change. New and developing areas of knowledge can be recognised as ‘specialised’, but historically there has been difficulty in formulating the criteria for such recognition. The so-called Frye test derived from the case of Frye v United States 293 F 1013 (1923) Somewhere in this twilight zone the evidential force of the principle must be recognised, and while courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is

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made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (Emphasis added)

has been adopted by some Australian courts exemplified in the cases of R v Lewis (1987) 29 A Crim R 267 (bite marks), R v Runjanjic (1991) 56 SASR 114 (battered woman syndrome) and R v C (1993) 60 SASR 467 (behaviour of sexually abused children). The later United States case of Daubert v Merrell Dow Pharmaceuticals Inc 113 S Ct 2786 (1993) established more specific criteria beyond the ‘general acceptance’ of the proposed field. The criteria focus on whether the new theory or technique has been tested and reliable data are available as to a known or potential error rate; it has been subject to peer review by others in the field; standards controlling its application exist; and it has gained general scientific acceptance. In the case of Velevski v The Queen (2002) 187 ALR 233, the question before the High Court about the existence of a field of specialised knowledge was whether expert pathologists could give opinion evidence as to whether the wounds of the alleged murder victim were actually self-inflicted. Ultimately it was held that ‘whether wounds may have been suicidally self-inflicted … [was capable] of being the subject of expert evidence’ as ‘suicidal injuries’ was recognised as a field of expertise in medical textbooks, and the experiential knowledge of forensic pathologists about the pathology of blood, tissue and bone, and additionally about the way in which vulnerable parts of the body might be reached with weapons, qualified them to express opinions about the origin of bodily injuries.

A CASE TO REMEMBER R v Tang [2006] NSWCCA 167 In contrast, a specific field of expertise based on ‘body mapping’ for identification of a robbery offender was not accepted in the case of R v Tang [2006] NSWCCA 167. Dr Meiya Sutisno, a forensic anatomist, sought to give evidence identifying the appellant as one of the robbers of a convenience store by the comparison of individual facial and body features of the person in a surveillance image with forensic photographs of the appellant. The evidence was ultimately held to have been wrongly admitted because there was no field of expertise based on ‘body mapping’, although ‘anatomy’ and ‘facial identification’ were forms of specialised knowledge. The court (at [138]) approved a definition of ‘knowledge’ from the seminal United States case of Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993): [T]he word ‘knowledge’ connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.

In comparing the appellant’s posture to the figure on CCTV footage through ‘body mapping’ techniques, Dr Sutisno’s evidence was characterised as barely rising ‘above

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a subjective belief and did not manifest anything of a specialised character’ and as ‘she did not identify her “protocol” or explain its basis … [her opinions]) … did not go beyond a bare ipse dixit’ (at [154]). Ultimately, her purported expert opinion as to identity was not admissible.30

OPINION BASED WHOLLY OR SUBSTANTIALLY ON WITNESS’S SPECIALISED KNOWLEDGE The expert’s opinion must be wholly or substantially based on their specialised knowledge. Therefore, matters that fall outside their field of expertise cannot form part of their evidence. For example, in HG v The Queen (1999) 197 CLR 414, a psychologist, who had interviewed a sexual assault complainant and her mother, was not permitted to state his opinion about when the sexual assault had occurred and that it was probably committed by the child’s natural father and not the accused. The majority of the High Court held that this opinion was not based on the psychologist’s specialised knowledge, but rather on speculation, inference and personal secondhand views of the reliability of the particular child. It involved ‘a process of reasoning which went well beyond the field of expertise of a psychologist’.31 Where the opinion expressed is within the expert’s field of expertise, it is important that there is transparency in the reasoning process which culminated in the formation of that opinion so that the fact-finder can clearly see how the opinion is based on the expert’s specialised knowledge. A useful example is the case of Keller v The Queen [2006] NSWCCA 204 where the evidence of a police officer that the parties in intercepted telephone conversations were talking about drugs was held to have been wrongly admitted at trial because his reasoning process was not sufficiently exposed to allow the jury to evaluate how he used his expertise, namely knowledge and experience of drug investigation techniques and drug-related terminology, to reach his opinion. In fact, the Court of Criminal Appeal (CCA) found that the officer relied heavily on the arrest of a co-accused with a large quantity of cocaine the day after the conversation so that he reasoned backwards rather than relying on his expertise to decipher the words used in the telephone intercepts ([34]–[36]). In contrast, in the later case of Pham & Tran v The Queen [2008] NSWCCA 194, which again involved a police officer decoding language used in intercepted telephone conversations, the reasoning of the expert witness was disclosed with his evidence ‘partly based on his familiarity with terms from his experience and a process of inductive and deductive logic, together with some common sense’ (at [30]), clearly demonstrating that it was substantially based on his specialised knowledge.32 At this point we will turn to the seminal authority on the admissibility of expert evidence under s 79, Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Heydon JA’s judgment provides a general authoritative guide or framework in this regard. This guide was endorsed by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 and it was stated that the requirements set down in Makita

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were able to be complied with in ‘many, perhaps most cases very quickly and easily’ (at 604).

A CASE TO REMEMBER Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, the plaintiff (Sprowles) at her place of employment slipped and fell down a set of stairs leading from the rooftop carpark to the office, and she brought an action in negligence against her employer (Makita). At trial, she relied heavily on the evidence of an expert physicist specialising in the investigation of slipping accidents. This expert found that the staircase met the Australian standard for surface friction; however, he concluded that the stairs were only adequately slip resistant for footwear of inherently high-grip materials and not for the shoes that the plaintiff was wearing and would be reasonably expected to wear in the circumstances. Despite there being no evidence of previous incidents, the trial judge found that the plaintiff fell because the stairs were slippery and the defendant had failed in its duty of care to provide a safe place of work, with damages of over $1.1 million awarded to the plaintiff. The New South Wales Court of Appeal allowed the appeal by Makita, and Heydon JA provided a detailed extrapolation of the factors influencing the admissibility of, and weight accorded to, expert evidence both at common law and under the EA in finding that the expert evidence of the physicist should have been rejected in this case. This was because the physicist failed to explain the factual basis for his opinion and the significance of the results of his tests, particularly why Makita’s compliance with the Australian standard for surface friction was not sufficient to establish that the stairs were safe. His Honour emphasised that, in exposing their reasoning process, experts must clearly state the facts, whether observed or assumed, on which their opinion is based and how their field of specialised knowledge applies to these facts to produce the opinion propounded. A primary justification for requiring the exposure of an expert’s reasoning process was that leaving a cross-examiner completely in the dark about the reasons for an opinion would not result in a fair trial. Overall, Heydon JA’s authoritative statement about the admissibility of expert opinion evidence at 743–4 can be summarised as follows: • It must be agreed or demonstrated that there is a field of ‘specialised knowledge’. •

There 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.

•

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.

•

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

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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.

There has been judicial criticism of the strictness of these admissibility requirements as constituting ‘a counsel of perfection’, that the matters referred to by Heydon JA ‘involve questions of degree, requiring the exercise of judgment’, and that in trials by a judge alone they should commonly be regarded as going to weight rather than admissibility.33 An important question relates to the requirement that the factual basis must be proved before the opinion is admissible, particularly where it is sought to adduce expert evidence at the stage of a trial when the basis of the opinion is uncertain because other evidence of the factual basis is yet to be adduced.34 That requirement from Makita has been said to incorporate the common law ‘basis rule’, which was not intended to be part of the requirements in s 79 and has resulted in conflicting judicial approaches.35 The High Court has generally endorsed heightened appellate scrutiny of a trial judge’s assessment of expert testimony, subject to the standard principles governing deference to trial judges, but have not categorically stated that s 79 includes a basis rule.36 The latest NSWCCA decision dealing with this issue, Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114, demonstrates that judicial opinions still differ, but the majority view expressed by Schmidt J after careful examination of the relevant authorities is that to establish the two criteria in s 79 the evidence ‘must also be presented in a form which reveals the facts and reasoning on which the opinion rests … The failure to prove facts which provide a significant basis for the opinion might … be such as to render the opinion no longer relevant to a fact in issue, no foundation for the opinion having been established’([176]–[177]). Overall, it seems that it will depend on the particular circumstances of the case, whether it is a civil or criminal proceeding and who constitutes the tribunal of fact, but there must be evidence ‘establishing crucial facts on which… [an expert’s] conclusions … rested’37 before the opinion evidence is admissible by demonstrating it is wholly or substantially based on the expert’s specialised knowledge. Finally, the ethical obligations of witnesses giving evidence under s 79 are important to highlight; as Austin J observed in Collins Thomson v Clayton [2002] NSWSC 366 [21]–[22],38 they are important matters going to the quality of the evidence adduced from the expert in assessing the weight to attach to the opinion

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or whether discretionary powers under ss 135 or 136 should be exercised to limit or exclude the evidence: (1) expert evidence should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. (2) an expert witness should (i) provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise and should never assume the role of an advocate; (ii) state the facts or assumptions upon which his opinion is based; and (iii) make it clear when a particular question falls outside his expertise. (3) if an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is not more than a provisional one. (4) If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert report or for any other reason, such change of view should be communicated to the other side without delay and when appropriate to the court.39 Often, expert witnesses will produce a written report containing their opinion and there is in s 177 EA a procedure which provides that an expert opinion may be adduced by tendering a certificate, which is admissible if served on all other parties to the litigation under s 177(2) and no party requires the expert to be called to give evidence. This procedure is available in both civil and criminal proceedings.

STUDY TIP Advocacy and the criminal trial thread scenario If expert witnesses are called by both parties, then usually the best tactic in crossexamination is, rather than seeking to discredit or destroy the opposing expert, to cast doubt on their evidence so that the fact-finder will ultimately prefer your expert’s evidence. Areas for cross-examination to consider, particularly where the expert’s opinion is founded on certain basal facts which if removed or changed would show that their opinion cannot be sustained, are: • • • •

•

Has the expert stated all the facts upon which they rely in their report or evidence? If there were different facts, would the expert’s opinion change? Is the opinion based on personal observation or does it have a hypothetical basis? Review authoritative works and the expert’s own writing to determine if there are contradictions or uncertainties that provide scope for probing or undermining the expert’s opinion in this case. Is there any bias? Does the expert give evidence only for particular parties in litigation? How much is the expert being paid?40

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EXPERT WITNESSES AND THE RULE AGAINST HEARSAY As long as evidence of the factual substratum upon which an expert opinion is based has been admitted to the court through the witness who communicated those facts to the expert, there is no problem with the hearsay rule. Under the EA even if the factual substratum is not in evidence before the court through its original source and is therefore hearsay, an expert’s opinion based on such a factual substratum may still be admissible, as the hearsay rule in s 59 is displaced by s 60 in such circumstances.41 The evidence of what was communicated to the expert witness is admitted for the non-hearsay purpose of indicating the factual substratum of the opinion so by s 60 it also becomes evidence of the existence of the facts asserted in those communications. As the declarants of the statements comprising the factual substratum of the opinion are not available for cross-examination, it may affect the probative value of such evidence to the extent that the trial judge may give a limiting direction under s 136 EA that the evidence of the factual substratum as communicated to the expert by another person cannot be used as evidence that those facts are true.42

ULTIMATE ISSUE AND COMMON KNOWLEDGE 80 Ultimate issue and common knowledge rules abolished 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.

Although s 80(a) purports to abolish the ultimate issue rule, the courts have interpreted the meaning of ‘ultimate issue’ in this section as not extending to the ultimate legal issue for determination by the court.43 Accordingly, s 80(a) does not allow an expert to apply a legal standard to the facts to produce an opinion so it is to be read and understood as the ‘ultimate fact in issue rule’. In Faucett v St George Bank Ltd [2003] NSWCA 43, a witness gave evidence that the defendant bank ‘was, in my opinion, failing in their duty to provide a safe system of work when they permitted a publicly observable cash delivery system to be instituted, which had large cash deposits from armoured cars deposited on the teller’s counter.’ The Court of Appeal held that the evidence was inadmissible as this expert, a licensed security consultant, could not state an opinion which took a legal standard (safe system of work) and applied it to the facts of the particular case, those which ‘are of the essence of the judicial function and duty’ (at [48]). In later judicial consideration of s 80(a) it was held that an expert may give evidence in terms of the ultimate issue (for example, causation) when crossexamination may determine whether lawyers coached the expert witness.44 Further, there are some cases where the legal standard may be equivalent to the standard applied by experts. In a criminal case where the defendant raises mental

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illness, a forensic psychiatrist can give evidence as to whether the defendant knew the nature of their act or whether it was wrong.45 Now, considering matters of ‘common knowledge’, opinion evidence is traditionally not admissible if it is about ‘matters judged to be within the common understanding or experience of the ordinary person’.46 Such opinions are regarded as unnecessary or they may confuse the fact-finder by using the language of expertise to obscure what should be clearly understood. So this evidence essentially lacks the ‘specialised’ quality. Although s 80(b) EA changes the common law position in providing that evidence is not inadmissible because it is only about a matter of common knowledge, the scheme of the Act doesn’t require a different result in the event that such evidence is unnecessary or confusing because the possibility still exists for exclusion based on relevance (s 55) or the exercise of judicial discretion under s 135 or 137. A jury may be able to make their decision about facts in issue without expert assistance so the risk that they would needlessly defer to the opinion of an expert or other witness may strongly support an argument for the exclusion of such evidence. This question of common or specialised knowledge has often arisen in relation to evidence of opinions by psychiatrists or psychologists; this is demonstrated in the case of Murphy v The Queen (1989) 167 CLR 94. The High Court’s approach in Murphy significantly diminishes the barrier posed by the common knowledge rule to the introduction of such evidence. There was a dispute in this case between the police and the defendant as to whether or not he had confessed to a gruesome murder. The defence sought to adduce evidence from a psychologist that it was unlikely the defendant would have confessed in the way the police alleged as his limited intellectual capacity meant he did not use the words that had been attributed to him. The High Court held by majority that the psychologist’s evidence was admissible on the question of the reliability of the alleged confession notwithstanding that the defendant’s intellectual capacity ‘did not take the case out of the lower range of what would be classified as normal’.47 It could assist the jury in determining ‘the standard of [the defendant’s] vocabulary and literacy and thus of his comprehension’.48

A CASE TO REMEMBER Cadbury Schweppes v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 In Cadbury Schweppes v Darrell Lea Chocolate Shops Pty Ltd (2007), the Full Court of the Federal Court held that the trial judge erred in concluding ‘that it is a condition of admissibility of opinion evidence that the opinion relates to an issue that is outside the knowledge or experience of ordinary persons’. This case involved an action for misleading and deceptive conduct and passing off in relation to the defendant’s use of a shade of purple in packaging its chocolate confectionery. In its case, the plaintiff sought to adduce evidence from an expert about the marketing of products and consumer behaviours,

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and this evidence was held to be inadmissible by the trial judge because, even though the expert had specialised knowledge in a recognised field, his opinion ‘went only to a matter that is within the knowledge and experience of the ordinary person’. On appeal this approach to ss 79 and 80(b) was held to be an error and ‘the fact that an opinion is expressed concerning the making of consumer decisions for purchase of everyday items of commerce does not disqualify the opinion from being admissible [s 80(b)] so long as s 79 is satisfied’ (at [57]).

Importantly s 80(b) operates in respect of any opinion evidence, whether expert or lay. It is clear from the above case that it is no longer correct to apply the traditional common law rule that an opinion is not admissible if it involves ‘an area not outside the experience of ordinary persons’, thus confirming the intended effect of this section.49

CRIMINAL CONVICTIONS Part 3.5 EA involves modification of the hearsay and opinion rules in relation to the factual findings and decisions by judicial officers, a category of opinionated hearsay. Evidence of a judgment or conviction by a court might be used to prove: 1 the fact of the judgment or conviction; and 2 the existence of the facts supporting the judgment or conviction. Clearly the first use is allowed and a common scenario is to adduce evidence of a criminal conviction to prove that a person has been convicted of a particular offence. This is usually done in the form of a certificate of conviction and s 178 EA provides a procedure for adducing evidence in this form. The second use raises more complex issues, particularly where the issue is whether a person did actually commit the offence of which they were convicted. So the question becomes: ‘Is evidence of a criminal conviction admissible to prove a person actually committed the offence in the way it was proved before the criminal court?’ In Hollington v F Hewthorn & Co Pty Ltd [1943] KB 587, a civil case arising from a motor vehicle collision, the plaintiff sought to adduce evidence of the defendant’s criminal conviction for careless driving arising from the collision. The United Kingdom Court of Appeal held that the plaintiff was not permitted to adduce evidence of the defendant’s conviction to prove facts upon which it was based. In his judgment, Goddard LJ observed at 593: ‘In truth, the conviction is only proof that another court considered the defendant was guilty of careless driving … The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages.’ The decision has been subjected to significant criticism and it does not apply in the contemporary Australian legal

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landscape. The starting point is s 91(1) EA, which makes a previous judgment or conviction inadmissible to prove the existence of a fact in issue in that proceeding. The statutory provision seemingly adopts the blanket exclusionary rule from Hollington v Hewthorn; however, it is subject to the exceptions set out in s 92 EA. The exception in s 92(2) overrules Hollington v Hewthorn by providing that in a civil proceeding ‘evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction … [as provided in (a)–(c)]’ can be treated as evidence of the existence of a fact that was in issue in that proceeding. It only applies, therefore, when the party against whom the evidence of conviction is being adduced is the person who was actually convicted of an offence. This scenario has arisen in relation to probate and succession matters where there has been a murder and the beneficiary of the estate is the convicted murderer. In Gonzales v Claridades (2003) 58 NSWLR 188, where it was posited that a son might be convicted of the murder of his parents and thus disqualified from succeeding under his father’s estate, Campbell J observed (at 206) that the effect of s 92(2) EA in such a case ‘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’ (emphasis added). If the son were convicted at trial, that conviction would become admissible in any civil proceedings to which he is a party and in which there is an issue about whether he has forfeited the benefit under his father’s estate, but it would be open to him to call evidence in an attempt to show he was wrongly convicted.50 The legal position is not the same in relation to evidence of an acquittal. In Helton v Allen (1940) 63 CLR 691, Helton relied on his acquittal of the murder of the deceased woman, who had bequeathed a large part of her estate to him, as an answer to the applicability of the rule excluding a homicide from any benefit under the will of a person who died at his hands. The High Court held that evidence of the acquittal would not be admissible ‘as an evidentiary fact’. Although not expressed in the judgment, an important reason for rejecting the argument was that the prosecution had to meet the higher ‘beyond reasonable doubt’ standard of proof in the criminal trial than did the relatives in the later civil action involving identical factual issues.51 Under such circumstances, to hold that the underlying factual determinations of the prior acquittal were binding on the relatives would have been grossly unfair. Accordingly, ss 91 and 92 EA continue the position that evidence of an acquittal is not admissible to prove the existence of a fact that was in issue in a criminal proceeding.52

CIVIL JUDGMENTS As a general rule at common law, a civil judgment is not admissible as evidence of the facts upon which it must have been based, although where the same parties

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are involved, it may give rise to the doctrine of res judicata or issue estoppel.53 It is effectively not part of the law of evidence and it is left expressly untouched by s 93(c) EA. An Anshun estoppel54 may occur when the initiating of proceedings would lead to ‘conflicting or contradictory judgments’ even if not concerned with the ‘same cause of action, as long as they appear to declare rights which are inconsistent in respect of the same transaction’—it is a ‘value judgment’ concerned with the ‘realities and proper conduct of modern litigation’.55 Anshun principles exist to ensure that parties bring their whole case in the initial proceedings, which is sometimes referred to as an ‘extended res judicata doctrine’.56 Although issue estoppel has been held not to apply in criminal proceedings, the abuse of process doctrine will apply in situations closely analogous to the contexts in which issue estoppel and Anshun estoppel may arise out of the decision in a civil matter. This is illustrated by the case of Rogers v The Queen (1994) 181 CLR 251, where there was an issue as to whether the prosecution could tender confessional material in a retrial which had been ruled inadmissible as involuntary in an earlier concluded trial. The majority of the High Court held that it would amount to an abuse of process to allow the tender of such material. Importantly, Mason CJ observed (at 256–7): Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.

In the later case of R v Young [1998] 1 VR 402, the Victorian Court of Appeal said that ‘abuse of process would now appear to be the concept underlying the present rules preventing re-litigation of issues’ in criminal cases.

Important references For more extensive coverage of the opinion rule and its exceptions, and evidence of judgments and convictions, see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapters 9 and 11. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 292–318, 357–360. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 7. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 7 and 9. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 337–401, 463–466.

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ASSESSMENT PREPARATION Active learning questions 1 Is there a bright-line test for distinguishing fact and opinion? How do you delineate between fact and opinion to determine admissibility under s 76 EA? 2 What is your understanding of the practical effect of s 77 EA? 3 Why is there an exception allowing lay opinion evidence to be admitted? Give some examples of this type of evidence. 4 What is your understanding of the label ‘expert evidence’? Why and in what circumstances does such evidence become admissible? 5 By what means, if any, can a party to civil litigation prove the existence of facts that support a prior criminal conviction of another party?

CRIMINAL TRIAL THREAD SCENARIO The fifth prosecution witness in the ‘armed robbery’ trial of James Swifty is an expert, Dr Reeba Science. The examination of this witness is to be conducted as a voir dire into the admissibility of her opinion evidence. The prosecution press the admission of the report of Dr Science as set out below in statement form, but the defence object to the report in its entirety. INSTRUCTIONS TO COUNSEL The examination in chief of Dr Reeba Science will take place as a voir dire into the admissibility of her opinion evidence. Therefore, no objection needs to be taken in relation to the evidence of opinion during examination in chief. Counsel is permitted to make objection to the form of questions bearing in mind s 37(1)(e) EA. Examination in chief should be designed to draw out the report and focus on the requirements of admissibility under s 79 EA. Counsel for the prosecution should imagine that the witness is indeed an expert (not a student) and ask questions that they would of an expert in order to draw out their expertise and explain their opinion and the basis for it. Cross-examination by defence counsel, on the other hand, should be aimed at demonstrating that the evidence does not meet the s 79 test of admissibility and counsel must comply with the rule in Browne v Dunn. Both counsel should note down any answers that assist in demonstrating that the test in s 79 is or is not met. At the conclusion of both examination in chief and cross-examination, counsel for the prosecution will be asked to make detailed submissions in relation to the admissibility of the evidence of opinion and counsel for the defence will make a contrary argument that the evidence of opinion, or at least some of it, is not admissible. Both counsel should refer to s 79 and the cases of R v Hien Puoc Tang (2006) 65 NSWLR 681 and Morgan v R [2011] NSWCCA 257. INSTRUCTIONS TO WITNESS Please feel free to make up details of your experience and the techniques you employed to identify Swifty. For example, you can talk about dividing the face up into parts, overlaying, etc. You can decide on which three points of facial conformity you used—the bridge of the

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nose, the jaw, etc. Your creative efforts should be consistent with your statement above. You are not in a position to give full details of your techniques or identification protocols as you are currently seeking to patent them and have not yet made them public. You have not yet published a paper in relation to facial or body mapping techniques. For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 This is an exclusionary rule of evidence that does not apply in ‘child-related proceedings’ in the Family Court—see Family Law Act 1975 (Cth) s 69ZT and Carpenter v Carpenter (No 2) [2012] FamCA 1005 [64]–[65]. 2 An ‘opinion’ was defined as ‘an inference from observed and communicable data’ by Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73, 75 referring to J D Chadbourn (ed), Wigmore on Evidence (1978), vol 7, para 1917 and later sources. This definition has been cited with approval and applied in a number of subsequent cases, including Guide Dog Owners’ and Friends’ Association Inc v Guide Dog Association of NSW and ACT (1998) 154 ALR 527, 532; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 529 [6]; and Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 [10]. In RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129, Giles J usefully stated, ‘I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts’. 3 See Smith v The Queen (2001) 206 CLR 650, 667 where Kirby J observes, ‘Even when the evidence relates to the witness personally, it involves inferences or conclusions drawn from mental impressions of existing phenomena and past experience’. 4 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 602; La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 [44]. 5 Lithgow City Council v Jackson (2011) 244 CLR 352, 367. 6 J W Strong, McCormick on Evidence (West Publishing, 4th edn, 1992) 18. 7 For evidence of out-of-court opinions and the history used to form an opinion. See Chapter 7 for discussion in this regard. 8 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 602. 9 Lithgow City Council v Jackson (2011) 244 CLR 352, 362–363. 10 See, for example, La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 [53]–[57]; and Seltsam Pty Ltd v McNeill [2006] NSWCA 158 [123]. 11 For example, if D is charged with ‘stealing’ and defends the charge on the basis of a claim of right to the property allegedly stolen then D’s belief about the ownership of the property (which is likely to involve an element of opinion) is a fact in issue. Generally, see John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) 380. 12 See Chapter 3 for a discussion of the operation of s 136. 13 This exception seems to be based on the same rationale as the exception in s 60 to the hearsay rule discussed in Chapter 7. See Lakatoi Universal Pty Ltd v Walker [1999] NSWSC 1336.

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14 See, for example, Kirby v Centro Properties Ltd (No 4) [2012] FCA 323 [11], and Hughes v National Trustees, Executors and Agency Co Ltd (1978) 143 CLR 134, 153. 15 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 136. 16 South Sydney Junior Rugby Leagues Club Ltd v Gioia [2000] NSWCA 249 [21]. Other examples are found in R v Von Einem (1985) 38 SASR 207; and R v Aldridge (1990) 20 NSWLR 737. 17 See Anderson and Bayne, above n 11, 381. 18 Lithgow City Council v Jackson (2011) 244 CLR 352, 368–370. 19 Ibid 373–376. 20 See Smith v The Queen (2001) 206 CLR 650, 654 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 21 See ALRC102 [19.16]–[19.17], [19.77]–[19.80]. 22 Subsection 79(2) is a specific provision to clarify that the exception covers expert opinion evidence of those with specialised knowledge of child development and behaviour—see MA v The Queen [2013] VSCA 20 [32], [57]–[63]. 23 See Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 602–603, 605. 24 See Jeremy Curthoys and Christopher Kendall, Advocacy: An Introduction (LexisNexis Butterworths, 2006) 169–170; Lee Stuesser, An Introduction to Advocacy (Thomson Reuters Lawbook, 2nd edn, 2011) 175–180. 25 Also, see Weal v Bottom (1966) 40 ALJR 436, 438–439 (Barwick CJ). 26 See, for example, O’Brien v Gillespie (1997) 41 NSWLR 549; Australian Capital Territory v Crowley, The Commonwealth of Australia v Pitkethly [2012] ACTCA 52 [327]–[336]; MA v The Queen [2013] VSCA 20 [58]–[70]. 27 R v Chen [2011] NSWCCA 145 [70]. 28 Also, see Butera v DPP (Vic) (1987) 164 CLR 180, 195; Eastman v The Queen (1998) 158 ALR 107; Li v The Queen [2003] NSWCCA 290 [32]; R v Marsh [2005] NSWCCA 331 [32]; R v Drollett [2005] NSWCCA 346 [63]; and Honeysett v The Queen [2013] NSWCCA 135 [40]–[43]. 29 R v Bonython (1984) 38 SASR 45, 46–47 and endorsed in Osland v The Queen (1998) 197 CLR 316, 336 (Gaudron and Gummow JJ). 30 Also, see Morgan v The Queen [2011] NSWCCA 257 [127]–[134], [140]–[145]. Cf Honeysett v The Queen [2013] NSWCCA 135 [47]–[68]. 31 At 428 (Gleeson CJ). Also, see for example R v F (1995) 83 A Crim R 502; Australian Cement Holdings Pty Ltd v Adelaide Brighton Ltd [2001] NSWSC 645; BP Australia Pty Ltd v Nyran Pty Ltd [2002] FCA 679; R v Davis [2004] NSWCCA 298 [38]; Wood v The Queen [2012] NSWCCA 21 [265]–[279], [461]–[468]; and Coregas Pty Limited v Penford Australia Pty Limited [2012] NSWCA 350 [99]–[103]. 32 Also, see R v Gabriel [2009] NSWSC 1213; and R v Chen [2011] NSWCCA 145 [73]–[77]. 33 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 [16], [87]; Adler v ASIC [2003] NSWCA 131 [631]–[632]; Carpenter v Lunn [2008] FamCAFC 128 [215]. 34 See Allianz Australia Ltd v Sim [2012] NSWCA 68 [9]. 35 See Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 605; Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43 [77]; Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 [242]–[243]; and Kyluk Pty Ltd v Chief Executive,

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36 37 38 39

40 41 42 43

44 45 46 47 48 49 50

51

52 53 54

Office of Environment and Heritage [2013] NSWCCA 114, [57]–[60] (Price J), [136]– [138] (McCallum J), [154]–[176] (Schmidt J). Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 605. Also, see Fox v Percy (2003) 197 ALR 201, Joslyn v Berryman (2003) 198 ALR 137. Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 [179] (emphasis added). Adopting the principles from the judgment of Cresswell J in National Justice v Prudential Insurance (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Reports 68, 81. Note that most jurisdictions have an Expert Witness Code of Conduct with which expert witnesses must comply. In New South Wales it is contained in Schedule 7 to Uniform Civil Procedure Rules 2005. In attempting to address concerns about the partiality of expert witnesses, this code emphasises their ‘paramount duty’ is to the court and they must never assume the role of an advocate for a party. See Wood v The Queen [2012] NSWCCA 21 [715]–[758] in relation to a breach of the code of conduct by an expert going to the weight that is ultimately attributed to their opinion but ‘where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Evidence Act’ (at [729]). Also, see Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 [41]–[50], [61]–[62] (Price J), [144]–[148] (Schmidt J). See Curthoys and Kendall, above n 24, 178–89; and Stuesser, above n 24, 181. See the discussion of the s 60 exception to the hearsay rule in Chapter 7. See R v Welsh (1996) 90 A Crim R 364; and Ho v Powell [2001] NSWCA 168 [23]. Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 137 ALR 138; O’Brien v Gillespie (1997) 41 NSWLR 549, 557; Forge v Australian Securities and Investments Commission (2004) 213 ALR 574. Cf Idoport Pty Limited v National Australia Bank (2000) 50 NSWLR 640. Allianz Australia v Sim; Workcover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In Liq) v Sim [2012] NSWCA 68 [117]–[123]. R v Wright [1980] VR 593, 597–598. Jill Hunter, Camille Cameron and Terese Henning, Litigation II: Evidence and Criminal Process (LexisNexis Butterworths, 7th edn, 2005), 1431. At 127 (Deane J). At 112 (Mason CJ and Toohey J). See ALRC102 [9.134]. Another example is Batey v Potts [2004] NSWSC 606 where it was held that a certificate of conviction of ‘manslaughter’ was admissible as an exception to s 91(1) but not the judicial directions or sentencing remarks as ss 91and 92 are limited to proof of the conviction. The ALRC justified not including acquittals in the s 92 exception on the basis that ‘an acquittal establishes no more than that the Crown failed to prove the accused’s guilt beyond reasonable doubt’—ALRC26 vol 1 [781]. This also applies to findings of ‘not guilty on grounds of mental illness’—see In Estate of Fitter and the Forfeiture Act 1995 [2005] NSWSC 1188. See Blair v Curran (1939) 62 CLR 464, where Dixon J describes it as ‘issue’ or ‘cause of action’ estoppel. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 588.

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55 Bank of Western Australia Ltd v Tannous [2012] NSWSC 559 [52]–[53]; Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 [3] (Allsop P). 56 Boulos v Martin (No 2) [2012] NSWCA 161 [14] (Whealy JA), [26]–[28] (Tobias AJA); G Maloney Pty Ltd v Noon [2011] NSWCA 397 [63]–[68] (Campbell JA); Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76 [98] (Campbell JA); and Sahin & Anor v National Australia Bank Limited & Anor [2012] VSCA 317 [91]–[98].

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DISPOSITION EVIDENCE I: CREDIBILITY AND CHARACTER COVERED IN THIS CHAPTER In this chapter, you will learn about: • credibility evidence; • the credibility rule; • exceptions to the credibility rule; • the credibility of the defendant in criminal cases; • character evidence; and • the character of the defendant in criminal cases.

CASES TO REMEMBER PGM v The Queen [2006] NSWCCA 310 R v Selsby [2004] NSWCCA 381

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 101A, 102, 103, 104, 106, 108, 108A–108C, 110, 111, 112

INTRODUCTION We now move on to examination of important exclusionary rules of evidence that fall under the general head of ‘disposition evidence’. A person’s disposition encompasses many traits but essentially we will be considering an individual’s character. From an evidentiary viewpoint, character shows that a person has a propensity to engage in certain conduct or to act with a particular state of mind. One context where a person’s character may be relevant is in relation to their credibility as a witness in court proceedings, particularly if they have a reputation for dishonesty. In general, evidence relating to character will be inadmissible and the rationale for this general principle of exclusion relates to the overriding requirement for a fair trial. If character evidence was generally admissible it would be most likely to operate unfairly in relation to the person against whom it is adduced. In this chapter, we will explore (1) the credibility rule, and (2) the use of character evidence. In the next chapter, we deal with some related exclusionary rules: the tendency and coincidence rules.

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CREDIBILITY EVIDENCE In the EA Dictionary Part 1, the term ‘credibility of a witness’ is defined to mean ‘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’. This definition reflects the common law notion that a witness’s credibility is that which rationally tends to strengthen, or conversely to diminish, the fact-finder’s confidence in relation to whether the witness has given truthful evidence about facts in issue at trial. From this useful starting point you can extrapolate that credibility evidence includes: • • • •

•

evidence relating to the witness’s general honesty, expertise or standing in the community; evidence showing that, in the circumstances of the particular case, the witness has a motive to lie. evidence showing that the witness’s evidence is either consistent or inconsistent with other statements the witness has made about the events in question; evidence tending to show that the witness is lying or mistaken in relation to some or all of their testimony, including evidence to show that the witness is lying or mistaken in relation to some collateral detail of his or her testimony; and evidence relating to the witness’s capacity for accurate observation and recollection.1 (Emphasis added)

Essentially, in order to gauge their credibility you are looking at all matters reflecting on the truthfulness and accuracy of the witness in giving their evidence, so that it ‘imports notions of both truthfulness and reliability’.2 The demeanour of a witness when giving evidence is a form of real evidence, which the fact-finder can directly observe and use in making a credibility assessment.3 The term ‘credibility’ conflates both credit and credibility4 into a single concept, underlining the extensive width of the concept of credibility as used in the EA. At common law, the term ‘collateral fact’ is often used as a shorthand way of describing evidence relevant only to the credibility of a witness, but it is not used in the Act. The credibility sections in the EA cover the field abrogating the common law.5 And, by s 55(2)(a), evidence that relates only to the credibility of a witness is ‘not taken to be irrelevant’ on this basis.6 This is unsurprising as the probability that a witness is giving a truthful account of events clearly affects the probability of the existence of the facts in issue to which their testimony is directed. Once evidence is relevant on this basis, the credibility rule and its exceptions in Part 3.7 EA are triggered. If there is a jury as the fact-finder, they determine questions as to the credibility of witnesses.7 Where it is a trial by judge alone, the judge decides these questions and there is no duty to advise parties about how they perceive the demeanour of witnesses during the proceedings.8 It is also important to note that appellate

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judges often defer to a trial judge’s findings based on their view of the credibility of witnesses, as they have the advantage of having seen and heard them in the witness box. Therefore, any judicial finding based on witness credibility will stand unless the finding is contrary to compelling inferences, glaringly improbable, or the trial judge has failed to use or clearly misused their advantage.9 Clearly then, credibility evidence can be an important part of a trial and it can be argued that the tribunal of fact should have unrestricted access to such evidence so that they can make a more informed choice between any competing evidence of witnesses in the proceeding. At the same time it is clear that the unrestricted admission of credibility evidence ‘would be time-consuming and would lead to a proliferation of issues with no direct bearing on the facts in issue’.10 Accordingly, there are important restrictions on the admissibility of credibility evidence under the Act. We will now turn to consider the credibility rule and its exceptions.

THE CREDIBILITY RULE The credibility rule is stated in s 102 EA as a general rule of exclusion—‘Credibility evidence about a witness is not admissible’—subject to specific exceptions found in ss 103, 104, 106, 108, 108A–C and 110. The term ‘credibility evidence’ is defined in s 101A: 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)

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 in Parts 3.2 to 3.6.

STUDY TIP Summary points The combined effect of ss 101A and 102 is that all evidence relevant only to matters relating to the truthfulness of the witness and the accuracy of their testimony is, prima facie, not admissible. Also, where evidence is both relevant to credibility and relevant but not admissible for another purpose because of the hearsay, opinion, admissions, tendency and coincidence rules, or as evidence of a judgment or conviction (Parts 3.2 to 3.6 EA), it is ‘credibility evidence’ and is not admissible.11

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If evidence appears to be credibility evidence but is relevant to a fact in issue, it may not satisfy the definition in s 101A, leaving the party to argue its exclusion on some other ground.12 For example, when a defendant was on trial for possession of child exploitation material, adducing his statements to the police that described his revulsion at sexual activities with children was relevant to a fact in issue as well as touching on the defendant’s credibility.13 Accordingly, this was not ‘credibility evidence’ and the trial judge rather considered exclusion of the statements under ss 135 and 137 EA.14 Where evidence is relevant and admissible in another way—that is, relevant to proof of a fact in issue or relevant to both a fact in issue and the witness’s credibility—s 102 has no application. In this regard it is important to note that it can be difficult to draw rigid distinctions between points of credibility and matters going to facts in issue, as was clearly acknowledged by McHugh J in Palmer v The Queen (1998) 193 CLR 1 at 22–24: 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. … the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue. … The rigid distinction between credit and facts-inissue 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.

Clearly though, the Act retains this distinction and is in accord with the common law by assuming a piece of evidence may be relevant only to a witness’s credibility. In Peacock & Peacock v The Queen [2008] NSWCCA 264, Simpson J affirmed15 what McHugh J said at common law in Palmer and noted that ‘the practical difficulty in giving effect to the principle to which McHugh J draws attention is not diminished by the terms of the legislation’. Simpson J went on to observe that s 102 provides a statutory formulation of a common law rule which depends on how remote the evidence is from facts in issue,16 and the enduring slipperiness of the distinction

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between ‘fact in issue evidence’ and ‘credibility evidence’ was neatly illustrated by the evidence of a defence witness in this case.17

EXCEPTIONS TO THE CREDIBILITY RULE There are a number of exceptions to the credibility rule and most involve evidence adduced tending to discredit a witness. The effect of these exceptions is to give the rule largely the same operation as at common law. That is, credibility evidence cannot be gratuitously introduced during the examination in chief of a witness before any attack has been made on their credibility or the consistency of their evidence during cross-examination. Without such attack, the evidence would be self-serving corroborating statements designed to enhance a witness’s credibility, leading to the potential for a proliferation of collateral issues.18 The first exception, s 103(1) EA, is that a witness’s credibility may be attacked in cross-examination of the witness if the ‘evidence could substantially affect the assessment of the credibility of the witness’. As you will recall from our discussion in Chapter 4, evidence designed to discredit a witness will principally be adduced in cross-examination in the form of leading questions. A clear example under s 103(1) is the use of prior inconsistent statements.19 A document may be admissible under s 103 when the court is satisfied that the fact a witness brought a particular document into existence could substantially affect the assessment of their credibility.20 In order to make a proper assessment of the value of certain information about a witness’s credibility, the court must proceed upon the hypothesis that the witness will answer it in a way which accepts the insinuation—that is, assume the least favourable answer to the witness’s credibility. This is illustrated in R v Beattie (1996) 40 NSWLR 155, an appeal against conviction for drugs and firearms offences, where the New South Wales Court of Criminal Appeal ruled that the questions in crossexamination of the highest ranking police witness in the prosecution case about complaints against him at the Royal Commission into police corruption should have been allowed as relevant to his credibility. Importantly James J observed (at 162) that: There is no need for evidence which is capable of affecting the credibility of a witness to be evidence about the facts in issue in the proceedings in which the witness is giving evidence. … In my opinion, an admission made by the witness in an answer to either of the questions (about receiving protection moneys and seizure of money from others who did not have police protection in drug related matters) would have had substantial probative value on the question of the witness’s credibility and the fact that the witness might have been unlikely to make any such admission did not affect the admissibility of the questions.

The requirement that the evidence ‘substantially’ affect the assessment of the credibility of the witness imports a limitation which restricts the matters to those which, if true, would have a real, persuasive bearing on the tribunal of fact’s opinion

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about the credibility of the witness, at least where that witness’s evidence could reasonably be regarded as important to the outcome of the proceedings. As it is cross-examination, latitude will be allowed.21 An example of the practical operation of the threshold is where the Victorian Supreme Court held that prior convictions for drug offences could not substantially affect the witness’s credibility when drug use did not affect the accused’s ability to perceive and recall the events in question.22 Without limiting the matters to which the court may have regard in deciding whether the evidence could substantially affect the assessment of the credibility of the witness, s 103(2) EA requires the court 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’ (emphasis added). Overall, the matters referred to in s 103(2), particularly temporal considerations, plus any others that are relevant in a particular case are designed to ensure that credibility evidence is only adduced in crossexamination of a witness where there is a proper basis for concluding that it is clearly pertinent to the likely truthfulness or reliability of the witness. Following on from s 103, it is instructive and logical to consider s 106 EA and the law relating to rebutting false denials. When a witness denies an allegation affecting their credibility put in cross-examination under s 103, the general rule is that the cross-examiner cannot adduce evidence to prove the truth of the allegation. This is ‘the finality rule’ or the ‘collateral issues rule’ and is again based on the desire to avoid a multiplicity of time-consuming collateral issues arising from the witness’s evidence. The effect of the general rule is that any answers given by a witness relevant only to their credibility are taken as final and binding on the cross-examiner. At the same time, however, the tribunal of fact is not similarly constrained to believe the answers given by the witness. There are several exceptions to the finality rule. First, s 106(1) allows rebuttal evidence where the witness has denied or does not admit the substance of the evidence put in cross-examination and the court gives leave to adduce the evidence.23 This brings s 192 factors into consideration as to the granting of leave to allow the contradictory evidence to be adduced and potentially allows a very broad scope for rebuttal.24 Leave is rarely granted where a party must adduce evidence after it has closed its case.25 Second, s 106(2) allows rebuttal evidence to be led to counteract the denials of a witness in cross-examination without the requirement for leave of the court in cases corresponding generally to the exceptions to the finality rule at common law. The subsection provides that leave: is not required if the evidence tends to prove that the witness: (a)

is biased or has a motive for being untruthful; or

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(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.

It is clear from this provision that the substance of the allegation must have been put to the witness in cross-examination and the rebuttal evidence is not admissible if in cross-examination the witness admitted the substance of that evidence.26 Each of the exceptions in s 106(2) is briefly examined in Table 10.1. The next exception to the credibility rule is found in s 108 EA, which allows credibility evidence to be adduced in the re-examination of a witness who has been TABLE 10.1 Exceptions to the finality rule in s 106(2) EXCEPTION

MAIN FEATURES

RELEVANT CASES

(a) bias/motive to give untruthful evidence

The interest or concern in the outcome of the case is relevant to assessing impartiality of the witness. Must be applied with care where accused is the witness in a criminal trial so as not to disadvantage this evidence.

R v Umanski [1961] VR 242; Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213; R v Robinson (1991) 180 CLR 531; R v Lockyer (1996) 89 A Crim R 457; Nicholls v The Queen (2005) 219 CLR 196.

(b) prior conviction

Offence would usually be perjury or some form of dishonesty— stealing, fraud.

Proof by certificate of conviction—ss 178–180 EA.

(c) prior inconsistent statement

Oral or written statement made by a witness before trial and inconsistent with testimony given at trial on the same issue.

Adam v The Queen (2001) 207 CLR 96.

(d) unable to be aware of matters

Lack of capacity and/or opportunity for observation of relevant matters. Has been broadly interpreted by the courts to include many aspects of witness reliability, but does not extend to an inability ‘to recall’ matters.

Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; R v Souleyman (unreported, NSWSC, Levine J, 5 September 1996); R v PLV (2001) 51 NSWLR 736; R v Rivkin (2004) 59 NSWLR 284. (Continued )

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TABLE 10.1 Exceptions to the finality rule in s 106(2) (Continued ) EXCEPTION

MAIN FEATURES

RELEVANT CASES

(e) false representation while under obligation to tell the truth

Applies where witness obliged to tell the truth in statutory declarations, affidavits and statements to be used in court and there is a knowing or reckless false representation. Doesn’t apply where the witness has said something in court that is proven to be wrong without knowledge.

R v Goonan [2000] NSWCCA 25; Goldsmith v Sandilands (2002) 190 ALR 370.

effectively cross-examined as to their credibility and the party calling them seeks to rehabilitate the witness.27 Section 108(1) provides that ‘the credibility rule does not apply to evidence adduced in re-examination of a witness’, which must be read subject to s 39. This means that s 108(1) will usually only allow credibility evidence to be adduced about matters which were dealt with in cross-examination and will also be subject to the court’s discretionary powers in ss 135–137. An example is the case of R v WRW [2001] NSWCCA 446 where the complainant in a sexual assault case had been cross-examined as to whether she complained immediately to her aunt about the alleged offence and said she did not. In re-examination she gave evidence explaining that she didn’t complain ‘because she believed the aunt was having sexual relations with [the defendant]’. In relation to ss 102 and 108(1), Heydon JA said: ‘The evidence in which the complainant gave explanations for her failure to complain immediately was evidence which the jury could treat as being capable of restoring her credibility, or at least qualifying any damaging impact on her credibility caused by her failure to complain.’ Section 108(3) creates an exception to the admissibility of prior consistent statements 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 … or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement’. This provision really creates two exceptions with the first applicable when a prior inconsistent statement has been used to impugn the credibility of a witness and permits a prior consistent statement to be used to attempt to repair any damage caused as a result. The two statements may not necessarily affect the credibility of a witness in the same way and where they both address the same matter ‘the statements should not be evaluated as though they necessarily carry the same weight and have an equal and opposite effect on the credibility of the witness’.28 The prior consistent statement can be made after the

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A CASE TO REMEMBER R v Selsby [2004] NSWCCA 381 In R v Selsby [2004], the defendant was tried for sexual offences against his partner’s daughter who was six or seven years old at the time of the offences. The complainant gave evidence in chief that when she was aged about 14 years she ran away from her mother, who had then separated from the defendant, and went to stay with the defendant for two weeks. She also gave evidence that when she was about 16 or 17 years she wrote to the defendant to thank him for letting her stay at his place and ‘for all the nice things’. In cross-examination it was put to the complainant that she went to stay with the defendant and had written the letter because ‘nothing happened’. The trial judge gave the Crown leave under s 108(3)(a) to lead evidence in re-examination that the complainant had made a complaint to a friend about six years after the alleged assaults. The friend also gave evidence of the complaint. The defendant contended on appeal against conviction that the trial judge had erred in permitting the Crown to lead the evidence of complaint. In dismissing the appeal the CCA held that the admission of the evidence by leave of the trial judge was justified by s 108(3)(a) as the relevant attack on the complainant’s credibility was through the cross-examination, including the prior inconsistent statement in the letter to the defendant, strongly inferring that the alleged sexual incidents had not taken place. The complaint was made shortly before the complainant went to stay with the defendant and up to three years before she wrote the letter, so it was relevant in attempting to rehabilitate her credibility ‘to the extent that it had been damaged by the implied representations’ (at [54]).

prior inconsistent statement, but its capacity to answer the suggestion or rehabilitate the witness will be an important matter to be considered by the court in determining whether to grant leave.29 The prior consistent statement can be adduced from another witness, although this will also be an important consideration as to the grant of leave, particularly if evidence of the prior consistent statement is not also adduced from the person who allegedly made it.30 The exception in s 108(3)(b) is equivalent to the common law in relation to allowing evidence of a prior consistent statement to rebut a suggestion that the evidence of the witness is a ‘recent invention’—that is, fabricated between the occurrence of the subject incident and the time of the trial.31 In Pavitt v The Queen [2007] NSWCCA 88, s 108(3)(b) was held to be correctly triggered where the complainant had been cross-examined about previous convictions, psychotic episodes and drug abuse without directly suggesting that the allegations of sexual assault were reconstructed or fabricated. The CCA (McColl JA and Latham J) held (at [105]) that ‘there is no warrant for reading into the provision a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived’. Their Honours focused on the mental illness of the complainant and said it was difficult to envisage any other purpose in cross-examination than ‘to implicitly suggest to the jury that

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his account of the appellant’s assaults upon him were a product of a disordered and delusional mind’—that is, fabricated or reconstructed (at [104]). Note that s 108(3)(b) is drafted so as to allow the admission of a prior consistent statement before the allegation has been made—that is, in examination in chief of the witness—provided it is clear that it will be made.32

STUDY TIP Advocacy and the criminal trial thread scenario Cross-examination of a prosecution witness as to their credibility will involve a planned strategy raising matters that provide a proper basis for concluding that the credibility evidence has a real bearing on the likely truthfulness and reliability of the witness and thus the weight that can ultimately be given to their evidence. Depending on the material available for undermining a witness’s credibility in cross-examination, the technique employed by counsel will usually be a direct and personal attack on the integrity of the witness in order to demonstrate that there can be no trust or confidence in the witness and their evidence. You are putting the character of the witness in issue by challenging their veracity or impartiality by adducing evidence of ‘bias, interest, corruption, prejudice, prior convictions, prior bad acts (if admissible) and reputation as to veracity’.33 For example, you might put a leading question of this nature: ‘You’ve admitted you don’t like the defendant. Your dislike of the defendant is so intense that you have invented your evidence to ensure he is convicted. Isn’t that so?’; or ‘Isn’t it the case that your alcoholism has prevented you from having an accurate recollection of who you saw on this day?’; or ‘You’ve admitted you lied. Your evidence can’t be trusted, can it?’

So far, we have considered the credibility rule in the context of witnesses actually giving evidence in civil and criminal proceedings. As you are aware, the EA takes a more flexible approach to the admission of hearsay evidence as compared to the common law. Accordingly, this raises the possibility of concerns about the reliability of such hearsay evidence when admitted. Section 108A is directed to these concerns as it allows credibility evidence to be adduced in relation to the person who made a previous representation. 108A Admissibility of evidence of credibility of person who has made a previous representation (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—

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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.

Subsection (2) then goes on to provide for the matters to which the court may have regard in deciding whether the evidence substantially affects the assessment of the person’s credibility. These are in similar terms to the matters in s 103(2) considered above except that reference is made to ‘the person who made the representation’ rather than ‘the witness’.34 Accordingly, the same test operates as is applied under s 103 in deciding whether the rule in s 102 does not apply to crossexamination of a witness as to credibility, so that evidence relevant to the credibility of a person under s 108A is admissible to the extent that they could have been cross-examined on a matter relevant only to their credibility if they had given evidence as a witness. Section 108B applies in addition to s 108A only in relation to defendants in criminal proceedings. This provision was added because of concern as to the operation of s 108A where evidence is adduced of a previous representation made by a defendant in criminal proceedings and they do not give evidence, thus potentially leaving them without the protections they would be afforded under s 104 (considered below) if they chose to give evidence at trial. Accordingly, such evidence is not admissible unless the court gives leave with the same restrictions on the granting of leave in subs (4) as in s 104(4). Further, the same situations where leave is not required are set out in subs (3) as are provided in s 104(3). Section 108C provides for leave to be given for an expert witness to give opinion evidence about the credibility of another witness if based on the expert’s ‘specialised knowledge’ and it could substantially affect the assessment of the credibility of the witness.35 This section applies to expert evidence dealing with a witness’s capacity to provide credible evidence given the effect on the witness of some behavioural, environmental or other cognitive factor.36 Expert evidence as to the patterns of behaviour by child victims of sexual abuse was admissible as bearing on the complainant’s credibility as a witness in a trial involving allegations of multiple and systematic sexual assaults.37

CREDIBILITY OF THE DEFENDANT IN CRIMINAL CASES Section 104 applies only to credibility evidence in a criminal proceeding and provides further protections for a defendant in addition to the s 103 exception considered above. Due to the risk of unfair prejudice, a defendant can’t be treated like other witnesses when being cross-examined. Special rules apply to the admissibility of

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evidence that will influence the assessment of the credibility of the defendant as a witness. Questions which are relevant only to the defendant’s credibility or otherwise satisfy the definition of ‘credibility evidence’ in s 101A are subject to the credibility rule and are prima facie prohibited by s 104(2) ‘unless the court gives leave’, which will then trigger the operation of ss 104(4) and 192. The prosecutor can cross-examine the defendant about certain aspects of their credibility without the leave of the court as provided by s 104(3)—that is, ‘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’. All other questions relating to the credibility of the defendant as a witness may only be asked with the leave of the court and this leave must not be given by s 104(4) 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’. This provides the defendant with an important shield against prejudicial cross-examination, which is only lost where the character of a prosecution witness has been attacked. Evidence of a defendant’s criminal history will be admitted only in exceptional circumstances as the discretion to grant leave will be strongly guided by the fact that there will be a significant prejudice occasioned by the revelation of serious criminal convictions.38 In relation to cross-examination by the prosecutor in response to an attack on the truthfulness of a prosecution witness, s 104(5) must be considered with s 104(4). Section 104(5) limits the ‘evidence’ adduced by the defendant so as not to include ‘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’. This limitation on the loss of the defendant’s shield has been employed to restrict the scope of prosecution retaliation when the attack on particular conduct of prosecution witnesses, usually police officers, is during the instant investigation. Finally, s 104(6) restricts the circumstances in which leave can be given for cross-examination of the defendant by another defendant so that it will not be given 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’. Guidance as to what is evidence ‘adverse’ to the defendant seeking leave to cross-examine is available from the common law.39 Where the defendant’s evidence either materially supports the prosecution case or clearly undermines the co-defendant’s defence in a joint trial40 would be an important factor in granting leave under s 104(6). The effect of the defendant’s evidence must be assessed objectively without regard to their attitude toward the co-defendant. If a defendant simply denied they were involved in the offence, this is only adverse to a

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co-defendant where acceptance of the denial would inevitably lead to the conclusion that the co-defendant must be guilty, and in granting leave a trial judge must take into account any unfairness to a co-defendant were leave to be refused.41

CHARACTER EVIDENCE This phrase is not defined in the Act. In guiding meaning, the ALRC referred to the dictionary definition of a ‘description of a person’s qualities’ and ‘adverting to an individual’s personality, his character traits’42 (emphases added). Character is to be distinguished from reputation, which involves the public estimation of a person, not their inherent qualities.43 Character evidence is often logically relevant to a witness’s credibility or an issue in a case, but it can also be highly prejudicial because the fact-finder may give it undue weight or otherwise misuse it. The risk of prejudice in admitting character evidence is particularly highlighted in relation to a defendant in criminal proceedings where the danger of conviction on the basis of past criminal history is acute. Accordingly, evidence about a defendant’s character cannot generally be adduced by the prosecution as part of its case in chief. On the other hand, it is clear that the good character of a defendant may be important in deciding issues relating both to liability for the offence and credibility as a witness. Therefore, the defendant is permitted to adduce evidence of their good character during their case in chief.

CHARACTER OF THE DEFENDANT IN CRIMINAL CASES The defendant can prove their good character by adducing evidence that would ordinarily infringe the hearsay, opinion, tendency and credibility rules. Part 3.8 EA, which only applies in a criminal proceeding (s 109), is relevant here and s 110(1) is most important: 110 Evidence about character of accused persons (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.

By suspending the application of the hearsay, opinion and tendency rules in allowing a defendant to adduce evidence of good character it can be contended that this quality makes it less likely the defendant would have committed the crime charged. The suspension of the credibility rule relates solely to where the defendant gives evidence at trial and good character evidence can be adduced to support the proposition that they are more likely to tell the truth on oath. Proof of good character by the defendant can be attempted by adducing evidence of their past conduct,

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habits, personality traits or reputation through their own evidence in chief, evidence of others who have such knowledge including peers, employers, and other community members, or expert opinion evidence. The case of Melbourne v The Queen (1999) 198 CLR 1 is an important authority in this regard. McHugh J emphasised (at 20) that: 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 … [which] must be regarded as an indulgence granted to the accused which continues to be maintained for historical reasons.

The separate majority judgments in this case and the later case of Braysich v The Queen (2011) 243 CLR 434 establish that the trial judge has a ‘discretion whether or not to give a good character direction having evaluated the probative value of such evidence in relation to both the accused’s propensity to commit the crime charged and the accused’s credibility’.44 In determining whether to give a direction to the jury, the judge must assess whether the evidence is of such probative significance as to bear upon either or both the propensity and credibility limbs and ‘must be given where the evidence has an immediate and obvious connection with an issue in the case’.45 The CCA confirmed in Gallant v The Queen [2006] NSWCCA 339 that whether a direction is given and what it should be if given ‘depends on the nature of the evidence and the issues raised at trial’ (at [39]). If the defendant requests a good character direction on either, or both, the propensity limb or the credibility limb, the courts have emphasised that the utmost judicial caution should be exercised before any request is rejected.46 The ALRC rationale for continuing the ‘good character’ exception in the Act subject only to the relevance discretion is based on minimising the risk of wrongful conviction as ‘encapsulated in the maxim: Better that ten guilty men go free than one innocent man be wrongly convicted’.47 At the same time, it is also important to note from cases like R v Trimboli (1979) 1 A Crim R 73 (at 74) that the trial judge is at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing. This consideration may apply with particular force to certain types of crime and the judge is free to point that out to the jury if they see fit. Sexual offences fall into this category. If the direction, however, undermines or significantly detracts from the benefit of the good character direction for the defendant, it may cause a miscarriage of justice.48 In Imnetu v The Queen [2006] NSWCCA 203, the CCA held that a comment by the Crown Prosecutor when the 20-year-old defendant raised good character [Y]ou might think that evidence of that nature might be more compelling if it were someone who was perhaps 60 years old and had never committed an offence.

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You might think, that would weigh a little more strongly in the balance perhaps than someone who hasn’t had a long life, who is young, who raised the same issue.

was appropriate in that all the prosecutor was urging was that the jury appropriately evaluate a claim of good character made by a younger person (at [43]). It should also be considered that the evidence of character witnesses may be given less weight when they do not want to hear the nature of the allegations against the person for whom they are providing a character reference.49 Rebuttal of evidence of good character is only permitted if the defendant has actually made a claim of good character, raising the question: ‘Has the defendant put their character in issue?’ In general terms the case of R v Fuller (1994) 34 NSWLR 233, 238 provides that character is raised by the defendant’s own evidence, including from other defence witnesses, only where the evidence is given with the intention of establishing good character, in the sense of asserting that by reason of their character they are unlikely to have committed the crime charged. Often, a conscious decision is required to intentionally and deliberately adduce evidence for the purposes of raising character.50 A claim that character has been put in issue can be made in an assortment of ways;51 however, it is not done by the defendant simply giving their version of events relating to the charge, even if that version is favourable to them. Also a defendant does not put their character in issue by denying the accusation in an emphatic way when giving a responsive answer to a question in cross-examination.52 The following case is a useful example of the issues involved in considering whether a defendant has put their character in issue.

A CASE TO REMEMBER PGM v The Queen [2006] NSWCCA 310 In PGM v The Queen [2006], it was held on appeal that the defendant had not raised his good character when he replied, ‘I don’t like that sort of image on my computer’, in response to a prosecution question in cross-examination as to why he had not looked at the image of a naked prepubescent girl that had been found on his computer (among 500–1000 similar images). The trial judge had held that the defendant’s response did raise good character and permitted the Crown to cross-examine him on the multiple other similar images found on his computer. On appeal this was held to be an error because it was not clear how else the defendant could have answered the prosecution question and, taken in context, it was consistent with a narrower intention that he didn’t look again at whatever image he had seen because he didn’t like it on his computer, not because he was not the sort of person who looked at images generally meeting the relevant description. This decision illustrates that determination of when a defendant puts their character in issue is largely tied up with the particular answer given in the circumstances of the trial, so it doesn’t easily lend itself to the establishment of detailed principles applicable in every case. Characterising whether an answer is responsive or not and focusing on intention to deliberately raise good character in giving the answer is the general task of the trial judge in each specific case.

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Under the Act, the common law notion of indivisibility of character is overruled by s 110(2) and (3). These subsections distinguish between evidence adduced to prove a defendant is ‘generally a person of good character’ and evidence adduced to prove a defendant is ‘a person of good character in a particular respect’. By s 110(2), where the defendant claims they are of general good character the prosecution can seek to rebut this by adducing evidence to prove that is not the case. On the other hand, where the claim of good character is made only in a particular respect, then under s 110(3) the prosecution is restricted to adducing evidence to prove that the defendant is not a person of good character in that respect. This is illustrated in the case of Gabriel v The Queen (1997) 76 FCR 279 where the appellant was charged with intentionally inflicting grievous bodily harm by stabbing the alleged victim with a screwdriver. The Full Court of the Federal Court held that, on the assumption that the appellant had raised character by asserting in evidence that he was ‘not the sort of person who would stab anybody’, rebuttal evidence had to be confined to the appellant’s tendency or otherwise to ‘stab’ people. In this case, a distinction was also made between responsive and unresponsive answers to questions asked of the defendant in cross-examination. Where the answer is responsive, evidence has not been adduced to prove that a defendant is a person of good character; however, where it is unresponsive and there is an intention to assert good character then the precondition for rebuttal evidence will be established as the defendant has made a forensic choice to attempt to embellish their own standing in answer to a question that doesn’t call for it.53 The prosecution can rebut a claim of good character through cross-examination of the defendant, cross-examination of the defendant’s character witnesses, or leading evidence from its own witnesses. Subsections 110(2) and (3) EA provide that ‘the hearsay rule, the opinion rule, the tendency rule and the credibility rule’ do not apply to evidence adduced to rebut a claim of good character. Accordingly, the prosecution has the same latitude in rebutting the claim of good character as the defendant has in making it. Defence counsel must always carefully consider the risk of unfavourable evidence being brought, including the prosecution adducing bad character evidence in rebuttal whenever the defendant puts their character in issue.54 In this regard, defence counsel may utilise s 192A55 to seek an advance ruling from the trial judge in relation to the consequences of adducing good character evidence. Also, as a practical tip, it is often useful for defence counsel to directly ask the prosecutor what they will do if good character evidence is adduced in the defence case, and then plan their strategy on the basis of the prosecutor’s answer. Where the prosecution adduces evidence to rebut a claim of good character, it is restricted to that negative use both at common law and under the Act. It is not permissible at common law for the tribunal of fact to use rebuttal evidence in the positive way of increasing the likelihood that the defendant committed the offence.

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The prevailing view is that the Act has not changed the common law position in this regard56 despite the fact that the operation of the tendency rule is suspended under s 110(2) and (3) when rebuttal evidence is adduced. Arguably this suspension of the tendency rule could mean that bad character evidence led in rebuttal might be used by the tribunal of fact as tendency evidence, increasing the likelihood of the accused’s guilt,57 but this argument has not generally found favour with the courts. The suspension of the operation of the credibility rule, however, does mean the rebuttal evidence can be used by the tribunal of fact in assessing the credibility of the defendant as a witness. Section 112 must also be considered in combination with s 110(2) and (3): 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.

This provision has been interpreted to allow a broad discretion in regulating cross-examination of a defendant where the defence has adduced evidence of good character and the prosecution proposes to challenge that claim in crossexamination.58 In Gabriel v The Queen (1997) 76 FCR 279, it was held (at 298) that: the prosecution must reveal the nature and extent of the evidence it proposes to adduce in the course of requesting leave, and that relevant considerations to the question of leave would include: • • • • •

•

the relevance of the proposed rebuttal evidence to the character claimed by the defendant; the role, if any, of the prosecution in opening up the question of character; the stage of the trial at which the question of character has been raised; whether or not counsel for the defendant had determined, for tactical reasons, not to raise character; whether any warning had been given by the prosecution or the court that adducing evidence of good character might entitle the prosecution to adduce rebuttal evidence; and a comparison of the probative value of the proposed rebuttal evidence compared with its unfairly prejudicial tendency.59

On being granted leave under s 112, the prosecution may cross-examine the defendant on matters pertaining to the kind of character claimed, which will be relevant to the issue of guilt. In R v El-Kheir [2004] NSWCCA 461, the defendant raised his own ‘bad character’ in evidence in chief by disclosing welfare fraud by his wife and himself pretending to live separately to receive higher payments from Centrelink. On appeal, this

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evidence was also categorised as ‘good character’ because the disclosure illustrated his candour and truthfulness having taken the oath on the Koran, such that the prosecution was still required to be granted leave to cross-examine him pursuant to s 112. Finally, in addition to s 104(6), s 111 permits a defendant in criminal proceedings to have expert opinion evidence relevant to the character of another defendant in the proceedings admitted subject to the court’s discretion to exclude the evidence under s 135. Where such evidence has been admitted, the defendant against whom the evidence has been adduced may adduce evidence under s 111(2) ‘to prove that the evidence should not be accepted’. The section essentially allows a co-defendant to adduce evidence that the defendant had a tendency to do something where that evidence is in some way probative of the innocence of the co-defendant.

Important references For more extensive coverage of credibility and character evidence, see: 1 John Anderson and Peter Bayne, Uniform Evidence Law: Text and Essential Cases (2nd edn, 2009) Chapters 12 and 13. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 402–492. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 10. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapters 11 and 12. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 556–622.

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ASSESSMENT PREPARATION Active learning questions 1 What types of matters bear on the credibility of a witness and why are they relevant in the trial process when they don’t necessarily bear on a fact in issue? What is the rationale for restricting the admission of credibility evidence? 2 Explain the operation of the credibility rule and its various exceptions in Part 3.7 EA. 3 What is the rationale for the rules relating to character evidence in Part 3.8 EA? Should the prosecution ever be allowed to adduce evidence of a defendant’s bad character in a criminal trial? 4 Explain your understanding of the operation of s 104 EA. 5 Analyse the reasoning of Barr J in deciding the appeal against conviction in PGM v The Queen [2006] NSWCCA 310. Do you agree with this reasoning and the outcome? Why or why not?

CRIMINAL TRIAL THREAD SCENARIO The sixth prosecution witness is Johnny Parkbench and his testimony and the truthfulness of it raise issues of credibility. The Crown Prosecutor will conduct examination in chief seeking to adduce all relevant and admissible evidence going to proof of facts in issue. Once examination in chief is completed, defence counsel will cross-examine the witness to cast doubt on his evidence with particular focus on his credibility as a witness given the various information that has been uncovered about this witness. INSTRUCTIONS TO COUNSEL Defence counsel has uncovered the following information about Johnny Parkbench: • Johnny was evicted by ‘Housing ACT’ because investigations disclosed that there were often between 10 and 20 people living in his flat at any one time—police had also been repeatedly called to violent incidents involving excessive use of alcohol at the flat. • Johnny has a history of criminal convictions. He has six convictions for burglary and theft, and two convictions for possession of illegal drugs. These offences were committed when he was in his twenties and in his early thirties. He has served time in gaol on two separate occasions in relation to charges of burglary. • Those who know Johnny say he is now an alcoholic who spends whatever money he can get on grog—he has been admitted to hospital on numerous occasions as a result of injuries and incidents relating to his alcohol use. • Johnny has been cut off social security payments in the past for knowingly making a false statement in relation to seeking work. • A school report discloses that Johnny was considered to have oppositional defiance disorder and was constantly in trouble for lying. • The word on the streets is that Johnny is doing a favour for the police in exchange for them dropping a charge against him. Everyone seems to know that he doesn’t like Swifty. • Johnny and Geoffrey Dibber-Dobber were sharing a drink on 2 April 2014 after Johnny had made his statement to the police. Geoffrey reports that Johnny said words to the effect, ‘I never saw Swifty, those cops just told me it was him and I went along with

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it. The cops said they would leave me alone now.’ Defence counsel is in a position to subpoena Geoffrey Dibber-Dobber and bring him to court if necessary. Johnny Parkbench frequently attends a homeless shelter near Civic and often speaks with a social worker there. The prosecution is in possession of the social worker’s logbook and are in a position to call the social worker to give evidence of a statement made to him by Parkbench and recorded in the logbook.

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28 March 2014 I saw Johnny Parkbench again this afternoon and he talked to me about a robbery. He said he had seen James Swifty again today and that the police hadn’t got him for a robbery that took place at the Federal Bank. He told me he had seen Swifty run from the bank plain as day and that he saw his tattoo. I told Johnny to go to the police.

FURTHER INSTRUCTIONS TO COUNSEL Counsel are required to consider and be in a position to make submissions in relation to ss 102, 103, 108, 192, and R v Whitmore (1999) 109 A Crim R 51, and the impact of s 60. Counsel will need to make decisions about what information to introduce in examination in chief and cross-examination, and consider objections with respect to all material. Defence counsel must comply with the rule in Browne v Dunn. This is particularly important in this case because the witness must be strongly challenged if the defence is to maintain its theory of the case. If the evidence of this witness is accepted beyond reasonable doubt, the prosecution case is essentially proved. Therefore, defence counsel will have to use at least some of the uncovered material in cross-examination to show that Parkbench is not a credible witness. At the conclusion of cross-examination, the prosecutor will make an application to call the social worker to adduce oral evidence of a ‘prior consistent statement’ made by Parkbench. The prosecutor will then have to argue for admissibility of the social worker’s evidence, having regard to ss 108 and 192, and R v Whitmore (1999) 109 A Crim R 51—drawing upon the case of Nominal Defendant v Clements referred to in Whitmore. Following oral argument by the prosecution, the defence may or may not choose to object to the calling of the social worker, depending on how they have chosen to conduct their cross-examination. However, defence counsel will be required to make submissions with respect to the same sections and cases to support their approach. Even if the prosecution is successful, the witness will not actually be called. Both prosecution and defence counsel must be prepared to make and answer objections relating to the form or appropriateness of opposing counsel’s questions and the relevance of any evidence that is sought to be adduced, and whether it is hearsay or opinion evidence. INSTRUCTIONS TO THE WITNESS You had been drinking on the morning of the robbery. You don’t remember how much, but it must have been a substantial amount of wine from a four-litre cask. You were sharing with some others, but you don’t remember who they were. You will be very definite in your evidence about the fact that you saw Swifty and you will insist that you were able to identify him, despite him running past rapidly. You will agree with all of matters relating to your credit that defence counsel is aware of (if the questions are permitted to be asked) but you will try to explain or squirm out of the attacks on your credit in any way that you can think of. For extra guidance with the Criminal Trial Thread Scenario, please refer to .

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Notes 1 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) 200. 2 Dupas v The Queen [2012] VSCA 328 [265]. Also, see DPP v Kocoglu [2012] VSC 185 [13]. 3 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 387–390 (Heydon, Crennan and Bell JJ). 4 This was a distinction traditionally made at common law where ‘matters going to credit are matters that affect the jury’s judgment about the veracity of the witness while matters going to credibility are matters that affect the jury’s judgment about the reliability of the testimony on grounds that do not reflect adversely on the witness’s honesty’— see Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 269–270. 5 BA v The Queen [2012] VSCA 285 [23]–[25]. Also, see DPP v Polutele [2011] VSC 223 [17]–[19]. 6 See KTR v The Queen [2010] NSWCCA 271 [86]. 7 Darwiche v The Queen [2006] NSWCCA 62 [179]. 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 387 (Heydon, Crennan and Bell JJ). See also Foggo v The Queen [2007] NSWCCA 364 [110] (Adams J). 9 See SRA (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588, 589; Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387 [173]–[175] (Bathurst CJ); Fox x Percy (2003) 214 CLR 118, 128–129 (Gleeson CJ, Gummow and Kirby JJ); Harmer v Hare [2011] NSWCA 229 [165]; Nominal Defendant v McLennan [2012] NSWCA 148 [141] (Beazley JA); Riley v The Owners—Strata Plan 73817 [2012] NSWCA 410 [48] (Ward JA). Also, see DF v The Queen [2011] ACTCA 11 [9]–[10] (Gray P and Rares J), [42]–[46] (Teague AJ); Morley v ASIC [2010] NSWCA 331 [251]–[271]; Raad v The Queen [2012] NSWCCA 268 [34]; SKA v The Queen (2011) 243 CLR 400, 410–412 (French CJ, Gummow and Kiefel JJ); and Shepherd v The Queen [2011] NSWCCA [48]–[49], [55]–[58]. Further, see Evans v Evans [2011] NSWCA 92 [135]–[139] in relation to the scope and power to remit to the trial judge on this basis. 10 Gans and Palmer, above n 1, 200–201. 11 See R v Ryan (No 7) [2012] NSWSC 1160 [11]–[28]. This part of the definition of ‘credibility evidence’ was included to overcome the literal interpretation of s 102 by the High Court in Adam v The Queen (2001) 207 CLR 96. 12 Cvetkovic v The Queen [2010] NSWCCA 329 [224], [236]–[241]; R v Meyboom [2012] ACTCA 2 [137]–[144]. 13 Tasmania v Martin (No 2) [2011] TASSC 36 [71]–[73]. 14 Ibid, [74]–[76]. 15 At [38]. McClellan CJ at CL agreed. 16 Ibid, [44]–[51]. 17 Ibid, [52]–[60]. 18 See generally Roberts above n 4, 330–331. 19 DPP v Polutele [2011] VSC 223 [17]–[21]. See also in terms of ss 38, 43 and 192 issues: DPP v Finnegan [2011] TASCCA 3 [27]–[49]; DPP v Kocoglu [2012] VSC 185 [41]–[44] (s 192); Kingston v ACT [2011] ACTSC 165 [73]–[74]; NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 203.

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20 McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 [37]–[38]. See also Aslett v The Queen [2006] NSWCCA 4 [74]–[76], and R v Ryan (No 7) [2012] NSWSC 1160 [28]. 21 R v RPS (unreported, NSWCCA, 13 August 1997); R v Burns [2003] NSWCCA 30 [98] (Buddin J). 22 DPP v Kocoglu [2012] VSC 185 [55]–[61]. 23 See, for example, Damiani v Damiani [2012] FamCA 535 [14]; Aouad v The Queen [2011] NSWCCA 61 [366]; and CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 2) [2012] FCA 47 [39]. 24 See Ballard v Brookfield Multiplex Ltd (No 2) [2010] NSWSC 1461 [19]–[20]; DPP v Finnegan [2011] TASCCA 3 [27]–[49]. Also, see 3WJ Pty Ltd v Kanj [2008] NSWCA 321 [23]–[28] (Ipp JA), [36]–[38] (Allsop P), [42]–[43] (Hodgson JA). 25 Australian Building and Construction Commissioner v Abbott (No 4) [2011] FCA 950 [112]. 26 R v Ryan (No 7) [2012] NSWSC 1160 [21]–[23]. 27 See, for example, May v The Queen [2012] NSWCCA 111 [160]–[161]. 28 Niaros v The Queen [2013] VSCA 249 [98] (Redlich JA). 29 See R v BD (1997) 94 A Crim R 131, 141; ISJ v The Queen [2012] VSCA 321 [67]; and Niaros v The Queen [2013] VSCA 249 [99] (Redlich JA). 30 Leung v The Queen [2003] NSWCCA 51 [83]. 31 See Nominal Defendant v Clements (1960) 104 CLR 476. 32 Graham v The Queen (1998) 195 CLR 606, 609. 33 Lee Stuesser, An Introduction to Advocacy (Thomson Reuters Lawbook Co, 2nd edn, 2011) 141. Also, see Hugh Selby, Advocacy: Preparation and Performance (Federation Press, 2009) 165–166, 173–175. 34 R v Hawi (No 16) [2011] NSWSC 1662 [19]. 35 Similar terminology is used in this section as in the s 79 exception to the opinion rule considered in detail in Chapter 9. 36 See Ewin v Vergara [2012] FCA 1240 [8]; and Dupas v The Queen [2012] VSCA 328 [271]. 37 MA v The Queen [2013] VSCA 20 [30]–[52]. 38 DPP v Kocoglu [2012] VSC 185 [23]–[25] applying R v El-Azzi [2004] NSWCCA 455 [260] (Sperling J), [269] (Simpson J). 39 See, for example, Matusevich v The Queen (1977) 137 CLR 633. 40 See R v Hatton (1976) 64 Cr App R 88. 41 See R v Davis [1975] 1 WLR 345; and R v Congressi (1974) 9 SASR 257. 42 ALRC26, vol 1 [785] referring to the Concise Oxford Dictionary. 43 Braysich v The Queen (2011) 243 CLR 434, 455–456 (French CJ, Crennan and Kiefel JJ). Also, see Melbourne v The Queen (1999) 198 CLR 1, 15–16 (McHugh J); Packer v Meagher [1984] 3 NSWLR 486, 492E; Plato Films v Speidel [1961] AC 1090, 1130 (Lord Radcliffe), 1138 (Lord Denning). 44 Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (updated at May 2013) [2-350], viewed online at 14 March 2014. 45 Bishop v The Queen [2013] VSCA 273 [30] (Priest JA). 46 See Simic v The Queen (1980) 144 CLR 319. 47 ALRC26 vol 1 [802]. Also, see Sharma v The Queen [2011] VSCA 356 [44]–[46], [51].

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48 Bishop v The Queen [2013] VSCA 273 [11]–[12] (Redlich JA), [39]–[44] (Priest JA). Also, see R v MWL (2002) 137 A Crim R 282. 49 R v DF [2009] ACTSC 31 [236]–[241]. 50 See Tasmania v Martin (No 2) [2011] TASSC 36 [78]. 51 See, for example, Stirland v DPP [1944] AC 315; Crabbe v The Queen (1984) 56 ALR 733; R v Andrews (1979) 2 A Crim R 182; R v Perrier (No 1) [1991] VR 697. 52 See Gabriel v The Queen (1997) 76 FCR 279; R v Bartle & Others [2003] NSWCCA 329; and Tasmania v Martin (No 2) [2011] TASSC 36 [78]. Compare Skaf v The Queen [2004] NSWCCA 74. 53 Also, see R v PKS (unreported, NSWCCA, 1 October 1998). 54 Quach v The Queen [2011] VSCA 390 [1]–[7] (Warren CJ), [103]–[109] (Tate JA); Salmon v The Queen [2012] NSWCCA 119 [163]–[164]. 55 This section is discussed in Chapter 3. 56 Steve v The Queen [2008] NSWCCA 231. 57 Eastman v The Queen [1997) 76 FCR 9. 58 Stanoevski v The Queen (2001) 202 CLR 115. 59 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 622.

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DISPOSITION EVIDENCE II: TENDENCY AND COINCIDENCE COVERED IN THIS CHAPTER In this chapter, you will learn about: • common law origins of the exclusionary rule; • general features of the legislative scheme; • the tendency rule; • the coincidence rule; • further admissibility restriction in criminal cases; • cases not involving tendency or coincidence reasoning; and • relationship or context evidence.

CASES TO REMEMBER Qualtieri v The Queen (2006) 171 A Crim R 463 R v Ellis (2003) 58 NSWLR 700 R v Player [2000] NSWCCA 123

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 94, 95, 97, 98, 101(2)

INTRODUCTION In this second part of the general ‘disposition evidence’ topic, we consider particular species of character evidence, which were labelled ‘propensity’ and ‘similar fact evidence’ at common law. The uniform evidence law terminology is ‘tendency’ and ‘coincidence’, which recognises the two distinct uses that trigger the operation of the exclusionary rule for these species of character evidence. Whatever label is given to this type of evidence it is generally defined as ‘specific conduct, usually criminal or otherwise discreditable in nature, which is of the same general character as or shares some common feature with the conduct which is the subject of the proceeding, and which is tendered as circumstantial evidence of one or more of the constituent elements of that conduct’.1 It has been described as ‘circumstantial evidence of a particular kind because of the inevitable prejudice … which it carries with it’.2 In a nutshell, it is evidence of similar conduct by one of the parties on other occasions apart from the conduct the subject of the present civil or criminal proceeding. This

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will also include separate instances of similar conduct where multiple charges are heard together in a single criminal proceeding.3

COMMON LAW ORIGINS OF THE EXCLUSIONARY RULE The current rules in the Act making tendency and coincidence evidence inadmissible unless certain conditions are fulfilled—that is, ‘contingent’ exclusionary rules—have their origins in the common law of propensity and similar fact evidence. The common law will not be considered in detail but, by way of overview, a line of cases, notably criminal cases,4 has established a formula for admissibility which underpins the current legislative scheme. The special nature of this evidence has been highlighted in the criminal case law and because it is very likely to be unfairly prejudicial to the person about whom it is adduced, it was ultimately held to be admissible only if ‘the objective improbability of the evidence having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged’.5 Simply stated, this is the ‘no other rational view consistent with innocence’ test. This is a demanding test of admissibility of evidence, as the trial judge must focus on whether there are any other reasonable interpretations of the evidence, in the context of all other admissible evidence, which are consistent with the innocence of the defendant. Because of the nature of the disposition evidence, prejudice of a high degree is simply assumed and specific balancing and weighing of the probative value against the prejudicial effect is thus not required. This test has been criticised as raising the threshold for admissibility to an unrealistically high level and requiring the judge to usurp the role of the jury. Further, in cases involving two or more connected complainants, it is likely the disposition evidence will not be admitted because the possibility of joint concoction between the complainants provides another rational explanation for the existence of the evidence, which is consistent with the innocence of the defendant. We will now turn to a consideration of the legislative scheme, which departs from the common law test, but still retains very stringent safeguards on the admissibility of this form of disposition evidence.

GENERAL FEATURES OF THE LEGISLATIVE SCHEME The rules relating to tendency and coincidence evidence are contained in Part 3.6 EA, and by s 94 the Part is restricted in its application as follows: 94 Application (1)

This Part does not apply to evidence that relates only to the credibility of a witness. …

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(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.

We considered credibility evidence in Chapter 10, and s 94(1) simply excludes evidence only of that nature from the rules in Part 3.6. Where the evidence has dual uses, as ‘tendency’ and ‘credibility’, admissibility will first be considered under Part 3.6. If admissible, it will be used as tendency evidence. If it is not admissible for a tendency use, consideration will be given to its admissibility as credibility evidence under Part 3.7. Tendency evidence may be evidence concerning whether a witness is likely to tell lies, though this is probably more a matter of credibility.6 The restriction in s 94(3) is where character, reputation, conduct or tendency is directly in issue in the trial so that the disposition evidence is the end point of proof and is not used for inferring behaviour in conformity with the person’s particular disposition. This may be the case in an action for defamation, but it is rarely used for this purpose in criminal cases. When the facts in issue have not yet been identified then the admission of tendency evidence is approached on the basis that all acts alleged by the prosecution are in issue.7 Section 95 provides a contrast to what you have learned about hearsay evidence and the operation of s 60 in Chapter 7. Contrary to the operation of s 60, s 95 provides that where evidence has been determined to be inadmissible under the rules in Part 3.6 but is relevant for another purpose, such as credibility of the witness, the evidence still cannot be used for a tendency or coincidence purpose. This reflects the common law principle that evidence relevant and admissible for one purpose, and relevant but not admissible for another, cannot be used by the fact-finder for the latter purpose.8 Therefore s 95 requires that where the evidence reveals misconduct on another occasion which has been admitted only for a non-tendency purpose, then the trial judge would ordinarily direct the jury not to use the evidence as proof of the person’s tendency to act in a particular way or to have a particular state of mind.9

THE TENDENCY RULE The rule in s 97 EA applies in both civil and criminal proceedings and is a rule of evidentiary exclusion unless certain conditions are fulfilled: 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

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(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.10

STUDY TIP Summary points In summary, the conditions to be fulfilled to overcome exclusion of tendency evidence are: • Reasonable notice in writing has been given to each other party in the proceeding of the intention to adduce the evidence. The probative value of the evidence to be adduced and any prejudice to a party will be important factors in deciding whether the notice was reasonable or a failure to give notice can be excused.11 This condition can be dispensed with through a judicial direction under s 100 in an appropriate case. • The court thinks that the evidence will have ‘significant probative value’ either standing alone or in combination with other evidence adduced by the same party.

In unpacking this second and most important condition, you will recall from Chapter 2 that ‘probative value’ is defined in the EA Dictionary to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. In effect, this means the degree of relevance of the evidence and it was held in the case of R v Lockyer (1996) 89 A Crim R 457 that adding the adjective ‘significant’ means that the probative value must be more than merely relevant but does not have to be ‘substantial’. The descriptors ‘important’ or ‘of consequence’ are comparable to ‘significant’ in assessing the degree of relevance of the evidence (at 459).12 In Lockyer, the defendant was charged with the murder of his infant daughter, who died as a result of physical injuries from being ‘bashed’. When the child was ‘bashed’, the defendant and his de facto wife were the only adults present in the house. Therefore, evidence of previous injuries to this child and one of her brothers suggesting that the de facto wife, a prosecution witness, was responsible for inflicting those injuries was held to be admissible as tendency evidence of ‘significant probative value’. Further general guidance for the resolution of such interpretation issues is provided in the case of R v Lock (1997) 91 A Crim R 356, where Hunt CJ at CL in the New South Wales Court of Criminal Appeal (CCA) observed (at 361): ‘The significance of the probative value of the tendency evidence 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.’ In AW v The Queen [2009] NSWCCA 1, Latham J emphasised at [47] that it is concerned with ‘qualitative aspects of the evidence ... it must be more than merely relevant, but may be less

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than substantially so ... The question for the trial judge was whether the evidence was important in establishing the facts in issue’.13 Therefore, ‘significant probative value’ is assessed by a heightened test of relevance and direct reference to the issues in the case, but does not involve intruding on the role of the jury to assign weight.14 It does not depend on any assessment of the ‘credibility or reliability’ of the evidence nor ‘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’.15 In assessing the probative value of the evidence, factors to take into account will usually include: • • •

Cogency of the evidence relating to the conduct of the relevant person [including the source of the evidence], Strength of the inference that can be drawn from that evidence as to the tendency of the person to act or think in a particular way, and The extent to which that tendency increases the likelihood that a fact in issue occurred.16

The strength of the tendency inference will usually be assessed by reference to the following factors: • • • • •

• •

The number of occasions of particular conduct relied upon; The time gap(s) between them; The degree of specificity of the conduct/alleged tendency; The degree of similarity between the conduct on the various occasions; The degree of similarity of the circumstances in which the conduct took place (particularly if it is possible to establish a pattern of behaviour, or even a modus operandi in those circumstances); Whether the tendency evidence is disputed; … [and] Whether the evidence is adduced to explain or contradict tendency evidence adduced by another party’.17

From these points, it can be observed that the greater degree of specificity (as opposed to generality) with which similarities are identified, the greater likelihood that evidence will be probative of a tendency.18 It does not, however, mean that the repetition of certain conduct is a precondition to the admissibility of tendency evidence.19 The tendency doesn’t have to be to commit a crime.20 Some common law tests such as ‘striking similarities’ or even closely similar behaviour do not have to be satisfied for the evidence to have significant probative value as tendency evidence under the Act.21 Finally, it is important to note that, even though evidence may not have been admitted on a tendency basis, it does not necessarily prevent the jury from using it for that purpose. This means the trial judge has to carefully analyse the purposes

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for which the evidence may be used and the specific use nominated by the party adducing it. If the evidence is admitted, the jury must be directed as to the permissible use of the evidence,22 and this could require strong directions to ensure that the inherently prejudicial tendency evidence is not used to assume the defendant is guilty or to undermine proper consideration of available defences.23 Depending on the particular circumstances of the case, the judge may also need to distinguish circumstantial evidence from tendency evidence, noting that tendency can be considered a species of circumstantial evidence.24

THE COINCIDENCE RULE Like the tendency rule, the coincidence rule in s 98 applies in both civil and criminal proceedings and is a rule of evidentiary exclusion unless certain conditions are fulfilled: 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 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.

The provision concerns the drawing of inferences that an identified person did a particular act or had a particular state of mind because there were similarities in the occurrence of two or more events and/or the circumstances in which the events occurred. Essentially, the question posed is whether having regard to those similarities it is improbable that the events occurred coincidentally.25 For example, if there are incidents where two different buildings are broken into, the method of entry in each case involves an unusual and expert form of glass removal, and the only items taken are valuable rare books, we might argue that it would be too much of a coincidence for the culprit in each case to be anyone other than the same person. It involves a form of modus operandi reasoning. The conditions for admissibility in s 98 also involve determining whether reasonable notice was given and whether the evidence would have significant probative value. Therefore, the commentary above in relation to those conditions in s 97 applies equally to s 98. In assessing the significant probative value of coincidence evidence, however, there is a much stronger emphasis on the nature and extent of the similarities in the events or circumstances in which the events occurred.26

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In DSJ v The Queen; NS v The Queen [2012] NSWCCA 9, a five-member bench decided that when determining whether coincidence evidence has significant probative value a trial judge must consider ‘whether there is a real possibility of an alternative explanation inconsistent with the guilt of the party against whom it is tendered’, but this doesn’t involve a fact-finding analysis ‘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’ (at [10]). Essentially the trial judge should consider the capacity of any alternative explanations for the conduct to be inconsistent with the guilt of the defendant. At the same time, the trial judge must not intrude on the jury’s task to weigh the evidence when it comes to determining whether the prosecution has proved its case beyond reasonable doubt (at [78]–[98]). Where there are multiple complainants in a proceeding, there must be a real chance, rather than merely a speculative chance, of concoction between them to diminish the probative value of the tendency or coincidence evidence.27 The nature of any relationship or association between such complainants is important in assessing the chance of concoction of their evidence. There will be circumstances where a party can invoke both tendency and coincidence lines of reasoning in relation to certain evidence.28 Each does, however, have a distinctive area of operation and this is based on how the misconduct or events are relevant to prove a particular fact in issue. For s 97 to be invoked, ‘the other misconduct is accepted to have occurred, whereas the coincidence inference (s 98) deals with situations where the other misconduct is doubtful’.29

THE DIFFERENT FORMS OF REASONING IN TENDENCY AND COINCIDENCE EVIDENCE If the defendant is charged on indictment with multiple murders where all the victims, who were members of the defendant’s family, have died as a result of a drug overdose, for the prosecution to invoke coincidence reasoning (s 98) it must be beyond coincidence for multiple people in the defendant’s household to accidentally die in the same way. The evidence relating to each death must show that it has been brought about deliberately by human agency. Other evidence, usually circumstantial in nature such as the opportunity of the defendant at the time of each death, and any motive the defendant may have had to kill multiple family members will provide proof that the defendant was the common human agent involved in each death. When relying on coincidence reasoning, the prosecution will be contending that the two or more related events are not that the defendant murdered the multiple family members, but rather that multiple members of the same family died in similar ways and circumstances to which the defendant can be linked.30 If it is concluded that the defendant administered a drug overdose to one victim, it could also be concluded that they did the same to the other family members and that the defendant had a tendency

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to administer drug overdoses to close family members. Where the defendant is tried for multiple counts of murder at the same time in one trial, that tendency would only be established after coincidence evidence was used with other evidence to prove that the defendant had administered drug overdoses to multiple family members. In that scenario it would not be necessary for the prosecution to rely on the defendant’s tendency to administer drug overdoses to close family members as the defendant’s responsibility for each death is proved through coincidence reasoning. Tendency reasoning (s 97) would be used where the defendant is tried for only one count of murder and the prosecution adduces evidence that, at an earlier (or later) time than the alleged murder for which the defendant is being tried, the defendant had actually administered drug overdoses to other family members. That is, evidence of the defendant’s tendency to kill family members by administering drug overdoses to them is adduced to show that the defendant acted in accord with this tendency and murdered the family member, the subject of the one count in the current trial, in this way. The misconduct is accepted to have occurred at this earlier (or later) time, which may be proved as a criminal conviction, by the defendant’s admission or other incontrovertible means. Admissibility of this evidence would be subject to s 97 rather than s 98 and the jury would have to be instructed on the different modes of reasoning applicable, even though the same legal tests for threshold admissibility of the evidence are applied.

FURTHER ADMISSIBILITY RESTRICTION IN CRIMINAL CASES If the tendency or coincidence evidence is adduced by the prosecution about a defendant in criminal proceedings, a higher standard of admissibility is required by s 101(2) EA. The evidence is inadmissible31 ‘unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant’. The requirement in s 101(2) is similar to but more stringent than the test for discretionary exclusion in s 137.32 Accordingly, if the evidence meets the requirements of s 101(2), it will not be excluded under s 137.33 This higher standard of admissibility does not apply to tendency or coincidence evidence that is adduced by the prosecution to explain or contradict tendency or coincidence evidence adduced by a defendant.34 Various courts initially interpreted the admissibility requirement in s 101(2) as importing the strict ‘no other rational view consistent with the innocence of the accused’ test35 favoured by the majority of the High Court in Pfennig v The Queen and discussed above. There was, however, some judicial dissent and counterviews put forward that s 101(2) should not be read as incorporating the common law test from Pfennig.36 Ultimately, the New South Wales CCA convened a bench of five judges to resolve the issue and state the correct interpretation of s 101(2) in R v Ellis (2003) 58 NSWLR 700.

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A CASE TO REMEMBER R v Ellis (2003) 58 NSWLR 700 In R v Ellis (2003), the prosecution proposed that the defendant be tried in relation to several separate break, enter and steal charges on the one indictment. The prosecution relied on the similar and unusual modus operandi used in the commission of the offences as justifying the admissibility of evidence on a coincidence basis. The trial judge admitted some of the evidence on that basis but in applying the test of admissibility focused on the actual words of s 101(2) and not the test from Pfennig v The Queen. The defendant appealed on the basis that the trial judge erred in this regard, but the CCA unanimously dismissed the appeal with Spigelman CJ giving the leading judgment. The trial judge was held to be correct to apply the terminology of the Act rather than the pre-existing common law test in Pfennig; the common law reasoning is ‘inapplicable to a statutory test that probative value substantially outweighs prejudicial effect’ (at 717, emphasis added). It was observed that s 101 poses the test in different terms to that propounded through the cases of Sutton, Hoch and Pfennig. The change in terminology was considered to be significant and the whole statutory approach to tendency and coincidence evidence in the Act was seen to evince an intention to state the principles comprehensively and afresh. Therefore, the words of s 101(2) have to be looked at carefully to reflect the statutory intention and the use of the word ‘substantially’ was seen as a legislative formulation, which calls for a balancing exercise to be conducted on the facts of each case. ‘It requires the court to make a judgment, rather than to exercise a discretion’ (at 718). Spigelman CJ emphasised that ‘there is no need for an assumption that all such evidence is likely to be highly prejudicial’ (at 719) and the ‘no rational explanation’ test failed to give ‘adequate consideration to the actual prejudice in the specific case’ (at 718) but the decision, should not be understood to suggest that the stringency of the approach culminating in the Pfennig test is never appropriate when the judgment for which the section calls has to be made. 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’. (At 718)

That test will apply in situations where the specific tendency or coincidence evidence is judicially assessed as carrying the very high degree of prejudice that is assumed to exist in the Pfennig test at common law.

Overall, it is clear that s 101(2) involves a true balancing test as opposed to a bright-line approach. Since R v Ellis,37 the settled construction of the balancing test in s 101(2) is illustrated in a number of cases with an emphasis on a principled and transparent balancing of probative value against prejudicial effect and that adequate reasons must be given for admitting or refusing to admit the evidence.38 Also, the ALRC affirmed in ALRC102 that Ellis provides the preferred approach to the construction of s 101(2).

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STUDY TIP Advocacy and the criminal trial thread scenario In adducing tendency or coincidence evidence from a witness in examination in chief, it is important to ask questions that clearly establish its probative value in the context of other evidence already adduced or to be adduced in the trial. Remember that the rationale for adducing tendency evidence is ‘that a person who has regularly exhibited a particular character trait is likely to have acted consistently with that trait at the time of the offence’,39 and that the rationale for adducing coincidence evidence is that the events and/or their circumstances are so similar that it is improbable that they occurred coincidentally. Therefore, evidence of specific details of the person’s conduct, including when, where and how this conduct occurred, will be important in establishing that it is of significant probative value and can be used as tendency or coincidence evidence. Without leading the witness and listening carefully to the answers given so that you can ‘piggyback’ off them when appropriate, your examination in chief should canvass from the witness: • • • • • •

their knowledge of the person; what constituted the conduct and whether it had distinctive or unusual features; when they saw or heard the person exhibiting the particular conduct; how often they saw or heard it; where they saw or heard it; and any other relevant details.

CASES NOT INVOLVING TENDENCY OR COINCIDENCE REASONING Certain situations raise the issue of whether the evidence actually falls within the definition of tendency or coincidence evidence. It may be that such evidence is relevant and admissible for a use other than a tendency or coincidence use, subject only to discretionary exclusion under s 135 or s 137. A number of examples are provided by Hidden J in the case of R v Rich (1998) 102 A Crim R 165, 170–171, including evidence showing opportunity, evidence of prior conduct revealing a motive,40 and evidence of a system. Considerable care is required in characterisation of the evidence and the party seeking to adduce such evidence must clearly articulate how it is relevant to facts in issue so as to demonstrate that it does not involve tendency or coincidence reasoning.41 The more common examples of these situations are evidence relevant to a person’s state of mind, and ‘relationship’ or context evidence. The latter type of evidence is complicated and has been the subject of considerable attention in the courts. It is dealt with under a separate heading below. In relation to evidence

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relevant to a person’s state of mind, the cases in this area have also been labelled presumption of continuance and one-transaction cases. Essentially these cases show that when a particular state of mind of a person can be proved to exist sufficiently proximate to the time of the alleged offence it will not be characterised as past conduct tending to show a particular disposition or tendency, but will be presumed to continue up to the commission of the offence.42 This temporal proximity requirement was applied broadly in R v Serratore [2001] NSWCCA 123, a murder case where the court held (at [38]–[40]) that evidence five months before the victim’s death of an expressed desire by the defendant to kill her was sufficiently proximate and no tendency reasoning was involved.43 In LJW v The Queen [2010] NSWCCA 114, it was held that a state of mind first displayed during a particular day could be inferred to continue until the night of that day when the sexual offences occurred (at [51]), but not to other offences which occurred eight months later (at [52]). The latter offences involved tendency reasoning as to the defendant’s state of mind and were subject to s 97, and the court emphasised that the ‘state of mind’ evidence must form ‘an inseparable feature of a unified sequence of events’ and ‘could reasonably be inferred as having a probability of continuing … to the time of the events alleged’.44

A CASE TO REMEMBER R v Player [2000] NSWCCA 123 In R v Player [2000], the defendant was charged with malicious damage to property (smashing a glass window of a fruit shop). There was no eyewitness to this incident and the prosecution case was based on circumstantial evidence. One important aspect of this evidence was that after the window had been smashed, the defendant was observed to be in an aggressive and intoxicated state when he kicked over a bin, walked some distance to kick and karate chop a sign, and then kicked another bin. On appeal, it was held that the trial judge correctly admitted this evidence as it was relevant that the defendant was in an aggressive state when seen in the close vicinity of the fruit shop shortly after the sound of glass being smashed was heard by the security guards. It was not tendency evidence (based on the reasoning in Adam (1999) 106 A Crim R 510), but evidence of conduct by the defendant ‘evincing a particular state of mind at a time so close to the commission of the offence as to permit an inference that the same state of mind was in existence at such commission’ (at [11]). The incidents were very close in time and considered to be part of a transaction consisting of connected events (a course of aggressive and destructive conduct) allowing for a presumption of a continuation of the state of mind to the earlier point of time when the window was broken.

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RELATIONSHIP OR CONTEXT EVIDENCE Relationship evidence is not tendency evidence and so is not subject to the exclusionary rule in s 97 EA.45 There is no specific provision in the Act about the characterisation or definition of relationship evidence, but it must be relevant to facts in issue (s 55) and is subject to discretionary exclusion (ss 135 and 137). The rules and principles guiding its characterisation and application have developed at common law. This evidence is contentious and is often used in sexual abuse cases and domestic self-defence cases to explain the violence and other acts that occur in the relationship.46 It usually consists of various forms of conduct that show the nature of the relationship between two people, and this will commonly involve ‘uncharged acts’ of violence or sexual abuse. The precise way in which it is relevant to a fact in issue must be shown.47 It is not sufficient to merely assert that the evidence is relied on to show the ‘surrounding circumstances’ or ‘background’ to the alleged offence. Wilson v The Queen (1970) 123 CLR 334 is an early case that demonstrates the relevance of uncharged acts of violence by the defendant in that these acts revealed a relationship of enmity between the defendant and victim in a murder case. In this case the defendant’s wife died from a gunshot wound that the defendant alleged was accidentally inflicted. Taken in the context of evidence of quarrels, threats and utterances over a considerable period of time where the deceased was alleged to have said to the defendant a number of times, ‘I know you want to kill me, why don’t you get it over with’ and ‘I only know you want to kill me for my money’, the High Court held that the nature of the current relationship between the defendant and his wife was relevant to whether the defendant had deliberately or accidentally shot his wife. Evidence of mutual enmity could be used to infer ‘the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility’ (at 337). On the other hand, had there been evidence of a close affectionate relationship this may well have inclined the jury against the inferences from other circumstances that he had killed his wife. The evidence was relevant because it prevented the issues from being considered in a vacuum. This approach to relationship evidence in murder cases is echoed by the New South Wales Court of Criminal Appeal in R v Clark (2001) 123 A Crim R 506, where it was held that it was material in the particular context ‘to consider whether the past dealings and mutual attitudes of the parties were such as to increase the probability that a killing resulted’ (at 575 per Heydon JA). The relationship evidence adduced by the prosecution, which contradicted the defendant’s own version of a good relationship with the victim, was admissible in anticipation of possible defences and it provided direct evidence of fear, the basis for that fear and the degree of its intensity. Accordingly, in light of the other available evidence, it could rationally affect the assessment of the existence of a fact in issue, namely the probability of the defendant killing the deceased at the end of the car journey on the day in question.

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Turning to the more common and contentious use of relationship evidence, evidence of uncharged acts of sexual conduct, this evidence may be admissible to explain the nature of the relationship between the complainant and the defendant. Again, there is a ‘true context’ rationale for allowing this evidence to be admitted in such cases and thus ‘context evidence’ is the preferred contemporary terminology.48 In Gipp v The Queen (1998) 194 CLR 106, McHugh and Hayne JJ observed that evidence of relationship was admissible in order to ensure that the account of the complainant in a case of systematic child sexual assault over approximately 12 years did not appear ‘unreal or unintelligible’. The necessity for such relationship evidence was emphasised to allow the jury to understand the context of the incidents that were the subject of the charges. Other members of the High Court, however, were much more cautious. Gaudron J considered that such evidence may be admissible to explain lack of surprise or failure to complain, but only if these are made issues at trial by the defence. As they were not made issues in this case, the evidence of general sexual abuse was not admissible. Callinan J rejected admission of nonspecific prejudicial evidence as ‘background’ and required clear articulation of the purpose for which it is to be used. Kirby J doubted whether the probative value of the ‘sexual relationship’ evidence outweighed the ‘substantial prejudicial effect’ of such evidence. Ultimately, from Gipp, it can be stated that the issue will turn on a balancing of probative value and prejudice in the circumstances of the case, bearing in mind that warnings to the jury may reduce the danger of unfair prejudice. Since Gipp there has been a series of cases in New South Wales and in the High Court dealing with relationship or context evidence. In New South Wales certain general principles were stated in Qualtieri v The Queen (2006) 171 A Crim R 463 and then consolidated and amplified in subsequent cases.

A CASE TO REMEMBER Qualtieri v The Queen (2006) 171 A Crim R 463 Qualtieri v The Queen (2006) involved various sexual offences that the defendant was alleged to have committed against his daughter when she was very young. In addition to the five charged acts, the prosecution led evidence of general sexual activity as ‘relationship evidence’. The trial judge directed the jury that they could use this evidence in determining whether or not the defendant harboured sexual feelings or passions for the complainant that he was prepared to satisfy. In doing so, it was held that this direction crossed the line and invited the jury to consider the “relationship evidence” in coming to a conclusion as to the propensity of the appellant to commit the offence. McClellan CJ at CL emphasised that ‘before this was appropriate, the admission of the evidence as tendency evidence would have to be considered and appropriate and clear instructions given as to its use’ (at 488–489). This confusion of the relevance of context evidence with tendency evidence through the judicial directions to the jury was drawn out as a major reason for allowing the appeal.

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Ultimately, Howie J provides a useful synthesis of the limitations of context evidence in that it cannot be used to show that ‘within the accused there was sexual feeling or passion for the complainant that he was prepared to satisfy … [it] may allow the jury to infer some aspect of the complainant’s conduct but it does not give rise to any inference about the accused’s conduct’ (at 494). His Honour emphasised that the evidence was not admitted ‘to show that it was more likely that the accused committed the offences charged against him’ (at 495), and the judge should have directed the jury accordingly.

The limited use of context evidence has been highlighted in subsequent cases to ensure that it is not ‘tendency evidence admitted by the back door’.49 It is particularly clear that evidence of a defendant’s ‘sexual interest’ in a child is tendency evidence subject to compliance with ss 97 and 101 EA even when the evidence doesn’t suggest the commission of unlawful sexual acts by the defendant in relation to the child.50 In Rodden v The Queen [2008] NSWCCA 53, the prosecution adduced both ‘tendency’ and ‘relationship’ evidence as part of its case in proving various sexual assault charges. The court affirmed that the legitimate uses of the tendency evidence by the prosecution (at [48]) were to: • establish a sexual relationship which makes the complainant’s allegations more likely to be true; • provide evidence of motive, namely sexual gratification and thus a form of corroboration of the complainant’s evidence; and • make it more likely that the offences charged were in fact committed. On the other hand, the relationship evidence was restricted to showing the nature of the relationship and placing the complainant’s allegations in a realistic context— that is, that the incidents the subject of charges were not isolated or occurred out of the blue and why there was a lack of surprise by the complainant when the acts occurred. This evidence could not be used to establish that any of the particular offences in fact occurred nor as tending to show that the appellant had wrongful sexual feelings towards the complainant and, therefore, it was more likely that he committed the offences in question. The judicial directions actually given in this case were inadequate (at [127]) for the jury to make the distinction between the uses of the different forms of highly prejudicial evidence and it was ‘quite possible that the jury reasoned to the appellant’s guilt of the offences charged by reason of their satisfaction that he did have an ongoing sexual relationship with the complainant as she claimed’ (at [131]). The final issue is the standard of proof required for context evidence. The High Court decision in HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 presented differing opinions about the standard of proof for the admissibility of evidence of uncharged acts and whether all or only those adduced

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STUDY TIP Summary points Overall, the line of cases up to the most recent clearly show that the relevance of this evidence is to place the events which are the subject of specific charges in a realistic context, particularly cases involving multiple and ongoing sexual offences, and to explain lack of response and surprise in children that would otherwise make the incidents implausible.51 In other words, without this evidence, events that the jury may consider to be ‘inexplicable or fanciful incidents’ cannot be explained or given ‘meaningful context’.52 It is sufficient if the context evidence could reasonably be regarded by a jury as capable of explaining the complainant’s conduct and ‘may answer questions that could reasonably arise in the jury’s mind concerning the complainant’s evidence’.53 Also, it is important to note that context evidence may not be admissible if there is an innocent explanation for it.54

for a tendency use had to satisfy the Pfennig test and then, once admitted, had to be established beyond reasonable doubt as an indispensable piece of circumstantial evidence. Following this case, the standard of proof was specifically drawn out and considered again in DJV v The Queen (2008) 200 A Crim R 206, where McClellan CJ at CL clearly reiterated that the appropriate standard of proof for tendency evidence, including evidence used as ‘guilty passion’ or ‘sexual interest’, once admitted as a form of circumstantial evidence is ‘beyond reasonable doubt’, but this standard is not required for relationship evidence used as context once it has been determined as relevant and admissible on that limited basis (at [28]–[31]).55 Subsequently in DTS v The Queen [2008] NSWCCA 329, the analysis of McClellan CJ at CL was adopted and it was emphasised that ‘context evidence does not require a direction that it be proved beyond reasonable doubt’.56

Important references For more extensive coverage of tendency and coincidence evidence, see: 1 John Anderson and Peter Bayne Uniform Evidence Law: Text and Essential Cases (Federation Press, 2nd edn, 2009) Chapter 14. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 361–401. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 9. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapter 10. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 467–555.

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ASSESSMENT PREPARATION Active learning questions 1 What are the different fields of operation of the tendency rule in s 97 and the coincidence rule in s 98? 2 Give examples of the type of evidence to which each rule applies. 3 What is your understanding of the statutory admissibility test under s 101(2)? How does it differ from the test for admissibility of propensity or similar fact evidence at common law? 4 How do you determine whether a state of mind existing in a person at a particular time continued up to the time of the alleged offence or whether it was a previous state of mind that is a form of tendency evidence? 5 Explain the approach taken by the courts as to the use of evidence of uncharged acts as either context (relationship) evidence and/or tendency evidence.

CRIMINAL TRIAL THREAD SCENARIO The seventh prosecution witness is Jill Ted, the former girlfriend of James Swifty. Jill Ted’s evidence raises tendency or coincidence evidence issues. Other rules of evidence, including relevance, hearsay, opinion and credibility are also raised. The Crown Prosecutor will conduct the examination in chief of this witness and attempt to adduce all relevant and admissible evidence going to proof of facts in issue. Defence counsel will then crossexamine the witness with the specific aim of casting doubt on the truthfulness, accuracy and reliability of her evidence. INSTRUCTIONS TO COUNSEL Jill Ted has been given immunity from prosecution in relation to the 2011 robbery. Counsel for the prosecution must attempt to adduce evidence of the 2011 robbery as tendency and/or coincidence evidence. Counsel for the defence will object on the basis that the evidence does not meet the test for admissibility for such evidence. Both counsel must argue either for or against admission of the evidence on the basis of s 97 and/or s 98, taking into account s 101 and the case of R v Ellis [2003] 58 NSWLR 700. Both prosecution and defence counsel must be prepared to make and answer objections relating to the form or appropriateness of opposing counsel’s questions and the relevance of any evidence that is sought to be adduced, whether it is hearsay, an admission or an opinion. Counsel may make limited reference to whether the probative value of any evidence sought to be adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (s 137). Defence counsel must be prepared to cross-examine Jill Ted using her statement if the witness gives evidence that is different from her statement. Your cross-examination must comply with s 43. You do not have to refer to s 43 unless asked, but you must follow the procedure. Both counsel should consider using a map of the area to take the witness through her testimony. Defence counsel must comply with the rule in Browne v Dunn.

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INSTRUCTIONS TO WITNESS You must be prepared to give evidence by reference to a map of Civic. James Swifty cheated on you not long after the events of 17 January 2014. You hate him and you’d like to see him rot in prison. You have been granted immunity from prosecution in relation to the 2011 robbery for which Swifty has already served time. You are pretty hazy on the timing and details of what took place on 17 January 2014 and what anyone was wearing. You didn’t see him carrying a knife on 17 January 2014. Note: When being examined by counsel for the prosecution you will say that James Swifty walked off in the direction of the bank and came back from that direction. You will not change your evidence on this unless counsel for the defence makes you read your statement in cross-examination, at which point you will agree that he did walk off in the direction of the interchange and came back from that direction. For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 Kenneth Arenson and Mirko Bagaric, Rules of Evidence in Australia: Text & Cases (LexisNexis Butterworths, 2nd edn, 2007) 193. Also, see J D Heydon, Cross on Evidence (LexisNexis Butterworths, 9th Australian edn, 2013) 667. 2 Sutton v The Queen (1984) 152 CLR 528, 563 (Dawson J). 3 Arguments in relation to the admissibility of tendency and coincidence evidence are often central to the determination of whether multiple separate offences can be tried at the same time in a single criminal proceeding. 4 See Makin v Attorney-General for NSW [1894] AC 57; R v Straffen [1952] 2 QB 911; DPP v Boardman [1975] AC 421; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Hoch v The Queen (1988) 165 CLR 292; and Pfennig v The Queen (1995) 182 CLR 461. 5 Pfennig v The Queen (1995) 182 CLR 461, 481–482 (Mason CJ, Deane and Dawson JJ). This equates to the test that a jury is directed to apply in determining whether circumstantial evidence that has been admitted in a criminal proceeding establishes the guilt of the accused beyond reasonable doubt; that is, whether there is any rational view of the evidence inconsistent with the guilt of the accused—see R v Hodge (1838) 168 ER 1136; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Shepherd v The Queen (1990) 170 CLR 573; R v Park [2003]; and Howlett v Budd [2003] TASSC 49 [9]. The standard of proof for circumstantial evidence is considered in detail in Chapter 2. 6 GEH v The Queen [2012] NSWCCA 150. Compare Cvetkovic v The Queen [2010] NSWCCA 329 [219]–[229]. 7 R v King [2012] ACTSC 176 [6]–[7] applying R v Fletcher [2005] NSWCCA 338. 8 See, for example, Baghdadi v The Queen [2011] NSWCCA 234 [121]–[123]. 9 R v AH (1997) 42 NSWLR 702; R v White [2012] NSWSC 467 [8]–[10]. 10 A useful summary of the operation of the rule and the related decision-making process is found in Tasmania v W (No 2) [2012] TASSC 48 [11]. 11 R v Harker [2004] NSWCCA 427 [35]. Also, the sufficiency of the contents of the notice may be an issue—see R v RGC [2012] NSWCCA 271 [13]–[14]. 12 Also, see R v Martin [2000] NSWCCA 332 [67].

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13 Also, see BJS v The Queen [2013] NSWCCA 123 [47]–[48]. 14 BP v The Queen [2010] NSWCCA 303 [106]–[107]; PWD v The Queen [2010] NSWCCA 209; R v Bangaru [2012] NSWCCA 204 [263]–[266]; R v Hawi [2011] NSWSC 1669 [19]. See also Combined Insurance Company of America v Trifunovski (No 4) [2011] FCA 271 [11]. 15 DSJ v The Queen; NS v The Queen [2012] NSWCCA 9 [8] (Bathurst CJ), [56] (Whealy JA). 16 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, 69 (emphasis added). This case is an example of the application of the tendency rule in civil proceedings of ‘misleading or deceptive conduct by misrepresenting the attributes of the Parkmore Shopping Centre, of which Perpetual was the proprietor’ (at 53). Also, see Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2013) 87 ALJR 668, 671–672 and 674 for an example of civil proceedings where email communications were held to establish ‘a tendency … to engage in infringing transactions’. Cf Galea v Farrugia [2013] NSWCA 164 [85]–[89] where evidence in civil proceedings was not characterised as tendency evidence because it ‘did not, for example, establish a pattern of behaviour or modus operandi … or any special kind of business, line of conduct or manner of living where the proved acts would ordinarily be accompanied by the further act’ (at [88]). 17 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 477–479 (emphasis added, footnote references omitted). 18 CEG v The Queen [2012] VSCA 55 [18]–[23]; CGL v The Queen [2010] VSCA 26 [40]. Also, see Middendorp v The Queen [2012] VSCA 47 [20]. 19 R v Ford [2009] NSWCCA 306 [45]; R v Fitzpatrick [2012] ACTSC 107 [16]–[17]; R v Johnston [2012] ACTSC 89 [40]–[50]. 20 FB v The Queen [2011] NSWCCA 217 [24]; Middendorp v The Queen [2012] VSCA 47 [18]; R v Li [2003] NSWCCA 407 [11]. 21 BP v The Queen [2010] NSWCCA 303 [108]; R v Ford [2009] NSWCCA 306 [38], [125]; R v PWD [2010] NSWCCA 209 [79], [87]–[88]; FB v The Queen [2011] NSWCCA 217 [26]–[27]; BJS v The Queen [2013] NSWCCA 123 [56]–[64]. 22 ARS v The Queen [2011] NSWCCA 266 [75], [81]–[84], [91]; Chen v The Queen [2011] NSWCCA 145 [97]–[98]; FP v The Queen [2012] NSWCCA 182 [112]; L’Estrange v The Queen [2011] NSWCCA 89 [60]–[64]; Toalepai v The Queen [2009] NSWCCA 270 [47]–[49]; RG v The Queen [2010] NSWCCA 173 [35]. Also, see Tasmania v Martin (No 2) [2011] TASSC 36 [74]. 23 SK v The Queen [2011] NSWCCA 292 [34]. See also L’Estrange v The Queen [2011] NSWCCA 89 [61]. 24 Cargnello v DPP (Cth) [2012] NSWCCA 162 [50]; Chen v The Queen [2011] NSWCCA 145 [96]; DAO v The Queen [2011] NSWCCA 63 [180]. 25 R v Gale; R v Duckworth [2012] NSWCCA 174 [25]–[31]. Also, see CGL v The Queen [2010] VSCA 26 [22], [30]–[31]; Chen v The Queen [2011] NSWCCA 145 [96]; FB v The Queen [2011] NSWCCA 217 [23]. 26 R v Gale; R v Duckworth [2012] NSWCCA 174 [35]–[49]; Gilham v The Queen [2012] NSWCCA 131 [319]–[329]. In the latter case of multiple killings, reference by the Crown Prosecutor to the ‘extraordinarily coincidental and extraordinarily similar’ nature of the stabbings of the victims in her closing address demonstrated ‘an invitation to the jury to

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engage in coincidence reasoning’ even though this had not been raised at the trial and the evidence had not been admitted after consideration of compliance with s 98 ([327]). BP v The Queen; R v BP [2010] NSWCCA 303 [110]; R v PWD [2010] NSWCCA 209; FB v The Queen [2011] NSWCCA 217 [35]; BJS v The Queen [2013] NSWCCA 123 [60]–[67]. Also, see BSJ v The Queen [2012] VSCA 93 [21]; SPA v The Queen [2011] VSCA 306 [11]. See, for example, R v Martin [2002] NSWCCA 332 [60]. David Hamer, ‘Admissibility and the Use of Relationship Evidence in HML v The Queen: One Step Forward, Two Steps Back’ (2008) 32 Criminal Law Journal 351, 353. Cases such as Perry v The Queen (1982) 150 CLR 580; and R v Folbigg [2003] NSWCCA 17 are useful case examples of coincidence reasoning. It is treated as a rule of admissibility although the words in the section are ‘cannot be used against the defendant …’—see DAO v The Queen [2011] NSWCCA 63 [11]. McCartney v The Queen [2012] VSCA 268 [47]; KJM v The Queen (No 2) [2011] VSCA 268. Also, see DAO v The Queen [2011] NSWCCA 63 [36]; R v Kaewklom (No 1) [2012] NSWSC 1103 [86]–[89]; and RWC v The Queen [2011] NSWCCA 332 [108]. Section 137 is discussed in detail in Chapter 3. BP v The Queen [2010] NSWCCA 303 [109]; R v Ford [2009] NSWCCA 306 [59]; Christian v The Queen [2013] NSWCCA 98 [59]; BJS v The Queen [2013] NSWCCA 123 [69]. Also, see R v Johnston [2012] ACTSC 89 [50]. See s 101(3) and (4). See, for example, R v Lock (1997) 91 A Crim R 356, 363; R v AH (1997) 42 NSWLR 702, 709; R v Gee (2000) 113 A Crim R 376; R v Le [2000] NSWCCA 49; R v WRC (2002) 130 A Crim R 89, 101–102; and R v Folbigg [2003] NSWCCA 17 [24]–[28]. See R v Leask [1999] NSWCCA 33 [49]–[53]; R v Le [2000] NSWCCA 49 [112]–[116]; and R v Andrews [2003] NSWCCA 7. The High Court refused special leave to appeal in Ellis v The Queen [2004] HCATrans 488, and effectively affirmed the NSWCCA position. R v Harker [2004] NSWCCA 427 [58]; R v RN [2005] NSWCCA 413 [9]; R v Folbigg [2005] NSWCCA 23; AE v The Queen [2008] NSWCCA 52; DAO v The Queen [2011] NSWCCA 63 [40] (Spigelman CJ), [98], [171]–[173] (Simpson J); and BJS v The Queen [2013] NSWCCA 123 [43]–[45]. Thomas Mauet and Les McCrimmon, Fundamentals of Trial Techniques (Thomson Reuters Lawbook, 3rd Australian edn, 2011) 133. Depending on the particular circumstances evidence of motive may be treated as tendency evidence—see, for example, ES v The Queen (No 1) [2010] NSWCCA 197 [39]; and Tasmania v Martin (No 2) [2011] TASSC 36 [66]–[68]. See RG v The Queen [2010] NSWCCA 173 [34]; Tully v The Queen (2006) 81 ALJR 391 [141]–[146]; and HML v The Queen (2008) 235 CLR 334. R v Adam (1999) 106 A Crim R 510 [30]. Also, see LJW v The Queen [2010] NSWCCA 114 [47]–[51]; and TWL v The Queen [2012] NSWCCA 57 [43]–[45]. Also, see FDP v The Queen [2008] NSWCCA 317 [40]. At [45], [47], [51]. Also, see TWL v The Queen [2012] NSWCCA 57 [43]–[45]. See McCarthy v The Queen [2012] ACTCA 18 [18]; Conway v The Queen [2000] FCA 461 [95]; ES v The Queen (No 1) [2010] NSWCCA 197 [38]; SWC v The Queen [2011] VSCA 264 [15].

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46 ES v The Queen (No 1) [2010] NSWCCA 197 [41]; KTR v The Queen [2010] NSWCCA 271 [99]; RWC v The Queen [2010] NSWCCA 332 [122]. See also Middendorp v The Queen [2012] VSCA 47 [25]. 47 KTR v The Queen [2010] NSWCCA 271 [88]; RG v The Queen [2010] NSWCCA 173 [26]; RWC v The Queen [2010] NSWCCA 332 [117]. 48 RWC v The Queen [2010] NSWCCA 332 [112]. 49 Ibid, [115]; Steadman v The Queen (No 2) [2013] NSWCCA 56 [11]–[18]. 50 DJV v The Queen [2008] NSWCCA 272 [30], [39]; ES v The Queen (No 1) [2010] NSWCCA 197 [38]–[40]; ES v The Queen (No 2) [2010] NSWCCA 198 [67]; RWC v The Queen [2010] NSWCCA 332 [126]–[128] BBH v The Queen (2012) 245 CLR 499 [152]; Steadman v The Queen (No 1) [2013] NSWCCA 55 [10]; Colquhoun v The Queen (No 1) [2013] NSWCCA 190 [21]–[29]; Colquhoun v The Queen (No 2) [2013] NSWCCA 191 [20]–[22]; 51 Norman v The Queen [2012] NSWCCA 230 [29], [33]. Also, see ES v The Queen (No 1) [2010] NSWCCA 197 [41]; KTR v The Queen [2010] NSWCCA 271 [99]; Qualtieri v The Queen [2006] NSWCCA 95 [80], [90] (McClellan CJ at CL), [116]–[120] (Howie J); RG v The Queen [2010] NSWCCA 173 [38]; RWC v The Queen [2010] NSWCCA 332 [122]; R v Saunders [2012] ACTSC 143 [38]–[39]; Lo Castro v The Queen (No 2) [2013] NTCCA 15 [29]–[35]. 52 Norman v The Queen [2012] NSWCCA 230 [26]. 53 Steadman v The Queen (No 2) [2013] NSWCCA 56 [13]. 54 See, for example, BBH v The Queen (2012) 245 CLR 499, 521–522 (French CJ), 527 (Hayne J). 55 Affirmed in Neubecker v The Queen [2012] VSCA 58 [32]–[58]; and WFS v The Queen [2011] VSCA 347 [38]. Also, see BBH v The Queen (2012) 245 CLR 499, 522–523 and 526 (Hayne J); Roach v The Queen (2011) 242 CLR 610, 625–626 (French CJ, Hayne, Crennan and Kiefel JJ); and Wilson v The Queen [2011] VSCA 328 [173]. 56 Also see JDK v The Queen [2009] 194 A Crim R 333; DJS v The Queen [2010] NSWCCA 200 [51]; and ES v The Queen (No 1) [2010] NSWCCA 197 [40]–[41].

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IDENTIFICATION EVIDENCE COVERED IN THIS CHAPTER In this chapter, you will learn about: • meaning of identification evidence; • exclusion of visual identification evidence; • exclusion of picture identification evidence; • judicial warning; and • other kinds of ‘identification’ evidence.

CASES TO REMEMBER Dhanhoa v The Queen [2003] 217 CLR 1 R v Rose [2002] 55 NSWLR 701 Trudgett v R [2008] NSWCCA 62

STATUTES AND SECTIONS TO REMEMBER Evidence Act ss 114, 115, 116, 165

INTRODUCTION Identification evidence is perennially one of the most contentious aspects of a criminal trial where the identity of the perpetrator of a crime is a fact in issue.1 It has long been recognised that honest witnesses are commonly mistaken when making an identification of a person seen on a prior occasion.2 Triggering our human memory to recall an occurrence or an image of a person involves recalling our subjective experience of that occurrence or image rather than the actuality. Our experience is likely to have been imperfect because various personal and environmental factors would have been operating at the time of the occurrence to affect our ability to fully and accurately absorb the information. Also, when we later come to recollect the occurrence or image it is likely that during the intervening time further distortion and reconstruction in our minds will have taken place. Clearly then, identification evidence is potentially unreliable. The margin for error reduces significantly, however, when a person is well acquainted with the individual they are identifying.3 At common law,4 lessons learned from the lack of reliability of eyewitness identification evidence led to concerted judicial attention to ensuring the integrity of such evidence by developing appropriate warnings so that the chance of a

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miscarriage of justice in criminal trials was significantly reduced. The common law in this area is characterised by discretionary exclusion or warnings about the dangers of identification evidence rather than mandatory rules of exclusion.5 This approach has carried through into the legislative scheme for regulating the admissibility of identification evidence in the Act. Importantly, the High Court declared in Alexander v The Queen (1981) 145 CLR 395 that the best mode of formal identification is by a properly conducted identification parade and it is the only appropriate mode of identification at the evidentiary stage of a police investigation. That is the stage where the investigators have in custody a suspect whom they definitely view as the person responsible for the crime and are gathering evidence to support that view. The High Court disapproved of identification by photographs at the evidentiary stage with it being admissible ‘only in exceptional cases’.6 Photo identification was regarded as legitimate and necessary during the detection phase of an investigation but, if used ‘after the detection process is over, that will in itself be a strong ground for excluding from the trial all evidence of identification by a witness who had been involved in that photo-identification’.7 Three factors were identified for disapproving of photoidentification at the evidentiary stage: 1 2 3

the absence of the suspect, so that they have no opportunity to observe the identification process; the ‘rogues gallery’ effect—the suspect is known to police and has a criminal record; and the ‘displacement effect’—the photographic image displaces the original observation as the source of memory from which the witness subsequently identifies the suspect.8

Accordingly, the primacy of an identification parade over other modes of identification, particularly by photographs, is firmly established by the common law. The other important area underpinning the statutory scheme is the nature and form of judicial warnings. Domican v The Queen (1992) 173 CLR 555 is a seminal common law authority that establishes that a warning must be given where evidence as to identification represents ‘any significant part of the proof of guilt of an offence … [and] its reliability is disputed’.9 Further, the case establishes that the warning must be ‘cogent and effective’ although not following ‘any particular formula’.10 Essentially it must be tailored to the circumstances of the case. In ensuring an adequate warning is given, a trial judge should take into account the following factors in relation to the identification evidence alone: • • • •

[the] nature of the relationship between the witness and the person identified; the opportunity to observe the person subsequently identified; the length of time between the incident and the identification; and the nature and circumstances of the first identification.11

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These specific common law approaches to identification evidence have significantly influenced the construction of the statutory regime set out in Part 3.9 EA, which by s 113 applies only to criminal proceedings. The statutory approach also has two essential characteristics: 1 exclusion for the most unreliable forms of identification evidence; and 2 a judicial warning about the dangers for the fact-finder in using the identification evidence in their deliberations.

MEANING OF IDENTIFICATION EVIDENCE First, it is important to have a clear understanding of what is encompassed by the term ‘identification evidence’. It is defined in the EA Dictionary to mean either an assertion by a witness that ‘a defendant was or resembles (visually, aurally or otherwise) a person who was present at or near a place where the offence … or an act connected to that offence was done at or about the time at which the offence was committed or the act was done … or a report (whether oral or in writing) of such an assertion’. The assertion by the witness must be ‘based wholly or partly on what … [they] saw, heard or otherwise perceived at that place and time’. Note that this definition extends beyond an assertion that a defendant was the one who committed the offence to an assertion that a defendant resembles that offender. It is the step of making an assertion as to identity or resemblance that brings it within the definition of identification evidence rather than simply being evidence of a description of the person.12 The identification can be by the use of any senses although it will most likely be by sight or voice. All identification evidence falling within this definition is affected by s 11613 and will attract a warning. The following case demonstrates the need to carefully consider and apply the statutory definition because the ‘identification evidence’ in particular circumstances may not fall within that definition and the Part 3.9 provisions will not apply to the case.

A CASE TO REMEMBER Trudgett v R [2008] NSWCCA 62 In Trudgett v R [2008], the appellant was found guilty of having sexual intercourse without consent of the complainant at a party, which was held in the backyard of the appellant’s home. The complainant had not previously met the appellant and a mutual friend introduced him to her as ‘Adam’, which was not his real name. At one point they entered the appellant’s house and, shortly after, the complainant emerged in a distressed state and complained of being sexually assaulted by the appellant. There was no dispute about the sexual assault and the sole issue at the trial was whether it was the appellant who was responsible. The complainant was never asked to identify the perpetrator at any stage as the prosecution relied upon her evidence that ‘Adam’ assaulted her and upon

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other witnesses who gave evidence of seeing them both enter or come out of the house at about the same time. On appeal against conviction, the appellant contended that the trial miscarried because the trial judge had not given the jury a warning about identification evidence as required by s 116 EA notwithstanding that the trial judge had not been asked to do so. The New South Wales Court of Criminal Appeal (CCA) unanimously dismissed the appeal and held the definition of ‘identification evidence’ does extend to recognition evidence, but in this case no s 116 direction was required because none of the evidence of the complainant or other witnesses was within the EA definition. The complainant had given a physical description of ‘Adam’ as the person who attacked her, but made no assertion (at any later time) to the effect that the appellant ‘was or resembles a person’, namely the perpetrator (at [34]–[35]). The evidence of the introduction assisted the jury to identify the appellant as the assailant but it was not a process of ‘identification evidence’ by a witness (at [36]). Further, the evidence of the appellant’s entry into and departure from the house during the course of the party by witnesses who knew him personally did not require a direction as, like the introduction evidence, it was indirect evidence of ‘presence’ and s 116 is concerned with direct identification evidence and his presence ‘at or about’ the time of the offence was not in issue (at [50]).

Second, rules in relation to two specific subcategories of identification evidence within the definition are provided in the Act. ‘Visual identification evidence’ is defined in s 114(1) and regulated by s 114(2)–(6). Essentially it is identification evidence of what a witness saw, but does not include picture identification evidence.14 This is defined in s 115(1) as identification made by the witness from ‘pictures kept for use of police officers’.15

EXCLUSION OF VISUAL IDENTIFICATION EVIDENCE 114 Exclusion of visual 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.

Identification evidence is concerned with the ‘act’ of identification—that is, the assertion of identity or resemblance. This act, performed by a witness may take place in court or out of court. The prosecutor should first determine the act of identification of the defendant as the person who could be linked to the offence to enable the proper application of s 114.16 Where it is sought to make an in-court identification of the accused, the question arises as to whether this is the first opportunity the

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witness has had to perform an act of identification and whether it was reasonable not to hold an identification parade at any point before the court appearance.17 The reasonableness of holding an identification parade is determined at the point in time that an out-of-court identification is made by a witness or by the opportunities that were available to hold a parade prior to the time of making an in-court identification.18 The term ‘identification parade’ is not defined in the Act, but the requirements and procedures for holding identification parades in Commonwealth criminal matters are set out in Crimes Act 1914 (Cth) ss 3ZM, 3ZN and 3ZP.19 In the absence of such legislative prescription, the courts should interpret the term in such a way as to ensure a minimum level of fairness and evidentiary reliability. So in New South Wales this means that a judicial warning under s 116 or discretionary exclusion will be considered as remedies for unfair or unreliable identification parades. In R v Fisher [2001] NSWCCA 380, Sheller JA (at [17]) referred to the reliability of an identification parade depending ‘in part, on ensuring that as far as possible those who parade are of the same age, height and general appearance as the suspect’.20 Section 114(3) sets out the matters which the court must take into account in determining whether it was reasonable to hold an identification parade, including the kind and gravity of offence, importance of the evidence, failure of the defendant to cooperate, whether an ‘identification was made at or about the time of commission of the offence’, and ‘the relationship between the defendant and the person who made the identification’. These last two mentioned matters are directed to the appropriateness and utility of holding an identification parade, as the witness may have identified the defendant when the offence occurred or they may have a personal or familial relationship that would make a parade futile. Section 114(5) deals with the situation where a defendant made participation in an identification parade conditional upon the presence of a legal practitioner. The particular circumstances will dictate whether it was reasonable not to hold a parade with a particular focus on whether it was reasonably practicable to arrange for the attendance of the legal practitioner. For example, if that practitioner is away for an extended period of time and the defendant insists upon the attendance of that particular practitioner, it is likely that it would be reasonable not to hold a parade. Alternatively, if police insisted on holding a parade very late at night when it could as easily have been held the following morning when the legal practitioner could attend, the court would most likely find it unreasonable not to hold a parade. Where an identification parade is conducted, evidence of it might still be excluded under s 135, 137 or 138 EA. In R v Marshall (2000) 113 A Crim R 190, the CCA considered whether evidence of a visual identification by the victim of an armed robbery was admissible. The victim made the identification of the defendant as the robber when the investigating police officer entered the police station with the

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defendant close to where the victim was standing. Moreover, earlier that day, the victim had been shown photographs of the defendant but had failed to identify the defendant as the offender. In allowing the appeal against conviction, the CCA emphasised that the trial judge in trying the case alone had made no reference to the displacement effect of the victim subconsciously recalling the features of the photographs he had been shown earlier in the day rather than the features of the person who had committed the robbery. Coupled with the adverse effect of identifying a person in custody, this had a distorting effect on the identification, thus making it of limited probative value while being highly prejudicial to the defendant (at 195). This case reinforces the rationale for the primacy of identification parades and therefore another mechanism via s 137 where identification evidence is not excluded through the operation of s 114.21

STUDY TIP Advocacy and the criminal trial thread scenario In cross-examining a witness about a visual identification they have made, you are often not challenging their honesty but trying to show that they were mistaken. In these circumstances it is best to employ a ‘probing’ technique to test the objective surrounds of the evidence. You are testing the reliability of the witness’s memory of the person they saw with their memory of the details of surrounding circumstances. For example, questions might focus on the lighting at the scene (particularly when the event happened at night), any obstacles or other distractions to clear vision, distance from the person identified, time available to observe the person, and the presence or absence of distinguishing features about the person.22

EXCLUSION OF PICTURE IDENTIFICATION EVIDENCE Section 115 concerns the admissibility of ‘picture identification evidence’, which is defined in subs (1) to be ‘by … examining pictures kept for the use of police officers’, and includes ‘a photograph’23 and photo boards.24 This section operates in addition to s 114 and the admissibility of this type of identification evidence is primarily conditional upon the holding of an identification parade or there being an applicable exception under subss (5) and (6), including an alternative that there has been a significant change in the defendant’s appearance between the time of the offence and the time when they were taken into custody. It is not sufficient to speculate that the defendant would refuse an identification parade or not to communicate the request to the defendant.25 Once this main condition is satisfied, admissibility of the evidence is subject to further conditions, which are designed to deal with the

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reliability concerns about picture identification evidence generally and the prejudice that can arise, particularly from the ‘rogues-gallery’ effect. The further conditions for admissibility are: • The pictures used must not suggest that they depict persons in police custody (subs (2)). They cannot be ‘mug shots’, but should be on a plain background. • The picture of the defendant that was examined must be made after the defendant was taken into custody for investigation of the offence with which they have been charged (subs (3)). • The condition immediately above does not apply if the defendant’s appearance had changed significantly between the time of the offence and the time when the defendant was taken into that custody; or it was not reasonably practicable to make a picture of the defendant after they were taken into that custody (subs (4)). One practical effect of s 115 is that police will be unable to use evidence of identification from a photo board or computer photo array at a trial if it was gathered at the investigatory stage to assist in their investigation of a crime when they have no clear suspect in mind.26 When picture identification is admitted at trial the judge must, upon the defendant’s request under subs (7), inform the jury that the picture used in the identification process was taken after the defendant was taken into custody if that was the case. If that was not the case, the jury must be warned that it ‘must not assume that the defendant has a criminal record or has previously been charged with an offence’. Once admitted, carefully formulated judicial directions regarding photo board identification usually prevent an application of s 137.27 Generally, the judge’s directions do not have to exactly mirror the Bench Book directions.28

JUDICIAL WARNING 116 Directions to jury 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.

This section is in mandatory terms. It contains no express qualification as provided in Domican v The Queen that the reliability of the identification evidence must be disputed,29 but this qualification was implied by the High Court in Dhanhoa v The Queen [2003] 217 CLR 1 because in the context of an adversarial system ‘if it were otherwise the provision would offend common sense’.30

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A CASE TO REMEMBER Dhanhoa v The Queen [2003] 217 CLR 1 In Dhanhoa v The Queen [2003], evidence was led at the trial that the victim was shown an array of photographs and he selected one of the appellant as being ‘very similar’ to ‘one of the men that was there on the night’; this resulted in charges of kidnapping and robbery in company with wounding. The appellant conceded he was one of the four men but claimed that he left before the attack commenced. The trial judge did not give the jury any directions or warnings in relation to identification evidence. The CCA held, referring to Domican but not to s 116 EA, that a warning was not required as no significant part of the prosecution case relied upon identification evidence. An appeal to the High Court was premised on a mandatory requirement for a jury warning even if the identification evidence did not represent a significant part of proof of guilt. The High Court unanimously dismissed the appeal, holding that s 116 EA only requires a warning to be given when the reliability of the identification evidence is in dispute.31 Gleeson CJ and Hayne J observed that a literal reading out of the statutory context could be that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever such evidence has been admitted, even if its reliability is not in dispute. However, their Honours went on to state: ‘[T]hat would be absurd as if a witness claims to have seen an accused at a particular place on a particular occasion, and the truth of that assertion is not questioned or in any way put in issue, then ordinarily there is no special need for caution before accepting the evidence’ (at 9).

CONTENT OF S 116 CAUTION Where required the judge must first explain why there is ‘a special need for caution’ in that identification evidence in general may be unreliable. In this regard, it has been held that reference should be made to past miscarriages of justice and wrongful convictions resulting from mistaken eyewitness identification evidence.32 Also, there is extensive psychological research wherein the weaknesses of eyewitness identification have been highlighted and examined.33 The judicial warning must extend to considerations relevant to an assessment of the probative value of the identification evidence in the circumstances of the particular case and that may include time gaps, distances and circumstances for perception, time for observation, relationships of parties, and existence of written records.34 Generally, the judge explains matters to the jury that undermine the reliability of the identification evidence regardless of ‘whatever the defence raised and however the case is conducted’.35 Where more than one witness has given evidence of having identified the defendant, the cumulative effect of their evidence may be considered by the jury, provided that they have been warned in clear terms that even a number of honest witnesses may have been mistaken.36 Also, note that a prosecutor is obliged to assist the judge with appropriate directions regarding identification evidence.37

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OTHER KINDS OF ‘IDENTIFICATION’ EVIDENCE Identification evidence that is not effected by Part 3.9 but still effected by other provisions of the Act—s 55 (relevance), ss 135–138 (discretions to exclude or limit evidence) and s 165 (warnings as to unreliable evidence)38—includes identification in civil proceedings, adduced by a defendant, and that which doesn’t fall within the statutory definition in criminal proceedings. These are summarised in Table 12.1. An important consideration in relation to these other kinds of ‘identification’ evidence is the role of s 165 EA and the nature of any warning to be given where

TABLE 12.1 Other kinds of identification evidence TYPE

DESCRIPTION

RELEVANT CASES

Recognition evidence

Evidence from a witness who was not at the scene that they recognised a person at the scene as someone they knew. Probative value is linked to other evidence from the event: photograph, video footage, etc.

Smith v The Queen (2001) 206 CLR 650; Wood v The Queen [2012] NSWCCA 21 [450]–[455], [460]; ME v The Queen [2012] NSWCCA 237 [37]–[39]. Also, see Trudgett v The Queen [2008] NSWCCA 62 [30] where it was held that in some circumstances recognition evidence might fall within the EA Dictionary definition.39

Description evidence

Evidence from a witness of a physical description of a person relevant to the case. No assertion of identity made and it is for the fact-finder to decide if it is the same person as a defendant or relevant party or person.

R v Taufua (unreported, NSWCCA, 11 November 1996); R v Whalen (2003) 56 NSWLR 454, 467; Dunks v The Queen [2010] NSWCCA 312 [53]: ‘race’ as a form of description.

Comparison evidence

Exercise by the fact-finder in comparing two things to determine whether or not there is identity between them. Depends on ‘the quality and quantity of the material … to enable a useful comparison to be made’ by the fact-finder.

Bulejcik v The Queen (1995) 185 CLR 375, 380–381, 395; R v Kirby [2000] NSWCCA 330 [46]–[47]; Korgbara v The Queen [2007] NSWCCA 84 [75]–[80]; Latorre v The Queen [2012] VSCA 280 [70].

CHAPTER 12: IDENTIFICATION EVIDENCE

such evidence may be considered to be unreliable. Certainly in R v Kirby and Korgbara v The Queen (see Table 12.1 on previous page) the courts emphasised the need for a warning to draw the attention of the jurors to the difficulties of the comparison exercises in which they were being asked to engage. There is no obligation under s 165(1)(b) to give a warning when the identification was not of the defendant; it is a discretionary decision.40 Where, however, a judge decides to give a s 165 warning, they must do so in comprehensible and unequivocal terms as any statements about exercising caution made by counsel do not substitute for such a warning.41 The important role of s 165 is more fully explored in the following case.

A CASE TO REMEMBER R v Rose [2002] 55 NSWLR 701 In R v Rose [2002], the trial judge gave a Domican-type direction under s 165 EA in relation to a witness for the defence who gave evidence that he saw a woman, whom he identified as the deceased, at a time when, on the prosecution case, the appellant had already murdered her. It was argued that s 165(1)(b) didn’t apply as it was not identification evidence as defined in the EA, and as it wasn’t identification of the defendant then s 116 was not applicable. The question in this case was whether any direction should have been given in relation to the dangers of such evidence. By a majority of 2:1 (Smart AJ dissenting), the CCA held that a warning under s 165 can be given in such circumstances as the section has a broad application to ‘evidence of a kind that may be unreliable’, noting that visual identification of a particular person is no more reliable because the person being identified is not the defendant. As a general statement, Wood CJ at CL and Howie J said (at 712), because identification evidence may, by its very nature, be unreliable regardless of honesty or general reliability of the witness, ‘it is a kind of evidence to which some form of warning or information should attach if a jury might use it adversely to a party without giving due regard to its potential frailty’. The scope of s 165(1) therefore is not limited to the unreliability of identification evidence, which falls within the definition of ‘identification evidence’ in the Act. Their Honours also noted that s 165(5) makes it clear that the trial judge has a residual power to give a warning to a jury, or to inform them about some matter where the judge believes it is necessary to do so in the interests of justice. It was emphasised that whether to give a warning and what the content of the warning (if given) should be is a discretionary judgment in all the circumstances of the case. Finally, it was noted that in the case of evidence of a person other than the defendant, and in circumstances where the evidence favours the defendant, there would be good reason for the trial judge to temper the warning and information to be given to the jury in respect of that evidence. For example, there is no need to refer to past wrongful convictions and miscarriages of justice.

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Important references For more extensive coverage of identification evidence, see the following: 1 John Anderson and Peter Bayne Uniform Evidence Law: Text and Essential Cases (2nd edn, 2009) Chapter 15. 2 Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd edn, 2009) 493–539. 3 Peter Faris, Mirko Bagaric, Francine Feld and Brad Johnson, Uniform Evidence Law: Principles and Practice (CCH Australia, 2011) Chapter 11. 4 Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, 2010) Chapter 13. 5 Stephen Odgers, Uniform Evidence Law (Thomson Reuters Lawbook, 11th edn, 2014) 623–657.

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ASSESSMENT PREPARATION Active learning questions 1 In determining whether the evidence obtained from an identification parade is admissible, what factors does a judge take into account? 2 If visual identification evidence is admissible according to s 114 EA, is there still scope to argue that it should be excluded under the discretions in ss 135 and 137? In what circumstances might such an argument be successful? 3 Explain the operation of s 115 EA where the prosecution seeks to rely on an identification of a defendant made by a witness from a photo array shown to them by investigating police when the defendant was being detained in police custody for questioning. 4 What matters must a trial judge address when formulating a warning to a jury under s 116 EA? 5 What do you understand by the term ‘recognition evidence’ and how does it differ from ‘identification evidence’ under the EA? Explain the role of s 165 EA in relation to forms of ‘identification evidence’ that do not fall within the EA Dictionary definition of that term.

CRIMINAL TRIAL THREAD SCENARIO The eighth and final prosecution witness is the alleged victim of the armed robbery, Dolores Davidson. Her testimony raises issues of identification evidence and some of the other rules of evidence considered throughout this trial thread scenario. The Crown Prosecutor will conduct the examination in chief of the witness seeking to adduce all relevant and admissible evidence going to proof of facts in issue in the case. Counsel for the defence will object where necessary to the form and/or admissibility of the evidence of this witness and then conduct the cross-examination with the aim of casting doubt on the accuracy and reliability of her evidence. INSTRUCTIONS TO WITNESS Just prior to signing your statement you were shown a series of 10 photographs and asked whether you could identify any of the men in the photographs as the assailant. You were unable to. You were advised at the time that the robber might not be among the photographs, though you now know that a photograph of the defendant was included. When you are asked whether the man who robbed you is sitting in the courtroom, you will be very strong in identifying the defendant, saying something like ‘That’s him, I’ll never forget his face’ while pointing at the defendant. INSTRUCTIONS TO COUNSEL You can assume that there is evidence before the court, or adduced at the committal, to the effect that: • Police attempted to locate enough people whose appearance was close enough to Swifty’s to enable the conduct of an identification parade; however, they could only find seven such people. No parade was conducted.

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Two weeks prior to the committal, police again sought to hold an identification parade. Officers visited Swifty at home to ask him to participate and he refused, slamming the door in their faces and saying, ‘You blokes just won’t leave me alone.’ • No approach was made to defence counsel in relation to the participation of the defendant in an identification parade. Prosecution counsel must seek to have the witness give an in-court identification. This will be objected to by defence counsel on the basis of failure to comply with s 114 EA. Both counsel will need to make submissions in relation to s 114 and R v Tahere [1999] NSWCCA 170 and in-court identification generally. Counsel should consider whether the probative value of any evidence sought to be adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant (s 137). Both prosecution and defence counsel must be prepared to make and answer objections relating to the form or appropriateness of opposing counsel’s questions and the relevance and admissibility of any evidence that is sought to be adduced. Defence counsel must comply with the rule in Browne v Dunn. •

For extra guidance with the criminal trial thread scenario, please refer to .

Notes 1 Wood v The Queen [2012] NSWCCA 21 [410]–[418]. 2 AK v Western Australia (2008) 232 CLR 438, 447 and 449 (Gleeson CJ and Kiefel J). The dangers of honest but mistaken identification are exemplified in the 1896 and 1904 cases of Adolf Beck described in Graham Roberts, Evidence: Proof and Practice (LBC Information Services, 1998) 567–568. 3 Perpetual Trustee Company Ltd v CTC Group Pty Ltd [2012] NSWCA 252 [27]. See also Darwiche v The Queen [2011] NSWCCA 62 [348]–[349]. 4 See particularly Craig v The Queen (1933) 49 CLR 429, 446; Davies and Cody v The King (1937) 57 CLR 170; R v Burchielli [1981] VR 611; Alexander v The Queen (1981) 145 CLR 395; R v Clune [1982] VR 1; and Domican v The Queen (1992) 173 CLR 555. 5 See Alexander v The Queen (1981) 145 CLR 395. 6 Ibid, 400–403 (Gibbs CJ). 7 Ibid, 409–410 (Stephen J). 8 Ibid, 409 (Stephen J). Also, see Wood v The Queen [2012] NSWCCA 21 [413]–[434]. 9 Domican v The Queen (1992) 173 CLR 555, 561. 10 Ibid, 561–562. 11 Ibid, 565. 12 See R v Taufua (unreported, NSWCCA, 11 November 1996) as to the importance of the link between the initial perception, including any description of the person, and the next step involving an assertion of identity when that person is perceived again (including in the courtroom dock) before the evidence comes within the definition of ‘identification evidence’. 13 See R v Clarke (1997) 97 A Crim R 414, 427. See below for further discussion of this provision. 14 Note that in Aouad v The Queen [2011] NSWCCA 61 [263] it was held that it is not ‘visual identification evidence’ within the Act when a person asserts that the assailant’s features were like certain features shown in the comfit booklet and that the comfit assailant resembled the shooter.

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15 Note that the Evidence Act 2001 (Tas) does not include s 114 or 115. 16 See Walford v DPP [2012] NSWCA 290 [11]–[12], [17], [29] (Basten JA), [50], [55] (Hoeben JA). 17 See R v Taufua (unreported, NSWCCA, 11 November 1996); R v Tahere [1999] NSWCCA 170; and DPP v Donald [1999] NSWSC 949. 18 R v Tahere [1999] NSWCCA 170; and Walford v DPP [2012] NSWCA 290 [2] (Beazley JA), [13]–[14], [17], [22], [31] (Basten JA) [50]–[55], [71] (Hoeben JA). 19 Also, see Crimes Act 1900 (ACT) ss 233–236 discussed in R v Carpenter [2011] ACTSC 71. 20 Also, see NSW Police Force, Code of Practice for CRIME (1998, updated as at January 2012) 101–109 , which provides guidance for New South Wales police officers as to the proper conduct of an identification parade. 21 Contrast this to R v Mundine [2008] NSWCCA 55, where the trial judge had excluded the identification evidence under s 137 and this ruling was overturned by the CCA after a Crown appeal established the strong probative value of the identification evidence and the minimal prejudicial effect on the defendant. 22 See J L Glissan QC, Advocacy in Practice (LexisNexis Butterworths, 4th edn, 2005) 119–125; Thomas Mauet and Les McCrimmon, Fundamentals of Trial Techniques (Thomson Reuters Lawbook, 3rd Australian edn, 2011) 199–209, particularly 208–209 for an example of cross-examination of a robbery victim where the identity of the robber is in issue. 23 Section 115(10) EA. 24 R v Carpenter [2011] ACTSC 71 [41]–[42]. 25 R v Massey [2009] ACTCA 12 [13]–[14]. 26 See R Howie QC, ‘Identification Evidence under the Evidence Act 1995’ (1996) 3 Criminal Law News No 2 [543]. 27 See McCartney v The Queen [2012] VSCA 268 [61]–[63]. 28 Ith v The Queen [2012] NSWCCA 70 [48]–[53]. 29 See above n 9. 30 At 9 (Gleeson CJ and Hayne J). Cf R v Demiroz [2003] NSWCCA 146. 31 See subsequent application in Mouroufas v The Queen [2007] NSWCCA 58; and Connelly v Allan [2011] ACTSC 170 [147]–[148]. Also, the ALRC confirmed that Dhanhoa is clear and has settled the law on this issue so no amendment to s 116 was necessary (ALRC102 [13.90]–[13.92]). 32 See R v Clarke (1997) 97 A Crim R 414, 428; Braslin v Tasmania [2011] TASCCA 14 [35]; and R v Jacka [2011] ACTSC 63 [26]. Also, see Wood v The Queen [2012] NSWCCA 21 [389]. 33 See ALRC26 vol 1 [420]–[430]. 34 See R v Clarke (1997) 97 A Crim R 414; Festa v The Queen (2001) 208 CLR 593, 609 (McHugh J), a voice identification case where it was observed the reliability would vary with such factors as the length and volume of speech heard, the witness’s familiarity with the defendant’s voice and the time elapsing between the occasions when the witness heard the voice of the perpetrator and the voice of the defendant, 639 (Kirby J); R v MMK [2005] NSWCCA 273 [21]; Kanaan v The Queen [2006] NSWCCA 109 [183]; and Ilioski v The Queen [2006] NSWCCA 164 [68]. 35 Kanaan v The Queen [2006] NSWCCA 109 [182].

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36 R v Weeder (1980) 71 Cr App R 228; R v Ngo (2003) 57 NSWLR 55 [156]–[162]; and R v Evan (2006) 175 A Crim R 1 [65]. Note that expert opinion evidence as to the reliability of individual identifications in a particular case will not usually be admissible— see Dupas v The Queen [2012] VSCA 328 [250]–[254], [277]–[283]. 37 Wood v The Queen [2012] NSWCCA 21 [416]. 38 See MA v The Queen [2011] VSCA 13 [25]. 39 Also, compare to Sidoni v The Queen [2011] VSCA 195 [63]–[64]. 40 Darwiche v The Queen [2011] NSWCCA 62 [345]. 41 Raad v The Queen [2012] NSWCCA 268 [81]–[82].

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TABLE OF CASES Bold entries indicate ‘Cases to Remember’ Adam v The Queen (2001) 207 CLR 96 80, 217 Akins v Abigroup Ltd (1998) 43 NSWLR 539 117–18 Alexander v The Queen (1981) 145 CLR 395 257 Allen (A Pseudonym) v The Queen [2013] VSCA 263 88 Allied Pastoral Holdings v Commissioner of Taxation [1983] 1 NSWLR 1 83 Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97 117 Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12 Anchor Products Ltd v Hedges (1966) 115 CLR 493 28 Ashby v Commonwealth (No 3) [2012] FCA 788 154 ASIC v Rich [2005] NSWSC 417 102 Attorney-General (NSW) v Kaddour [2001] NSWCCA 456 124 Attorney-General (NSW) v Lipton [2012] NSWCCA 156 124 Attorney-General (NSW) v Smith (1996) 86 A Crim R 308 124 Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 28 AW v The Queen [2009] NSWCCA 1 238 Aytugrul v The Queen (2012) 247 CLR 170 54 Azzopardi v The Queen; Davis v The Queen (2001) 205 CLR 50 67, 76–8

117

Bare v Small [2011] VSC 639 119 Birmingham v Renfrew (1937) 57 CLR 666, 674 89 Blatch v Archer (1774) 98 ER 969 74–5 Braysich v The Queen (2011) 243 CLR 434 224 Briginshaw v Briginshaw (1938) 60 CLR 33 30 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107 117 Brown, Barwick, Brown v The Queen [2006] NSWCCA 69 87–8 Browne v Dunn (1894) 6 R 67 53, 83, 91, 93, 109, 155, 181, 205, 231, 250, 269 Bruce v Waldron [1963] VR 3 123 Bulejcik v The Queen (1995) 185 CLR 375 264 Bunning v Cross (1978) 141 CLR 5 58 Burrell v The Queen [2007] NSWCCA 65 19, 23 Cadbury Schweppes v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 185, 201–2 Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108 146 Chand v The Queen [2011] NSWCCA 53 52–3 Chapman v Luminis Pty Ltd (2000) 100 FCR 229 112, 124–5

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Chen v The Queen [2010] NSWCCA 224 88 Chugg v Pacific Dunlop (1990) 170 CLR 249 28 Clark v Ryan (1960) 103 CLR 486 192 Cleland v The Queen (1982) 151 CLR 1 173 Collins Thomson v Clayton [2002] NSWSC 366 198 Commonwealth v Northern Land Council (1993) 176 CLR 604 Conway v The Queen 148 Cvetkovic v The Queen [2010] NSWCCA 329 153

124

Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 196 Daubert v Merrell Dow Pharmaceuticals Inc 113 S Ct 2786 (1993) 195 Derbas v R [2012] NSWCCA 14 124 Dhanhoa v The Queen [2003] 217 CLR 1 256, 262, 263 DJF v R [2011] NSWCCA 6 78 DJV v The Queen (2008) 200 A Crim R 206 249 Domican v The Queen (1992) 173 CLR 555 257, 262 Doran Constructions Pty Ltd (in liq), Re (2002) 194 ALR 101 118 Doran Constructions Pty Ltd (in Liquidation) [2002] NSWSC 215 117 DPP v BB [2010] VSCA 211 143 DPP v Kane (1997) 140 FLR 468 117 DS v R [2012] NSWCCA 159 88 DSJ v The Queen; NS v The Queen [2012] NSWCCA 9 241 DTS v The Queen [2008] NSWCCA 329 249 Duncan v Cammell Laird [1942] AC 624 123 Dunks v The Queen [2010] NSWCCA 312 264 Dunsmore v Elliott (1981) 26 SASR 496 32 Dupas v The Queen [2012] VSCA 328 89 Dyers v The Queen (2002) 210 CLR 285 78 Eastman v The Queen (1997) 76 FCR 9 123, 124, 149 Edwards v The Queen (1993) 178 CLR 193 24, 165 El Hassan v The Queen [2007] NSWCCA 148 27 Em v The Queen (2007) 232 CLR 67 88, 161, 174–5, 178 Employment Advocate v Williamson (2001) 111 FCR 20 58 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 120 Evans v The Queen [2006] NSWCCA 277 99, 105–6 Faucett v St George Bank Ltd [2003] NSWCA 43 Festa v The Queen (2001) 208 CLR 593 4, 7 Fitzpatrick v Cooper (1936) 54 CLR 200 28 Frye v United States 293 F 1013 (1923) 194

200

29

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Gabriel v The Queen (1997) 76 FCR 279 226, 227 Gallant v The Queen [2006] NSWCCA 339 224 Galvin v R [2006] NSWCCA 66 53 Gipp v The Queen (1998) 194 CLR 106 247 Goldsmith v Sandilands (2002) 190 ALR 370 218 Gonzales v Claridades (2003) 58 NSWLR 188 203 Green v AMP Life [2005] NSWSC 95 117 Guide Dog Owners’ & Friends Association Inc v Guide Dog Association of NSW & ACT (1998) 154 ALR 527 191 Gumana v Northern Territory [2005] FCA 50 153 Hardy v Merrill 56 NH 227 (1875) 189 Harrington-Smith v WA (No 8) [2004] FCA 338 151 Hawker v The Queen [2012] VSCA 219 88 Helton v Allen (1940) 63 CLR 691 203 HG v The Queen (1999) 197 CLR 414 196 HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 Hoch v The Queen (1988) 165 CLR 292 243 Hollington v F Hewthorn & Co Pty Ltd [1943] KB 587 202, 203 Holloway v McFeeters (1956) 94 CLR 470 165 Homsi v The Queen [2011] NSWCCA 164 88 Idoport Pty Ltd v National Australia Bank [2001] NSWSC 128 194 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 119 Imnetu v The Queen [2006] NSWCCA 203 224 Jamal v The Queen [2012] NSWCCA 198 52 Jones v Dunkel (1959) 101 CLR 29 74–5, 76, 78, 79, 91 Kanaan v The Queen [2006] NSWCCA 109 88 Kang v Kwan [2001] NSWSC 698 119 Keller v The Queen [2006] NSWCCA 204 196 Kessing v R [2008] NSWCCA 310 153 Korgbara v The Queen [2007] NSWCCA 84 264, 265 Kozul v R (1981) 147 CLR 221 105 Kutschera v The Queen [2010] NSWCCA 150 88 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 198 Latorre v The Queen [2012] VSCA 288 264 Lee v Burn (unreported, NSWCA, 23 April 1998) 32 Lee v The King (1950) 82 CLR 133 173 Lee v The Queen (1998) 195 CLR 594 135, 143, 144

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Lee v The Queen [2013] NSWCCA 68 88 Li v The Queen [2010] NSWCCA 40 143 Liu v The Age Company [2010] NSWSC 1176 153–4 LJW v The Queen [2010] NSWCCA 114 245 Louizos v The Queen [2009] NSWCCA 71 79 Lynch v Attwood [1983] 3 NSWLR 1 28 Mahmood v Western Australia (2008) 232 CLR 39 79 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mann v Carnell (1999) 201 CLR 1 117 Mason v Tritton (1994) 34 NSWLR 572 32 McDermott v The King (1948) 76 CLR 501 173 McDermott v The King (1948) 76 CLR 501 169 McKinney v The Queen (1991) 171 CLR 468 89 ME v The Queen [2012] NSWCCA 237 264 Melbourne v The Queen (1999) 198 CLR 1 224 Miletich v Murchie [2012] FCA 1013 153 Morgan v R [2011] NSWCCA 257 205 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 28 Mundey v Askin [1982] 2 NSWLR 369 163 Murphy v The Queen (1989) 167 CLR 94 201

185, 196–8

National Australia Bank v Rusu (1999) 47 NSWLR 309 101, 102 Neat Holdings v Karajan Holdings Pty Ltd (1992) 110 ALR 449 30 Nicholls v The Queen (2005) 219 CLR 196 89, 217 Nolan v Nolan (2003) 10 VR 626 89 Nominal Defendant v Clements (1960) 104 CLR 476 231 NSW Crime Commission v Vu [2009] NSWCA 349 153 NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 124 Nye v NSW [2002] NSWSC 1268 151 Ocean Marine Mutual Insurance Assoc (Europe) OV v Jetopay Pty Ltd [2000] 120 FCR 146 192 Oliveri v The Queen [2011] NSWCCA 38 88 Ordukaya v Hicks [2000] NSWCA 180 146 Osland v Secretary, Department of Justice (2008) 234 CLR 275 117 Palmer v The Queen (1998) 193 CLR 1 214 Parkin v O’Sullivan (2009) 260 ALR 503 123 Partington v R [2009] NSWCCA 232 185, 190 Pavitt v The Queen [2007] NSWCCA 88 219 Peacock & Peacock v The Queen [2008] NSWCCA 264 214 Petty and Maiden v The Queen (1991) 173 CLR 95 163

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Pfennig v The Queen (1995) 182 CLR 461 242, 243 PGM v The Queen [2006] NSWCCA 310 211, 225, 229 Pham & Tran v The Queen [2008] NSWCCA 194 196 Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 217 Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 106 Pollitt v The Queen (1992) 174 CLR 558 88 Porter v Kolodzeij [1962] VR 75 32 Potts v Frost [2011] TASSC 55 32 Qualtieri v The Queen (2006) 171 A Crim R 463 Quinlan v The Queen [2006] NSWCCA 284 52

235, 247–8

R v Ambrosoli (2002) 55 NSWLR 603 135, 147–8 R v Beattie (1996) 40 NSWLR 155 215 R v C (1993) 60 SASR 467 195 R v Camilleri [2007] 169 A Crim R 197 60 R v Camilleri [2001] NSWCCA 527 88 R v Clark (2001) 123 A Crim R 506 88, 246 R v Clough (1992) 28 NSWLR 396 88 R v Colby [1999] NSWCCA 261 102 R v Cook [2004] NSWCCA 52 51 R v Dalley (2002) 132 A Crim R 169 61, 161, 176–7 R v Dowe [2007] NSWDC 70 124 R v Drollett [2005] NSWCCA 356 185, 187 R v Duncan and Perre [2004] NSWCCA 431 51 R v Dupas [2012] VSCA 328 48 R v Dupas (No 3) [2009] VSCA 202 89 R v El-Kheir [2004] NSWCCA 461 227 R v Ellis (2003) 58 NSWLR 700 235, 242–3, 250 R v Fairbairn [2011] ACTSC 78 143 R v Fisher [2001] NSWCCA 380 260 R v Flood [1999] NSWCCA 198 88 R v Fowler (2003) 151 A Crim R 166 88 R v Fuller (1994) 34 NSWLR 233 225 R v Georgiou; R v Harrison [2005] NSWCCA 18 143 R v GK (2001) 53 NSWLR 317 54 R v Goonan [2000] NSWCCA 25 218 R v H (1997) 92 A Crim R 168 143 R v Hall [2001] NSWSC 827 162 R v Harbulot [2003] NSWCCA 141 87 R v Haughbro (1997) 135 ACTR 15 41, 59–60 R v Helmhout (2001) 125 A Crim R 186 61 R v Hien Puoc Tang (2006) 65 NSWLR 681 205 R v Hill [2012] ACTSC 121 32

TABLE OF CASES

R v Hogan [2001] NSWCCA 292 91 R v Ireland (1970) 126 CLR 321 58 R v Kirby [2000] NSWCCA 330 88, 264, 265 R v Le (2002) 130 A Crim R 44 91 R v Le (2002) 130 A Crim R 256 87 R v Leung and Wong (1999) 47 NSWLR 405 186, 194 R v Lewis (1987) 29 A Crim R 267 195 R v Lipton [2011] NSWCCA 247 124 R v Lisoff [1999] NSWCCA 364 41, 50–1 R v LL (unreported, NSWSC, Smart J, 1 April 1996) 170 R v Lockyer (1996) 89 A Crim R 457 217, 238 R v Lodhi (2006) 163 A Crim R 52 143 R v Macraild (unreported, NSWCCA, Sully, Dunford & Simpson JJ, 18 December 1997 143 R v Mankotia [1998] NSWSC 295 147, 148 R v Marsh [2005] NSWCCA 331 8 R v Marshall (2000) 113 A Crim R 190 260 R v Merritt [1999] NSWCCA 29 26 R v Mrish (unreported, NSWSC, 4 October 1996) 149 R v Nemeth [2002] NSWCCA 28 87 R v P (2001) 53 NSWLR 664, 679 117 R v Panetta (1997) 26 MVR 322 190 R v Player [2000] NSWCCA 123 235, 245 R v PLV (2001) 51 NSWLR 736 217 R v Reardon [2002] NSWCCA 203 47 R v Rich (1998) 102 A Crim R 165 244 R v Rivkin (2004) 59 NSWLR 284 217 R v Robinson (1991) 180 CLR 531 217 R v Rose [2002] 55 NSWLR 701 88, 256, 265 R v Runjanjic (1991) 56 SASR 114 195 R v Ryan (unreported, NSWCCA, 15 April 1994), 10 R v Selsby [2004] NSWCCA 381 211, 219 R v Serratore [2001] NSWCCA 123 245 R v Shamouil [2006] NSWCCA 112 48 R v Singh-Bal (1997) 92 A Crim R 397 143 R v Smith (1999) 47 NSWLR 419 187 R v Soma (2003) 212 CLR 29 85 R v Souleyman (unreported, NSWSC, Levine J, 5 September 1996) R v Southammavong; R v Sihavong [2003] NSWCCA 312 22 R v Stewart (2001) 52 NSWLR 301 88 R v Swaffield, Pavic v The Queen (1998) 192 CLR 159 174, 175 R v Tahere [1999] NSWCCA 170 269 R v Tang [2006] NSWCCA 167 185, 195–6 R v Taufua (unreported, NSWCCA, 11 November 1996) 264

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R v Taylor [2003] NSWCCA 194 151 R v TJF (2001) 120 A Crim R 209 87 R v Tofilau (2006) 160 A Crim R 549 88 R v Ton [2002] NSWCCA 337 88 R v Trimboli (1979) 1 A Crim R 73 224 R v Umanski [1961] VR 242 217 R v Ung [2000] NSWCCA 195 143 R v Whalen (2003) 56 NSWLR 454 264 R v Whitmore (1999) 109 A Crim R 51 231 R v Williams (2000) 119 A Crim R 490 148 R v WRW [2001] NSWCCA 446 218 R v XY [2013] NSWCCA 121 48 R v Yammine [2002] NSWCCA 289 88 R v Young [1998] 1 VR 402 204 R v Young (1999) 46 NSWLR 68 124 Raad v The Queen [2012] NSWCCA 268 88 Radi v The Queen [2010] NSWCCA 265 52 Raimondi v The Queen [2013] VSCA 194 143 Reading v ABC [2003] NSWSC 716 55 Rees v The Queen (2010) 200 A Crim R 83 19, 26 Ridgeway v The Queen (1995) 184 CLR 19 58 Robinson v Woolworths Ltd (2005) 64 NSWLR 612 Rodden v The Queen [2008] NSWCCA 53 248 Rogers v The Queen (1994) 181 CLR 251 204 RPS v The Queen (2000) 168 ALR 729, 738 76

41, 59

Schellenberg v Tunnel Holdings (2000) 74 ALJR 743 28 Shepherd v The Queen (1990) 170 CLR 573 24 Sherrard v Jacob [1965] NI 151, 161 189 Sinclair v The King (1946) 73 CLR 316,334 162 Smith v The Queen (2001) 206 CLR 650 1, 8, 107, 264 South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 127 143 Southern Cross Airlines Holdings Ltd (in liquidation) v Arthur Andersen & Co (1998) 84 FCR 472 118 Sovereign Motor Inns v Bevillesta [2000] NSWSC 521 117 Spencer v Commonwealth [2012] FCAFC 169 124 Stanoevski v The Queen (2001) 202 CLR 115 41, 46–7 Subramaniam v Public Prosecutor [1956] 1 WLR 965 138, 142 Sutton v The Queen (1984) 152 CLR 528 243 Ta and Nguyen v R [2011] NSWCCA 32 72 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637 154 Towney v Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401

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Trudgett v R [2008] NSWCCA 62 256, 258–9, 264 Tsang Chi Ming v Uvanna Pty Ltd (1996) 140 ALR 273

143

Velevski v The Queen (2002) 187 ALR 233 195 Vines v Djordjevitch (1955) 91 CLR 512 28 Vitali v Stachnik [2001] NSWSC 303 135, 152 Waters v Mercedes Holdings Pty Ltd [2012] FCAFC 80 29 Weissensteiner v The Queen (1993) 178 CLR 217 75 Welsh v The Queen (1996) 90 A Crim R 364, 367 143 Wilson v NSW [2003] NSWSC 805 127 Wilson v The Queen (1970) 123 CLR 334 246 Wood v The Queen [2012] NSWCCA 21 264 Woolmington v DPP [1935] AC 462 20, 22 Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 217 Yarmirr v Northern Territory (1998) 82 FCR 533 Zoneff v The Queen (2000) 200 CLR 234

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TABLE OF STATUTES Commonwealth Crimes Act 1914 s 3ZM 260 s 3ZN 260 s 3ZP 260 s 23H 178 s 23V 172, 178 Evidence Amendment Act 2008 Heritage Protection Act 1984 s 10 125

153

125

Uniform Evidence Acts 2, 3, 7, 9, 29, 31, 45, 46, 58, 61, 69, 74, 79, 80, 86, 100, 101, 102, 104, 113, 116, 136, 142, 145, 150, 170, 173, 188, 194, 201, 212, 213, 214, 223, 224, 226, 227, 236, 239, 243, 246, 257, 259, 260, 264, 265 Part 33 Part 2.1 70 Part 2.2 100 Part 3.1 137 Part 3.2 87, 136, 137, 138, 145, 151, 213 Division 2 145 Division 3 151 Part 3.3 137, 186, 213 Part 3.4 88, 137, 168, 170, 213 Part 3.5 137, 202, 213 Part 3.6 137, 213, 236–7 Part 3.7 137, 212, 229, 237 Part 3.8 137, 223, 229 Part 3.9 137, 258, 264 Part 3.10 112, 113, 114, 126, 137 Division 1 114 Division 1A 126 Part 4.3 33 s 11 41, 45 s 11(2) 45 s 12 67 s 12(b) 69 s 13 67, 68 s 13(1) 68 s 13(1)(b) 141 s 13(3) 68 s 13(5) 68 s 13(6) 68 s 13(7) 69 s 13(8) 68 s 14 69 s 15 33, 69 s 16 69

s 17 69 s 18 67, 69 s 18(2) 69 s 18(6) 69 s 18(6)(b) 69 s 18(7) 69 s 19 69 s 19(2) 47, 72 s 20 67, 75, 76 s 20(2) 77, 78 s 20(3) 78 s 24 68 s 24A 68 s 26 67, 70 s 26(1)(d) 70 s 29 67 s 29(2) 70 s 29(4) 70 s 31 68 s 32 47, 67, 73, 74 s 32(1) 73 s 32(2) 73 s 32(3) 74 s 32(4) 74 s 33 67 s 33(1) 74 s 34 67 s 34(1) 74 s 34(2) 74 s 35 67 s 35(1) 74 s 37 67, 72 s 37(1)(a) 84 s 37(1)(e) 205 s 38 47, 67, 74, 79, 80–1, 91 s 38(1)(a) 80 s 38(1)(c) 80 s 38(3) 80 s 38(4) 80 s 38(6) 80 s 39 67, 218 s 41 67, 81 s 42 67 s 42(1) 81 s 42(2) 81 s 42(3) 81 s 43 67, 91, 155, 250 s 43(1) 82 s 43(2) 82 s 44 67, 82

TABLE OF STATUTES

s 44(3) 82 s 44(4) 82 s 45 67, 91, 155 s 45(5) 74 s 46 47, 83, 91, 155 s 47 99 s 47(1) 100 s 48 99, 101, 107 s 48(1) 100, 101 s 48(4) 100 s 49 101 s 50 99, 101 s 52 99, 104 s 53 99, 105–6, 107 s 54 99, 106 s 55 1, 6, 7, 47, 55, 136, 201, 264 s 55(1) 8 s 55(2)(a) 212 s 56 1, 9, 112 s 57 1, 9 s 58 102, 107 s 59 135, 138, 144, 150, 153, 155, 166, 167, 200 s 59(1) 141, 142 s 59(2) 166 s 59(2A) 141 s 60 56, 135, 138, 140, 142–3, 144, 155, 200, 231, 237 s 61(1) 141, 142 s 61(2) 142 s 61(3) 142 s 62 135, 138 s 62(1) 145 s 62(2) 145 s 63 135, 138, 145 s 63(2) 146, 150 s 64 135, 138, 145, 146 s 64(2) 146, 150 s 64(3) 146–7 s 65 135, 138, 147, 148, 155 s 65(2) 147, 149, 150 s 65(2)(b) 147, 148 s 65(2)(c) 148 s 65(2)(d) 148 s 65(7) 148 s 65(8) 148, 149 s 65(9) 149 s 66 135, 138, 149, 150 s 66(2) 149 s 66(2A) 149 s 66A 135, 138, 142, 150, 151 s 67 135, 138, 150 s 67(4) 150

s 67(5) 150 s 69 68, 135, 138, 151, 152, 155 s 69(1)(a) 151 s 69(1)(b) 151 s 69(2) 152 s 69(2)(a) 152 s 69(2)(b) 152 s 69(3) 152 s 69(3)(a) 152 s 69(4) 153 s 70 135, 138 s 71 135, 138 s 72 135, 138 s 73 135, 138 s 74 135, 138 s 75 135, 138 s 76 185, 186, 192, 205 s 77 56, 185, 186, 188, 205 s 78 185, 186, 189–90, 191 s 78A 185, 186, 191 s 78(b) 190 s 79 185, 186, 191, 192, 196, 198, 202, 205 s 80 185 s 80(a) 200 s 80(b) 201, 202 s 81 161, 166, 167, 168, 178 s 82 161, 168, 178 s 83 178 s 84 88, 161, 168, 170, 171, 178 s 84(1) 170 s 84(2) 170 s 85 88, 161, 168, 170, 171, 175, 178 s 85(3) 171 s 86 171, 173 s 87 88, 161, 168 s 87(1)(a) 168 s 87(1)(b) 168 s 87(1)(c) 168 s 87(2) 168 s 89 161, 164 s 89(1) 164 s 89(2) 164 s 89(3) 164 s 89A 164 s 90 88, 161, 168, 174–5, 178 s 91 185, 203 s 91(1) 203 s 92 185, 203 s 92(2) 203 s 93 185 s 93(c) 204 s 94 235, 236

281

282

TABLE OF STATUTES

s 94(1) 237 s 94(3) 237 s 95 235, 237 s 97 235, 237, 240, 241, 242, 245, 246, 248, 250 s 98 235, 240, 241, 242, 250 s 100 238 s 101 248, 250 s 101(2) 235, 242, 243, 250 s 101A 211, 213, 215, 222 s 102 211, 213, 214, 218, 221, 231 s 103 211, 213, 215, 216, 221, 231 s 103(1) 215 s 103(2) 216, 221 s 104 47, 211, 213, 221, 229 s 104(2) 222 s 104(3) 221, 222 s 104(4) 221, 222 s 104(5) 222 s 104(6) 222, 228 s 106 211, 213, 216 s 106(1) 216 s 106(2) 216, 217, 218 s 108 213, 217, 231 s 108(1) 218 s 108(3) 218 s 108(3)(a) 219 s 108(3)(b) 219, 220 s 108A 211, 213, 220 s 108B 211, 213, 221 s 108C 211, 213, 221 s 109 223 s 110 211, 213 s 110(1) 223 s 110(2) 226, 227 s 110(3) 226, 227 s 111 211, 228 s 111(2) 228 s 112 45, 211, 227, 228 s 113 258 s 114 256, 259, 261, 267, 269 s 114(1) 259 s 114(2) 259 s 114(3) 259, 260 s 114(4) 259 s 114(5) 260 s 114(6) 259 s 115 256, 261, 262, 267 s 115(1) 259 s 116 88, 256, 258, 259, 260, 263, 265, 267 s 117 115, 116 s 118 112, 114, 116 s 119 112, 114, 116

s 120 112, 114, 116, 117 s 121 112, 117, 119 s 122 112, 117, 119 s 123 112, 118, 119 s 124 112, 118, 119 s 125 112, 119 s 125(1)(b) 119 s 125(2) 119 s 126 112, 119 s 126B 112, 127 s 126B(3) 127 s 126B(4) 127 s 126C 112, 127 s 126D 112, 127 s 126E 112, 127 s 126K 112 s 126K(2) 127 s 128 112, 120 s 128(1) 120 s 128(2) 120 s 128(3) 121 s 128(4) 121 s 128(5) 121, 122 s 128(7) 122 s 130 112, 121, 122, 124, 125 s 130(1) 124 s 130(2) 122 s 130(4)(c) 123 s 130(5) 124, 125 s 130(5)(a) 124, 125 s 130(5)(c) 125 s 130(5)(d) 125 s 130(5)(e) 125 s 131 125 s 131(2) 125 s 131A 112, 113, 114, 118, 120, 122 s 131(a)-(k) 126 s 132 112, 113 s 133 112, 113 s 134 112, 113 s 135 41, 49, 51, 54, 57, 63, 69, 80, 136, 143, 152, 166, 188, 191, 199, 201, 214, 218, 228, 244, 246, 260, 264, 267 s 135(b) 54 s 135(c) 55 s 136 41, 56–7, 63, 80, 136, 142, 143, 188, 199, 264, 200218 s 137 41, 48, 49–50, 51, 52, 53, 54, 57, 63, 69, 80, 91, 109, 136, 143, 149, 155, 165, 166, 181, 191, 214, 218, 242, 244, 246, 250, 262, 264, 267, 269 s 138 41, 57, 59, 61, 63, 113, 161, 168, 175, 176, 177, 178, 264 s 138(1) 58, 59

TABLE OF STATUTES

s 138(2) 168 s 138(3) 58, 60 s 138(3)(a) 60 s 138(3)(b) 60 s 138(3)(c) 60, 177 s 138(3)(d) 60 s 138(3)(e) 60 s 138(3)(f) 60 s 138(3)(g) 60 s 138(3)(h) 60 s 139 161, 168, 177 s 140 3, 19, 29 s 140(2) 30 s 141 19 s 141(1) 22 s 141(2) 22 s 142(1) 1, 10, 171 s 144 19, 33, 34 s 146 32, 99, 101 s 146(2) 101 s 147 32, 99, 101 s 147(2) 102 s 147(3) 102 s 152 102 s 153 33 s 154 33 s 155 33 s 156 33 s 157 33 s 158 33 s 159 33 s 160 33 s 161 33, 153 s 162 33 s 164 67, 86 s 164(3) 86 s 165 67, 86, 87, 89, 90, 139, 256, 264, 265, 267 s 165(1) 87, 265 s 165(1)(a) 87 s 165(1)(b) 265 s 165(1)(c) 89 s 165(2) 86, 87 s 165(5) 86, 265 s 165A 67, 86, 89 s 165A(2) 89 s 165B 67, 86 s 165B(2) 86 s 170 101 s 171 101 s 172 101 s 173 101 s 177 199

s 177(2) 199 s 178 202, 217 s 179 217 s 180 217 s 184 177 s 189 41, 44 s 192 41, 46, 47, 63, 80, 216, 222, 231 s 192(2) 47, 72 s 192(2)(a) 46 s 192(2)(b) 46 s 192(2)(c) 46 s 192A 47, 63, 226

Australian Capital Territory Criminal Code 2002 s 310 13 Evidence (Miscellaneous Provisions) Act 1991 ss 54–67 128

New South Wales Crimes Act 1900 s 23A(4) 21 s 52A 60 Criminal Procedure Act 1986 s 281 172 ss 295–306 128 Drug Misuse and Trafficking Act 1985 s 29 21 Evidence Act 1995 ss 126G–126I 128 Evidence Amendment Act 2007

153

Northern Territory Evidence Act 1939 ss 56–56G 128 Police Administration Act 1979 ss 139–143 172

Tasmania Evidence Act 2001 s 85A 172 s 127B 128

Victoria Crimes Act 1958 s 464H 172 Evidence (Miscellaneous Provisions) Act 1958 ss 32AB–32G 128

283

284

INDEX adducing evidence 3, 35, 45, 67–90, 91, 202 character evidence 223–8 disposition evidence 220, 240, 244 documentary and real evidence 99, 100, 104 grant of leave 216, 218 hearsay 136, 140, 142, 153 privilege 113, 114, 116, 118, 125, 126 adjectival law 2 admissibility of evidence 3, 44–5 admissions see admissions Chapter 3, overview of 137 character see character evidence civil judgments 203–4 coincidence see coincidence rule credibility see credibility evidence criminal convictions 202–3 disposition evidence see disposition evidence documentary evidence see documentary evidence expert opinion see expert opinion framework 42, 67 hearsay see hearsay rule identification see identification evidence immunity see immunity judicial discretion see judicial discretion (admissibility) opinion see opinion rule privilege see privilege real evidence see real evidence s 56 - relevant evidence 9–10, 112 tendency see tendency rule voir dire see voir dire admissions 161–81 common law 162, 164, 168, 169, 170, 173, 174, 175, 177 definition of 162 hearsay rule, exceptions to public policy see public interest s 81, application of 167–8 unfairness see unfairness implied admissions see implied admissions introduction to 161 nature and effect 162–3 reliability see reliability of admissions

statutory recording (criminal cases) 171–3 requirements 172 voluntary, whether see voluntariness of admissions alibi witness 4, 6, 64, 85 ALRC see Australian Law Reform Commission (ALRC) Anshun estoppel 204 Australian Law Reform Commission (ALRC) 2, 3, 7, 19, 50, 72, 89, 144, 149, 151, 223, 224, 243 balance of probabilities 10, 22, 28, 29, 30, 45, 89, 116, 171 beyond reasonable doubt circumstantial evidence 23–7, 241, 249 standard of proof civil cases 29, 203 criminal cases 22, 50, 51, 76, 78, 177, 203, 231, 241 burden of proof 19, 20–2, 68, 76, 79 civil cases 27–9 specific situations 28–9 criminal cases 20–2 evidential burden 20, 35 legal or persuasive burden 10, 20, 35 case in reply 85–6 grant of leave 85 character evidence 223–8 coincidence see coincidence rule common law 226–7 credibility see credibility evidence defendant (criminal case) 223–8 PGM v The Queen 225 s 110 - character of accused persons 223–7 s 112 - leave to cross-examine 227–8 introduction to 211 meaning of 223 overview 223 tendency see tendency rule circumstantial evidence 4, 10, 23–7, 28, 31, 75, 76, 235, 240, 241, 245, 249 Burrell v The Queen 23 links v cable analogy 25 Rees v The Queen 26

INDEX

civil cases burden of proof 27–9 s 140 - standard of proof 29–31 civil judgments 203–4 civil proceedings criminal proceedings, distinguished from 6, 149 first-hand hearsay 145–7 see also civil cases client legal privilege 113–19, 129 client, definition of 115, 116 litigation 114–16 loss or waiver of 116–19 s 118 - legal advice 114 coincidence rule 137, 211, 213, 250 cases not involving 244–5 common law origins of 236 criminal cases 242–4 R v Ellis 243 introduction to 235–6 legislative scheme, in 236–7 s 94, application of 236–7 reasoning re 241–2 s 98 - coincidence rule 240–1 collateral issues rule see finality rule common knowledge 19, 185, 200–2 Cadbury Schweppes v Darrell Lea Chocolate Shops Pty Ltd 201–2 judicial notice, and 33–4 knowledge, definition of 195 opinion rule 200–2 s 144 - common knowledge 33–4 common law 2, 3, 7, 33, 203 admissions 162, 164, 168, 169, 170, 173, 174, 175, 177 character 226–7 credibility 212, 214–15, 216, 219, 220, 222 disposition evidence 237, 239, 242, 243, 246 documentary and real evidence 100, 102, 104, 105, 106 exclusionary rules, origin of 236, 237 hearsay 136, 139, 142, 144, 147, 155 identification evidence 256–8 judicial discretion 48, 53, 58, 61 opinion 186, 188, 194, 197, 198, 201 presumptions 31, 32

privilege and immunity 113, 118, 120, 122 standard of proof 22, 29 witnesses 70, 74, 81, 86, 87 conduct of trial adversarial process 70–86 cross-examination see cross-examination examination in chief see examination in chief re-examination see re-examination confession see admissions confidentiality public interest 122, 123, 124, 125 sexual assault counselling 128 see also client legal privilege; journalists’ privilege; professional confidential relationships context evidence see relationship or context evidence contract law 2, 27, 35 court proceedings civil see civil proceedings criminal see criminal proceedings credibility evidence 212–23 common law 212, 214–15, 216, 219, 220, 222 credibility evidence, definition of 213, 214, 222 credibility of witness, definition of 212 credibility rule 213–15 exceptions see exceptions to credibility rule defendant (criminal case) 221–3 introduction to 211 overview 212–13 s 101A - credibility evidence 213 see also character evidence criminal cases burden of proof 20–2 s 141 - standard of proof 22–3 criminal convictions 202–3 criminal proceedings civil proceedings, distinguished from 6, 149 order of 43 see also criminal cases criminal record 13, 14, 64, 257, 262 Criminal Trial Thread Scenario admission 178–81

285

286

INDEX

Criminal Trial cont. case statement 13 coincidence evidence 250–2 credibility 229–31 criminal record 14 defence counsel, initial instructions to 14 identification evidence 267–9 indictment 13 introduction to 12–15 opinion evidence 205–7 tendency evidence 250–2 view, application to 107–9 witnesses, examination of 91–3, 155–7 see also study tips cross-examination 37, 44, 46, 48, 70, 74, 75, 79, 81–4, 88, 91, 102, 105, 113, 120, 139, 147, 148, 155, 157, 166, 173, 178, 231, 250, 252, 267 Browne v Dunn, rule in 83–4 credibility rule, exceptions to 215–20 defendant, credibility of 220, 221–3, 224 opinion 190, 191, 199, 200, 205 10 commandments 82 defence see Criminal Trial Thread Scenario defendant admissions 168 character 45, 224, 225, 226, 227–8 credibility 220, 221–3, 224 degree of proof see standard of proof demonstrations see views and demonstrations direct evidence 4, 26, 27, 75, 77, 246 directions to jury see warnings or directions (by judge) discretionary exclusion see judicial discretion disposition evidence 90, 189, 211–31, 235–52 character see character evidence coincidence see coincidence rule common law 237, 239, 242, 243, 246 credibility see credibility evidence introduction to 211, 235–6 tendency see tendency rule weight of evidence 218, 220, 223, 225, 239 documentary evidence 4, 5, 99–103, 147, 149, 151 authenticity of document 101–3 s 58 - relevance, inferences as to 102–3 common law 100, 102, 104, 105, 106 contents

proof of 100–1 secondary evidence 100–1 document, definition of 100 introduction to 99–100 real evidence, distinguished from 104 see also real evidence Evidence Acts see uniform Evidence Acts evidential burden of proof 20, 35 examination in chief 70–81 evidence, failure to call 74–9 Azzopardi v The Queen 76, 77–8 leading questions 71–3 definition of 71 refreshing memory 73–4 s 38 - unfavourable witness 79–81 10 commandments of 73 exceptions to credibility rule 215–21 finality rule 216–18 exceptions to 217–18 R v Selsby 219 s 108A - previous representation 220–1 exceptions to hearsay rule 141–57 admissions 161, 166–8 business records 151–3 Vitali v Stachnik 152 first-hand hearsay see first-hand hearsay health, feelings and state of mind 150–1 other exceptions 153–4 previous representation, original use of 142–4 Lee v The Queen 144 exceptions to opinion rule 188–200 expert opinion see expert opinion s 78 - lay opinion 188–91 Partington v R 190 s 77 - multiple relevance 188 s 78A - Aboriginal and Torres Strait Islander laws and customs 191–2 exclusionary rules 3, 7, 9, 42, 56, 61, 81, 99, 105, 122, 203, 246 character see character evidence coincidence see coincidence rule credibility see credibility evidence disposition see disposition evidence hearsay see hearsay rule identification see identification evidence opinion see opinion rule public interest see public interest

INDEX

relationship or context see relationship or context evidence tendency see tendency rule experiments see views and demonstrations expert opinion 192–202 admissibility, requirements for 193 hearsay rule, and 200 specialised knowledge see specialised knowledge fact fact finding/finder 1–2, 4, 9, 10, 25, 41, 44, 45, 50, 54, 104, 113, 140, 188, 191, 192, 196, 199, 201, 212, 237, 241, 258, 264 opinion, distinguished from 185, 186–7, 205 R v Drollett 187 finality rule 216–18 exceptions to 217–18 first-hand hearsay 145–50 civil proceedings 145–7 criminal proceedings 147–50 R v Ambrosoli 148 good character 223–8 grant of leave 3, 45–7, 72, 73–4, 77, 83, 84, 219, 221 adducing evidence 216, 218, 219, 221 case in reply 85 character of defendant 45, 227–8 credibility of defendant 221, 222–3 reopening case 85 s 192 - on terms 46 s 38 - unfavourable witness 79–80 Stanoevski v The Queen 46–7 hearsay rule 5, 56, 135–57, 200, 223, 226 common law 136, 139, 142, 144, 147, 155 criminal convictions 202–3 exceptions to see exceptions to hearsay rule expert opinion, and 200 introduction to 135–7 Part 3.2, overview of 138 rationale 138–41 s 50(1) - previous representation 139–41 weight of evidence 147, 149, 152

identification evidence 8, 88, 137, 186, 187, 195, 256–69 common law 256–8 comparison evidence 264 definition and interpretation 258–9, 265, 267 Trudgett v R 258–9 description evidence 264 identification parade 257, 259–61, 267, 269 introduction to 256–8 other kinds of 264–5 recognition evidence 264 s 116 - direction to jury 262–3 content of caution 263 Dhanhoa v The Queen 263 R v Rose 265 s 115 - picture identification, exclusion of 261–2 s 114 - visual identification, exclusion of 259–61 immunity 88, 250, 252 common law 113, 118, 120, 122 public interest see public interest use-immunity certificate 121, 122, 129 see also privilege implied admissions 163–6 flight and lies 165–6 s 88 - evidence of silence 164–5 indictment 13, 91, 241, 243 inferences, drawing 1, 4, 5, 10–11, 51, 55, 120, 144 authenticity of document 102–3 circumstantial evidence 24–6, 27, 28 disposition evidence 213, 236, 239, 240, 241, 245, 246, 248 flight and lies 165 opinion 185, 186, 188, 189, 196 proof and presumptions 29, 31, 32, 35 silence 163–5 views, demonstrations etc 106 witnesses 74–5, 76, 77, 78, 79, 83, 84 inspections see views and demonstrations insurer 6, 46, 118 International Covenant on Civil and Political Rights (UN) 57, 170 issue estoppel 204

287

288

INDEX

journalists’ privilege 126, 127–8 judge discretion see judicial discretion functions of 44 introduction to 41–3 jury, warnings or directions to see warnings or directions (by judge) role and powers 45–7 voir dire see voir dire judicial discretion admissibility see judicial discretion (admissibility) common law 48, 53, 58, 61 reopening of case 85 s 42 - cross-examination 81, 227 s 53 - views, demonstrations etc 105 judicial discretion (admissibility) 3, 7, 9, 10, 41, 47–64, 74, 136, 137, 142, 243, 257, 260 criminal history 222, 223 good character 223–8 public interest 123–4, 175–7 s 90 - unfairness 173–5 Em v The Queen 174–5 s 135 - general discretion 57, 63, 69, 80, 136, 143, 152, 166, 168, 188, 191, 199, 201, 214, 218, 228, 244, 246, 260, 264, 267 misleading or confusing 49, 54–5 undue waste of time 49, 55 unfair prejudice 49, 50–3, 56 s 138 - improperly or illegally obtained evidence 57–61, 63, 64, 113, 138, 175, 176–7, 178, 264 R v Haughbro 59–60 Robinson v Woolworths Ltd 59 s 136 - limit to use of evidence 56–7, 63, 142, 143, 188, 199, 200, 218, 264 s 137 - unfair prejudice (criminal cases) 48, 49–50, 51–3, 54, 57, 63, 91, 109, 147, 155, 165, 242, 244, 250, 261, 262, 269 R v Lisoff 50–1 warnings or directions see warnings or directions (by judge) see also probative value judicial notice 33–4 jury functions of 44 views and demonstrations see views and demonstrations

warnings or directions to see warnings or directions (by judge) leading questions 71–3 definition of 71 leave see grant of leave legal burden of proof 10, 20, 35 legal professional privilege see client legal privilege matters of state see public interest onus of proof see burden of proof opinion rule 185–207 common law 186, 188, 194, 197, 198, 201 criminal convictions 202–3 exceptions to see exceptions to opinion rule fact and opinion distinguished 185, 186–7, 205 R v Drollett 187 introduction to 185–6 Part 3.3, overview of 186 s 76 - opinion rule 187–8 s 80 - ultimate issue and common knowledge 200–2 Cadbury Schweppes case 201–2 weight of evidence 189, 191, 192, 197, 198 original evidence 5, 155 permission see grant of leave persuasive burden of proof 10, 20, 35 presumptions 3, 19, 21, 31–3, 35, 101–2, 142, 153, 245 common law 31, 32 conclusive or irrebuttable 31 innocence, of 21 introduction to 19 persuasive or rebuttable 31 rebuttable presumptions of fact 31 specific presumptions 32 previous representation 82, 162, 167–8 credibility 220–1 hearsay rule 139–41, 145, 151 criminal cases 147–50 original use of 135, 142–4 Lee v The Queen 144 privilege 112–31 client legal privilege see client legal privilege

INDEX

common law 113, 118, 120, 122 introduction to 112 journalists’ privilege 126, 127–8 nature and operation 112–13 professional confidential relationships 112, 126–7 self-incrimination, against 112, 113, 120–2 settlement, in aid of 125–6 sexual assault counselling 128 see also immunity probative value 5, 6, 7, 24, 72, 85, 90, 127, 128, 139 character of defendant 224, 227, 228 coincidence rule 240–1, 244 credibility of witness 214, 215 definition of 47–8, 238 discretionary exclusion 49–50, 56, 57, 58, 60–1, 152, 155, 181, 191, 200 identification evidence 263, 264, 269 misleading or confusing 49, 54–5 opinion 190–1 tendency rule 228, 238–40, 244 undue waste of time 49, 55 see also judicial discretion procedural law 2, 3 proceedings see civil proceedings; criminal proceedings professional confidential relationships 112, 126–7 proof 1, 3, 5, 12, 19–37 burden of see burden of proof circumstantial evidence see circumstantial evidence common knowledge see common knowledge introduction to 19 judicial notice 33–4 presumptions see presumptions provisional relevance, and 9 standard of see standard of proof weight of evidence, and 10, 22, 25 propensity see tendency rule prosecution see Criminal Trial Thread Scenario public interest 112, 122–5, 127 Chapman v Luminis Pty Ltd 124–5 circumstances 123–4 confidentiality 122, 123, 124, 125 exclusion of evidence

s 130 123–4 s 138 175–7 R v Dalley 176–7 public policy see public interest re-examination 70, 72, 84, 91, 217, 218, 219 s 39 - limits on 84 real evidence 5, 99, 100, 104, 106, 212 common law 100, 102, 104, 105, 106 documentary evidence, distinguished from 104 views, demonstrations etc see views and demonstrations see also documentary evidence relationship or context evidence 235, 244, 246–9, 250 Qualtieri v The Queen 247–8 standard of proof 248–9 relevance 1, 6–9, 10, 91, 100, 103, 105, 107, 136, 155, 178, 190, 214, 227, 231, 238, 246, 247, 249, 250 authenticity of document 102–3 definition of 6, 7, 47 judicial discretion 47–8, 49, 55, 201, 224 provisional relevance 9 relevance test 3, 56, 136, 239 s 58 - inferences as to relevance 102 s 77 - multiple relevance 188 s 55 - relevant evidence 6, 7–8, 47, 55, 136, 201, 212, 246, 264 Smith v The Queen 8 reliability of admissions 169–71 s 85 - reliability 171 s 84 - violence, oppressive conduct etc 170–1 interpretation 170 reopening case 85–6 grant of leave 85 res gestae 147 res ipsa loquitur 28 res judicata 204 self-incrimination, privilege against 112, 113, 120–2 sexual assault counselling 128 silence see implied admissions similar fact evidence see coincidence rule specialised knowledge 192–200 admissibility, requirements for 193 field of knowledge 194–6

289

290

INDEX

specialised knowledge cont. R v Tang 195–6 opinion based wholly or substantially on 196–9 Makita (Australia) Pty Ltd v Sprowles 197–8 s 79 - specialised knowledge 192 training, study or experience, based on 192–4 standard of proof 19, 22–3, 24, 37, 119 balance of probabilities 10, 22, 28, 29, 30, 45, 89, 116, 171 beyond reasonable doubt see beyond reasonable doubt common law 22, 29 context evidence 248–9 s 140 - civil cases 29–31, 33, 35, 45 s 141 - criminal cases 22–3 study tips authenticity of document 103 coincidence evidence 244 context evidence 249 credibility evidence 213, 220 cross-examination 82 evidence, failure to call 79 evidence in chief 73 expert witness 193, 199 hearsay rule, exception to 150 involuntary/unreliable admission 173 judicial discretion 56, 136 lies, evidence of 166 previous representation 141 public interest 61 re-examination 84 relationship evidence 249 relevance 136 tendency evidence 238, 244 unreliable evidence 90 visual identification 261 see also Criminal Trial Thread Scenario substantive law 2, 19, 31 tendency rule 81, 137, 211, 213, 235–40, 250 cases not involving 244–5 R v Player 245 character (criminal cases) 223, 226, 227, 228 common law origins of 236 context evidence 246–9 criminal cases 242–4 R v Ellis 243

introduction to 235–6 legislative scheme, in 236–7 s 94, application of 236–7 probative value 228, 238–40, 244 reasoning re 241–2 s 97 - tendency rule 237–40, 250 The Interview (film) 161 tort law 2, 23, 30, 117 trial conduct of see conduct of trial criminal see Criminal Trial Thread Scenario types of evidence 6 ultimate issue 200–2 Cadbury Schweppes v Darrell Lea Chocolate Shops Pty Ltd 201–2 unfair prejudice (criminal cases) 48, 49–50, 51–3, 54, 57, 63, 91, 109, 147, 155, 165, 242, 244, 250, 261, 262, 269 probative value 49, 50–3, 64, 91, 109, 136, 236, 242, 243, 247, 250, 261 R v Lisoff 50–1 unfairness 46, 51, 120, 121, 161, 223 Em v The Queen 174–5 s 90 - discretionary exclusion 173–5 uniform Evidence Acts classification of evidence 4–5 introduction to 1–2 procedural law, as 2, 3 sources 2–5 structure 3 unreliable evidence 86–90 categories of 87–9 s 165 - warnings or directions 3, 42, 67, 86–90, 139, 264–5, 267 views and demonstrations 5, 104–6, 197 Evans v The Queen 105–6 s 54 - real evidence, as 106 voir dire 3, 41, 44–5, 48, 52, 64, 68, 170–1, 173, 178, 205 voluntariness of admissions 169–71 s 84 - violence, oppressive conduct etc 170–1 interpretation 170 s 85 - reliability 171 warnings or directions (by judge) 10, 23, 43, 83, 174, 227, 247 Azzopardi direction 78 Christie direction 48

INDEX

Edwards direction 166 Jones v Dunkel direction 78–9 judicial role and powers 45–7, 48, 52, 56 s 116 - identification evidence 256–7, 258, 259, 260, 262–3 content of caution 263 Dhanhoa v The Queen 263 s 165 - unreliable evidence 3, 42, 67, 86–90, 139, 264–5, 267 categories of 87–9 Shepherd direction 26 see also exclusionary rules weight of evidence 6, 8, 10, 42, 44, 46, 48, 50, 51, 53, 54, 77, 83, 87, 116, 147, 149, 152, 162 disposition evidence 218, 220, 223, 225, 239 hearsay 147, 149, 152 opinion 189, 191, 192, 197, 198 proof, and 10, 22, 25, 101, 103, 104

witnesses 1, 3, 67–98 adducing evidence see adducing evidence adversarial trial process 70–86 alibi see alibi witness calling 9, 76, 80, 81–2, 83, 85, 146, 218, 231 classification of evidence 4–5, 6 common law 70, 74, 81, 86, 87 competence and compellability 67–9 competency test 68 cross-examination see crossexamination examination of see examination in chief expert see expert opinion introduction to 67 re-examination see re-examination unreliable see unreliable evidence

291

Your guide to the essentials of uniform evidence law. Learn how to link the key concepts from your lectures, textbooks and tutorials to get the most from your study, improve your knowledge of law and develop legal problem-solving skills. This guidebook will help you navigate through the fundamental points of uniform evidence law using: • clear and concise explanations of what you need to know • cases, sections and statutes to remember • study and advocacy tips • assessment preparation sections • diagrams and tables to help explain difficult concepts and complex material • a Criminal Trial Thread Scenario running throughout most chapters. John Anderson is Associate Professor in the Newcastle Law School, University of Newcastle. Anthony Hopkins is a barrister at Burley Griffin Chambers and a sessional lecturer at the University of Canberra.

ISBN 978-0-19-552380-5

9 780195 523805